Chicago Title Insurance Company v. Remaj, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHICAGO TITLE INSURANCE
COMPANY,
Plaintiff,
v.
REMAJ, LLC,
Defendant.
Case No. 2:25-cv-1199
JUDGE DOUGLAS R. COLE
Magistrate Judge Vascura
OPINION AND ORDER
REMAJ, LLC, fell for an elaborate scam to buy land that was never for sale,
from a person who didn’t own it. In hindsight, multiple persons involved could have
(and perhaps even should have) spotted the red flags and uncovered the purported
seller’s scheme before REMAJ’s escrow agent wired over $1 million to the fraudster’s
bank in Vietnam. But the only question here is whether Chicago Title Insurance
Company plausibly bears any liability for the transaction under the theories set forth
in any of REMAJ’s counterclaims. At least as currently pleaded, the answer is no.
This suit started when Chicago Title filed for a declaratory judgment regarding
its obligations to REMAJ regarding that real estate transaction. More relevant to this
Opinion and Order though was REMAJ’s response to that lawsuit. In addition to
answering, REMAJ asserts six counterclaims against Chicago Title: (1) professional
negligence, (2) negligence, (3) breach of fiduciary duties, (4) breach of the escrow
agreement, (5) breach of the ALTA commitment, and (6) a declaratory judgment
action regarding Chicago Title’s obligation to issue a title policy to REMAJ relative
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to the land sale. (Doc. 8, #182–92). REMAJ pleads counterclaims four, five, and six in
the alternative to the first three counterclaims. (Id.). Chicago Title has now moved to
dismiss those counterclaims on various grounds. (Doc. 18). As described below, the
Court GRANTS that motion and therefore DISMISSES all six counterclaims, but
does so WITHOUT PREJUDICE.
BACKGROUND
A. 	The Fraudulent Land Sale.
In May 2025, Kenny Sims and Scott Sims, owners of REMAJ, LLC, wanted to
buy some land. (Answer, Doc. 8, #176). To that end, they saw a real estate listing from
realtor Linda Clagg, which indicated that Vylee Greaves was selling an 86-acre plot
in Franklin County. (Id.). Potentially interested, the Sims asked their realtor, Doug
Tenenbaum, to reach out to Clagg. Shortly thereafter, on May 19, REMAJ entered
into a real estate contract to buy that land for $1,159,137. (Id.; Compl., Doc. 1, #3).
Unfortunately, things were not as they appeared. (Doc. 8, #176). Rather, the
Sims fell victim to an elaborate scheme generally referred to as “Seller Impersonation
Fraud” (SIF). (Id.). In short, the person who claimed to be the owner, Vylee Greaves, 1
who communicated with the Sims and the realtors, and who provided signatures and
other documents, was instead an imposter. (Id.). But by the time the jig was up, it
was too late—the Sims had sent, through the title agent for the deal (Apex Title
1 Vylee Greaves is the record owner of the land at issue, (Doc. 18, #324), but there is no
indication that she had any involvement with the fraudulent land sale. The real Vylee
Greaves is “an approximately 78 year old woman that lives in Encinitas, CA with her
husband, Thomas Greaves.” (Doc 8, #177).
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Agency), more than a million dollars to the fraudsters. To date, REMAJ has not
recovered any of those funds. (Id. at 181).
As buyers typically do when purchasing real property, REMAJ had sought to
acquire title insurance in conjunction with the sale. According to REMAJ, the
purported seller selected Apex Title Agency (Apex) as the title insurance agent. (Doc.
8, #177). On May 15, 2025, four days before REMAJ executed the contract to buy the
property, Apex issued an American Land Title Association (ALTA) Commitment for
Title Insurance to REMAJ on Chicago Title’s behalf. (Id.; Doc. 1, #3; Doc. 8-6, #221
(ALTA Commitment)). The Commitment, which is described in further detail below,
laid out Chicago Title’s obligation to issue a title insurance policy to REMAJ with
respect to Greaves’s land, an obligation that arose only if specific conditions were met.
(See id.; infra Part B).
