Forrest Stanley Judd and Iva Jean Judd, Individually and Onbehalf of All Members of a Class of Borrowerssimilarly Situated, Plaintiffs-appellants, v. First Federal Savings and Loan Association of Indianapolis,union Federal Savings and Loan Association, Merchantsnational Bank and Trust Company, American Fletcher Nationalbank and Trust Company, the Indiana National Bank, Andmeridian Mortgage Company, Defendants-appellees, 710 F.2d 1237 (7th Cir. 1983)

After a one-day bench trial, the district court ruled for Defendant Meridian Mortgage Company, finding that the mortgages at issue did not create trusts for the benefit of the mortgagors. We affirm.

* Forrest and Iva Judd filed a class action complaint in 1976, alleging that several defendant banks and savings and loan institutions conspired to force mortgagors to pay in advance certain taxes, insurance premiums, and rents without compensating the mortgagors for the institutions' use of the money. Although the action was initiated under several Indiana and federal statutes, all counts of the complaint were dismissed before trial except a single common law claim against a single defendant, Meridian Mortgage. In that remaining count, the plaintiffs claim that terms of the mortgage contracts executed by class members with Meridian Mortgage create express trusts for the benefit of the mortgagors. They allege that the defendant violated the trusts by using the plaintiffs' advances to its own advantage without accounting to the plaintiffs for profits earned on the money.

The relevant sections of the Veterans Administration-approved mortgage signed by the named plaintiffs and representative of all the mortgages are:

3. [The Mortgagor] will pay to the Mortgagee, as trustee, (under the terms of this trust as hereinafter stated) together with, and in addition to, the monthly payments under the term of the note secured hereby, on the first day of each month until the said note is fully paid:

(a) A sum equal to the ground rents, if any, next due, plus the premiums that will next become due and payable on policies of fire and other hazard insurance covering the mortgaged property (all as estimated by the Mortgagee, and of which the Mortgagor is notified) less all sums already paid therefor divided by the number of months to elapse before one month prior to the date when such ground rents, premiums, taxes and assessments will become delinquent, such sums to be held by Mortgagee in trust to pay said ground rents, premiums, taxes, and special assessments.

(b) The aggregate of the amounts payable pursuant to subparagraph (a) and those payable on the note secured hereby, shall be paid in a single payment each month, to be applied to the following items in the order stated:

(I) ground rents, taxes, special assessments, fire and other hazard insurance premiums;

(II) interest on the note secured hereby; and

(III) amortization of the principal of said note.

Any deficiency in the amount of such aggregate monthly payment shall, unless made good by the Mortgagor prior to the due date of the next such payment, constitute an event of default under this mortgage. At Mortgagee's option, Mortgagor will pay a "late charge" not exceeding four per centum (4%) of any installment when paid more than fifteen (15) days after the due date thereof to cover the extra expense involved in handling delinquent payments, but such "late charge" shall not be payable out of the proceeds of any sale made to satisfy the indebtedness secured hereby, unless such proceeds are sufficient to discharge the entire indebtedness and all proper costs and expenses secured thereby.

4. If the total of the payments made by the Mortgagor under (a) of paragraph 3 preceding shall exceed the amount of payments actually made by the Mortgagee as trustee for ground rents, taxes or assessments or insurance premiums, as the case may be, such excess shall be credited on subsequent payments to be made by the Mortgagor for such items or, at Mortgagee's option, as trustee, shall be refunded to Mortgagor. If, however, such monthly payments shall not be sufficient to pay such items when the same shall become due and payable, then the Mortgagor shall pay to the Mortgagee as trustee any amount necessary to make up the deficiency. Such payments shall be made within thirty (30) days after written notice from the Mortgagee stating the amount of the deficiency, which notice may be given by mail. If at any time the Mortgagor shall tender to the Mortgagee, in accordance with the provisions of the note secured hereby, full payment of the entire indebtedness represented thereby, the Mortgagee as trustee, shall, in computing the amount of such indebtedness, credit to the account of the Mortgagor any credit balance remaining under the provisions of (a) of paragraph 3 hereof. If there shall be a default under any of the provisions of this mortgage resulting in a public sale of the premises covered hereby or if the Mortgagee acquires the property otherwise after default, the Mortgagee as trustee, shall apply, at the time of the commencement of such proceedings or at the time the property is otherwise acquired, the amount then remaining to credit of Mortgagor under (a) of paragraph 3 preceding as a credit on the interest accrued and unpaid and the balance to the principal then remaining unpaid on said note.

