The Vultures that ate...
HonFed
Snapshots from The Catbird Seat
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April 1, 1997
State settles
Investors Equity case
with bank
Bank of America will pay
$39 million to cover losses of
4,000 policyholders
By Rick Daysog, Star-Bulletin
Bank of America has agreed to pay a total of $39 million to 4,000 policyholders of Investors Equity Life Insurance Co., which the state seized in 1994 in Hawaii's largest insurance failure.
The state had sued Bank of America-Hawaii in August 1995 alleging that the bank's predecessor, Honfed Bank, misled customers when it sold them Investor Equity tax-deferred annuities during the 1980s. Honfed, which was bought by BankAmerica Corp. in 1992, had implied that the annuities were backed by the bank and the federal government, according to the state.
Gov. Ben Cayetano announced the settlement this morning, saying it will "allow full restoration of account values to policyholders who purchased Investors Equity annuities through Honfed."
The governor also said that the state and the bank will set up a special fund to pay Honfed policyholders for damages on top of their investment amounts. The fund will have a maximum of $20 million.
"This is a huge building block in resolving the problems," said John Yamano, attorney for the state.
For policyholders, the settlement is timely given that many weren't expecting to see full restitution. According to Cayetano, the average age of the policyholders is about 70. The state originally didn't expect to reach a settlement with the bank in less than seven years, he said.
The state seized the company in June 1994 after its management ran up about $100 million deficit due largely to investments in speculative investments known as derivatives. At the time of the seizure, Investors Equity had about 13,000 policyholders. Today's settlement affects only the 4,000 policyholders who bought annuities through Honfed.
In December, a Circuit Court judge approved a deal between the state and Gary Vose, Investors Equity's sole shareholder when the company was seized. In that settlement, the state received the Meadows, a 4,000-acre Colorado subdivision and another smaller project owned by Vose. The properties were valued at about $40 million and the state is selling them to reimburse policyholders.
The state has also sued a number of brokerages, including Dean Witter, Merrill Lynch & Co. and Goldman Sachs, over the annuity sales. The suits against the brokerages are pending.
http://archives.starbulletin.com/97/04/01/business/story1.html
January 1, 1991
HonFed and the
great estate
By Yoneyama, Tom, Hawaii Business
WITH A FINANCIAL BOOST FROM THE BISHOP ESTATE, IS THE THIRD-LARGEST FINANCIAL SERVICES COMPANY IN HAWAII FINALLY OUT OF THE WOODS?
How often do business proposals made half in jest end up in dead-serious negotiations? More often than you might think.
Take, for example, First Hawaiian Inc. Chairman, President and CEO Walter Dods Jr.’s off-the-cuff remark to former U.S. Treasury Secretary William Simon about buying First Interstate of Hawaii Inc.
According to Dods, it was a casual comment, but it resulted in a binding agreement to purchase the bank's local operation for $140 million. Not long after the final numbers on that deal had been worked out, remarks by officials of H.F. Holdings, the parent company of Honfed Bank, made to trustees of the Bishop Estate led to intense negotiations concerning the organization's purchase of 23 percent of the state's third-largest financial institution, a deal representing $50 million.
But the deals have more in common than polite conversation. Another common thread running between Honfed and First Interstate is the ownership interest of WSGP International LP, the investment group led by Simon.
Bishop Estate, in turn, also had previous ties to the Simon Group through its $15-million participation in the group's purchase of First Interstate in 1989. Prior to that deal, Simon had control of about 40 percent of First Interstate's island operation.
"They (Smith, Barney, Harris Upham & Co., Honfed's investment bankers) half-jokingly told us, ‘Gee, since you got such a great deal from the First Interstate sale (to First Hawaiian), wouldn't you like to roll it over into Honfed?'" recalls Matsuo Takabuki, a Bishop Estate trustee. "Later, they approached us and asked if we would be interested in taking a piece of Honfed. So we told them if they were serious, let's take a look at the whole god-damned thing."
The "whole god-damned thing," in this case, represented the $50-million cash infusion by Hawaii's largest private estate to help Honfed meet new, tougher capital requirements established by Congress with the passage of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA). The agreement was the latest in a sequence of events over the last four years intended to stabilize the fortunes of Honfed, the state's largest thrift....
http://www.allbusiness.com/finance/248221-1.html
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For more, GO TO > > > Investors Equity Life Insurance Co.: Vultures in the Meadows
May 3, 1990
Simon Group Gets Aid
For Savings Institution
By RICHARD W. STEVENSON, SPECIAL TO THE NEW YORK TIMES
A group headed by William E. Simon, the former Treasury Secretary, said today that it had raised $50 million from a private investor to bolster the financial strength of one of its savings institutions.