Over the ensuing two months, Tennenbaum, Clagg, and Scott Briley, Apex’s
owner, communicated with the purported seller and the Sims about the upcoming
closing, though without ever meeting the seller in person. (Doc. 8, #177–80). In
retrospect, it’s unsurprising that the realtors and Briley had trouble obtaining certain
information and documents from the purported seller, 2 who claimed to be in Vietnam
during the relevant period. (Id.). The purported seller, though, did raise one wrinkle.
2 On May 29, Briley requested that the purported seller send a copy of her driver’s license
and passport, but the seller never responded to his request, and it doesn’t appear that Briley
followed up. (Id. at #178, 180; Doc. 8-7, #232). This is the only instance in the record where a
person attempted to verify the purported seller’s identity. On May 22, Briley asked for the
name of the purported seller’s spouse for the deed, to which the seller responded “Sassy
Greaves.” (Doc. 8, #178; Doc. 8-7, #233; see also Doc. 8-8 (general warranty deed signed as
“Santiago Sassy Greaves”)). The spouse of the real Vylee Greaves is named Thomas Greaves.
(Doc. 8, #178).
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According to the seller, a “Carl Martinez” was farming the land under an agricultural
lease. To account for that, Chicago Title’s Commitment required the seller to execute
and record a quit-claim deed and other documents to quiet Martinez’s alleged
interests in the real property before the title insurance policy would issue. (Doc. 8-6,
#224). But the purported seller did not provide those documents (and others) in time
for the June 4 closing date the purchase agreement specified. So the parties pushed
closing to June 17. (Doc. 8, #178; Doc. 8-4, #210 (real estate purchase contract)). After
some additional delays, the purported seller mailed the necessary documents from
Vietnam via DHL. (Doc. 8, #179). These documents included a general warranty deed
purporting to transfer the land to REMAJ. According to the seller, the “U.S. Embassy”
in Vietnam had notarized it. (Id.; Doc. 8-8 (deed)). With documents now in hand, the
parties selected a closing date of July 2, 2025. (Doc. 8, #179).
Consistent with that plan, on July 2 the seller requested a wire transfer
confirmation for the purchase payment. Briley (Apex’s owner) wrote that “WE cannot
fund until we are able to record the Deed with an Approved legal description.” (Doc.
8-7, #268 (Email from Briley to Vylee Greaves and others)). He said he would “let [the
seller] know as soon as the county sends approval.” (Id.). Later that day, Briley again
emailed the purported seller, along with Tenenbaum, Clagg, and the Sims. There he
wrote that “[w]e just received the Approval from the County Engineer on the legal
description,” and he informed the seller that he would wire the payment the next day.
(Id.). At that point, though, the deed had not in fact been recorded (although it seems
that Briley thought it was). In any event, true to his word, Briley wired $1,078,771.86
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to the purported seller’s bank account in Vietnam the next day, July 3. (Doc. 1, #5;
Doc. 8, #181; Doc. 8-7, #270).
Sometime after that wire transfer, the parties learned that the Franklin
County Recorder had declined to record the deed because it was a forgery. (Doc 1, #5–
6; Doc. 8, #181; Doc. 8-8). Nonetheless (or perhaps it would more accurate to say—
spurred by that fact), REMAJ demanded Chicago Title issue the title insurance policy
to REMAJ specified in the Title Commitment, and so it “ostensibly seeks coverage
under” that policy. (Doc. 1, #6).
B. 	The ALTA Title Insurance Commitment.
Because the parties’ dispute centers on their divergent interpretations of the
ALTA Commitment, the Court describes relevant excerpts below to aid its later
discussion.
1. 	Notice
The Commitment’s first page contains a notice that states:
IMPORTANT—READ 	CAREFULLY: 	THIS 	COMMITMENT 	IS 	AN
OFFER TO ISSUE ONE OR MORE TITLE INSURANCE POLICIES.
ALL CLAIMS OR REMEDIES SOUGHT AGAINST THE COMPANY
INVOLVING THE CONTENT OF THIS COMMITMENT OR THE
POLICY MUST BE BASED SOLELY IN CONTRACT.
***
THE COMPANY’S OBLIGATION UNDER THIS COMMITMENT IS
TO 	ISSUE 	A 	POLICY 	TO 	A 	PROPOSED 	INSURED … IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS
COMMITMENT.
