Feeling cheated, homeowners sue

When Brad Cohen's monthly mortgage payment jumped from $1,700 to $2,400 and the bank came calling with foreclosure notices, Cohen did what any red-blooded, meat-and-potatoes American would do.

He called a lawyer.

The pending lawsuit could become the first local test case in a broadening national spate of claims against Realtors and lenders who lawyers say put buyers in houses too pricey for their budgets.

Cohen is suing the mortgage broker who refinanced his loan and has retained trial attorney Robert Cottle to represent him.

Cottle is preparing several lawsuits against Realtors, lenders and appraisers -- "a triangle of professionals, every one of whom failed consumers most of the time," Cottle said.

He expects to file Cohen's lawsuit within the next 60 days.

Cottle, a founding partner in Las Vegas law firm Mainor Eglet Cottle, said he'll prove agents, lenders and mortgage brokers failed in their fiduciary duty to explain all borrowing and buying options, and to give home buyers professional recommendations on their best interests. Rather, brokers and agents focused on commissions, fees and corporate bonuses that came from placing buyers in expensive homes with interest-only loans and option adjustable-rate mortgages that adjusted upward. And they did so without explaining the consequences to borrowers, Cottle said.

Attorneys in Arizona, California, Maryland, Ohio and New Mexico have filed similar lawsuits, claiming professional lapses could cost hundreds of thousands of homeowners their properties.

Cottle estimated as many as 15,000 Las Vegans could have solid claims against sales agents, loan brokers and appraisers. He's evaluating about a dozen other cases for a multiparty lawsuit he might file after he files Cohen's lawsuit. Though all his mortgage-related clients have come thus far from referrals, he's planning a public announcement within three to six months to let more homeowners know he's handling such cases.

"The burden of making a good financial decision is on the consumer, but he's got to have the right guidance," Cottle said. "If the defendants can't prove they did their job with professional responsibility, then the consumer wins."

Some observers say the lawsuits won't be so easy to prove.

Tom Davidoff, an assistant professor at the Haas School of Business at the University of California, Berkeley, said consumers rely on brokers and Realtors to give them the right advice.

"People have to rely on the say-so of the professional, because mortgages are very hard to read," Davidoff said.

If a mortgage broker informs a borrower of the loan's terms, however, and the borrower simply ignores the paperwork or doesn't listen to an explanation of the loan, the case weakens. Consumers can't demand more honesty than the law requires, Davidoff said.

And barring cases of outright fraud, it'll be difficult to find a "deep well of sympathy" for homeowners under water on their mortgages, said Keith Gumbinger, vice president of HSH Associates, a Pompton Plains, N.J., mortgage-consulting firm.

"It's important to ascribe some responsibility to the borrower, or we have to paint everybody as a victim," he said. "If someone said you could have a 2 percent interest rate, did you not ask anymore questions? Did you not call a lawyer or anyone else to act on your behalf? Did you simply sign on the dotted line because someone told you that you could have a house for $189 a month?

"If fraud was perpetrated, absolutely, there's a case," Gumbinger added. "If it's just, 'I didn't read the documents and I didn't know the rate could adjust,' that's something different."

Cottle agreed that home- owners share some responsibility for taking out suitable loans.

"But if you put food in front of a hungry man, he's going to eat it," he said. "The consumer relies upon the professional to do their job to protect his interests. This is professional greed. Greed won, the consumer lost, and now we're in this mess."

For Cohen, it's a sizable mess.

Cohen has owned his 1,968-square-foot home in southeast Las Vegas since 1999. In 2005, the disabled dairyman refinanced his mortgage to pay off credit cards and "put some cash in (his) pocket." Everything was fine, Cohen said, until September, when his interest rate adjusted and his monthly installment swelled to $2,400 a month. He hasn't been able to come up with a payment since. He owes more than the home is worth. His homeowners insurance has lapsed, and he can't swing his property taxes anymore. He's gotten as many as 14 calls in one day from his lender, along with letters denying requests to modify his loan's terms.

"It's like everything is crumbling and I feel very trapped," Cohen said. "I'm down in a hole and I can't get out."

That's the fault of the mortgage broker who refinanced his loan, Cohen believes.

He's alleging that she falsified his income on the loan application, and he's also saying she told him he didn't have to read the 200-page stack of papers she placed before him during the loan's closing. Because they'd done business before, he trusted her and didn't study the documents.

"She said, 'We'll be here eight hours if you read every page,'" Cohen recalled. "Now that I look back, I just feel I was blindly taken advantage of because of trust.

"It's a difficult thing," he added. "All your life, you work for certain things. You get them, and then they're taken away because of somebody else's dishonesty."

Cottle will pursue damages for Cohen and other clients on several grounds.

On top of pointing to abandoned fiduciary duties, he'll note Nevada's recognition of liability for lost business opportunities. The consumer whose trashed credit rating costs him a better loan in the future should be paid for missing out on the cheaper mortgage. Then there's the stress of becoming quarry for bill collectors.

"The anxiety they go through by getting threatening calls on a daily basis, it's like being a hunted animal," Cottle said. "That's not what we in America recognize as a civil way to live. It's stressful and it's unfair. But for that greed factor, they wouldn't have those problems."

Cottle won't seek money damages alone; he'll also ask judges to issue restraining orders halting foreclosures, and he'll request improved mortgage terms. In cases involving flagrant fraud, he's hoping for punitive damages.

Each homeowner's mortgage is different, so it's tough to pinpoint typical money damages in cases involving exotic home loans. But Cottle said he expects monetary damages of $50,000 to $150,000 on a $300,000 mortgage. State law caps punitive damages at three times the amount of compensatory damages, so someone winning $100,000 in money damages couldn't get more than $300,000 in punitive awards.

Cottle will try to collect through the professional liability insurance mortgage brokers and sales agents carry to cover errors and omissions in their practices.

Chasing insurance dollars could cause fresh troubles for consumers, Davidoff and Gumbinger say. That's because lenders and brokers will pass along higher costs from litigation, pricier liability insurance and rewritten loans to other home buyers.

"At the end of the day, there are only two people paying for this, and that's you and me," Gumbinger said. "These big awards may be spread over a lot of people, but we all have to pay for them. They will show up in higher transaction costs for everyone else."

Cottle said the real result of his legal efforts will be a return to traditional borrowing criteria, and renewed emphasis on granting loans that borrowers can truly afford.

Cohen has narrower goals.

"I want to be able to get my life back. That's what I want," he said. "I don't want to have to worry every day. Even if I'm not in this house, I don't want to have to worry every day. I don't want to have to contemplate what could happen."

Contact reporter Jennifer Robison at jrobison@reviewjournal.com or 702-380-4512.