FYI: 4th Cir Upholds Dismissal of Unconscionablity Claim as Preempted Under HOLA, But Reverses as to Fraud Claim

The U.S. Court of Appeals for the Fourth Circuit recently ruled that the federal Home Owners' Loan Act preempted a borrower's state-law claim of unconscionablity in the origination of her home mortgage loan, but that HOLA did not preempt her claim for fraud. 

 

In so ruling, the Court reasoned that the unconscionablity claim was based on alleged acts that fell squarely within the realm of preempted loan origination activities, but that, because state regulation of deceptive commercial practices only incidentally affected lending and was thus outside the scope of federally-regulated banking activities, borrower's fraud claim was not preempted.

 

A copy of the opinion is available at:  http://www.ca4.uscourts.gov/Opinions/Published/121181.P.pdf.

 

Plaintiff borrower ("Borrower") purchased a home on a land contract, and in an effort to obtain financing to pay off the land contract, contacted a bank for a different loan.  The property appraiser allegedly appraised the home at a value substantially higher than its actual value, and the bank offered Borrower a mortgage loan for the full amount of the appraisal.    The Borrower obtained an adjustable rate mortgage with an interest rate that could go up over 15%.   Struggling to make her loan payments, Borrower ultimately declared bankruptcy.

 

Borrower later filed a lawsuit against the owner of the loan as well as the successor to the bank that originated the loan ("Originating Bank"; collectively the "Defendants"), alleging unconscionablity and fraud.   With regard to the unconscionablity claim, the complaint alleged among other things that the loan was induced by an inflated appraisal and the terms of the loan were substantively unfair.  As to fraud, Borrower claimed that Originating Bank misrepresented the value of her property for the purpose of inducing her into the loan agreement, that Borrower reasonably relied on the representation, and that she was harmed as a result.

 

The Defendants removed the case to federal district court and moved to dismiss.  The district court dismissed each of Borrower's claims, ruling that they were preempted by the federal Home Owners' Loan Act.   Borrower appealed.

 

The Fourth Circuit affirmed in part, reversed in part, and remanded.

 

As you may recall, HOLA's implementing regulation ("Regulation") provides that the Office of Thrift Supervision ("OTS") "occupies the entire field of lending regulation for federal savings associations."  12 C.F.R. § 560.2(a).  

 

In addition, the Regulation provides that "federal savings associations may extend credit as authorized under federal law . . . without regard to state laws purporting to regulate or otherwise affect their credit activities . . . " and that "without limitation," states are preempted from regulating the following aspects of loans:  "(3) Loan-to-value ratios; (4) The terms of credit, including amortization of loans and . . . . adjustments to interest rate . . . including the circumstances under which a loan may be called due and payable . . . . (9) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents . . . . (10) Processing, origination, [or] servicing . . . of . . .  mortgages[.]"  12 C.F.R. §560.2(b).

 

Finally, the Regulation expressly provides that certain state laws, including contract and tort law, are not preempted "to the extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section."  12 C.F.R. §560.2(c).

 

Pointing out that the Regulation governed this case because it was in effect at the time Borrower entered into her mortgage agreement, the Fourth Circuit applied the preemption analysis set forth by OTS while keeping in mind that HOLA and the Regulation were not intended to preempt state laws providing the basic norms of commercial transactions. See 12 U.S.C. §§ 5412, 5413(abolishing OTS and vacating its regulations, but not retroactively).

 

Thus, in addressing the unconscionablity claim, the Fourth Circuit rejected Borrower's contention that the acts alleged in her complaint should be viewed as a whole, and that they demonstrated that she was unconscionably induced into an unfair contract.  As the Court explained, the Regulation instead required an examination of each component of Borrower's unconscionablity claim and each of the acts she challenged fell squarely into Section 560.2(b)'s list of activities that states are preempted from regulating. 