(Doc. 8-6, #217).
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2. 	Commitment to Issue Policy
Following the notice is a section titled “COMMITMENT TO ISSUE POLICY,”
which reads:
Subject to the Notice; Schedule B, Part I—Requirements; Schedule B,
Part II—Exceptions; and the Commitment Conditions, Chicago Title
Insurance Company, an Ohio Corporation 3 (the ‘Company’), commits to
Issue 	the 	Policy 	according 	to 	the 	terms 	and 	provisions 	of 	this
Commitment. This Commitment is effective as of the Commitment Date
shown in Schedule A for each Policy described in Schedule A, only when
the Company has entered in Schedule A both the specified dollar amount
as the Proposed Amount of Insurance and the name of the Proposed
Insured. If all of the Schedule B, Part I—Requirements have not been
met within 90 Days after the Commitment Date, this Commitment
terminates and the Company’s liability and obligation end.
(Id.).
3. 	Conditions
The next section lists the “COMMITMENT CONDITIONS,” and states that
Chicago Title “is not obligated to issue the Policy referred to in this Commitment
unless all of the Schedule B, Part I—Requirements have been met to the satisfaction
of [Chicago Title].” (Id. at #219).
The Commitment also declares that “[a]ny claim must be based in contract
under the State law of the State where the Land is located and is restricted to the
terms and provisions of this Commitment.” However, it notes that “[w]hen the Policy
is issued, all liability and obligation under this Commitment will end and the
Company’s only liability will be under the Policy.” (Id.).
3 The ALTA Commitment erroneously states that Chicago Title is an Ohio corporation. (Doc.
1, #3 n.1; see, e.g., Doc. 8-6, #217). Chicago Title’s complaint attaches a certificate of
incorporation confirming that it is a Florida corporation. (Doc. 1-2, #9).
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Also recall that, here, Chicago Title did not issue the Commitment directly.
Rather, Apex, acting as agent for Chicago Title, did so. The Commitment explicitly
addresses the ramifications of that arrangement as well. In a section that begins “IF
THIS COMMITMENT IS ISSUED BY AN ISSUING AGENT,” the Commitment
states that an issuing agent (here Apex) “is [Chicago Title]’s agent only for the limited
purpose of issuing title insurance commitments and policies. The issuing agent is not
the [Chicago Title]’s agent for closing, settlement, escrow, or any other purpose.” (Id.).
That is, the Commitment states that Apex serves only as Chicago Title’s limited-
purpose agent, not as its general agent.
4. 	Schedule A
As noted above, the Commitment includes a Schedule A which provides various
details relating to the proposed real estate transaction. Apex completed the Schedule
A here to name REMAJ, LLC as the proposed insured for land in fee simple, and the
schedule further specifies a proposed insurance amount of $1,159,137. It then goes
on to list the effective date for the commitment as May 15, 2025. (Id. at #221). It
describes the title as “vested in Vylee F. Greaves by virtue of an Amended Certificate
of Transfer, filed January 12, 1999 in the Franklin County Probate Court, and
Recorded on January 12, 1999 … [in] the Franklin County Records,” and attaches an
exhibit detailing the property’s boundaries. (Id. at #221–223).
5. 	Schedule B
Schedule B, Part I lists conditions that must be met before Chicago Title will
issue the title insurance policy. Particularly relevant here, the fourth condition states
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that documents “satisfactory to [Chicago Title] that convey the Title or create the
Mortgage to be insured, or both, must be properly authorized, executed, delivered,
and recorded in the Public Records.” (Id. at #224). The Commitment also defines
“Public Records” as:
The recording or filing system established under State statutes in effect
at the Commitment Date under which a document must be recorded or
filed to impart constructive notice of matters relating to the Title to a
purchaser for value without Knowledge. The term “Public Records” does
not 	include 	any 	other 	recording 	or 	filing 	system, 	including 	any
pertaining 	to 	environmental 	remediation 	or 	protection, 	planning,
permitting, zoning, licensing, building, health, public safety, or national
security matters.
(Id. at #218).