The Simon group said that the Kamehameha School/Bishop Estate, a private educational trust in Hawaii, would invest the $50 million in the Honfed Bank of Honolulu, the state's largest savings institution.
Mr. Simon had been considering a variety of alternatives to raise additional funding for Honfed since the Federal Government imposed strict new standards for the financial strength of savings institutions last year. As of Dec. 31, Honfed was $65 million short of meeting the Government's minimum requirements for capital - the buffer an institution keeps against losses.
The investment by the trust, commonly known as the Bishop Estate, marks one of the few successful efforts by a savings institution to raise additional capital since the passage of the savings and loan bailout bill last year. Mr. Simon's group had previously planned to make a limited public offering of Honfed stock to solve the institution's capital shortfall, but Gerald L. Parsky, Mr. Simon's primary partner, said plans for the offering would now be canceled.
Meeting Capital Requirements
Mr. Parsky said the Bishop Estate's $50 million investment plus profits from the sale of some of Honfed's real estate and the operating earnings through the first half of the year should enable the institution to meet the current capital requirements by the end of June, when the Bishop Estate deal is expected to close. The deal is subject to approval by Federal regulators.
The Bishop Estate is the largest landowner in Hawaii and benefits two schools operated for Hawaiian children. In a statement, the estate called Honfed ''an excellent investment opportunity with attractive return potential.''
Mr. Parsky said the Bishop Estate's stake in Honfed would be nonvoting, but he declined to specify what percentage of the institution the estate would control. The estate had previously invested with Mr. Simon in the First Interstate Bank of Hawaii, a commercial bank that the Simon group agreed to sell earlier this year at a large profit.
Before being acquired by the Simon group, Honfed had been financially troubled primarily because of bad real estate loans. The Simon group acquired the institution in 1986 for $17.7 million and then added to the its capital through the issuance of $40 million in ''junk bonds.'' Since then the group has been selling Honfed's real estate portfolio and redirecting the institution into traditional mortgage lending. Honfed has $3.2 billion in assets.
The Simon group also owns four other savings institutions in California and two commercial banks.
February 11, 1990
Bill Simon's Audacious S. & L. Gamble
By RICHARD W. STEVENSON, The New York Times
William E. Simon has a problem, and true to the former Treasury Secretary's reputation, he has a rather audacious solution.
Honfed Bank of Honolulu, one of the savings and loans owned by the investment group Mr. Simon leads, needs a big injection of capital to meet the Government's strict new financial standards.
Mr. Simon's plan for dealing with the shortfall is one that no other institution in Honfed's condition could hope to pull off. He wants to raise the money from public investors willing to trade the considerable risks of the savings business for the chance to get in on a deal with him.
''Never before has the individual investor had the opportunity to invest alongside William E. Simon in a widely distributed public transaction,'' trumpets a promotional brochure prepared for the Honfed deal by the Wall Street firm of Smith Barney, Harris Upham & Company.
That Mr. Simon would even attempt a public offering astounds many analysts. Honfed, while profitable, is technically insolvent under the Government's new rules, although Mr. Simon's associates prefer the phrase ''capital deficient.'' And this being an era in which savings and loan failures and taxpayer bailouts dominate the headlines, Wall Street of late has not been willing to invest in any but the handful of most profitable savings institutions.
''The Simon name aside, the capital markets have been closed to marginal savings and loans, and my sense is that the Street is not going to be wildly enthusiastic about this,'' said Bert Ely, a savings and loan consultant based in Alexandria, Va.
Still, there is an undeniable appeal to the offer. Mr. Simon's investment record, extending back to the leveraged buyout of Gibson Greeting Cards, in which he turned $330,000 of his own money into a $70 million profit in 1984, is the stuff of legend.
Just last week, Mr. Simon agreed to sell First Interstate Bank of Hawaii, another piece of his nascent financial-services empire, in a deal that should allow him to pocket a profit of more than $20 million on a one-year investment of $15 million. Moreover, there are preliminary signs that Honfed could reap some big profits on its real estate holdings, helping its financial condition and allowing it to scale back the size of the public offering....