 

Specifically, in examining each aspect of the unconscionablity claim, the Fourth Circuit concluded: (1) the allegedly hurried closing fell within the bank's "[p]rocessing, origination, servicing . . . of mortgages"; (2) the allegation that the loan was induced  by an inflated appraisal was governed by the Regulation's provisions governing disclosures and advertising and loan origination; (3) the allegation that the loan was unconscionable because the loan exceeded the value of Borrower's home came under the Regulation's "loan-to-value ratios" and "terms of credit" provisions; and (4) the claim that the  adjustable interest rate feature of the loan was unconscionable was preempted by the Regulation's provision governing "terms of credit, including . . . adjustments to the interest rate." 

 

The Court therefore ruled that dismissal of Borrower's unconscionablity claim was proper given that her allegations as to unconscionablity all fell under the list of preempted banking activities.

 

Turning to Borrower's fraud claim, the Fourth Circuit noted first that the Defendants mischaracterized the nature of the fraud claim by equating it to an allegation that they failed to disclose the loan-to-value ratio, which would be covered by the Regulation.  Rather, in the Court's view, Borrower's fraud claim did not relate to the loan-to-value specifically, but to her being intentionally "misled regarding a component of that ratio," which, the Fourth Circuit concluded, fell outside the scope of the Regulation.

 

Next, having concluded that the fraud claim fell outside the scope of the Regulation, the Court sought to determine whether the fraud claim "only incidentally" affected Defendants' lending operations under Section 560.2(c).   In so doing, the Court noted in part that HOLA did not preempt state tort law governing commercial transactions, including state laws regulating deceptive practices, and, quoting from an OTS Opinion Letter, noted further that, although "a state deceptive practices statute . . . 'may affect lending . . . [, a] general prohibition on deception should have no measurable impact on . . . lending operations.'" 

 

Thus, the appellate court ruled that Borrower's fraud claim only incidentally affected lending and was therefore not preempted. 

 

The Fourth Circuit also rejected Defendants' assertions that Borrower failed to state a claim for fraud or that she failed to plead it with sufficient particularity.  Pointing out that Borrower alleged each element of fraud and with the requisite particularity and that Defendants were made aware of the particular circumstances constituting the alleged fraud, the Court ruled that Borrower's complaint properly stated a claim for fraud.

 

Accordingly, the Fourth Circuit concluded that the lower court properly dismissed the claim for unconscionablity on preemption grounds, but reversed its dismissal of the fraud claim.

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

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FYI: 7th Cir Rules "Net Trebling" Applies to False Claims Act, with Base Damages at Amount Paid on Guaranty Less Value of the Collateral

Reversing the lower court in a case involving alleged fraud in procuring federal mortgage loan guarantees, the U.S. Court of Appeals for the Seventh Circuit recently ruled that the proper calculation of treble damages for violations of the federal False Claims Act was a "net trebling" approach rather than a "gross trebling" approach, thus applying the traditional contract measure of damages to the federal government's claims. 

 

However, the Court upheld the lower court's ruling as to the issue of the defendants' liability, concluding that they had the requisite state of mind under the FCA in knowing that statements made to the federal government were false, given that the defendants used bogus certificates indicating that down payments had been made on the properties securing the loans and had misrepresented that the defendants had not paid anyone for business referrals.  A copy of the opinion is attached.

 

Defendants, a mortgage company ("Mortgage Company") and its CEO ("CEO"; collectively, the "Defendants"), supposedly violated the federal False Claims Act ("FCA") by making fraudulent representations in the process of applying for federal guarantees on a number of mortgage loans.  Specifically, Defendants supposedly used bogus certificates falsely showing that down payments were made when Defendants knew that the down payments had in fact not been made.  Additionally, Defendants falsely represented that Mortgage Company had not paid anyone for referring clients to it.