In summary, the plaintiffs must pay monthly, with the amount necessary to repay principal and interest on the loan, a sum of money sufficient to pay the next month's portion of taxes, rents, and insurance on the mortgaged property. The defendant applies that money first to pay those bills and second to repay the loan. The defendant has made all required payments.

The contract does not require the mortgagee to pay interest on the advance payments for the time they are held by the mortgagee. Moreover, the district court found:

It cannot be implied from such mortgage loan agreement or any of the surrounding circumstances that the mortgagee impliedly agreed to pay interest on such tendered funds. The mortgagee made no express or implied representations to the mortgagors that the mortgagee would ... obtain an income for the mortgagors from such tendered funds.

II

Defendant Meridian Mortgage deposits the portion of the monthly payments necessary to pay taxes, rents, or insurance into no-interest custodial bank accounts until those bills come due. The balances in these accounts are reported by the defendant as assets on financial statements distributed to regulatory agencies, credit reporting services, and other lenders to establish lines of credit and borrow funds. The plaintiffs argue that inclusion of these balances enables the defendant to qualify for lower interest rates which would not be available without the additional listed assets. It follows, the plaintiffs contend, that because the defendant improperly benefits by using the money it collects and holds in trust, it should be required to return those profits to the plaintiffs.

The plaintiffs urge two theories for relief. First, they contend that the mortgage contracts create accounts for the specific purposes of paying taxes, rents, and insurance. They argue that use by the defendant beyond those specific purposes are breaches of contract. Alternatively, the plaintiffs argue that the mortgages create trusts for the benefit of the mortgagors to manage the monthly payments and that the defendant breaches its duties as trustee by using trust funds for purposes beyond those stated in the trust agreement.

Our task is to determine whether the trial court's rulings that the mortgage contracts did not entail requirements to pay interest or create fiduciary relationships are clearly erroneous.

A. The district court correctly found that the mortgages in this case do not create either the right for the plaintiffs to collect interest on the money while in the defendant's possession or the duty for the defendant to apply the money strictly to its special purposes. The mortgages are contracts, see, e.g., Pearson v. First National Bank, 408 N.E.2d 166, 169 (Ind.App.1980), and we will not impose upon the parties terms and requirements which are not expressed. See generally National Steel Corp. v. L.G. Wasson Coal Mining Corp., 338 F.2d 565 (7th Cir. 1964) (" [A] court has no power to make a new contract for the parties or by construction to write a new agreement into which the parties have not entered."); Ethyl Corp. v. Forcum-Lannom Associates, Inc., 433 N.E.2d 1214 (Ind.App.1982) (Indiana applies four-corner rule; intent of parties determined by instrument itself unless ambiguity therein); Lawrence v. Cain, 144 Ind.App. 210, 245 N.E.2d 663 (1969) (contract means what it says on its face unless some good reason dictates a different meaning).

B. Also, we conclude that under the terms of these mortgages the monthly payments do not constitute special deposits, and therefore the defendant's control over the funds is not restricted. Special deposits traditionally remain subject to order of the depositor. Here the monthly payments are installments on a debt. The bank is a creditor, not a depositary. Once the plaintiffs pay the defendant, they have no right to withdraw the money, demand its return, or direct its disposition by the defendant. Timely payments satisfy the plaintiffs' monthly debts created by the mortgages. In return, the defendant is bound by the mortgage contract to pay tax and insurance bills as they come due. See Kronisch v. Howard Savings Institution, 161 N.J.Super. 592, 392 A.2d 178 (1978).