Raising Eyebrows
''People are slow in coming around to this kind of thinking,'' Mr. Simon said. ''It's the fellow at the head of the pack that people always raise their eyebrows about.''
People have always raised their eyebrows about Bill Simon. Despite the protests of friends and colleagues who admire his wit, charm and generosity, he has long been tagged as arrogant, impatient and ruthless, whether in exercising power in Washington or in adding to a fortune that Forbes magazine estimated last year at $300 million. His success over the last decade has brought carping, some of it no doubt the product of jealousy, that he gets too much credit for deals engineered by others or that his deals minimize his own risk while putting it squarely on others.
If nothing else, the Honfed situation may be the stiffest test yet of the Simon mystique. Mr. Simon's strategy for dealing with Honfed provides a look at how his current ventures operate and how he and his partners are trying to cope with the rapidly changing regulatory environment.
As one of a number of troubled savings institutions acquired in recent years with direct or indirect Government assistance by some of the nation's most sophisticated financiers, including Ronald O. Perelman and Robert M. Bass, Honfed also could eventually be another test of whether Federal regulators gave away too much to lure well-heeled owners into the industry.
That question was raised with new intensity earlier this month when the California-based American Savings Bank, acquired by the Bass Group with well over $1 billion in Government aid, reported record earnings of $214 million for 1989.
For now, it is far too early to speak of Mr. Simon cashing in with Honfed, Hawaii's largest savings and loan company. Indeed, his plans to wean Honfed back to health have been complicated by the sweeping legislation to reform the savings and loan industry passed by Congress last summer.
The Government, for example, has effectively rescinded an earlier agreement that exempted the institution from having to meet its capital requirements for several more years. The bottom line: the turnaround that the group hoped to accomplish over a 10-year period following its acquisition of Honfed in 1986 now must be completed in about half that time.
Meanwhile, Honfed's core earnings - those derived from the basic business of taking deposits and making home loans - remain weak.
Honfed was the first acquisition in Mr. Simon's plan to build a network of savings institutions, banks and other investment ventures around his grand if somewhat hazy notion of the Pacific Rim as the next great economic opportunity.
Along with outside investors, Mr. Simon's group is developing $800 million of
commercial, residential and industrial property around the country. It has also set up
small ''junk bond'' and venture capital funds and considered a host of corporate
acquisitions outside banking.
Other Properties
The group also owns a second small commercial bank, World Trade Bank of Los Angeles, in addition to First Interstate of Hawaii, which in the deal announced last week will be sold to the parent of the First Hawaiian Bank for at least $119 million.
And it owns two savings and loan companies besides Honfed. Two years ago it acquired Western Federal Savings and Loan, a healthy institution based in Los Angeles. At the same time, it accepted Government assistance to acquire Bell Savings, an insolvent institution in California, and then merged Bell into Western Federal. The group also acquired Southern California Savings and Loan, another formerly insolvent institution that is slowly returning to health.
The 62-year-old Mr. Simon, who has always prided himself on staying ahead of the investment pack, was one of the first to view insolvent savings institutions, acquired with some form of direct or indirect Government aid, as an appealing investment.
Mr. Simon got out of the leveraged buyout game in 1985 when he became convinced that the market was overheated and that the deals being offered to him no longer made economic sense. Spurred by friends and business contacts throughout Asia and Australia, he decided to develop a pipeline for Pacific Rim capital to flow into a variety of investments.
Working with Gerald L. Parsky, a Los Angeles lawyer who had been a top aide throughout Mr. Simon's years in Washington, he concluded that there were considerable values to be found in real estate and financial institutions. With Mr. Parsky as an equal partner, Mr. Simon formed WSGP International, an investment vehicle for them and a few close associates.
Mr. Simon plays the role of master strategist, puts up his own money for deals and opens doors to outside investors. Mr. Parsky is in charge of day-to-day operations and is the team's primary dealmaker and negotiator. To provide added clout and experience in the savings and loan business, the group brought in Preston Martin, a former vice chairman of the Federal Reserve and one-time chairman of the Federal Home Loan Bank Board, then the primary regulator of the savings industry.
When the group bought Honfed, called Honolulu Federal Savings and Loan at the time, they got an institution that had hit on hard times in the mid-1980's because of troubled real estate investments and loans.
As part of its acquisition deal with Mr. Simon's group, the Government agreed to write down the value of Honfed's real estate holdings by $107 million, effectively insuring that the new owners would not have to suffer losses when they eventually sold the real estate. In fact, the concession gave the investors a good chance of profiting if the market came back.