 

Concluding that the Defendants made false claims against the federal government, the lower court imposed treble damages under the FCA on eleven claims, using a "gross trebling" calculation method.  In so doing, for each subject property, the lower court added up the amount the federal government had paid to a lender under a loan guarantee and trebled that total.  Next, the court subtracted the amount realized from the sale of the property that secured the loan.  According to the lower court, the result, plus the applicable penalty, represented the amount of treble damages sustained by the government on each property.  Defendants appealed as to both liability and the amount of damages awarded.

 

The Seventh Circuit affirmed as to Defendants' liability, but reversed as to the gross trebling calculation method used to determine damages, and remanded.

 

As you may recall, under the FCA, the mens rea required to impose liability consists of either actual knowledge that material statements were false, or a suspicion that they were false plus reckless disregard of their accuracy.  See 31 U.S.C. §3729(b)(1)(A).  In addition, the FCA provides for trebling "the amount of damages which the Government sustains" as the result of a false claim.  31 U.S.C. § 3729(a)(1).   

 

Agreeing with the lower court on the issue of liability, the Seventh Circuit pointed out that Defendants made two types of false statements to the federal government:  (1) the use of the bogus certificates; and  (2) representations that they had not paid anyone for referring clients to Mortgage Company.   In so doing, the Court noted that the two statements were factually incorrect and rejected Defendants' assertion that the CEO did not "know" they were false even though the CEO ran the company and was aware that, contrary to federal requirements, Defendants had failed to establish a "controlled business arrangement" to accept payments.

 

With regard to the calculation of damages, while noting that the FCA generally requires treble damages but allows for double damages in certain circumstances which the Court concluded did not apply here, the Seventh Circuit examined Defendants' argument that the damages should have been calculated according to a "net trebling" approach whereby the amount for a which a particular piece of collateral sold should have been immediately subtracted from the amount the federal government paid on a guarantee.  The Defendants argued that this "net" loss number should then be trebled and added to the FCA penalty amount, thus yielding a lower treble damages amount than would otherwise be the case using a trebling calculation method based on so-called "gross loss," the critical distinction between the two methods being the point at which the trebling occurs.

 

Observing that the FCA does not specify whether damages should be calculated according to gross-trebling or net-trebling, the Seventh Circuit pointed out that courts typically employ net trebling.  The Court noted in part that the mitigation of damages is almost universal, and that contract cases involving the delivery of goods traditionally calculate damages based on the difference between the contract price and the price of cover, the difference being the usual contract measure of loss.   

 

The Seventh Circuit therefore rejected the position of the federal government that gross trebling should be employed here and, further, with respect to any collateral that remained unsold, suggested that the parties select a valuation method for those properties.  Stressing that net trebling must be employed, the Court explained that the federal government's loss in this case was the amount paid on the guaranty less the value of the collateral, regardless of whether the collateral was actually sold.

 

Accordingly, the court upheld the lower court's ruling on the Defendants' liability but reversed to the extent that the lower court used the gross trebling method of calculating damages.

 

 

  

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

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FYI: Missouri Sup Ct Rejects Borrower's Attempt to Challenge Foreclosure in Eviction Proceeding

The Missouri Supreme Court recently upheld summary judgment in favor of a purchaser of foreclosed property in an action for unlawful detainer and the dismissal of a borrower's "affirmative defenses" and counterclaims, ruling that, because actions for unlawful detainer are statutorily limited to issues of possession, the lower court properly dismissed the borrower's claims, as they related exclusively to issues of title and the validity of the foreclosure rather than to the purchaser's right to possession.

 

A copy of the opinion is available at:  http://www.courts.mo.gov/file.jsp?id=60548.

 

Borrowers lost their home to foreclosure pursuant to a deed of trust.  In accordance with the terms of the trust deed, Borrowers were provided proper notices of default, foreclosure, and intent to sell the property.  The owner of the loan, the trustee of a pool of securitized mortgage loans ("Trustee"), purchased the property at the foreclosure sale and subsequently sent notice to the Borrowers demanding immediate possession of the property.    Borrowers failed to vacate and Trustee sued for wrongful possession and unlawful detainer. 