C. 	The Lawsuit.
Chicago Title, not REMAJ, initiated this suit under the Court’s diversity
jurisdiction. (Doc. 1, #2). Perhaps foreseeing that REMAJ might try to mitigate its
losses in the underlying real estate transaction through legal action against those
involved, Chicago Title sought a judicial declaration stating that (1) Chicago Title is
not obligated to issue a title insurance policy to REMAJ, and (2) Chicago Title has no
obligation to REMAJ relative to the real property. (Doc. 1, #6).
REMAJ 	answered 	and 	asserted 	six 	counterclaims 	against 	Chicago 	Title
alleging negligence, breach of fiduciary duty, and breach of contract under Ohio law.
(Doc. 8, #182–92). Chicago Title moved to dismiss all six counterclaims under Rule
12(b)(6) for failure to state a claim. (Doc. 18). REMAJ responded, (Doc. 21), and
Chicago Title replied, (Doc. 27). So the matter is ripe for this Court’s review.
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LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a “[counterclaim] must present sufficient facts to ‘state a claim to relief that is
plausible on its face.’” Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319
(6th Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the [proponent] pleads factual content that allows the
court to draw the reasonable inference that the [party against whom the claim is
directed] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In assessing plausibility, the Court “construe[s] the [claim] in the light most
favorable to the [proponent].” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426,
430 (6th Cir. 2008) (cleaned up).
A court analyzing a motion to dismiss under Rule 12(b)(6) generally must
confine its review to the pleadings. Armengau v. Cline, 7 F. App’x 336, 343 (6th Cir.
2001). In the context here, that would generally limit a court to considering the
counterclaim and any documents attached to it. Id. But sometimes a court may
properly consider other things. For example, a court may consider documents that
the counterclaim-respondent attaches to its motion, though only to the extent that
those documents are referenced in the counterclaims. Id. at 344. Or if the pleadings
refer to a written instrument that is integral to the claims, the court may consider it
without converting a motion to dismiss into one for summary judgment. Com. Money
Ctr., Inc. v. Ill. Union Ins., 508 F.3d 327, 335–36 (6th Cir. 2007); Fed. R. Civ. P. 10(c).
“These written instruments are records falling within a narrowly defined class of
legally significant documents on which a party’s action or defense is based. As a
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result, they often create or define legal rights or obligations, or define or reflect a
change in legal relationships.” Anderson v. ABF Freight Sys., Inc., No. 1:23-cv-278,
2024 WL 51255, at *9 (S.D. Ohio Jan. 4, 2024) (cleaned up). Finally, a court can
consider public records or decisions of public agencies. J.P. Silverton Indus. L.P. v.
Sohm, 243 F. App’x 82, 86–87 (6th Cir. 2007).
LAW AND ANALYSIS
Chicago Title moves to dismiss all six of REMAJ’s counterclaims, three of
which sound in tort and three of which sound in contract. It essentially argues that
the Commitment’s existence bars the tort claims and its terms preclude the contract
claims. (Doc. 18). Ultimately, the Court agrees. After starting by assuring itself that
it has jurisdiction, the Court takes each of the six counterclaims in turn.
A. 	The Court Has Diversity Jurisdiction Over This Matter.
The Court starts, as it must, with jurisdiction. This case proceeds under the
Court’s diversity jurisdiction, which has both a diversity requirement and an amount-
in-controversy requirement. The latter is easily met. To proceed in diversity, the
amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a). Here, REMAJ
alleges it has suffered significant financial losses (in excess of $1 million). (Doc. 8,
#192). And if Chicago Title must issue a title insurance policy, the company would
presumably be on the hook for that amount. So its request for a declaration that it
has no such obligation meets the amount in controversy requirement. See Northup
Props., Inc. v. Chesapeake Appalachia, LLC, 567 F.3d 767, 770 (6th Cir. 2009)
(holding that, in a declaratory judgment action, the amount in controversy is
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determined by reference to the value of the declaratory relief the plaintiff seeks)
(citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347 (1977)).
Next 	consider 	the 	diversity 	requirement. 	Section 1332 	requires 	complete
diversity, meaning there can be no overlaps in citizenship on opposing sides of the v.
So what are the relevant citizenships here? Chicago Title is a corporation, meaning
it has citizenship in both its state of incorporation and its principal place of business.
