6th Circuit: Reversed conviction in alleged mortgage application fraud

Courts Sixth Circuit Appellate Mortgages Fraud

On August 5, the U.S. Court of Appeals for the 6th Circuit reversed the conviction of two individuals for bank fraud, holding that the government had failed to prove that the defendants intended to obtain bank property or defraud the financial institutions that owned the mortgage companies targeted by the scheme. The complaint alleged the defendants—a homebuilder and a mortgage broker—recruited straw buyers to purchase the homebuilder’s homes, in which they obtained more than $5 million from mortgage companies through fraudulent mortgage applications that made several misrepresentations, including overstating the buyers’ incomes and falsely claiming that the buyers planned to live in the homes. During the trial, the government argued that the jury could reasonably infer that the federally insured parent banks controlled the funds, since the mortgage companies were wholly owned subsidiaries of the banks. The government further asserted that the mortgage companies’ funds belonged to the banks because “any losses incurred by the mortgage companies would ‘flow directly up’ to the banks.”

On appeal, the 6th Circuit reversed the defendants’ bank fraud convictions, holding that the mortgage companies held no federally insured deposits, and that while each mortgage company is a wholly owned subsidiary of a bank, the mortgage companies and the banks are distinct entities. As such, the mortgage companies did not qualify as “financial institutions,” as defined under 18 U.S.C. § 20(1). The appellate court also rejected the government’s arguments because Congress had amended § 20 after the events at issue in the case by adding language covering mortgage lenders to its “enumeration of ‘financial institutions,’” thereby demonstrating that mortgage lenders were not covered by the prior version of § 20. In addition, the court also indicated that the government offered no evidence proving that the defendants sought to obtain bank property “by means of” a misrepresentation, pointing out that no evidence was presented to show that any of the misrepresentations on the loan applications ever reached anyone at the parent banks. As such, “the scheme’s effect on the value of the banks’ ownership interests in the mortgage companies was merely ‘incidental’ to the scheme’s goal of defrauding the mortgage companies.”  Accordingly, the court held that the government failed to prove that the defendants committed bank fraud.