SANDRA VANDENBROECK V COMMONPOINT MORTGAGE CO
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
SANDRA VANDENBROECK, ABEL SOTO and
DENISE SOTO,
UNPUBLISHED
August 10, 2004
Plaintiffs,
and
EUGENE NICHOSON and CAROL NICHOSON,
Plaintiffs-Appellants/CrossAppellees,
v
COMMONPOINT MORTGAGE COMPANY,
f/k/a AAA MORTGAGE & FINANCE, f/k/a
ALLSTATE MORTGAGE & FINANCIAL
CORPORATION, f/k/a ANDERSON REALTY,
INC., and CONTIMORTGAGE CORPORATION,
No. 236642
Kent Circuit Court
LC No. 98-010759-CP
Defendants,
and
GREEN TREE FINANCIAL CORPORATION,
Defendant-Appellee/CrossAppellant.
Before: Gage, P.J. and O’Connell and Zahra, JJ.
PER CURIAM.
In its cross-appeal, defendant Green Tree Financial Corporation (Green Tree) appeals the
trial court’s order granting summary disposition in favor of plaintiffs, Eugene and Carol
Nichoson (the Nichosons) and members of the certified class on their breach of contract claims.
We affirm.
-1-
Plaintiffs Sandra VandenBroeck, the Nichosons, and Abel and Denise Soto (the Sotos)
brought this action on behalf of themselves and a class of similarly situated plaintiffs against
defendant CommonPoint Mortgage Company (CommonPoint), which provided mortgage loans
to plaintiffs, and against defendants ContiMortgage Corporation (ContiMortgage) and Green
Tree, which purchased plaintiffs’ mortgage notes from CommonPoint. Plaintiffs alleged
violations of the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq., breach of
fiduciary duty, and unjust enrichment. CommonPoint filed for bankruptcy early in the
proceedings, leaving ContiMortgage and Green Tree to answer for its conduct with respect to the
mortgage loan transactions. Plaintiffs later amended their complaint to add a breach of contract
claim based on CommonPoint’s practice of charging “loan discount” fees to borrowers without
providing any discount in the interest rate charged. ContiMortgage, which purchased the
VandenBroeck and Soto mortgage loans, subsequently filed for bankruptcy. A settlement was
apparently reached through the bankruptcy court with VandenBroeck, the Sotos, and class
members whose loans were purchased by ContiMortgage. The trial court eventually granted
summary disposition to the Nichosons and class members, whose loans were purchased by Green
Tree, on their breach of contract claim. The other pleaded claims were previously or
contemporaneously dismissed by various orders of the trial court. The Nichosons appealed from
the summary disposition order as of right. Green Tree filed a cross-appeal. The Nichosons’
appeal was later dismissed by order of this Court on stipulation of the parties. The issues raised
in Green Tree’s cross-appeal remain for our determination.
I
Green Tree first argues that the Nichosons and other class members were not entitled to
summary disposition on their breach of contract claim. We review a grant of summary
disposition de novo “examining the entire record to determine whether the moving party was
entitled to judgment as a matter of law.” Stopczynski v Woodcox, 258 Mich App 226, 229; 671
NW2d 119 (2003). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. Id. Summary disposition is proper if, after a review of the evidence in a light most
favorable to the nonmoving party, a genuine issue of material fact is not established. Id.
The breach of contract claim was based on allegations that CommonPoint charged the
Nichosons and each of the class members a fee for a “loan discount,” that this contract term
required a discounted interest rate in exchange for the fee, that CommonPoint did not discount
the interest rate, that CommonPoint actually inflated the interest rate, and that CommonPoint’s
conduct breached the contract, resulting in damages. The aforementioned allegations set forth a
prima facie claim for breach of contract. Green Tree argues, however, that the claim was not
proven as a matter of law because the terms of the contract did not provide for a reduction in the
offered interest rate in exchange for the payment of the loan discount fee. Green Tree argues that
there was no breach of the contract terms as written.