In addition, the Government agreed that Honfed could operate for 10 years without meeting the requirements for capital strength in effect at the time as long as it met certain other thresholds for stability. (That agreement, however, is no longer being honored by regulators.) In return, Mr. Simon's group injected $17.7 million of its own money as new capital and arranged for a $40 million junk bond offering to bolster the institution's capital even further.
Mr. Simon and Mr. Parsky believed that members of their group could offer expertise to the institution as well as capital. For example, Larry B. Thrall, a longtime real estate developer, was put in charge of selling Honfed's property, disposing of most of the holdings at significant profits....
Honfed wants to reduce its reliance on expensive deposits by acquiring the 18 Hawaiian branches of First Nationwide Bank, the savings and loan company owned by the Ford Motor Company, for $11 million.
But, in another indication of how the Government's strict new rules have complicated Honfed's plans, Federal regulators will not allow Honfed to go ahead with the First Nationwide deal until it brings itself into compliance with the new capital requirements. As of Sept. 30, the most recent date for which figures are available, Honfed needed $73 million in new capital to reach the requirement for the most basic level of capital, known as tangible capital....
MR. SIMON'S EQUAL PARTNER
The headlines say Bill Simon. But Mr. Simon has always worked closely with others who deserve at least equal credit for his successes. And in his current endeavor, his primary partner is Gerald L. Parsky, a longtime friend and associate who is largely responsible for running the operation.
Mr. Parsky is an equal partner with Mr. Simon in WSGP International, the merchant bank that serves as the parent company for all of their ventures. An energetic, affable 47-year-old whom Mr. Simon describes as his best friend, Mr. Parsky oversees their farflung investments from WSGP's headquarters in Los Angeles while Mr. Simon works primarily in New Jersey, where he lives....
Mr. Parsky graduated from Princeton University and the University of Virginia Law School. He went to the Treasury Department in 1971. By 1974, at the age of 30, Mr. Parsky found himself serving Mr. Simon, who was then the Treasury Secretary, as an Assistant Secretary, the youngest person ever to hold that post.
When the Ford Administration ended, Mr. Parsky considered going into business with Mr. Simon, but decided that he wanted to make a mark for himself on his own. So he joined the Los Angeles law firm of Gibson, Dunn & Crutcher, where by the mid-1980's he had risen to senior partner....
For more, GO TO > > > William Simon Says...
Lawyers Title Insurance Corporation, a Virginia Corporation,plaintiff-appellee, v. Honolulu Federal Savings and Loan Association, a Federal Savings and Loan Association, Defendant-appellant
United States Court of Appeals, Ninth Circuit. - 900 F.2d 159
Argued and Submitted Sept. 13, 1989 .
Decided Jan. 11, 1990.As Amended April 10, 1990
H. William Burgess, Honolulu, Hawaii, for defendant-appellant.
James T. Paul, Honolulu, Hawaii, for plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii.
Before CHOY, CANBY and NORRIS, Circuit Judges.
1
ORDER
2
Lawyers Title Insurance Corporation (Lawyers Title) has made a motion to clarify the opinion filed January 11, 1990, slip op. at 387 (9th Cir. Jan. 11, 1990), appearing in the advance sheets at 893 F.2d 1084 (9th Cir.1990). Lawyers Title asserts that the opinion precludes it from litigating issues of coverage that have not yet been litigated. Honolulu Federal Savings and Loan Association (Honfed) opposes Lawyers Title's motion for various reasons....
4
Neither party provided a copy of the bifurcation order in its excerpts of record on appeal to this court. We thus relied on the district court's findings of fact and conclusions of law from part one of the case, the summary judgment order from part two, and the parties' briefs in determining what had been litigated. The summary judgment order stated that the "case was bifurcated so that the court could decide the issue of coverage separately from the issues of indemnification and bad faith."...
16
OPINION
17
CHOY, Circuit Judge:
18
This case involves a dispute over the coverage of a title insurance policy Lawyers Title Insurance Corporation (Lawyers Title) issued to Honolulu Federal Savings and Loan Association (Honfed). A magistrate bifurcated the case, with part one focusing on whether Honfed suffered an insurable loss, and part two on any remaining claims. Because we find that the district court wrongly decided the issue in part one, we reverse both orders below and remand for further trial.
