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Sixth Circuit Holds Lender May be Liable for Broker's Failure to Disclose Commission
On August 13, the U.S. Court of Appeals for the Sixth Circuit held that a lender may be liable under state common law claims of civil conspiracy for failing to disclose fees paid to a mortgage broker. Lee v. Countrywide Home Loans, Inc., No. 10-3777, 2012 WL 3264064 (6th Cir. Aug. 13, 2012). In this case, the borrowers brought common law civil conspiracy and fraud claims against their lender, alleging that the lender defrauded the borrowers by failing to disclose a commission the lender paid to the broker (the Yield Spread Premium) and subsequently recouped by raising the interest rate on the borrowers’ loan over the life of the loan. The borrowers also brought a claim for rescission under TILA. The district court found no evidence that the lender had any knowledge that the broker failed to disclose the fee and granted summary judgment to the bank on both common law claims. The district court also granted summary judgment for the lender with regard to the borrowers’ federal TILA claim. The appeals court upheld the district court ruling on common law fraud and TILA rescission but reversed the district court’s holding with regard to civil conspiracy. The appeals court held that a jury could find the lender participated in a civil conspiracy if the borrowers could show that the lender was aware that the broker was breaching its fiduciary duty by misrepresenting or concealing the commission and that the lender aided in this breach.