The construction and interpretation of a contract presents a question of law that is
reviewed de novo. Bandit Industries, Inc v Hobbs Int’l, Inc (After Remand), 463 Mich 504, 511;
620 NW2d 531 (2001). If contract language is clear and unambiguous, its meaning presents a
question of law for the court. UAW-GM Human Resource Ctr v KSL Corp, 228 Mich App 486,
491; 579 NW2d 411 (1998), citing Port Huron Ed Ass’n v Port Huron Area School Dist, 452
Mich 309, 323; 550 NW2d 228 (1996). If language is unclear or susceptible to multiple
meanings, interpretation becomes a question of fact. Id. The initial inquiry whether an
-2-
ambiguity exists in the language of a contract is a question of law. Brucker v McKinlay
Transport, Inc (On Remand), 225 Mich App 442, 447-448; 571 NW2d 548 (1997). An
ambiguity is not established simply because the parties to a contract dispute its meaning. Cole v
Ladbroke Racing Michigan, Inc, 241 Mich App 1, 14; 614 NW2d 169 (2000). Generally,
contract language is to be construed according to its ordinary and plain meaning, and technical
and constrained constructions are to be avoided. SSC Assoc Ltd Partnership v Gen Retirement
Sys of the City of Detroit (After Remand), 210 Mich App 449, 452; 534 NW2d 160 (1995). Parol
evidence to define and explain the meaning of technical or trade terms is permissible. Id.
Summary disposition may be granted on a contract claim if the terms of the contract are not
subject to more than one reasonable interpretation. BPS Clinical Laboratories v Blue Cross &
Blue Shield of MI (On Remand), 217 Mich App 687, 700; 552 NW2d 919 (1996).
We hold that the contract term “loan discount fee” is subject to only one reasonable
interpretation. It cannot be construed as anything other than a fee paid to reduce the interest rate
on the loan. The testimony and evidence presented to the trial court supports our conclusion. In
a glossary of terms provided to borrowers as part of the loan application process, the term “loan
discount fee” was not defined. A “discount point” was defined as the “amount payable to the
lending institution by the borrower or seller to increase the lender’s effective yield. One point is
equal to one percent of the loan amount.” A “discount loan” was defined as follows: “When the
note rate on a loan is less than the market rate, the lender requires additional points to raise the
yield on the loan to the market rate.” According to Michael Anderson, CommonPoint’s
president, the term “market rate” can be construed to mean the rate the investor determines for
the loan. Construing the glossary definitions together, it is undeniable that a loan discount fee or
point is the amount paid to increase the lender’s yield on loans where the charged interest rate is
below the rate at which the loan could be made.
This definition comports with the common mortgage trade or industry meaning of loan
discount point or fee. Edward Lawrence, the Nichosons’ expert, agreed that discount points and
fees are paid in exchange for a more favorable interest rate. The fee is a premium paid for
obtaining a lower mortgage rate. Ronald Lemmon, CommonPoint’s general manager, also
acknowledged that discount points are generally paid to buy down the interest rate. Laura
Borelli, Green Tree’s expert, previously testified that the industry standard deems a discount
point to be “bona fide” if it results in an interest rate reduction of at least twenty-five basis
points. Clearly, she recognized the correlation between paying a discount point and receiving a
reduction in the interest rate.
We are mindful that some CommonPoint employees defined or attempted to define “loan
discounts” or “loan discount fees” as something other than fees paid to reduce the interest rate.