 

In their answer, Borrowers asserted a number of "affirmative defenses," including that Trustee lacked standing and could not establish chain of title, the foreclosure was illegal, the note was split from the deed of trust, and Trustee was not a bona fide purchaser.   Seeking damages, Borrowers asserted counterclaims for:  Trustee's alleged negligence in purchasing foreclosed properties that it knew or should have known had been improperly foreclosed upon; Trustee's "unjustly" acquiring title to Borrowers' property; and accounting irregularities in crediting Borrowers' loan payments.  

 

Borrowers also sought a declaratory judgment that: Trustee lacked valid title to the property, that the foreclosure was invalid; Trustee was not a bona fide purchaser for value; and Borrowers had a right to assert "applicable" affirmative defenses and counterclaims.

 

Trustee moved to dismiss the affirmative defenses and counterclaims on the ground that they exceeded the statutory scope of issues permitted to be litigated in an action for unlawful detainer.  Ruling that matters of equity may not be interposed as a defense in an unlawful detainer action, the trial court granted the motion to dismiss. 

 

Trustee also moved for summary judgment on its unlawful detainer claim, which the court granted following Borrowers' response in which they again raised issues related to the validity of Trustee's title.  The trial court awarded Trustee immediate possession and damages.   Borrowers vacated the property, but sought a new trial.  In the subsequent proceedings, Trustee again moved for summary judgment on its unlawful detainer claim, and Borrowers repeated their assertions related to their prior affirmative defenses and counterclaims.  The trial court granted summary judgment in favor of Trustee.

 

Borrowers appealed, arguing among other things that Missouri's unlawful detainer statute was unconstitutional, as it prevented them from asserting their various claims in the unlawful detainer action. 

 

The Missouri Supreme Court affirmed, ruling that issues regarding validity of title are precluded from being resolved in an action for unlawful detainer, but may be raised in a separate law suit.  

 

As you may recall, Missouri's unlawful detainer statute provides: "the complainant shall not be compelled to make further proof of the forcible entry or detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained or unlawfully detained the same."  RSMo § 534.200.  

 

Additionally, the statute states:  "The merits of the title shall in nowise be inquired into, on any complaint which shall be exhibited by virtue of the provisions of this chapter."  RSMo 534.210 

 

Providing an historical overview of unlawful detainer actions in Missouri, the Court noted among other things that such actions, being summary proceedings, traditionally were limited to the question of possession and never addressed questions of ownership or validity of title.  In so doing, the Court stressed repeatedly that claims regarding validity of title or ownership had to be raised in a separate action, pointing out the statutory limitations on the substantive scope of unlawful detainer actions and that Missouri courts have thus prohibited equitable defenses and counterclaims to such actions.  See, e.g., Broken Heart Venture, L.P. v. A&F Rest. Corp., 859 S.W.2d  282, 286 (Mo. App. 1993); V.F.W. Post No. 7222 v. Summerville Saddle Club, 788 S.W.2d 796, 798 (Mo. App. 1990).  

 

Thus rejecting the notion that the limitations are procedural rather than substantive, the Missouri Supreme Court pointed out that the substantive limitations apply regardless of how the defendant raises such issues, whether by affirmative defense, counterclaim, or otherwise. 

 

Turning to Borrowers' argument that Missouri's statutory limitations on the scope of unlawful detainer actions were unconstitutional because they deprived Borrowers of substantive and procedural due process and equal protection, the Court stressed that Borrowers were never barred from litigating issues related to the validity of Trustee's title to the property generally, but that Borrowers were simply barred from doing so within the context of a limited action for possession under Chapter 534.  See Lindsay v. Normet, 405 U.S. 56 (1972)(ruling that Oregon's unlawful detainer statute did not violate due process even where tenant was not permitted to raise equitable or legal challenges).

