In Arthur v. Ticor Title Ins. Co., the Fourth Circuit denied relief to Thomas A. Arthur, Jr. and Jennifer Whitehead (Plaintiffs) in part because they failed to exhaust available administrative remedies before bringing an action in court. Plaintiffs were homeowners in Maryland who purchased title insurance from Ticor Title Insurance Company of Florida when they refinanced their mortgages. They alleged that Ticor charged them rates that were higher than the applicable rates Ticor had on file with the Maryland Insurance Commissioner. As a result, they argued, Ticor unlawfully obtained possession of "money had and received" in violation of Maryland Common Law. They further alleged that Ticor split these excessive charges with its local agents in violation of Section 8 of the Real Estate Settlement Procedures Act ("RESPA"). Judge Andre Davis, for the United States District Court in Baltimore, dismissed both claims. Plaintiffs appealed, and the Fourth Circuit Court of Appeals voted unanimously to affirm.

The Fourth Circuit explained that Maryland Courts recognize a common law cause of action entitled "money had and received" whereby defendants obtain possession of money which, in equity and good conscience, they ought not be allowed to retain. This cause of action was not available to Plaintiffs, however, because by not filing a claim with the Maryland Insurance Commission, they failed to exhaust administrative remedies made available under the Maryland Insurance Code. The Court determined that, when statutory text creates an administrative remedy, there is "a presumption that the administrative remedy is intended to be primary, and that a claimant cannot maintain the alternative judicial action without first invoking and exhausting the administrative remedy." The administrative remedies set forth in the Code were not only required as a matter of law, they were more practical as well. Because Plaintiffs’ claims implicated the unique expertise of the Maryland Insurance Commission, the Commission was better qualified to interpret the complicated provisions of the Insurance Code.

Plaintiffs were also unsuccessful in asserting their second claim, that Ticor violated RESPA by overcharging Plaintiffs and splitting the charges with local agents. Section 8(b) of RESPA provides: "No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed." The Court determined that the statute only prohibits giving and accepting portions of a charge for services not actually performed, while in Plaintiffs’ case, Ticor allegedly overcharged for services that were undoubtedly performed. Ticor and its agents performed various services in connection with Plaintiffs’ purchase of title insurance, including title searches, issuing policies on Ticor’s behalf, and other related closing services. The Court’s holding was consistent with other Circuit Courts which have consistently held that RESPA "is not a broad price-control provision." Ticor’s alleged misconduct aside, the Fourth Circuit was unwilling to read into the statute a judicially-mandated remedy that Congress specifically did not impose.

Before issuing its holding, the Court recognized the possibility that the plaintiffs legitimately deserved to recover damages. "While the law is not indifferent to the abuses plaintiffs allege," the Court commented, "plaintiffs have chosen the wrong statute and the wrong forum in which to press their case." Arthur v. Ticor Title Ins. Co. thus offers a stern warning: by not exhausting mandatory statutorily-created remedies, courts may be unable to rule on the substantive portions of a plaintiff’s claim. In order to avoid the passing of applicable statute of limitations, one should always consult an attorney as early as possible. Otherwise, statutory remedies may not be available if time is wasted on ineffective litigation.