The mortgage clauses set out above indicate that the monthly payments are not special deposits. The clauses consistently use the word "payments." Additionally, the mortgage provides for lump sum payments that first are applied to pay taxes and insurance, and then are applied to interest and principal on the loan. Although the mortgage terms specify how the mortgagee applies the funds, that alone does not create a special deposit arrangement. Kronisch, 161 N.J.Super. at 600-05, 392 A.2d at 182-85. Moreover, the mortgagee has the sole option to credit excess funds to subsequent payments or to return those funds to the mortgagors. This control indicates that the plaintiffs are not depositors.

C. Next we consider whether the mortgages create trusts requiring the defendant as trustee to account to the mortgagors as beneficiaries for any benefits the defendant may derive from use of the monthly payments. We again conclude that the district court was correct; despite the scattered use of the words "trust" and "trustee," and the phrase "in trust," the mortgages do not transform a traditional debtor-creditor relationship into a fiduciary relationship.

The plaintiffs' argument is not new. Others have claimed that mortgage instruments--similar or identical to the V.A. form mortgage used here--created trusts for management of monthly payments. And those claims have been defeated regularly. See, e.g., Kronisch, and cases cited therein; see also LaThrop v. Bell Federal Savings & Loan Ass'n., 68 Ill. 2d 375, 12 Ill.Dec. 565, 370 N.E.2d 188 (1977), cert. denied, 436 U.S. 925, 98 S. Ct. 2818, 56 L. Ed. 2d 768 (1978); Brooks v. Valley National Bank, 113 Ariz. 169, 548 P.2d 1166 (1976); Carpenter v. Suffolk Franklin Savings Bank, 370 Mass. 314, 346 N.E.2d 892 (1976).

Simply stated, the words used in a document are not always conclusive evidence of a trust. The principal consideration is intent. See, e.g., Dixon v. White, 327 F.2d 434 (7th Cir. 1964) (Indiana law; plaintiff failed to prove that parties intended an express trust rather than merely a debtor-creditor relationship). Several factors indicate establishment of a debt rather than creation of a trust. If the monthly payments here are insufficient to cover first the sums due for taxes and insurance, and second the monthly loan debt, then the mortgagors are in default. There are no expressed restrictions on the mortgagee's use of the monthly payments until the liability arises to pay insurance and taxes. Additionally, none of the parties ever manifested an intention to create a trust other than by signing a form document. The district court's conclusion that the mortgage instruments do not create trust relationships was not clearly erroneous.

When analyzing the mortgage agreement before it, the Kronisch court noted that its terms indicated that the monthly advance payments were part of the mortgage debt, and not trust contributions. The mortgage there, as the mortgage here, provided that a failure to make those payments constituted default. This clearly indicated that the bank required the advance payments as additional security for the mortgage debt. 161 N.J.Super. at 597, 392 A.2d at 180. See LaThrop, 68 Ill. 2d at 383-84, 370 N.E.2d at 192. We apply that reasoning to the facts before us and hold that the mortgages between the plaintiffs and the defendant created debts, not trusts.

D. Finally, the plaintiffs urge imposition of constructive trusts upon the monthly payments, arguing that the defendant fraudulently applies the monthly payments to purposes beyond those specified in the mortgage contract. The plaintiffs deem this an "obvious violation" of the defendant's fiduciary responsibility. In support of this claim, the plaintiffs add to their previous arguments that the defendant acted secretly when negotiating the mortgages. The district court ruled that there was neither actual nor constructive fraud. We agree. Actual fraud, or constructive fraud presumed when a fiduciary or confidential relationship is breached, "constitutes an essential ingredient of a constructive trust." Brown v. Brown, 235 Ind. 563, 568, 135 N.E.2d 614, 616 (1956); Hall v. Indiana Department of State Revenue, 170 Ind.App. 77, 351 N.E.2d 35 (1976). We already have determined that the mortgage does not create a fiduciary relationship, and we believe that the plaintiffs have not proved actual fraud.¹ III

The mortgage instruments here establish standard debtor-creditor relationships; they neither imply special deposits nor create trusts for handling the required monthly advance payments. Moreover, the plaintiffs have failed to establish fraud requiring imposition of constructive trusts. Accordingly, the district court's judgment in favor of the defendant is affirmed.

AFFIRMED.