Jeanne Biggs v. Eaglewood Mortgage, LLC

Filing 920091130

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1545

JEANNE BIGGS; CHARLES BIGGS, Plaintiffs ­ Appellants, and BORROWER NO. 0124854613, Mr. and Mrs. B., Plaintiff, v. EAGLEWOOD MORTGAGE, LLC; COUNTRYWIDE BANK, N.A., Defendants ­ Appellees, MARIA ABREU, Movant, and SETTLEMENT SOLUTIONS; AURORA LOAN SERVICES LLC; LEHMAN MORTGAGE CAPITAL; LEHMAN BROTHERS; KEVIN DECKER; MIKE SWEENEY; DONALD CROWE; MICHAEL A. PERRY, Defendants.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:07-cv-02768-PJM)

Submitted:

November 2, 2009

Decided:

November 30, 2009

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary E. Goulet, WHITHAM CURTIS CHRISTOFFERSON & COOK, PC, Reston, Virginia, for Appellants. Charles S. Hirsch, Glenn A. Cline, BALLARD SPAHR ANDREWS & INGERSOLL, LLP, Baltimore, Maryland; Richard L. Miller, MONSHOWER MILLER & MAGROGAN, LLP, Columbia, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Jeanne and Charles Biggs ("the Biggses") appeal the district court's order granting summary judgment to Appellees Countrywide Bank FSB and Eaglewood Mortgage, LLC, (collectively "Appellees") on the Biggses' action under the civil RICO

statute, 18 U.S.C. § 1964 (2006).

On appeal, the Biggses assert

that the district court erred in applying a reliance element to their claims of mail fraud; determining the Biggses had prior knowledge of the possibility of negative amortization; failing to view the facts in the light most favorable to the Biggses; and improperly deciding questions of the Biggses' knowledge and reliance. We affirm. We review de novo a district court's order granting summary judgment and view the facts in the light most favorable to the nonmoving party. (4th Cir. 2005). Bogart v. Chapell, 396 F.3d 548, 555 judgment is appropriate when no

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genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. 56(c); Bogart, 396 F.3d at 555. See Fed. R. Civ. P. judgment will be

Summary

granted unless a reasonable jury could return a verdict for the nonmoving party on the evidence presented. Lobby, Inc., 477 U.S. 242, 247-48 (1986). Anderson v. Liberty

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I.

Reliance

RICO provides a private right of action and treble damages for "[a]ny person injured in his business or property by reason of a violation of section 1962" of the RICO's criminal component. 18 U.S.C. § 1964(c) (2006). Section 1962 contains

RICO's criminal prohibitions; pursuant to 18 U.S.C. § 1962(c), it is "[U]nlawful for any person employed by or associated with" an enterprise engaged in or affecting interstate or foreign commerce "to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." The term "racketeering activity" is defined to include a host of so-called predicate acts, including "any act which is indictable under . . . section 1341 (relating to mail fraud)." Bridge v. Phoenix Bond & Indemnity Co., 128 S. Ct. 2131, 2137-38 (2008) (quoting 18 U.S.C. §§ 1961(1)(B), 1962(c) (2006)). fraud occurs when an individual, having devised a Mail to 18 the an

plot

defraud, uses the mail in order to further their plot. U.S.C. scheme § 1341 to (2006). and "The any gravamen mailing of that the is offense incident is to

defraud,

essential part of the scheme satisfies the mailing element, even if the mailing itself contains no false information." 128 S. Ct. at 2138. Bridge,

Thus, RICO allows for a private civil

action to any individual injured through a pattern of conduct constituting mail fraud.

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On appeal, the Biggses assert that the district court erred in requiring mail fraud. them to prove Biggses reliance contend on this Countrywide's requirement This de

alleged

The

contravenes the Supreme Court's recent decision in Bridge. court novo. 2002). reviews such questions of statutory

interpretation

See United States v. Pierce, 278 F.3d 282, 286 (4th Cir.

In Bridge, the Supreme Court held that "no showing of reliance is required to establish that a person has violated § 1962(c) by conducting the affairs of an enterprise through a pattern fraud." of racketeering activity consisting of acts of mail

Bridge, 128 S. Ct at 2139.

Though the Supreme Court

noted that a plaintiff would generally be unable to demonstrate causation without showing at least some form of reliance, "the fact that proof of reliance is often used to prove an element of the plaintiff's cause of action . . . does not transform Id. at

reliance itself into an element of the cause of action." 2144.

Though the district court was correct in determining that the instant situation was somewhat different from the facts in Bridge, it nevertheless erred by finding that "Bridge did not eliminate reliance as an element of a RICO claim predicated on mail fraud." In so holding, from the 5 the district court by improperly citing to

distinguished

Bridge

instant

case

footnotes and other dicta in which the Supreme Court expressed its view that it would be challenging to demonstrate proximate cause without also proving some kind of reliance. See, e.g.,

Bridge, 128 S. Ct. at 2143 n.6 ("Of course, a misrepresentation can cause harm only if a recipient of the misrepresentation

relies on it), 2144 ("Of course, none of this is to say that a RICO plaintiff who alleges injury by reason of a pattern of mail fraud can prevail without showing that someone relied on the defendant's misrepresentations") (internal quotation marks and citations omitted). Based on this language, the district court

found that Bridge's holding was limited to cases of third-party reliance. However, contrary to the finding of the district Though

court, such statements do not restrict Bridge's holding.