28 U.S.C. § 1332(c)(1). Name notwithstanding, the pleadings state that Chicago Title
is a Florida corporation, (Doc 1, #2; see also Doc. 1-2 (attaching Florida articles of
incorporation)), and it appears that its principal place of business is in Jacksonville,
Florida. (Doc. 1-2, #12 (listing Jacksonville as its principal office)). So it is a citizen of
Florida.
REMAJ, on the other hand, is a limited liability company (LLC). The complaint
alleges that it is registered in Ohio. (Doc. 1, #2). But that is irrelevant. LLCs “have
the citizenship of each partner or member.” V&M Star, LP v. Centimark Corp., 596
F.3d 354, 356 (6th Cir. 2010) (quoting Delay v. Rosenthal Collins Group, LLC, 585
F.3d 1003, 1005 (6th Cir. 2009)). So the key question for diversity jurisdiction
purposes is whether any of REMAJ’s members are citizens of Florida. REMAJ’s
citizenship disclosure statement answers that question. It says that the LLC is
comprised of four individual members: three citizens of Ohio and one citizen of
Illinois. (Doc. 15, #313–14). Thus, jurisdiction is proper under 28 U.S.C. § 1332.
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B. 	REMAJ’s Tort Law Counterclaims Fail.
With jurisdiction out of the way, turn to the counterclaims themselves, starting
with the tort law counterclaims—negligence, professional negligence, and breach of
fiduciary duties. (Doc. #8, #182–90). As to each, REMAJ must plausibly allege duty,
breach, and causation. It fails as to the first, though, so the Court need not consider
the others.
At bottom, REMAJ claims that Chicago Title had a duty to warn it of the
possibility of seller impersonation fraud and to take steps to ensure that REMAJ did
not engage in a fraudulent transaction. But where would such a duty lie? The Court
sees only two possibilities, and neither one works.
First, perhaps it arises from the Title Commitment itself. That is, maybe
REMAJ is claiming that the Commitment imposes duties on Chicago Title, and that
Chicago Title has breached them. In fact, Ohio courts interpret title insurance
commitments as contracts between title insurers and their proposed insured. See,
e.g., Domoney Corp. v. Uslife Title Ins. Co., No. 85AP-318, 1985 WL 10495, at *4 (Ohio
10th Dist. Nov. 5, 1985) (finding no error in denying title insurance policy coverage
“on 	the 	contractual 	basis 	of 	the 	commitment 	for 	title 	insurance” 	because
commitment’s conditions were not satisfied); Gayheart v. Midland Title Sec., 2004-
Ohio-2536, ¶ 22 (5th Dist.) (same).
REMAJ does not dispute that it engaged Apex Title Agency with the purpose
of obtaining a title insurance policy, and that Chicago Title issued its commitment to
issue a title insurance policy as part of those dealings. (See Doc. 8, #177). The
Commitment 	states 	that 	its 	terms 	became 	“effective 	as 	of 	the 	Commitment
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Date … when [Chicago Title] has entered in Schedule A both the specified dollar
amount as the Proposed Amount of Insurance and the name of the Proposed Insured.”
(Doc. 8-6, #217). Schedule A of the Commitment lists a proposed insurance amount
of $1,159,137 and names REMAJ, LLC as the proposed insured, with the result being
that the Commitment took effect on the specified date, May 15, 2025. In short, the
Commitment is a voluntary undertaking that imposes enforceable obligations on
Chicago Title—that sounds a lot like a contract.
Admittedly, as a matter of first principles, one could quibble with that a bit.
After all, the Title Commitment lacks mutuality—it imposes no obligations on
REMAJ, nor does it appear that REMAJ paid Chicago Title in exchange for the
Commitment. So it is likely not a full-blown contract, not even an option contract (as
REMAJ did not pay any consideration for Chicago Title to keep the offer open).
Nonetheless, to the extent that the piece of paper imposes obligations on Chicago
Title at all, those obligations necessarily sound in contract.
