Mark Sturm And Lori J. Sturm Vs. Peoples Trust & Savings Bank ( 2006 )

IN THE SUPREME COURT OF IOWA
No. 23 / 04-1139
Filed April 14, 2006
MARK STURM and LORI J. STURM,
Appellants,
vs.
PEOPLES TRUST & SAVINGS BANK,
Appellee.
Appeal from the Iowa District Court for Carroll County, Joel E.
Swanson, Judge.
Bank customers appeal from summary judgment against them in
their suit against bank based on alleged violations of federal statute and
common law. AFFIRMED.
Benjamin T. Doran of Doran Anderson & Baltimore, P.L.C., Boone, for
appellants.
Bernard L. Spaeth, Jr. of Whitfield & Eddy, P.L.C., Des Moines, for
appellee.
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LARSON, Justice.
The plaintiffs, Mark and Lori J. Sturm, defaulted on loans they had
obtained from Peoples Trust & Savings Bank (Peoples), and Peoples
foreclosed. After the foreclosure, Sturms filed this suit, claiming the loan
papers had failed to comply with a federal statute, that Peoples negligently
misrepresented the rights and duties under the loan agreements, and that
they had suffered damages as a result. The district court sustained Peoples’
motion for summary judgment, and Sturms appealed. We affirm.
I. Facts and Prior Proceedings.
Sturms and Peoples had a long banking relationship, but only two
transactions are involved on this appeal. The first was a loan in July 1999
for $100,000 to build a cabin on Sturms’ acreage. Peoples, in order to loan
the money, required a first lien on the Sturms’ real estate, which was at
that time mortgaged to Farmers Savings Bank of Halbur (Farmers). Peoples
paid the balance due to Farmers of $54,237.28 to obtain a first-lien
position. In addition, $12,118.35 was deducted from the loan proceeds to
pay off a previous loan Sturms had with Peoples. As a result of the
payments to Farmers and to Peoples on its existing loan, Sturms did not get
the full $100,000 for the construction of their cabin, as they had planned.
The second transaction relates to what was actually a new loan taken
out by the Sturms in 2001 in the amount of $143,292.71. The loan
required an initial payment of $4500 and monthly payments of $1359.39.
The Sturms claim that they were not aware that a new loan was being
created and that they believed three of the previous loans with Peoples were
merely being renewed.
The gist of the Sturms’ suit against Peoples is that the loan papers
were deficient under federal statutes and common law. They argue that the
first of the bank’s “HUD-1” forms (which we explain later) was deficient
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because it failed to state on its face that the net amount of the loan would
be reduced by the payment to Farmers and to Peoples on its earlier loan.
They believe the second HUD-1 form was deficient because it indicated that
the three previous loans were merely being renewed.
The factual support for Sturms’ claims are not at issue on appeal.
The sole issues are legal ones: (1) Do borrowers have a private cause of
action against a lending institution for violation of the federal lending
statute involved here, and (2) if statutory liability does not exist, may
Peoples be held liable under a theory of negligent misrepresentation?
II. The Statutory Claim.
The Sturms claim that Peoples failed to comply with 12 U.S.C.
§ 2603, which provides for the development and use of a standard form
called “HUD-1.” The statute requires that the form
conspicuously and clearly itemize all charges imposed upon the
borrower and all charges imposed upon the seller in connection
with the settlement and shall indicate whether any title
insurance premium included in such charges covers or insures
the lender’s interest in the property, the borrower’s interest, or
both.
This section is part of the “Real Estate Settlement Procedures Act” or
RESPA. The bank does not concede that it violated § 2603, but argues that,
even if it had violated it, the Sturms have no cause of action.
The Sturms acknowledge that § 2603 does not expressly create a
private cause of action for a violation. However, they argue that it is
“inconsistent to impose requirements on a lender, yet protect it [from]
liability to a borrower for violations of those requirements.” While they
acknowledge that the weight of authority suggests that a private cause of
action cannot be implied from 12 U.S.C. § 2603, they believe this court
should reach a different result.
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Only one case cited by Sturms found an implied cause of action
under RESPA. That case is Vega v. First Federal Savings & Loan Association,
622 F.2d 918 (6th Cir. 1980). However, the “holding” in that case is
relegated to a footnote:
As a threshold matter, we must determine whether [RESPA]
creates a private cause of action for violations of 12 U.S.C s
2609 and 12 U.S.C. s 2610. While the Act does not expressly
provide for such causes of action, we believe, based on the
legislative history, that Congress intended to create a private
remedy for violations of the Act. 1
Vega, 622 F.2d at 925 n.8. Apparently, all other reported federal cases have
found no implied cause of action. See Collins v. FMHA-USDA, 105 F.3d
1366, 1368 (11th Cir. 1997) (finding no private cause of action under 12
U.S.C. § 2604 (requiring that information booklets and good-faith estimate
of charges for specific settlement services be provided)); Louisiana v. Litton
Mortgage Co., 50 F.3d 1298, 1301-02 (5th Cir. 1995) (finding no private
right of action under 12 U.S.C. § 2609) (limitation on advance deposit
requirements); Allison v. Liberty Sav., 695 F.2d 1086, 1089 (7th Cir. 1982)
(finding no private right of action under 12 U.S.C. § 2609); Bloom v. Martin,
865 F. Supp. 1377, 1385 (N.D. Cal. 1994) (finding no private cause of action
under 12 U.S.C. § 2603), aff’d on other grounds, 77 F.3d 318, 320-21 (9th
Cir. 1996); Campbell v. Machias Sav. Bank, 865 F. Supp. 26, 31 (D. Me.
