84 Cal. App. 3d 215 | Cal. Ct. App. | 1978
Pacific Plan of California (Pacific Plan) appeals from a judgment denying its petition for a writ of mandamus to set aside an order of the State Real Estate Commissioner directing Pacific Plan to refrain from charging or collecting escrow fees without taking into account the costs and expenses paid, incurred or reasonably earned for each individual loan transaction. Pacific Plan argues that: 1) the court erred in concluding that Business and Professions Code section 10242, subdivision (a), requires individualized cost accounting for each escrow operation; and 2) the trial court erred in finding that the commissioner had established that fees earned by Pacific Plan were not reasonably earned. For the reasons set forth below, we have concluded that the court below properly determined that Pacific Plan’s method of calculating escrow fees violated the statute.
The facts
Thus, Pacific Plan admittedly charges the maximum statutory amount in every instance but makes no effort to ascertain the “actual costs and expenses paid, incurred or reasonably earned” for each transaction.
The trial court found that as a result of Pacific Plan’s failure to employ a method of calculating escrow fees on the actual costs and expenses paid, incurred or reasonably earned, an unidentified number of borrowers were charged escrow fees in excess of the actual costs and expenses paid, incurred or reasonably earned for that particular transaction. The court concluded that Pacific Plan had violated the statute.
Pacific Plan argues that the above construction of the statute is erroneous and that it should be allowed to total its costs and expenses and average these out over all of the loans for which it served as a broker. Pacific Plan’s construction ignores the express language of the statute which pertains to “The maximum . . . to be paid by a borrower with respect to any loan," and states that “in no event shall said maximum amount exceed actual costs and expenses paid, incurred or reasonably earned." The statute was clearly intended to protect borrowers; its provisions must be read as a whole. First, the statutory maximum, and then the unqualified statement, beginning “in no event.” The language that Pacific Plan wants us to disregard was designed to make certain that a borrower would not be charged the maximum where the actual costs incurred by a particular loan were less than the maximum allowed by the statute. Pacific Plan’s proposed method unfairly charges an unidentified number of borrowers for expenses incurred in other loan transactions.
Pacific Plan argues on appeal, as it did below, that the Real Estate Commissioner had failed to prove that its escrow fees were not reasonably earned. However, since Pacific Plan charges the maximum in each instance and makes no effort to relate the amount charged (either on an hourly or item basis) to the expenses incurred in each loan transaction, the Real Estate Commissioner has no yardstick for determining whether Pacific Plan’s escrow fees are reasonable in any single instance.
Pacific Plan also argues that it is locked into money losing operations as its escrow operation costs twice what it is permitted to charge. This contention is based on the evidence in the administrative proceedings, which indicated that Pacific Plan sustained an overall loss in its escrow operations.
The judgment is affirmed.
Kane, J., and Rouse, J., concurred.
A petition for a rehearing was denied September 22, 1978, and the opinion was modified to read as printed above. Appellant’s petition for a hearing by the Supreme Court was denied November 9, 1978.
The facts are based on the transcript of the administrative proceedings and the findings and the decisions of the administrative judge, which were before the trial court.
UnIess otherwise specified, all references will be to the Business and Professions Code.
By Statutes of 1976, chapter 927, section 4, effective January 1, 1977, the statute was amended to permit fees of 5 percent of the principal amount of the loan or $195, but in no event to exceed $325.
All of these fees, including the escrow fee, are in addition to the borrower’s primary obligations which include a brokerage fee (up to 15 percent of the total amount of the loan; § 10242. subd. (b)(2)), payable to Pacific Plan and interest (at 10 percent; § 10242, subd. (c)). payable to the lender.
The loss was based on all of the loans handled, even though some were within the exceptions of the statute. To make escrows financially remunerative, Pacific Plan also needed to write the title insurance.
The administrative record indicates that some title companies performed escrow services for lower fees than Pacific Plan. For example, in the Bishop transaction, Pacific Plan charged an escrow fee of $99.20; Transamerica Title’s schedules indicated a charge of $45.50 for the escrow service alone, or $40.95 if Transamerica also wrote the title insurance. In the Furrer transaction, Pacific Plan charged $119.40; Transam erica’s charges would have been $45.50, or $40.95.