Johnson v. Washington

• Decision Date: 24 February 2009
• Docket Number: No. 08-1421.,08-1421.
• Citation: 559 F.3d 238
• Parties: Marion D. JOHNSON; Vivian Y. Johnson, Plaintiffs-Appellants, v. Jason C. WASHINGTON; D and D Home Loans Corporation; Warren Mike Robinson, individually, Defendants-Appellees, and BNC Mortgage, Incorporated, f/k/a Finance America; Samuel I. White, P.C., Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

559 F.3d 238

Marion D. JOHNSON; Vivian Y. Johnson, Plaintiffs-Appellants, v. Jason C. WASHINGTON; D and D Home Loans Corporation; Warren Mike Robinson, individually, Defendants-Appellees, and BNC Mortgage, Incorporated, f/k/a Finance America; Samuel I. White, P.C., Defendants.

No. 08-1421.

United States Court of Appeals, Fourth Circuit.

Argued: January 27, 2009.

Decided: February 24, 2009.

ARGUED: Daniel Paul Mosteller, Center for Responsible Lending, Washington, D.C., for Appellants. Jason E. Manning, Troutman & Sanders, L.L.P., Virginia Beach, Virginia; Paul R. Schmidt, Huff, Poole & Mahoney, P.C., Virginia Beach, Virginia, for Appellees. ON BRIEF: Melissa Briggs, Center for Responsible Lending, Washington, D.C.; Tanya Bullock, Bullock & Cooper, P.C., Virginia Beach, Virginia, for Appellants. Alison R. Zizzo, Huff, Poole & Mahoney, P.C., Virginia Beach, Virginia, for Appellees D & D Home Loans Corporation and Warren Mike Robinson; John Lynch, Troutman & Sanders, L.L.P., Virginia Beach, Virginia, for Appellee Jason C. Washington.

Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and ARTHUR L. ALARCÓN, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge WILLIAMS and Senior Judge ALARCON joined.

OPINION

WILKINSON, Circuit Judge:

Marion and Vivian Johnson appeal the district court's grant of summary judgment on their claim that defendants violated various consumer protection laws when purchasing the Johnsons' home. The Johnsons argue that the purported sale of their home actually created an equitable mortgage under Virginia common law, thereby obligating defendants to comply with federal and state lending laws, namely the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and the Virginia Mortgage Lender and Broker Act, Va.Code § 6.1-422. Because we find that the transaction was an absolute sale that did not give rise to any debt between the parties, we conclude that it did not create an equitable mortgage. We likewise find no merit in the Johnsons' claim of fraud. We therefore affirm the judgment of the district court.

I.

A.

We view the facts in the light most favorable to plaintiffs, the non-prevailing party. In December 1995, Marion and Vivian Johnson paid approximately $130,000 to purchase a home in Norfolk, Virginia. In 2002 or 2003, they refinanced their mortgage with NovaStar Mortgage, Inc. ("NovaStar"). In 2005, they fell two months behind in their mortgage payments and sought to refinance again. By this time, plaintiffs claim the home had appreciated to $260,000, with the Johnsons holding about $100,600 in equity in the home and the remaining $159,400 representing the outstanding balance on the NovaStar mortgage. In hopes of refinancing, Mr. and Mrs. Johnson contacted Warren Robinson, a mortgage broker and the president of D & D Home Loans Corporation, who told them it would be difficult to refinance because of their poor credit history and previous bankruptcy filings.

In May 2005, Robinson referred the Johnsons to Jason Washington, a private investor. When Washington met with the Johnsons, he presented them with an "Offer to Purchase Real Estate" that stated that Washington would purchase the home for $212,800. The couple signed this document without reading it. They then met with Washington on June 30, 2005, for a real estate closing, at which they signed a HUD-1 Settlement Statement and a deed conveying title to Washington.

To finance his purchase of the house, Washington took out two mortgages from Finance American, which were secured by deeds of trust on the property. Of the $212,800 total sales price, Washington used $166,600.05 to pay off the Johnsons' NovaStar mortgage. He gave the Johnsons a check for $44,410.56, which was listed as the "Amount to Seller" in the HUD-1 Settlement Statement.

One week later, Washington and Mr. and Mrs. Johnson signed a Contract for Deed of Real Property ("Contract") that gave the Johnsons an option to repurchase the property within thirteen months for $249,079. This amount included an initial down payment of $36,279 and a final payment of $212,800. The Contract also provided that the Johnsons would remain at the home in return for making monthly payments of $1,896.64 for twelve months, with the first payment due on August 1, 2005. The Contract provided that the Johnsons would lose the option to repurchase after thirteen months, and that the Contract would become a lease agreement if their monthly payments were over five days late. Washington used most of the Johnsons' monthly payment amount to satisfy his payments on the Finance American mortgages. Mr. and Mrs. Johnson continued to live at the property and make monthly payments to Washington, but they stopped making payments in February or March 2006.