But with that understanding, two problems arise. First, “under Ohio law, ‘the
existence of a contract action excludes the opportunity to present the same case as a
tort claim.” Acad. Imaging, LLC v. Soterion Corp., 352 F. Appx. 59, 64 (6th Cir. 2009)
(citation modified) (quoting Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 684
N.E.2d 1261, 1270 (1996)). Second, if the Commitment is an enforceable contract, its
language requires that same result. The Commitment’s own terms explicitly restrict
claims against Chicago Title to those arising in contract law. (Doc. 8-6, #217 (“All
claims or remedies … involving the content of this Commitment … must be based
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solely in contract”); id. at #219 (claim “must be based in contract under [Ohio law]
and is restricted to the terms and provisions of this Commitment”)). In short, REMAJ
cannot rely on any of the obligations set forth in the Commitment as the basis for a
duty to support its tort claims.
In fairness to REMAJ, though, in many ways it does not seem to be relying on
the Commitment’s obligations as the basis for its tort claims. That is, none of the
three counterclaims point to any provision in the Commitment that REMAJ says
Chicago Title breached. Rather, REMAJ simply posits that Chicago Title owed it “the
duty of reasonable care in verifying a seller’s identity; following procedures to identify
SIF and wire fraud; identifying SIF and wire fraud; warning REMAJ of SIF and wire
fraud; and attempting to recover REMAJ’s funds.” (Doc. 8, #188). So perhaps REMAJ
is relying on duties apart from the Commitment. After all, if two parties contract for
yard care services, and one party later drives negligently and harms the other, the
negligent driver cannot point to the contract as a basis for escaping liability. In other
words, duties can arise from sources apart from any contract (or contract-like
arrangement) the parties may have entered.
But that approach does not work for REMAJ here either. To start, while courts
are generally required to treat the allegations in a complaint (or, more accurately
here, a counterclaim) as true, that does not extend to legal conclusions. See Iqbal, 556
U.S. at 678. And the existence of duty is a question of law. See, e.g., Indiana Ins. Co.
v. Midwest Maintenance, Inc., 174 F. Supp. 2d 678, 680 (S.D. Ohio 2001) (citing
Mussivand v. David, 544 N.E.2d 265, 269 (Ohio 1989)). So it is not enough for REMAJ
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to allege that such duties exist. Rather, in response to a motion to dismiss, REMAJ
must show that to be so. Yet REMAJ cannot (or at least does not) point to a single
case suggesting that a party that acts solely as a putative title insurer in connection
with a proposed real estate transaction has a duty, fiduciary or otherwise, to warn its
prospective title insurance customers of the dangers inherent in that transaction. Nor
is the Court aware of any basis under Ohio law to impose such a duty. Indeed, to the
extent that case law speaks to the issue at all, it points the other direction. As another
Ohio federal court observed, “Ohio has not recognized a general fiduciary duty
between a title insurance company and a borrower.” Davis v. Lawyers Title Ins. Corp.,
No. 1:06 cv 357, 2007 WL 782158, at *3 (N.D. Ohio Mar. 13, 2007). True, REMAJ
makes much of the fact that the court there referred to the title insurance company’s
customers as “borrowers,” and it notes that here it paid in cash. (Doc. 21, #355). But
that is a distinction without a difference in deciding whether the title insurance
company has a duty. The Court can conceive of no reason why a title insurance
company would owe a duty if the customer is borrowing to purchase the property, but
not if the customer is paying cash.
Separately, REMAJ’s allegations go on at some length in explaining that
Chicago Title had greater knowledge about the possibility of seller impersonation
fraud. But that doesn’t help REMAJ much either. “Superior knowledge,” in and of
itself, is “insufficient … to establish a special relationship of trust.” Greenberg v. Life
Ins. Co. of Virginia, 177 F.3d 507, 521–22 (6th Cir. 1999).