There was testimony that the term should be defined as a fee paid simply to increase the lender’s
yield. We avoid strained constructions of contractual language, Fitch v State Far Fire & Cas
Co, 211 Mich App 468, 471; 536 NW2d 273 (1995), and we decline to accept an uncommon,
strained definition of the terms “loan discount fee.” If the fee were meant to strictly increase the
lender’s yield, it would be aptly identified as a “yield increase fee.” In reaching our conclusion,
we acknowledge Green Tree’s argument that neither the Nichosons nor any class members were
entitled to conventional loan pricing methods or conventional reductions in interest rates
according to conventional loan pricing methods. The Nichosons, however, never alleged or tried
to prove that they were entitled to conventional loan pricing. They were borrowing in the
-3-
subprime market. Their theory of the case was that CommonPoint should not have charged and
collected loan discount fees when it did not provide loan discounts. Green Tree offered no
evidence to support that the meaning of “loan discount fee” changes depending on the financial
status of the borrower. The Nichosons and members of the class offered clear evidence to
support the existence of contracts requiring payment of a loan discount fee, which term was not
ambiguous and is a fee paid to increase the lender’s yield when a lower interest rate is provided.
The Nichosons also offered unequivocal evidence to support that their contract and those
of other class members were breached. The discount fees were charged and collected, but no
discounts were given to borrowers. Anderson admitted that CommonPoint’s loan originators
were told to charge discount fees to increase profits and to consider the time and work on the file
when deciding what to charge. He testified that CommonPoint did not charge discount fees in
order to lower the rates on the loans. Jolene Walkington, a loan originator, averred that the
discount fees were arbitrarily set, that they were charged to increase profits, and that interest
rates were not lowered based on payment of discount fees. Jay Faunce, a CommonPoint
manager, testified that, if asked about the discount fee, loan originators were instructed to tell
borrowers that the fee was the amount that CommonPoint had to spend in order to buy the rate
down to the rate the borrowers were getting. He admitted, however, that CommonPoint was not
buying down the rate. The discount fee was used to make the origination fee look smaller, i.e.,
the amount the originator wanted to charge would be split between the loan origination fee and
the loan discount fee so borrowers would not question the fees. T. Patrick LaPorte, another
CommonPoint loan originator, testified that his job was to upsell the loan from the “buy rate”
amount set by investors in the secondary market. There was no guideline with respect to how
much the loan discount fee should be, except it could not be higher than state law or lender
maximums. It was a cost of doing business. Inez Walker, a CommonPoint officer, testified that
CommonPoint’s practice was to charge discount fees, but no reduction in the rate of interest was
given. Other employees of CommonPoint offered similar testimony and supported that the
setting of discount fees was discretionary with loan originators. The loan discount fee was not
tied to the setting of the interest rate for borrowers. It was charged to recover costs and increase
profits. Because loan discount fees were paid per the contract, but no corresponding interest rate
reductions were given, the breach was proven as a matter of law.
We disagree that there was any evidence to support a contrary conclusion or to create an
issue of material fact. Specifically, the affidavit of John Watson, a CommonPoint manager, does
not establish that the loan discount fees were related to the interest rates. Watson averred that
fees were charged in an effort to cover the costs of making loans. He further averred that, if the
borrowers had not paid these fees upfront, CommonPoint would have needed to charge higher
interest rates to achieve necessary revenue. He averred that, “[i]n effect, for payment of these
fees, CommonPoint’s borrowers received lower interest rates.” We agree with the trial court that
Watson’s affidavit does not support the existence of a correlation between the charged loan
discount fees and the interest rates offered. While CommonPoint may well have priced its base
rates higher if the collection of potential fees was not generically considered, the affidavit does
not demonstrate or factually support that any corresponding discount in the interest rate was
provided for payment of the loan discount fee. Watson did not rebut evidence that the
determination of a borrower’s interest rate and fees was discretionary with the loan originators
and was not calculated based on any formula. The rate sheets promulgated by CommonPoint set
forth maximum and minimum rates only. They did not outline any calculation with respect to
-4-
setting the interest rate and fees. We find compelling the fact that an originator could have
charged the maximum loan discount fee and the maximum interest rate on any given loan. This
fact belies that loan discounts were given in exchange for the payment of loan discount fees or
that interest rates were set in consideration of the discount fee.
