Lender Fraud: Negative Amortization Loans

Posted in Financial Institutions,Lender Fraud on September 12, 2011

Boschma v. Home Loan Center, Inc., (Fourth District, August 10, 2011) — Cal.Rptr.3d —-, 2011 WL 3486440, 11 Cal. Daily Op. Serv. 10, 237, 2011 Daily Journal D.A.R. 12,103

A couple who refinanced their existing home loan utilizing an “Option ARM” filed an action against the lender, alleging that the defendant’s loan documents failed to adequately and accurately disclose the essential terms of the loan, and that the plaintiffs would suffer negative amortization if they made monthly payments according to the payment schedule provided prior to the closing of the loan. Asserting causes of action for fraud and violations of Business and Professions Code section 17200 et seq., the plaintiffs alleged that the defendant utilized a “teaser” interest rate of 1.25 percent for the first month of the 30 year loan which bore no relation to the actual cost of credit, and that the payment schedule did not clearly indicate it was based upon the teaser rate rather than the APR listed on the loan.

The trial court sustained the defendant’s demurrer to the second amended complaint without leave to amend, finding that the loan documentation adequately described the nature of Option ARMs, and that the loan documents showed detailed, highlighted and repeated warnings regarding the interest rate changes, adequacy of payments to cover both principal and interest, and the prospect of the negative amortization. The court of appeal reversed, rejecting the defendant’s contention that strict compliance with the federal Truth in Lending Act (TILA, 15 U.S.C. § 1601 et seq.) provides a safe-harbor from such claims:

“If plaintiffs can show defendant intentionally used its Option ARM forms to deceive borrowers, plaintiffs may be able to establish a fraud claim. Plaintiffs’ actual interest rates and monthly payments sufficient to amortize the loan (or at least pay the accruing interest) were hidden in the complexity of the Option ARM contract terms. “ ‘The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he [or she] transacts business.
. . .
Taking plaintiffs’ factual allegations to be true, defendant intentionally omitted a clear disclosure of the nature of plaintiffs’ loans because giving a clear explanation of how the loan worked would have punctured the illusion of a low payment, low interest rate loan.
. . .
We construe plaintiffs’ allegations (including the allegation that the prepayment penalty precluded refinancing into a better loan) broadly to encompass an assertion that they were misled into agreeing to Option ARMs, which led to lost equity in their homes because the terms of the Option ARMs put them in a worse economic position than they would have been had they utilized a different credit product (i .e., by deciding not to refinance their previous loans or by taking out a more suitable loan).
. . .
[I]t may be difficult for plaintiffs to prove they could not have avoided any of the harm of negative amortization—they could have simply paid more each month once they discovered their required payment was not sufficient to pay off the interest accruing on the loan. But plaintiffs may show they were unable to avoid some substantial negative amortization. And we see no countervailing value in defendant’s practice of providing general, byzantine descriptions of Option ARMs, with no clear disclosures explaining that, with regard to plaintiffs’ particular loans, negative amortization would certainly occur if payments were made according to the payment schedule. To the contrary, a compelling argument can be made that lenders should be discouraged from competing by offering misleading teaser rates and low scheduled initial payments (rather than competing with regard to low effective interest rates, low fees, and economically sustainable payment schedules).”