19
BACKGROUND
20
In July, 1982, Honfed loaned $17,000,000 to two corporations controlled by developer Donald Look. Look obtained this loan to refinance his existing mortgage loans on the Bougainville Industrial Park Subdivision in Honolulu. Look secured the loan with a promissory note and two recorded mortgages covering 44 leasehold lots in the Bougainville project. The leasehold lots include 26 owned in fee by The Queen Emma Foundation, an eleemosynary foundation and a major landowner in Hawaii.
21
The 26 leases from Queen Emma required Look to construct on each lot a building costing at least $100,000. Any mechanic's lien resulting from construction would attach to Look's leasehold and Queen Emma's fee interest under Hawaii law. Therefore, the Queen Emma leases each contained a provision that allowed Queen Emma to cancel the lease in the event that the lessee did not clear any mechanic's lien within five days after foreclosure of the lien.
22
This lease provision posed an obvious threat to Honfed's security interest in its loan to Look, because cancellation would extinguish that security. In order to protect its interest, Honfed purchased an insurance policy from Lawyers Title on July 15, 1982. This standard policy contained a special provision that insured Honfed "against loss which [Honfed] shall sustain by reason of any statutory lien for labor or material which now has gained or hereafter may gain priority over the insured mortgage, or which may attach to the leasehold or fee simple interest in the property."
23
Look ran into financial difficulty, and in 1984 several creditors filed applications for mechanic's liens on the three lots owned by Queen Emma where construction had commenced. In August and September, Queen Emma filed complaints for summary possession and termination of the leases against Look due to nonpayment of rents. In November, Honfed, in order to protect its security and in lieu of foreclosing on the leases held by Look, took an assignment of Look's leasehold interest in all 44 lots and paid all delinquent rents. This assignment was made subject to and did not extinguish or release Honfed's insured mortgage....
25
HonFed's general counsel informed Lawyers Title of the lien applications and requested that Lawyer's Title choose local counsel to defend against the liens on behalf of Honfed. Lawyers Title agreed to pay and did pay Honfed's general counsel to take up the defense.
26
Queen Emma subsequently tendered its defense to Honfed, which, as assignee, was obligated to protect Queen Emma under the lease agreements. Honfed agreed to defend against the liens on behalf of Queen Emma. There appears to be some dispute over whether Honfed sought and obtained approval from Lawyers Title to accept Queen Emma's tender of its defense....
28
Lawyers Title settled the outstanding lien claims for a total of $367,220.00. Lawyers Title then sought a declaration that its policy did not cover the lien claims settled and that Honfed must reimburse it under the indemnity agreement. A magistrate bifurcated the trial so that the district court could determine whether there was an insurable loss separately from all other issues.
29
The district court in part one of the trial held that the liens did not have priority over the mortgage and that Queen Emma had waived its right to cancel the leases. As a result, the court found the lien claims did not fall within the insurance coverage provided by Lawyers Title.
30
In the second part of the trial, the district court relied on the ruling in part one and its own rejection of Honfed's affirmative defenses in declaring summary judgment in favor of Lawyers Title. Honfed timely appealed both orders....
http://cases.justia.com/us-court-of-appeals/F2/900/159/306224/
Harris N. MURABAYASHI; Miwako S. Murabayashi; William H.
Ebina; Betsy S. Ebina, Durine Chiyo Kanai,
borrowers, on behalf of themselves and
all others similarly situated,
Plaintiffs-Appellants,
v.
HONOLULU FEDERAL SAVINGS AND LOAN ASSOCIATION, a federally
chartered savings and loan association, Defendant-Appellee
No. 86-2503.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 6, 1988.
Decided June 3, 1988.
Before WALLACE, REINHARDT and NOONAN, Circuit Judges.
1
MEMORANDUM
2
Harris N. Murabayashi and others brought a class action against Honolulu Federal Savings and Loan Association (HonFed). The plaintiffs were borrowers at 6.25 percent on 20 year home mortgages in the 1960's from HonFed. They sought a declaratory judgment that the maximum increase permissible by the terms of their loans was 1.5 percent. They also sought damages for violation of the federal Truth in Lending laws, 15 U.S.C. 1640, et seq., and Regulation Z issued thereunder, 12 C.F.R. 226. They sought further relief under the Unfair Practices Act, H.R.S. Sec. 480-2.