1994) (finding no implied cause of action under 12 U.S.C. § 2609);
Bergkamp v. N.Y. Guardian Mortgagee Corp., 667 F. Supp. 719, 723 (D.
Mont. 1987) (finding no private cause of action under 12 U.S.C. § 2609).
Apparently, the only eighth circuit decision discussing the issue is
DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1177 (8th Cir. 1995). DeBoer
1The court in Vega did not elaborate on the “legislative history” it found to support a
private cause of action. In fact, as the court observed in Allison v. Liberty Savings, 695 F.2d
1086, 1089 (7th Cir. 1982), “[t]he parties’ briefs, the district court’s opinion and our own
research disclose no legislative history on the issue of private remedies under § 10.”
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recognized the split in authorities, but it expressed doubt as to whether an
implied cause of action exists under RESPA. In assessing the merits of a
class-action settlement in that case, the court said:
Counseling strongly in favor of the settlement is the fact that
the plaintiffs did not have a very strong case—they may not
have even had a legitimate federal cause of action.
DeBoer, 64 F.3d at 1177. Based on the state of the law in other
jurisdictions, the court concluded “there was a strong unlikelihood of
success” by the plaintiffs. Id.
In determining whether a private cause of action was created by
implication, many courts have relied on the four-part test of Cort v. Ash,
422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26, 36-37 (1975).
Under that case, a court should inquire whether (1) the statute was created
for the plaintiff’s special benefit, (2) there is any indication of legislative
intent to create a private remedy, (3) a private remedy would be consistent
with the legislative purpose, and (4) the area is so traditionally relegated to
the states that it would be inappropriate to infer a cause of action based
solely upon federal law.
In further refining the test, the Supreme Court has held that, because
the ultimate question is one of legislative intent, the determinative factor is
whether there is any indication of congressional intent to create a private
remedy. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16,
100 S. Ct. 242, 245, 62 L. Ed. 2d 146, 152 (1979). Further, the Court
stated in Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S. Ct. 1511,
1519-20, 149 L. Ed. 2d 517, 528 (2001),
[l]ike substantive federal law itself, private rights of action to
enforce federal law must be created by Congress. The judicial
task is to interpret the statute Congress has passed to
determine whether it displays an intent to create not just a
private right but also a private remedy. Statutory intent on
this latter point is determinative. Without it, a cause of action
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does not exist and courts may not create one, no matter how
desirable that might be as a policy matter, or how compatible
with the statute.
(Citations omitted.)
The legislative history of this statute does not support an
interpretation under which a private remedy is created. See S. Rep. No. 93-
866 (1974), H.R. Rep. No. 93-1526 (1974), H.R. Rep. No. 94-667 (1975),
H.R. Rep. No. 94-769 (1975). Rather, its limited purpose is as stated by
Congress:
that consumers throughout the Nation [be] provided with
greater and more timely information on the nature and the
costs of the settlement process and [be] protected from
unnecessarily high settlement charges caused by certain
abusive practices . . . .
12 U.S.C. § 2601(a).
According to the Supreme Court,
the fact that a federal statute has been violated and some
person harmed does not automatically give rise to a private
cause of action in favor of that person.
Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 99 S. Ct. 1946, 1953, 60
L. Ed. 2d 560, 570 (1979).
In Sturms’ case, it is not likely that Congress merely overlooked
providing a private remedy under § 2603 because other provisions in
RESPA specifically state that a private remedy exists. For example, § 2605
provides for liability of a lender for violations of the loan and escrow
servicing provisions and § 2607 provides for penalties and private remedies
for violation of a kickback in unearned fee provisions.
We reject Sturms’ claim that § 2603 provides a private cause of action
for its violation.
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III. The Negligent Misrepresentation Claim.
The Sturms pled a common-law claim for negligent misrepresentation
that, they contend, provided a basis for recovery independent of their
statutory claim under 12 U.S.C. § 2603. The district court dismissed that
claim as well as the statutory claim.
We recognize claims for negligent misrepresentation as defined in
Restatement (Second) of Torts section 552. See Freeman v. Ernst & Young,
516 N.W.2d 835, 837 (Iowa 1994). Section 552 provides:
One who, in the course of his business, profession, or
employment, or in any other transaction in which he has a
pecuniary interest, supplies false information for the guidance
of others in their business transactions, is subject to liability
for pecuniary loss caused to them by their justifiable reliance
upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.
Sturms, however, have a major obstacle to overcome in applying the
tort of negligent misrepresentation in this case because
the tort does not apply when a defendant directly provides
information to a plaintiff in the course of a transaction between
the two parties, which information harms the plaintiff in the
transaction with the defendant.
Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 126 (Iowa 2001).
Thus, the tort “predominately applies to situations where the information
supplied harmed the plaintiff in its relations with third parties.” Id. at 126.
In Haupt v. Miller, 514 N.W.2d 905, 910 (Iowa 1994), we refused to
recognize a negligent misrepresentation claim against a bank officer in
connection with the negotiation of a loan guarantee. We noted the
distinction between defendants in the business of supplying information, as
to which the tort principle may apply, and parties to an arms-length or
adversary transaction, as to which the claim does not apply. Here, the loan
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transactions fall within the latter category, and the negligent
misrepresentation principles of section 552 do not apply.
AFFIRMED.