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Opinion analysis: Justices have little sympathy for mortgage fraudster

Robers v. United States is a classic circuit-conflict case.  The question is not at all complex, quite narrow, and frequently recurring. Suppose a defendant participates in a fraudulent scheme to trick a bank into issuing a mortgage loan.  If the defendant is convicted of wire fraud, the defendant ordinarily will be obligated to make restitution to the bank for its losses.  But if the defendant previously has returned a portion of the stolen “property,” it gets a credit for the value of the returned property.  The question in this case is whether a defendant returns the fraudulently obtained money when the bank forecloses on the home (the defendant’s argument) or when the bank sells the home and actually receives back money to satisfy a portion of its loss. The issue matters whenever (as here) the value of the home declines between the date of the foreclosure and the date the bank resold the home.

As the argument suggested was likely (see argument recap here), the Justices readily agreed that when a defendant obtains money by fraud, no money is returned until the bank actually gets money for the sale of the home.  Justice Breyer’s brief opinion for the Court rests for the most part on the statute’s emphatic reference to the date that the “property” taken by fraud was returned. In the Court’s view, this “refers to the property the banks lost, namely, the money they lent to Robers, and not to the collateral the banks received, namely, the two houses.”

Justice Breyer also suggests that the literal reading the Court embraces “facilitates the statute’s administration.”  If the value that matters is the value of the money the bank receives, it is easy to calculate the appropriate credit – the amount of money.  If, on the other hand, what matters is the value of the non-monetary property on the day the defendant receives it, then calculation of the credit will be more difficult, and “may provoke argument, requiring time, expense, and expert testimony to resolve.”

Justice Breyer acknowledges that the defendant is liable only for losses “proximately” caused by the defendant’s misconduct.  But he rejects the idea that when the collateral declines in value “the market and not the offender is the proximate cause of the deficiency.”  Rather, he explains, “losses in part incurred through a decline in the value of the collateral sold are directly related to an offender’s having obtained collateralized property through fraud.”

The only whisper of disagreement involves the situation in which the bank holds on to the property before selling it.  That apparently did not happen here, but Justice Sotomayor (joined by Justice Ginsburg) files a brief concurrence explaining that in that event the defendant would not be responsible for the decline in value.  She offers the example of marketable securities that could be liquidated immediately; if the bank holds them indefinitely, for no good reason, then the defendant should receive credit for their value as of the date that the bank received them.

PLAIN LANGUAGE SUMMARY: The defendant Robers tricked a bank into issuing a mortgage that he did not pay.  He was convicted of defrauding the bank and ordered to repay the money.  The bank foreclosed on his home, and eventually sold it.  Robers argued he should get credit for the value of the home on the date of the foreclosure, not the lower value of the home on the date that the bank sold the home.  The Court agrees with the bank: Robers gets credit for repaying the loan only when the bank gets the money from reselling the home.

Recommended Citation: Ronald Mann, Opinion analysis: Justices have little sympathy for mortgage fraudster, SCOTUSblog (May. 5, 2014, 10:55 AM),