 

In so ruling, the Missouri Supreme Court rejected Borrowers' various assertions, including the argument that Section 534.210 created an "irrebuttable presumption" that title is proven simply by filing an unlawful detainer action, observing that Section 534.210 merely provides that the validity of title is irrelevant in an action for unlawful detainer.

 

The Court similarly rejected Borrowers' contentions that Missouri rules of procedure trumped the substantive aspects of Section 534.210 and that Section 534.210 prevented them from challenging Trustee's standing to file an unlawful detainer action.  In doing so, the court noted that Borrowers' standing arguments were really "re-packaged" attacks on the validity of title, repeating its observation that such challenges are only prohibited by Section 534.210 to the extent they are, in substance, attacks on the validity of the plaintiff's title and must therefore be raised in a separate suit. 

 

Finally, pointing out that a "foreclosure purchaser's right to possession is based upon the fact of the foreclosure sale as demonstrated by the deed, not on the ultimate validity of the title that the deed reflects," the Court conceded that unlawful detainer actions, designed to be simple and quick, are difficult to contest.   Moreover, the Court concluded that Borrowers, having failed to appeal a judgment in earlier litigation granting Trustee a first lien interest in their property under the deed of trust, were precluded from challenging Trustee's ability to foreclose at this late date.

 

Accordingly, the Missouri Supreme Court affirmed the lower court's judgment, remarking that changes in the policies embodied in Missouri's unlawful detainer statute must be accomplished through legislative means.

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

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FYI: 7th Cir Recognizes, But Limits, "Composite Document" Theory in Article 9 Priority Dispute Involving Missing Security Agreement

The U.S. Court of Appeals for the Seventh Circuit recently rejected a bank's argument that it had, through a subordination agreement with a third-party secured creditor, positioned itself into a superior position over a finance company, because the bank was unable to produce the security agreement between the third-party and the borrower, as required by the Uniform Commercial Code, to provide an accurate description of the specific collateral to which multiple claims were made.

 

In so doing, the Court also ruled that the bank could not invoke the "composite document theory" to support its reliance on a recorded financing statement that merely referred to the collateral and the security agreement generally, as the security agreement was needed to confirm the extent of the security interest that was subordinated to the bank's interest.  A copy of the opinion is attached.

 

Plaintiff finance company ("Finance Company") extended a loan of about $7 million to a coal mining company ("Mining Company") that was secured by Mining Company's coal mining equipment.  Finance Company filed a financing statement.  At the time, however, Mining Company was already in debt to an energy financing company ("Energy Firm").  Mining Company then transferred title to the same mining equipment, subject to Finance Company's security interest in the equipment, to a "special purpose" affiliate of Energy Firm that served as a means of protecting the equipment from seizure by other creditors. 

 

Two years later, defendant bank ("Bank") extended a loan to Mining Company of almost $2 million that was also secured by the same equipment that secured the loans from Energy Firm and Financing Company.  Prior to lending Mining Company the money, Bank discovered a recorded financing statement indicating that Mining Company had given Energy Firm a security interest in all of Mining Company's assets.  Bank filed its own financing statement covering its collateral, but also, to ensure that its security interest had priority over that of Energy Firm, entered into an agreement with Energy Firm whereby Energy Firm agreed to subordinate its interest in the collateral to Bank's security interest.  Bank, however, failed to obtain a copy of the security agreement between Mining Company and Energy Firm regarding Energy Firm's prior loan to Mining Company. 

 

Mining Company eventually defaulted on all the loans, and Bank and Finance Company each sought to enforce their respective security interests in the same collateral.  In so doing, Bank, having taken possession of the assets, eventually sold the assets for $2.5 million, but kept $1.4 million to cover Mining Company's debt to it, and sent a check to Finance Company for the remaining $1.1 million. Finance Company never returned or cashed the check, fearing that cashing the check would constitute a waiver of any objection to Bank's claim of a superior security interest.

