“How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn’t make it a leg.” — Abraham Lincoln.  The same can be said for usurious loans.

In Koch v. Boxicon, LLC, the Dallas Court of Appeals considered the appeal of Koch, a chiropractor, who was sued by Boxicon for breaching an agreement for the “purchase of future business income.”  Boxicon had financed Koch’s business by paying Koch $96,000 over six months. In exchange, Koch was required to make “pay back payments” to Boxicon totaling $192,000 over two years. The defendant claimed agreement was a usurious loan while the defendant claimed the agreement wasn’t a loan at all because the recitals expressly stated the agreement “is NOT a loan.”  The trial court allowed the jury to decide and entered a judgment in favor of the plaintiff. The Dallas Court of Appeals reversed and held that the agreement was usurious as a matter of law. Noting that courts look to the substance rather than the form of a transaction, the court held that agreement met the statutory definition of a loan and provided for an absolute obligation to repay the principal. Though the agreement stated it was a “purchase of a portion of the future cash stream generated by the business” and “is NOT a loan,” the agreement went on to state that “This is NOT an agreement to buy a percentage of the business, but for a fixed return upon capital invested by Buyer as per this agreement.” So, what is a loan agreement if you agree it isn’t a loan?  A loan.  Saying that it isn’t a loan doesn’t make it not a loan (regardless of your use of all caps).

Koch v. Boxicon

The Texas Supreme Court has unanimously affirmed the judgment of the Dallas Court of Appeals on petition for review from the case of Interstate 35/Chisam Road L.P. v. Moayedi. As regular readers will recall, Moayedi was the first of a string of cases from Dallas holding that borrowers and guarantors had contractually waived their statutory right to offset any deficiency if the foreclosure sale resulted in a price less than the collateral’s fair market value. Justice Willett, writing for the Supreme Court, agreed with that analysis, holding that section 51.003 of the Texas Property Code creates an affirmative defense that the borrower or guarantor can validly waive through a general waiver of defenses in the lending instruments. Unless the Legislature decides to step in, businesses and individuals can expect to see such waiver clauses become standard practice in property financing transactions.

Moayedi v. Interstate 35 Chisam Road LP, No. 12-0937

One of the legacies of Texas consumer protection laws was Article XVI, Section 50 of the Texas Constitution, which effectively prohibited home equity lending. In 1997, voters approved amendments to that section to permit home equity loans, but only under certain conditions. Among other restrictions, the loan cannot exceed 80% of the value of the equity in the home, and the lender must cure any violation of the constitutional requirements within 60 days of the date the borrower gives notice. If those requirements are not met, the lender forfeits all principal and interest and loses its lien on the property.

Lonzie Leath obtained a $340,000 home equity loan in 2005, and signed an acknowledgment that his home’s fair market value was $425,000. In 2008, the servicer sought to foreclose on the property, and Leath responded by alleging that the loan was illegal because it had actually exceeded 80% of the value of the home at the time it was made. The jury found that the property’s fair market value had been only $421,400, a finding that placed the principal of the loan barely over the 80% limit. The trial court therefore entered judgment forfeiting the principal and interest and invalidating the lender’s lien.

Although the servicer claimed that Leath had failed to provide notice of the alleged constitutional deficiency, the Court of Appeals agreed with Leath that his pleadings had given notice and started the clock on the lender’s 60-day cure period. The Court also held that the jury’s valuation finding was adequately supported by the evidence, including the admission of the servicer’s appraisal expert that he had not accounted for $3,600 of electrical work that needed to be performed at the time of the loan. The Court of Appeals therefore affirmed the judgment in favor of the borrower, leaving the lender without principal, interest, or the right to foreclose.

Wells Fargo Bank, N.A. v. Leath, No. 05-11-01425

After defaulting on his home equity loan, the borrower filed suit to stop the servicer from foreclosing on his home. The borrower argued that (1) the note had been cancelled through the addition of a “VOID” on the last page, (2) that the photocopy of the note produced by the servicer was not authentic, and (3) that the servicer had not shown how it acquired the note, and therefore had not proven it was authorized to enforce it. The court of appeals affirmed summary judgment in favor of the servicer, rejecting all three of the homeowner’s claims. The “VOID” stamp did not show any intent to cancel the note, the court held, because it only appeared over an unused endorsement line on the last page, and there was no other indication of cancellation. The servicer also did not need to produce the original of the promissory note because it was seeking a judicial foreclosure, not making demand for payment of the note, and the borrower had admitted he had defaulted under the note. Finally, the servicer was not required to establish a complete record of the transactions by which it had acquired the note, as its ownership was validly established by the allonge that transferred the note from the original lender to the servicer.

Chance v. CitiMortgage, Inc., No. 05-12-00306-CV

The loan agreement for the Regal Parc apartments in Irving was generally non-recourse to the borrower, but it also included a carve-out that made the loan fully recourse if the borrower breached its obligation to remain a single-purpose entity.  After the lender foreclosed on the property, it sued the borrowers for an $11.6 million deficiency, alleging they had violated the agreement by commingling funds with their related entities and committing waste by failing to maintain the property.  The trial court accepted the borrowers’ explanations of why they had not commingled Regal Parc funds with those of other entities, meaning that the loan remained non-recourse.  But the trial court also entered judgment against the owners for approximately $1 million due to waste and improper retention of post-default rents.  The court of appeals affirmed, holding that the trial court’s finding was adequately supported by the testimony of the borrowers’ witnesses.  The court of appeals also rejected the lender’s claim that the borrowers should have been responsible for an additional million dollars worth of waste that occurred before they assumed the loan, because the loan agreement only made the borrowers responsible for waste that occurred “henceforth” — i.e., from the date they assumed the loan.  Finally, the court found sufficient evidence to support the award of damages for waste and retained rents.

Wells Fargo Bank, N.A. v. HB Regal Parc, LLC, No. 05-10-01428-CV

The owners of a tract of land in Collin County formed a limited partnership with an investor and his company to develop the property, then sold the land to the LP.  As part of the sale, the LP issued a $9 million promissory note to the seller, plus another $1.5 million promissory note to a mortgage company, secured by a deed of trust on the property.  Subsequent loans by the mortgage company to the LP upped the debt by another $6.5 million, also secured by deeds of trust and with priority over the note issued to the sellers.  Since it all ended up in litigation, you will not be surprised to learn that the development collapsed.  The sellers sued the limited partnership, their fellow investor, and the mortgage company for fraud, breach of fiduciary duty, and related claims.  The mortgage company initiated foreclosure proceedings, which were stayed by the grant of a temporary injunction.  Before long, everybody filed motions for summary judgment, and the trial court granted them all.

The court of appeals affirmed.  With respect to the seller’s fraud claims, there was no evidence of misrepresentation in the original loan documents because those documents were not in the record on appeal.  Nor was there any evidence the seller relied on any misrepresentations in the subsequent loan agreements because, citing health concerns, she had not presented herself for deposition and she had not included any affidavit in response to the mortgage company’s no-evidence motion.  The court rejected the seller’s argument that the mere fact of having signed the agreement established that the seller had relied on the alleged misrepresentations.

Hall v. Douglas, No. 05-10-01102-CV