A fine mess. Need some questions answered.

I have a VERY unusual situation which is VERY complex.

Of course background is needed.

My husband's brother owns a company. He applied for $100,000 business line of credit with a personal guarantee jointly in his name and my husband's name (without his knowledge or consent, of course) 4 years ago. He obtained my husband's signature by deception when he presented him only the last page of the document and told him it was for something else. There was nothing on this last page to indicate it was an agreement or an application for $100,000 with a personal guarantee! Since my husband had had no reason to distrust his brother and his explanation of the signature was reasonable, he signed.

The bank granted $25,000. Brother-in-law defaulted, the bank transferred the balance to an amoritizing loan a year ago under an agreement with just my husband's brother since the original account shows $0.00 balance. He then defaulted on the amoritizing loan and the bank then came after my husband for the original fraudulent agreement.

This national bank by coincidence owns our joint mortgage.

The bank's collection agent (collecting their own debt) sent a demand letter to my husband (his first notification of this account). He called and denied knowing anything about this account. Collection agent said it was his debt, she had his signature for the personal guarantee. She demanded payment in 4 days, or the bank would begin legal action to lien/foreclose our joint property since the bank owned our mortgage. She also threatened his credit, which is perfect.

He's a total wimp, was totally intimidated, didn't know his rights, HID this from me, was only interested in protecting our house and our credit--so he paid up $15,000 on this fradulent debt. At no time did the bank's collection agent advise him to file a police report.

Of course when I finally discovered what was going on, I filed the police report and got an attorney. I'm in the process of filing a complaint with the Office of the Comptroller of the Currency and much of the footwork for our lawsuit against this bank to recover the money extorted plus interest and damages.

In addition to the obvious extortion by this bank the documentation they themselves provided to us proves that the original fraudulent agreement was satisfied, the threats against our mortgage and property were illegal. Additionally, inquires at branchs, phone calls to their 1-800 number have repeatedly failed to connect my husband to the account they collected on. It is not even on his credit report! The bank has also consistently reported that the original account has been paid in full. We live in a community property state....both spousal signatures are required for transactions involving guarantees, and they do not have my signature, obviously! The original agreement even states that the spousal signature is required for residents of our state in the FIRST paragraph! The bank then executed this agreement in violation of their own contract and one of our state's substantive laws. Otherwise, the bank would have just "set off" against our mortgage, so they KNEW they were unable to follow through on this threat.

We requested the statement of the account to see how brother-in-law spent $25,000. Not surprisingingly, it WASN'T spent on the business. 99.9% is personal, family, and household purchases. 3/4 of it was for cash advances, which he obviously wasn't transacting in business.

Our attorney drafted a Promissory Note secured by a Deed of Trust for brother-in-law as the other choice to being sued by us for the amount. He signed. He's never denied it is all his debt.


Anyway--to shore up my complaint and going back to my questions--the agreement states that it will governed by California law. If this is the case, and also considering the violations of our state law that was specified in this document--can I cite the Rosenthal FDCPA?

First of all, I am fully aware the California Rosenthal FDCPA does NOT usually apply to business debt collections. I also know that it applies to original creditors (when FDCPA does not) which is why I'm so interested in being able to use it. I have read on this board where posters have said some judges have allowed FDCPA to be applied in collection of business debt in certain circumstances. Given that nearly 100% of this debt was NOT used for business purposes despite being a business line of credit, I am hopeful this one would be one of the exceptions. Since I'm not case-law-searching savvy--can anyone help me out on citing some cases or point me where I can find them?

I'm also needing more information of fundamentall case law--if we are able to cite California's RFDCPA since the agreement states it is governed by California law, would it be a paradox to cite the violation of my state's law with guaranties and spousal signatures?

I'm sure I'll have many more questions before this is over. Thanks if you made it this far!

 

Thanks for responding.

I've read in a few places that personal guarantees are not covered by FDCPA (I would imagine that goes for Rosenthal as well). I believe the case cited is Ranck vs. Fulton Bank.

I wish I could read these things somewhere online, but it appears I need a subscription--like Westlaw or Lexis you suggested. Do you think I would be able to access at our university's law library at no cost?

I realize that the bank can't be held responsible for knowing the original agreement was obtained fraudulently. (That is, until my husband told them over and over again). However, I feel that it should have been obvious to the bank something was amiss from the vast amounts of cash advances and purchases made at theme parks and restaurants in another state, and other stores which clearly sell nothing that someone in brother-in-law's line of business would purchase for business purposes.

You mention the 9th Circuit....would we not just be able to file suit in our local Superior Court? Which was really my main question, can we file locally in our state, yet invoke Rosenthal (since the document states that is governed by California law), but we don't live in California?

 

Luckily both California and our state are community property states, so I don't forsee a conflict there. However, our state specifically requires spousal signatures for guaranties, but I haven't found that California does--would this be an example of a 'conflict of laws mess' you had in mind?

I guess I thought that perhaps this meant that California law would be the minimum standard that this contract was held, but if the contract were made in another state with more specific laws (such as spouses are required to sign guaranties), then those laws would take priority? As I'd mentioned before, this contract specifies in the first paragraph that spouses of residents of our state were required to sign.

So an attorney can invoke another state's law in court? They dont' have to be certified in that other state or anything?