B.

In March 2007, the Johnsons filed a twelve-count complaint against Robinson, Washington, and D & D Home Loans Corporation, alleging inter alia fraud, breach of contract, violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and predatory lending practices under the Virginia Mortgage Lender and Broker Act, Va.Code § 6.1-422. They claimed that the transaction with Washington, despite being clothed in the form of an absolute sale, actually gave rise to an equitable mortgage that required Washington to comply with federal and state consumer protection statutes. They also alleged that Robinson and Washington had misled them about the nature of the transaction by making statements such as "Washington does not want your house" and by telling them they could refinance again in twelve to thirteen months.

Following discovery, the district court granted summary judgment to defendants. Johnson v. D & D Home Loans Corp., No. 2:07cv204, 2008 WL 850870 (E.D.Va. Jan. 23, 2008). The court held that the transaction did not give rise to an equitable mortgage because the Johnsons were never indebted to Washington and "[t]here was no penalty if [they] chose not to exercise their repurchase option." Id. at *8. The court also rejected the plaintiffs' fraud claims, finding that Washington and Robinson's statements were either true or were statements of "opinions and expressions of desire," not statements of fact. Id. at *5. The district court further held that the Johnsons' fraud claim was precluded because they had "fail[ed] to read any of the documents they were signing." Id. This appeal followed.

II.

The Johnsons' central claim is that the transaction with Washington gave rise to an equitable mortgage under Virginia common law, thereby obligating Washington to comply with federal and state consumer protection statutes. We disagree. Because there was no preexisting or contemporaneous debt between the parties there is no basis for finding an equitable mortgage. Even assuming some debt did exist, the relevant circumstances in this case do not justify invoking equity to contradict the plain terms of the transaction.

The Johnsons raise claims under both the Truth in Lending Act ("TILA") and the Virginia Mortgage Lender and Broker Act ("MLBA"). The TILA is a federal statute that requires clear disclosure of terms in consumer credit transactions. 15 U.S.C. § 1601 et seq. Its protections apply only to loans, not to sales. Similarly, the MLBA governs the practices of licensed lenders and brokers, but does not apply to real estate sales. Va.Code § 6.1-422. Therefore, to show that defendants were required to comply with these laws, the Johnsons must show that their transaction in fact created a lending relationship.

Under Virginia law, a deed that is absolute on its face "is presumed absolute unless the party challenging the presumption can prove by clear, unequivocal and convincing evidence" that it is not. In re Seven Springs, Inc., 159 B.R. 752, 755 (Bankr.E.D.Va.1993) (citing Pretlow v. Hopkins, 182 Va. 826, 30 S.E.2d 557 (1944)). The Johnsons therefore bear the burden of showing that the transaction, which purported to transfer ownership of the house from them to Washington, actually created an equitable mortgage.

In assessing whether an equitable mortgage exists, courts ask two questions. First, they ask whether the parties enjoyed a borrower-lender relationship, signified by the presence of a debt secured by title to the property. Seven Springs, 159 B.R. at 755-56. "The existence of a debt is the test." Holladay v. Willis, 101 Va. 274, 43 S.E. 616, 618 (1903). This debt must have existed before the transaction or be created contemporaneously with it. Snavely v. Pickle, 70 Va. 27, 35 (1877). If a court finds that a debt existed, it then asks whether circumstances warrant finding an equitable mortgage. See Seven Springs, 159 B.R. at 756 (listing relevant circumstances).

The requirement of a debt between the parties is more than a formality. As the Supreme Court of Appeals of Virginia noted in Holladay, "[a] mortgage without a debt to support it is a legal solecism," and "`neither the intention of the parties nor their express contract can change the essential nature of things.'" 43 S.E. at 618 (quoting Turner v. Kerr, 44 Mo. 429 (1869)). This rule is especially important in the context of equitable mortgages. Because such mortgages are an exception to the general rule that parole evidence is inadmissible to contradict the terms of a contract, the proof necessary to sustain them "must be so convincing as to leave no doubt on the mind that a mortgage, and not an absolute conveyance, was intended." Id. at 617. Mere statements of intent cannot meet this burden; rather, the presence of debt between the parties is necessary to show the intent to create a mortgage and a promise to repay. E.g., Tuggle v. Berkeley, 101 Va. 83, 43 S.E. 199, 201 (1903).

In addition, absent some debt between the parties, the grantee (Washington) has no personal recourse against the grantor (the Johnsons) if the property later sells at a...