3
The district court granted summary judgment in favor of HonFed. This court reversed. Murabayashi v. Honolulu Federal Savings and Loan Association, unpublished opinion, October 1, 1984. The district court had held that the terms of the loan agreements "unambiguously permit HonFed to raise the interest rate 1.5 percent per annum over three months, or 6 percent per year." Slip op. p. 2. We, however, observed that the notes did not comprise the entire agreement to be interpreted. Each promissory note had been executed together with a home mortgage. Under Hawaii law, the note and the mortgage had to be interpreted together. The mortgages did not permit HonFed to raise the interest rate over the interest rate "on said note." We held as follows:
4
It is unclear whether the phrase "on said note" means that the limitation on interest rate increases must be measured from the original interest rates on the home loans or from the interest rates as they changed over the life of the loan. We therefore conclude that the phrase "on said note" used in the mortgages is ambiguous because "there is a doubt" about its meaning." Slip op. p. 2.
5
We further noted that "unclear language in a mortgage is resolved against the drafter." But we permitted the parties to present extrinsic evidence to establish the terms of the agreements.
6
On remand six persons connected with HonFed were deposed by the plaintiffs. James Hallstrom, former chairman of the board of HonFed, testified that he understood the note permitted the bank to raise the interest rate "1 1/2 percent per annum and then as often as we care to do that, that is what we always explained to people." He said again that he understood "we had the right to escalate 1 1/2 percent every year, with proper notice." Similar testimony was offered by Richard Hee, a former loan officer of HonFed, that each year HonFed had the right to increase the interest rate 1 1/2 percent.
7
Two other former officers of HonFed said there was no discussion at the bank about the language of the mortgage and the language of the note. Richard H. Fukagawa, a former executive vice president of HonFed, testified categorically that there were no discussions regarding the language of the mortgage comparing it with the language of the note. Isamu Harry Endo, a former loan officer and vice president for marketing, testified that he had no understanding whether there was any limit on interest rate escalations during the life of the loan.
8
It is apparent that the testimony of Hallstrom and Hee takes a view of the note and mortgage which is different from the face of the note. The face of the note, as already construed by the district court, permits an escalation, after three years, of 6 percent per year over the interest rate in existence the previous year. All that is needed is for HonFed to give the appropriate three month notice four times each year. As was admitted by counsel for HonFed in oral argument, this plain meaning of the note leads to astronomical interest rates in the later years of a 20-year note. Neither Hee nor Hallstrom believed that that was what the bank could get. Consequently, they must have believed that the interest rate was somehow held in check by the terms of the mortgage.
9
The mortgage, as this court has already held in its prior opinion, was ambiguous and had to be construed against its drafter, HonFed. Not only was the mortgage ambiguous in the way this court has already held. There was a further ambiguity in that in the event of default as to any term of the mortgage, HonFed had the right to interest at the rate of 8 percent per annum. It is, of course, difficult to believe that an interest rate on its note could be escalated by the bank well above 8 percent while the default provision provided for only 8 percent.
10
HonFed appears to have misunderstood the burden that was placed upon it by the prior decision of this court. The court had found an ambiguity in the mortgage. HonFed had the burden of proving that the meaning of the mortgage, construed against it, did not control the note. HonFed failed to meet this burden. Instead, the testimony of Endo and Fukagawa show that HonFed had not confronted the problem. The testimony of Hallstrom and Hee show that the bank had an understanding of a note that was contrary to its plain meaning. We now accordingly hold that the note read together with the mortgage was ambiguous; that the ambiguity is to be construed against the drafter; and that therefore the maximum permissible interest on the loan was a raise of 1 1/2 percent during the life of the loan.
11
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS DISPOSITION.
12
WALLACE, Circuit Judge, concurring and dissenting:
13
We have a single issue before us: did the district court err in granting summary judgment to HonFed. I agree that it did so because the note and the mortgage are ambiguous and HonFed's extrinsic evidence does not resolve the ambiguity in favor of HonFed. We need not and I would not go any further. Therefore, I disagree with the majority that we should conclude that the maximum permissible interest on the loan was a raise of 1 1/2 percent during the life of the loan. Rather, we should simply reverse the summary judgment for HonFed and remand for trial. On remand, the plaintiffs could, of course, bring their own motion for summary judgment on this issue.
# # #
"Our safety, our liberty, depends upon preserving the Constitution of the United States as our Fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the Courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution."
-- Abraham Lincoln
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Last Update November 2, 2008, by The Catbird