Bridge concerned a plaintiff who had been harmed by a thirdparty's reliance on the defendant's misrepresentations, we do not read its holding as limited to this particular situation. The Supreme Court explained that, though common law fraud

required a showing of reliance, "[n]othing on the face of the relevant Bridge, statutory 128 S. of Ct. a provisions at 2138. to imposes such a requirement." the mail act in of

Instead, is

using a

furtherance

scheme

defraud

predicate

racketeering under RICO, even if there is no reliance on the misrepresentation. Id. If the 6 defendant has engaged in a

pattern of such behavior, he will be liable under RICO, without anyone actually relying on a fraudulent misrepresentation. Therefore, we agree with the Biggses that Bridge's Id.

holding

eliminates the requirement that a plaintiff prove reliance in order to prove a violation of RICO predicated on mail fraud. However, we may affirm a district court's grant of summary judgment on any legal basis supported by the record; we need not rely upon the grounds asserted by the district court. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). affirm Therefore, despite this error by the district court, we the district court's grant of summary judgment to

Countrywide, as the Biggses failed to prove, or even allege, any fraudulent behavior on the part of Countrywide or Eaglewood. The Biggses allege three different purportedly fraudulent

actions on the part of the Defendants: Existing homeowners were re-financed with payment option adjustable rate mortgage loans that were at least one of the following: unsuitable for the homeowner; less suitable than at least one other financing approach available to the homeowner; more costly to the homeowner than at least one other suitable financing approach available to the homeowner with the additional cost inuring to the benefit of the enterprise or a member or members thereof. In support of these conclusory allegations, the Biggses

repeatedly state that the Defendants failed to tell them that "a fixed rate mortgage . . . was more suitable for [the Biggses] than [a] . . . payment option ARM." 7 Additionally, the Biggses

contend that the Defendants utilized various agents in order to "cloak the . . . payment option ARM with seeming legitimacy and safety," making various statements to the Biggses about how a payment option ARM would benefit them. However, despite these allegations, the Biggses still fail to demonstrate, or even allege, that they were misled about any particular loan term. payment option ARM The adjustable rate rider of each delineated the schedule for

explicitly

changes in the interest rate and the monthly payment amount, as well as the possibility of negative amortization. the district of court, mortgage the Biggses were and "active and As noted by continuous and

shoppers

financing"

"possessed

obvious

extensive experience with both fixed-rate loans and ARM loans" as evidenced by the fact that, beginning in 2003, the Biggses refinanced their mortgage five times in a span of four years. This familiarity with multiple loan types, combined with the fact that each loan complained of explicitly put the Biggses on notice of the possibility of negative amortization, supports our conclusion that the district court did not err in granting

summary judgment for the Defendants.

II. Next, the Biggses

Other Issues contend that the district court

"wrongly construed the 1997 mortgage as negatively amortizing." 8

In effect, the Biggses argue that this improper construction led the district court to incorrectly determine that the Biggses understood the principle of negative amortization. However, as

explained above, the possibility of negative amortization was explicitly delineated in the adjustable rate rider to each of the payment option ARMs of which the Biggses now complain.

Therefore, regardless of whether the Biggses' 1997 mortgage had the possibility for negative amortization, the Biggses were made aware of this possibility before entering into each of the ARM mortgages with Countrywide. The Biggses also assert that "the district court erred by [fail]ing to identify reasonable inferences in Homeowner's favor." It appears that the Biggses assign error to the

district court's conclusion that they were experienced mortgage shoppers, as well as Countrywide's alleged mischaracterization in its pleadings of the 2004 loan as having an interest rate of 4.269 percent for the length of the loan. However, as

previously explained, the fact that the Biggses refinanced their mortgage five times in a span of four years strongly supports a finding that the Biggses understood the terms of the mortgages, and were not innocent though "victims" Countrywide of a fraud to scheme. have

Additionally,

appears

mischaracterized the 2004 mortgage as having a lifetime interest rate of 4.269 in its memorandum in support of its motion to 9

dismiss, the Biggses fail to demonstrate how this error in the pleadings had any bearing whatsoever on whether the Biggses

understood the mortgages into which they entered. * these contentions are without merit.

Therefore,

Finally, the Biggses assert that the district court erred in improperly when deciding the questions Biggses' of "knowledge of fraud and and on

reliance" negligent

considering

claims

misrepresentation,

incorrectly

relying

"Countrywide's interpretation of what the undisputed evidence of record shows." This contention is also without merit. The

Biggses' amended complaint is bereft of a single allegation of purposeful misrepresentation or reliance thereon. Moreover, as

we have described, all the pertinent information regarding the loans, their adjustable interest rates, and the possibility of negative amortization was disclosed to the Biggses in the form of detailed adjustable rate riders. The Biggses initialed each

Moreover, any such error is clearly the product of a clerical error and not evidence of Countrywide's deceit or own misunderstanding of its loans. In the pleadings, Countrywide incorrectly described the loan as having an interest rate of 4.269 percent, when in actuality this was the calculated APR of the loan appearing in the Truth-in-Lending-Disclosure-Statement ("TILDS"). The initial interest rate was 1.750 percent, adjusted monthly. This discrepancy is clearly explained in the "Definition" section of the TILDS, which states that the interest rate found in the rider is but one of several charges included in the APR, which results in an APR higher than the interest rate shown in the rider.

*

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page of the adjustable rate rider for the first loan indicating their review of it, and the Biggses signed the final page of each of the and three agreed riders, to the each terms time indicating in that the they rider.

accepted

delineated

Accordingly, because the Biggses fail to present any evidence, or even raise any serious possibility, of misrepresentation or their reliance thereon, we find that the district court

correctly granted summary judgment as to their claims. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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