 

Financing Company filed suit, alleging that bank converted the proceeds of the sale of the collateral to which Finance Company had a superior secured claim.  The lower court, following a bench trial, granted judgment for Financing Company and awarded it damages of $2.4 million plus pre-judgment interest.  Bank appealed.

 

The Seventh Circuit affirmed, ruling that Bank had converted the $2.4 million in proceeds, and that because of the missing security agreement between Mining Company and Energy Firm, Finance Company's security interest was superior to Bank's.

 

As you may recall, when two or more secured creditors claim conflicting security interests in the same collateral, the creditor who filed his financing statement earlier typically has the senior claim.  See Uniform Commercial Code §9-322(a)(1).  In addition, a security interest is not enforceable unless "the debtor has authenticated a security agreement that provides a description of the collateral."  Uniform Commercial Code § 9-203(b)(3)(A).

 

In rendering its ruling, the Seventh Circuit took particular note of the following:  (1) Bank's claim of priority derived from its dealings with the Energy Firm, because Mining Company and Energy Firm had a pre-existing loan agreement; (2) Energy Firm had transferred its secured interest in the equipment to Bank through the subordination agreement; (3) originally, Energy Firm's security interest was prior and thus superior to Finance Company's secured interest; and (4) but for the subordination agreement, Energy Firm's security interest would have had first priority, Finance Company would have second priority, and Bank would have had third priority. 

 

Moreover, in noting the different priority positions resulting from "complete subordination" and "partial subordination," the Court rejected Finance Company's various arguments that: (1) Finance Company's security interest in Mining Company's equipment was a purchase money security interest that gave it priority over earlier security interests in the same property; and (2) Bank could not have obtained a security interest in Mining Company's assets because the assets no longer belonged to Mining Company but instead to the special purpose affiliate of Energy Firm. 

 

Nevertheless, the Seventh Circuit ultimately concluded that Bank could not satisfy the requirement to produce the security agreement between Mining Company and Energy Firm showing a description of the collateral to which Bank claimed a priority security interest in order to enforce its security interest.   Without that security agreement, the Seventh Circuit emphasized, Bank could not prove:  (a) that Mining Company had a security agreement with Energy Firm that was eventually subordinated to Bank;  (b) the exact nature of the collateral covered by that agreement; or,  (c) whether the collateral included the equipment that Bank took possession of to satisfy its loan. 

 

Although the Seventh Circuit recognized the validity of the so-called "composite document theory" generally, it reasoned that it was inapplicable here, because Bank's recorded financing statement vaguely referred to "all equipment" of Mining Company, but left unclear whether the missing security agreement, required under the UCC, provided a similarly general description of the collateral or whether it itemized the equipment in which Energy Firm had acquired a security interest.   See In re Numeric Corp., 485 F.2d 1328, 1331 (1st Cir. 1973)(allowing substitution for a missing security agreement a financing statement and a signed board of directors' resolution that, together, satisfied the requirements of UCC section 9-203(b)). 

 

Accordingly, noting that financing statements do not create security interests, the Seventh Circuit rejected Bank's attempted use of the composite document theory, reasoning that if Energy Firm's financing statement listed any equipment not specified in the missing security agreement, Energy Firm had no security interest in that equipment that it could subordinate to the Bank's security interest.

 

Thus, the Seventh Circuit ruled that, without the missing security agreement between Mining Company and Energy Firm, Finance Company's security interest in the equipment was prior and superior to Bank's.  Further, the Court ruled that, because Finance Company's security interest extended to any proceeds Bank obtained when it sold the equipment, Bank had converted the proceeds, and that Finance Company was thus entitled to the $2.4 million in damages plus prejudgment interest from Bank.  Accordingly, the Seventh Circuit affirmed the lower court's ruling.

 

 

 

Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mwbllp.com

 

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