Trustcorp Mortgage Co. v. Metro Mortgage Co.

867 N.E.2d 203, 2007 Ind. App. LEXIS 1138, 2007 WL 1544597
CourtIndiana Court of Appeals
DecidedMay 30, 2007
Docket71 A05-0611-CV-665
StatusPublished
Cited by43 cases

This text of 867 N.E.2d 203 (Trustcorp Mortgage Co. v. Metro Mortgage Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trustcorp Mortgage Co. v. Metro Mortgage Co., 867 N.E.2d 203, 2007 Ind. App. LEXIS 1138, 2007 WL 1544597 (Ind. Ct. App. 2007).

Opinions

OPINION

FRIEDLANDER, Judge.

Trustcorp Mortgage Company (Trust-corp) appeals the trial court’s order denying its motion for summary judgment and granting summary judgment in favor of Metro Mortgage Co., Inc. (Metro).

We affirm.

This case arises out of an action initiated by Trustcorp against Metro to recover damages it incurred as a result of Metro’s alleged breach of contract. Trustcorp is a wholesale mortgage lender that underwrites and purchases loans from mortgage brokers, such as Metro.1 Trustcorp and Metro had a long-standing relationship whereby Metro would originate, process, and close mortgage loans approved and underwritten by Trustcorp. As the underwriter of the loans, Trustcorp would review the loan “package” and either approve the loan for funding or not. Appendix at 180-81. Trustcorp would then purchase certain loans from Metro and resell them to secondary market investors, such as the Federal National Mortgage Association (Fannie Mae).

On June 25, 1996, Trustcorp and Metro entered into a Buy/Sell Agreement.2 Trustcorp’s Production Affiliate Policy and Procedure Manual (“Manual”) was also incorporated into the Buy/Sell Agreement. Because it is critical to the resolution of this appeal, we reproduce the Buy/Sell Agreement, in relevant part, below:

BUY/SELL AGREEMENT
This Buy/Sell Agreement (“Agreement”) is entered into this 25th day of June, 1996, by and between Trustcorp Mortgage Company, South Bend, Indiana (“Purchaser”) and Metro Mortgage (“Seller”).
Purchaser wishes to purchase first mortgage real estate loans with servicing rights from Seller and Seller wishes to sell such loans with servicing rights to Purchaser from time to time.
Therefore, Purchaser and Seller, each in consideration of the others’ [sic] agreements hereinafter set forth, agree as follows:
[206]*2061. AGREEMENT:
Purchaser shall purchase first mortgage real estate loans with servicing rights (“Loans”) from Seller, and Seller shall sell Loans to Purchaser from time to time on all of the terms, conditions and provisions of Purchaser’s Production Affiliate Procedures Manual (“Manual”), and the Manual is incorporated herein by this reference.
2. INSPECTION AND REMEDIES:
Purchaser shall, during regular business hours, have the right to inspect and make copies from Seller’s records concerning Loans that are the subject of this Agreement. In the event of any breach or threatened breach by Seller of any of the provisions of this Agreement, Purchaser shall have all rights and remedies at law and in equity which are available for such breach or threatened breach, including but not limited to, in-junctive relief, recovery of damages and specific performance. Seller shall reimburse Purchaser for all of its reasonable costs and expenses, including attorney fees, expended by Purchaser in pursuing its rights and remedies under this Agreement.
3. WARRANTIES AND REPRESENTATIONS:
Seller warrants, represents and covenants to [PJurchaser its successors and assignees, that the following are true, complete and correct with regard to each loan submitted to Purchaser, as of the date of such submission to Purchaser, and as of the date of purchase of the Loan by Purchaser:
3.1 The note and mortgage are good, valid and enforceable instruments, free of defect or objection and are supported by all documents required by applicable governmental agencies and/or secondary market investors (“Investor”). There are no defaults in any of the documents evidencing or securing the loan, and there are no events which with notice or the passage of time could constitute such default. The obligation secured by said mortgage is not usurious or in violation of any law which governs the rate or amount of interest which can be charged or paid on the obligation.
[[Image here]]
3.5 The loan has been originated, processed and closed by Seller in accordance with prudent lending standards and meets all of Purchaser’s requirements, as set forth in Purchaser’s Manual or as otherwise communicated to Seller.
3.6 Seller has made diligent inquiry into all material facts and circumstances in the making of the loan, including all material representations of the mortgagor and as far as the Seller is aware, all submitted documents are genuine and valid and contain no material errors and no misstatement of material fact. Seller shall promptly notify Purchaser if it becomes aware of any such errors or misstatements.
* * * *
4.REPURCHASE:
If Seller fails to meet all of the requirements of this Agreement concerning any Loan within the time periods specified therefore, Seller shall repurchase such [Ljoan. In addition, if any Loan contains any fraudulent or false documents, Seller shall repurchase the Loan. Seller agrees to pay to Purchaser promptly upon demand such amounts as may be [207]*207required by Purchaser to repurchase from Investor any [L]oans required to be removed by Investor because of origination defects, material misstatements of facts, or failure by Seller to fully comply in all respects with guidelines and requirements....
[[Image here]]
6. RESPONSIBILITIES AND BENEFITS:
It is the intention of Seller and Purchaser that Purchaser be entitled to rely on Seller’s representations and warranties without regard to any act or omission of Purchaser, and no underwriting, review, processing, closing, auditing, knowledge or other involvement or opportunity by Purchaser with respect to the Loan shall affect in any way either the representations and warranties made by the Seller to Purchaser or the responsibilities and obligations of Seller to Purchaser hereunder. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
⅜ ⅜ ⅜ ⅜
8. MANUAL:
Seller acknowledges the receipt of a full copy of the Manual. The Manual and any revisions or amendments to the Manual are incorporated by reference and made a part of this Agreement. Any revision of or amendments to the Manual shall be effective from the time that Seller receives written copies thereof.

Appendix at 46-49 (emphasis added). The Manual, incorporated by reference in the Agreement, contained the following pertinent language:

CHAPTER 1. PURCHASER/SELLER RELATIONSHIP
Section 100 General
This manual is to be made a part of the BUY/SELL Agreement executed by PURCHASER. The PURCHASER must make sure that its staff is thoroughly familiar with the content and requirements of this manual, as it now exists and as it may be changed from time to time.
* * * *
Section 103 SELLER’S Origination Duties

Free access — add to your briefcase to read the full text and ask questions with AI

Related

BOWERS v. ANTHEM, INC.
S.D. Indiana, 2020
Bobeck Real Estate Co. v. Frontier North Inc.
120 F. Supp. 3d 845 (N.D. Indiana, 2015)
David Lawson v. Sun Microsystems, Incorporate
791 F.3d 754 (Seventh Circuit, 2015)
Whistle Stop Inn, Inc. v. City of Indianapolis
36 N.E.3d 1118 (Indiana Court of Appeals, 2015)
Heckler & Koch, Inc. v. German Sport Guns GmbH
71 F. Supp. 3d 866 (S.D. Indiana, 2014)
Markey v. Estate of Markey
13 N.E.3d 453 (Indiana Court of Appeals, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
867 N.E.2d 203, 2007 Ind. App. LEXIS 1138, 2007 WL 1544597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trustcorp-mortgage-co-v-metro-mortgage-co-indctapp-2007.