We have reviewed the other testimony upon which Green Tree relies to support that there
was a material question of fact with respect to whether the loan discount fee correlated with the
interest rate. We find that the testimony is either misconstrued or taken out of context. The
evidence does not demonstrate that the Nichosons or any class members received a discount in
the charged interest rate in exchange for the loan discount fee paid. Because there were no
questions of material fact with respect to breach, summary disposition in favor of the Nichosons
was appropriate.
In reaching our conclusion, we disagree that the trial court improperly weighed evidence
and made findings of fact when ruling on the motion for summary disposition. The trial court
reviewed the language of the contract as a matter of law, determined there was no ambiguity in
the term “loan discount fee,” considered the submitted evidence, and determined that there was
no question of material fact with respect to the breach of contract claim. The trial court did not
overstep its bounds in deciding the MCR 2.116(C)(10) motion. We further note that the trial
court did not improperly shift the burden of proof to Green Tree. The Nichosons offered proof to
support their motion for summary disposition on the contract claim. Green Tree was thereafter
called upon to rebut the Nichosons’ evidence. In presenting a motion for summary disposition,
the moving party has the initial burden of supporting its position with evidence. Smith v Globe
Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). The burden then shifts to the opposing
party to establish a genuine issue of material fact. Id.; MCR 2.116(G)(4). Summary disposition
is properly granted where the opposing party does not present evidence to establish a genuine
issue of material fact. Smith, supra, 460 Mich 455. When the trial court challenged Green Tree
to rebut plaintiffs’ evidence, it did not improperly shift the burden of proof.
II
Green Tree additionally argues that the trial court erred by certifying the class in this
case. We review for clear error the trial court’s decision to certify the class. A & M Supply Co v
Microsoft Corp, 252 Mich App 580, 588; 654 NW2d 572 (2002). “Generally speaking, factual
findings are clearly erroneous if there is no evidence to support them or there is evidence to
support them but this Court is left with a definite and firm conviction that a mistake has been
made.” Id.
MCR 3.501(A)(1) provides that one or more members of a class may sue as
representative parties if the class is so numerous that joinder of all members is impracticable
(numerosity), if there are questions of law or fact common to the members of the class that
predominate over questions affecting only individual members (commonality), if the claims of
the representative parties are typical of the claims of the class (typicality), if the representative
parties will fairly and adequately assert and protect the interests of the class (adequacy), and if
the maintenance of the action as a class action will be superior to other available methods of
adjudication (superiority). Green Tree argues that the elements of typicality, commonality,
adequacy, and superiority were not present and thus, class certification should have been denied.
We disagree.
-5-
“Commonality” was established in this case. The commonality factor addresses whether
there is a common issue, resolution of which will advance the litigation. A & M Supply, supra,
252 Mich App 599. The common issues in a class action should be subject to generalized proof
and be applicable to the class as a whole. Id. While the common issues must predominate over
issues that are subject only to individualized proof, there is no requirement that all questions
necessary for ultimate resolution be common to all members of the class. Id. In this case, the
relevant common facts included that class members were charged discount fees and that they did
not receive discounted interest rates in exchange for payment of those fees. The common issue
of law resolved on summary disposition was based on those factual allegations, was subject to
generalized proof, and was common to all class members. Resolution of the contract claims did
not require individualized considerations or an examination of individual loan negotiations.
While there were individual considerations with respect to damages, specifically the amount of
the improper discount fee paid, the individual considerations were not predominant.
Additionally, typicality was established. The elements of typicality and commonality are
similar and tend to merge. Gen Tel Co of the Southwest v Falcon, 457 US 147, 157 n 13; 102 S
Ct 2364; 72 L Ed 2d 740 (1982); Neal v James, 252 Mich App 12, 21; 651 NW2d 181 (2002). In
Neal, supra, quoting Allen v Chicago, 828 F Supp 543, 553 (ND Ill, 1993), this Court noted that
the focus is on whether the named representative’s claims have the same essential characteristics
as the class at large. Neal, supra, 252 Mich App 21. Factual differences between the claims do
not alone preclude certification. Id. The representative’s claim must arise from “the same event
or practice or course of conduct that gives rise to the claims of the other class members” and be
based on the same legal theory. Id. The Nichosons’ contract claim had the same essential
characteristics as the class at large and was based on the same legal theory. Specifically, the
Nichosons and all class members claimed that CommonPoint had a practice of charging loan
discount fees without providing loan discounts.