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Nor does REMAJ fare any better with its efforts to impose tort liability on
Chicago Title based on conduct by Apex and Briley. Throughout its allegations,
REMAJ treats Chicago Title, Apex, and Briley as a unit. It says that this is because
the latter two are agents for Chicago Title, rendering Chicago Title liable for their
conduct under traditional principles of agency law. But under Ohio law, courts “may
determine the … scope of an agency relationship as a matter of law if the relationship
is so clear as to be undisputed.” Fifth Third Mortg. Co. v. Chicago Title Ins. Co., 758
F. Supp. 2d 476, 483 (S.D. Ohio 2010), aff’d, 692 F.3d 507 (6th Cir. 2012). The facts
on the record clearly establish that Apex’s (and Briley’s) agency relationship with
Chicago Title was limited in scope. The Title Commitment itself explicitly disclaims
any agency relationship between Apex and Chicago Title other than “for the limited
purpose of issuing title insurance commitments and policies.” (Doc. 8-6, #219). So, to
the extent that Apex or Briley took on a broader role (e.g., handling or sending
REMAJ’s money), that conduct would not have fallen within the scope of the agency
thus defined. And REMAJ has not pleaded any facts suggesting a broader agency
relationship.
In sum, REMAJ cannot sue in tort based on alleged contractual obligations,
and it has failed to identify any free-standing duty, apart from such contractual
obligations, here. Accordingly, the Court dismisses counterclaims one, two, and three.
C. 	The Court Finds That REMAJ Fails to State Its Contract Law and
Declaratory Judgment Counterclaims.
Nor 	do 	REMAJ’s 	contract 	law 	counterclaims 	or 	request 	for 	declaratory
judgment pass muster. The Court discusses each in turn below.
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1. 	Breach of Implied Escrow Agreement
A contract cannot be breached if it never existed. REMAJ’s fourth counterclaim
fails because neither the Commitment nor the parties’ dealings imply an escrow
agreement between REMAJ and Chicago Title. The record shows that Scott Briley,
not Chicago Title, provided escrow services on Apex’s behalf—acts that included, most
notably, transferring funds to the purported seller. (See generally, Doc. 8-7 (emails
between 	Briley’s 	Apex 	email 	account 	and 	the 	purported 	seller)). 	And 	the
Commitment’s terms expressly disclaim an escrow-via-agency relationship regarding
Chicago Title. 4
REMAJ’s arguments to the contrary are closer to “naked assertions” than they
are to facts sufficient to “state a claim to relief that is plausible on its face.” Iqbal, 556
U.S. at 663, 678. REMAJ baldly asserts that it had “an implied contract for escrow
services” with Chicago Title and Apex, and that, under the implied escrow agreement,
“[Chicago Title], Apex and Briley contracted to accept and disburse funds according
to the parties’ settlement statement and purchase agreement in accordance with
industry standards.” (Doc. 8, #190). But bald assertions are not facts, and the
Commitment’s agency disclaimer and the lack of evidence supporting the existence of
such an implied agreement for escrow services point strongly the other way. (Doc. 18,
#337).
4 Under “IF THIS COMMITMENT IS ISSUED BY AN ISSUING AGENT,” the Commitment
states that an issuing agent “is the [Chicago Title]’s agent only for the limited purpose of
issuing title insurance commitments and policies. The issuing agent is not the [Chicago
Title]’s agent for closing, settlement, escrow, or any other purpose.” (Doc. 8-6, #219).
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As support for its implied-agreement theory, REMAJ alleges that “REMAJ
agreed to pay Plaintiff, Apex and Briley $295 for its escrow services.” (Doc. 8, #190).
But REMAJ’s own exhibits contradict that a $295 payment was made to Chicago Title
for the purpose of providing escrow services. (See Doc. 8-9, #277). There is only one
mention of a $295 payment in the record—a line item in the Settlement Statement
listed as “Settlement or closing fee.” But that fee was paid to Apex, not Chicago Title.
(Id.; see also Doc. 18, #337).
Having found that there are insufficient facts on the record to plausibly imply
an escrow agreement between the parties, the Court grants Chicago Title’s motion to
dismiss REMAJ’s fourth counterclaim.
2. 	Breach of the Commitment
REMAJ’s fifth counterclaim alleges that Chicago Title’s refusal to issue a title
insurance policy or provide insurance coverage breaches its contractual obligations
under the Commitment. (Doc. 8, #191–92). But according to the Commitment’s terms,
Chicago Title’s obligation to issue the policy was contingent on the deed’s proper
recording in the Franklin County Recorder, which the parties agree never occurred.
(Doc 1, #5–6; Doc. 8, #181; Doc. 8-8). Thus, the Court finds that REMAJ has failed to
plausibly allege a breach.
