Weiss v. Bank of America Corp.

153 F. Supp. 3d 830
CourtDistrict Court, W.D. Pennsylvania
DecidedDecember 22, 2015
DocketCase No. 15-62
StatusPublished

This text of 153 F. Supp. 3d 830 (Weiss v. Bank of America Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weiss v. Bank of America Corp., 153 F. Supp. 3d 830 (W.D. Pa. 2015).

Opinion

[835]*835MEMORANDUM ORDER

Cathy Bissoon, United States District Judge

William Weiss, Robert Lessman, Ann Harrell and Eddie Harrell (“Plaintiffs”) assert class action, claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) at 18 U.S.C. §§ 1961-1968, as well as claims for unjust enrichment, alleging that Defendants engaged in a conspiracy to defraud home mortgage borrowers into funding sham captive reinsurance arrangements (“CRAs”) through illegal kickbacks. (Pl.’s Mem. in Opp’n to Defs.’ Mot. (“Pl.’s Resp.”) (Doc. 19) at 1). Specifically, Plaintiffs allege that Bank of America Corporation (“BAC”) and Bank of America, N.A. (“BANA”) referred borrowers to private mortgage insurance providers in exchange for a kickback of the private mortgage insurance payment, tunneled- through their affiliated reinsurer, Bank of American Reinsurance Corporation (“BARC”). (Compl. (Doc. 1) at ¶ 1). In reality, however, Defendants did not assume any real risk in exchange for the payments, thus rendering illusory the reinsurance coverage it assumed. (Id. at ¶ 6). Defendants move to dismiss Plaintiffs’ claims as time-barred; for lack of standing; as well as for failure to state a RICO claim. (Defs.’ Motion to Dismiss (“Defs.’ Mot.”) (Doc. 14)). For the reasons stated below, Defendants’ Motion to Dismiss will be denied.

I. MEMORANDUM

BACKGROUND

BAC is a large financial institution that owns BANA. both of which originated the home loans at issue in this case. (Compl. at ¶¶ 24-25). BARC is a captive reinsurer and also a subsidiary of BAC. (Id. at ¶ 26). Plaintiffs William Weiss and Robert Less-man obtained a mortgage from defendant BAC on or about August 31, 2006. (Compl. at ¶ 22). Plaintiffs Ann Harrell and Eddie Harrell obtained a mortgage loan from defendant BANA on or about May 23; 2007. (Id. at ¶ 23). All four Plaintiffs were required to purchase private mortgage insurance (“PMI”) selected by their respective lenders. (Id. at ¶¶ 22-23). Specifically, Weiss and Lessmaris private mortgage insurer was United Guaranty Residential Insurance Company, and the Harrells’ private mortgage insurer was Radian Guaranty Inc. (Id.).

Homeowners who do not make a twenty percent down payment on their homes typically must buy private mortgage insurance. (Id. ¶¶ 8, 32). This private mortgage insurance protects lenders if the borrower defaults. (Id.). The borrower typically pays for the private mortgage insurance, either through monthly premiums added to the mortgage payment or a higher interest rate on the loan. (Id. ¶ 35). The terms and conditions of private mortgage insurance are set by the lender and' the provider of the insurance. (Id. ¶36). According to Plaintiffs, lenders such as ' BAC and BANA, along with their affiliated mortgage reinsurer, BARC, falsely represented and failed to adequately disclose to borrowers the true nature of their captive reinsurance arrangement with private mortgage insurers. (Id. ¶¶ 9-10).

Lenders, like BAC and BANA, created reinsurance subsidiaries like BARC “to enter into contracts with providers of private mortgage insurance, whereby the reinsurer typically agrees to assume a portion of the private mortgage'insurer’s risk with respect to a given pool, of loans.” (Id. ¶ 39). According to Plaintiffs, lenders such as BAC and BANA have used lender-created reinsurance subsidiaries as a mechanism by which to funnel unlawful kickbacks from private mortgage insurers. (Id. ¶ 51).

[836]*836Defendants agreed to allocate their mortgage insurance business on a rotating basis. (Id. at ¶ 9). “Each of the Private Mortgage Insurers understood that the Private Mortgage Insurers were also ceding premiums to Bank of America and they did so because agreeing to this apportionment of Bank of America’s business was beneficial to them as a whole-assuring them a steady stream of business free from competition.” (Id. ¶¶ 9-12, 73). Borrowers paid their PMI premiums to their respective private mortgage insurers, who then issued a “purported” reinsurance premium to BARC. (Id. at ¶ 11).

According to the Complaint, said “reinsurance premiums” in fact failed to qualify as such, as the contracts between reinsurance corporations, like BARC, and private mortgage insurers, were structured so that the reinsurer received hundreds of millions of dollars in premiums but assumed little or no actual risk. (Id. ¶ 15, 54). The premiums were placed into a trust but the agreements “limit the lenders’ liability/payment responsibilities ... through provisions that permit the captive reinsurer to effectively opt out of the contracts at will by simply failing to adequately capitalize the trust supporting the reinsurance contract.” (Id. ¶ 58). Ultimately, Plaintiffs contend, borrowers paid more for mortgage insurance because the price included the kickbacks to lenders. (Id. ¶¶ 76, 92 (“[T]hese arrangements tend to keep premiums for private mortgage insurance artificially inflated over time because a percentage of borrowers’ premiums are not actually being paid to cover actual risk. In other words, because the money collected by a lender through its captive reinsurer comes from borrowers’ mortgage insurance premiums, borrowers are essentially required to pay for both actual private mortgage insurance coverage and private mortgage insurers’ unlawful kickbacks to lenders.”) (emphasis in original)).

Plaintiffs allege that the scheme perpetrated by Defendants failed to qualify as a genuine, risk-transferring reinsurance agreement between BARC and the private mortgage insurers, and thus constituted an illegal kickback and/or referral fee split in violation of the Real Estate Settlement Procedures Act of 1974 (“RESPA”) at 12 U.S.C. § 2607(a). (Id. at ¶ 103). Plaintiffs further allege that such actions further constituted “the execution of a scheme and artifice to defraud Plaintiffs and the Class for the purpose of obtaining money from them to fund illegal kickbacks to [Defendants] and to increase premiums for private mortgage insurance, through the use of the mails and/or wires, in violation of 18 U.S.C. § 1341 and § 1343.” (Id. at ¶ 107). Defendants communicated with Plaintiffs and the Class regularly via “mail, electronic mail, and facsimile,” in order to transmit documents that “fraudulently represented or omitted the true nature of the reinsurance agreement, and in particular the illegal kickbacks” that were paid to Defendants. (Id. at ¶ 108). Mail and wire fraud are predicate offenses for purposes of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) at 18 U.S.C. § 1962(c); Plaintiffs further allege mail and wire “honest services” fraud and unjust enrichment. (Id. at ¶ 118-119, 122).

Statute of Limitations

RICO claims must be brought within four years of accrual. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). Plaintiffs claim that although they obtained their mortgages in 2006 and 2007 their claims are timely pursuant to the injury discovery rule, American Pipe & Construction Co. v.

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153 F. Supp. 3d 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiss-v-bank-of-america-corp-pawd-2015.