We decline to review whether the class certification elements of adequacy and superiority
were met in this case because Green Tree fails to argue, explain, or rationalize its position that
the elements were not established. Where a party fails to properly address the merits of its claim
of error, the issue is abandoned. Houghton v Keller, 256 Mich App 336, 339-340; 662 NW2d
854 (2003). We affirm the class certification order.
III
Green Tree next challenges the trial court’s refusal to decertify the class or revoke its
certification. Certification decisions are reviewed under the clearly erroneous standard. Zine v
Chrysler Corp, 236 Mich App 261, 270; 600 NW2d 384 (1999).
In ruling that it would certify the class, the trial court articulated the allegations common
to all class members, including that they paid discount fees and did not receive discounted
interest rates. It noted that, in each case, the issues involved whether CommonPoint’s conduct
violated the MCPA, violated unauthorized practice of law statutes, or created an unjust
enrichment or “otherwise set forth a colorable cause of action.” Before the class certification
order was entered, the trial court allowed amendment of the complaint to add a breach of
contract claim as an alternative to the unjust enrichment claim based on the payment of discount
fees.
-6-
Subsequently, after most of the pleaded claims were dismissed by the trial court, Green
Tree moved to revoke or decertify the class with respect to the contract claim. It insisted that
individual factors predominated over group factors with respect to that claim. The trial court
disagreed that individual issues were predominant with respect to the contract claim, and it
determined that the contract issue was simple. Either the class members received discounted
interest rates in exchange for payment of the fee, or they did not. The trial court denied Green
Tree’s motion, but it indicated that it would revisit the motion if it became necessary, i.e., if it
was later determined that individual issues were predominant.
On appeal, Green Tree argues that litigation of the contract claim by class action was not
a superior litigation method. It maintains that adjudication of each class member’s contract
claim required review of individual contract negotiations and terms. We disagree. We are not
persuaded, on the record before us, that individual considerations needed to be investigated and
decided with respect to the pleaded breach of contract claim. We are also not persuaded that
contract actions cannot be subject to class adjudication. Form contracts, such as the contracts
herein, may be subject to class litigation. See Smilow v Southwestern Bell Mobile Sys, 323 F3d
32, 35 (CA 1, 2003). In Smilow, all class members signed standard form contracts for cellular
telephone services, but their rate plans and fee arrangements differed. Id. The common issues
were found to predominate because the claims were based on the standard form contract, and
there was a common question of law about whether the terms of the contract precluded the
defendant from charging for incoming cellular calls. Id. at 39, 42. Similarly, in the instant case,
the breach of contract claims are based on a fee routinely charged by CommonPoint in
contracting with borrowers. The breach of contract claims are based on CommonPoint’s
common course of conduct in charging the discount fee without providing any discounts. While
damages may vary for each class member, this fact does not negate the propriety of class
certification. Id. at 40. The determination of damages in this case was simple because the
amount of the discount fee paid by each class member was easily ascertainable. We note that,
even if this were not the case, liability can be tried as a class with damages being reserved for
individualized attention. See Sterling v Velsicol Chem Corp, 855 F 2d 1188, 1196-1197 (CA 6,
1988). The trial court did not err in refusing to revoke the class certification.
IV
Finally, Green Tree argues that the trial court abused its discretion in denying its request
to take discovery depositions of class members to learn about individual loan negotiations and
terms. This issue is abandoned on appeal because Green Tree offers only a brief, conclusory
argument and fails to explain or rationalize its position. Houghton, supra, 256 Mich 339-340.
Affirmed.
/s/ Hilda R. Gage
/s/ Peter D. O’Connell
/s/ Brian K. Zahra
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.