The Commitment states that Chicago Title “is not obligated to issue the Policy
referred to in this Commitment unless all of the Schedule B, Part I—Requirements
have been met to the satisfaction of [Chicago Title].” (Doc. 8-6, #219). And Schedule
B, Part I states that “[d]ocuments satisfactory to [Chicago Title] that convey the Title
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or create the Mortgage to be insured, or both, must be properly authorized, executed,
delivered, and recorded in the Public Records.” (Id. at #224) (emphasis added). “Public
Records” are defined as:
The recording or filing system established under State statutes in effect
at the Commitment Date under which a document must be recorded or
filed to impart constructive notice of matters relating to the Title to a
purchaser for value without Knowledge. The term “Public Records” does
not 	include 	any 	other 	recording 	or 	filing 	system, 	including 	any
pertaining 	to 	environmental 	remediation 	or 	protection, 	planning,
permitting, zoning, licensing, building, health, public safety, or national
security matters.
(Id. at #218).
In sum, the Commitment made Chicago Title’s duty to issue a title insurance
policy conditional on the Franklin County Recorder having recorded documents
conveying title to the land. Because the duty was conditional, Chicago Title was
entitled to demand strict compliance with the condition as a precursor to any duty
arising. See Willison on Contracts, § 44:53 (“[S]ubstantial performance is ordinarily
not applicable to excuse the nonoccurrence of an express condition precedent to a
contract.”). Indeed, as the condition here clearly constitutes “a material part of the
agreed exchange,” that is so even if reliance on that condition would cause a
“disproportionate forfeiture” to REMAJ. See Restatement (Second) of Contracts § 229
(A.L.I. 1981). Against a backdrop where compliance with the condition was necessary,
the allegations show that Apex attempted to record the purported seller’s general
warranty deed (a document that purported to convey title to Greaves’s land) by
submitting it to the Franklin County Recorder. (See Doc 1, #5–6; Doc. 8, #181; Doc. 8-
8). But that office refused to the accept the deed, concluding it was a forgery, meaning
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that the document was never “properly” recorded in the records office. (Id.). Because
REMAJ has not plausibly alleged that the condition occurred, that in turn means that
it has not plausibly alleged that Chicago Title breached its commitment by declining
to 	issue 	a 	policy 	or 	provide 	coverage. 	So 	the 	Court 	dismisses 	REMAJ’s 	fifth
counterclaim.
3. 	Request for Declaratory Judgment
REMAJ’s sixth counterclaim—a request for declaratory judgment—asks the
Court to issue a declaration that Chicago Title “is obligated to issue a Title Policy to
REMAJ relative to the real property and is obligated to insure REMAJ relative to the
transaction and/or failure of title being conveyed to REMAJ.” 5 (Doc. 8, #192). As
discussed above, supra Part C.2, Chicago Title’s promise to issue the policy and
provide coverage was conditional on the proper recording of the deed. REMAJ has not
plausibly 	alleged 	that 	condition 	occurred. 	Additionally, 	this 	claim 	essentially
duplicates REMAJ’s already mature contract claim, so declaratory relief would be
inappropriate in any event. See Moser v. Menard, Inc., No. 1:20-cv-796, 2023 WL
5979263, at *3 (S.D. Ohio Sep. 13, 2023). Therefore, the Court dismisses REMAJ’s
sixth counterclaim.
5 As Chicago Title notes, REMAJ’s last two counterclaims are mirror images of Chicago Title’s
requested declaratory relief. (Doc. 1, #6; see also Doc. 18, #324 n.1). But the Court emphasizes
that this Opinion and Order only addresses Chicago Title’s motion to dismiss REMAJ’s
counterclaims at this time.
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CONCLUSION
For the foregoing reasons, the Court GRANTS Chicago Title Insurance
Company’s (Chicago Title) motion to dismiss each of REMAJ, LLC’s counterclaims
(Doc. 18), and therefore DISMISSES the counterclaims WITHOUT PREJUDICE.
SO ORDERED.
October 13, 2026
DATE 	DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
GLAS R. COLE
TED STATES DISTRICT J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	JU
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