Plaintiffs in ANZ Bank case want to move forward as class action suit

fili@samoanews.com

Pago Pago, AMERICAN SAMOA — The three American Samoa residents, who are suing ANZ Guam Inc., for alleged violations of federal law, are asking the federal court in Guam to allow the case to “proceed as a class action” suit, in which other bank customers facing alleged similar situations can join.

The complaint filed Mar. 21, identifies the plaintiffs as Ronald Parker, Fa’afetai Parker and Tualagi Gaoteote, “on behalf of themselves and all other similarly situated.” It also says that Ronald Parker and Gaoteote are both US military retirees.

The complaint alleges that ANZ is liable for its systematic violations of the Truth in Lending Act  (TILA) of 1968, for failing to provide homeowners with accurate periodic statements regarding the mortgages it services. And it cites specific allegations of violations committed by the ANZ Guam Inc., dba in Pago Pago as ANZ American Samoa Bank.

The Law Office of Peter C. Perez in Hagatna, Guam represent the plaintiffs.

According to court documents, the plaintiffs are asking the court to determine that this action may proceed as a class action, under federal rules, and appoint Plaintiffs’ counsel as counsel for the Class action. 

If the court approves this portion of plaintiffs' request, others can join in as part of the Class action suit, and the Plaintiffs’ attorney will be responsible for the distribution of a notice about it, according to federal court rules and other legal information available online.

In the complaint, the plaintiffs also asked, among other things, for the court to award them damages, as appropriate; and to cease and desist charging late fees in violation of the mortgage documents.

Additionally, they want it declared that the defendant improperly failed to provide appropriate periodic statements; failed to provide appropriate and timely notices of interest rate changes; and charged excessive late fees in violation of the mortgage documents.

Plaintiffs are demanding a jury trial in the case, according to the complaint, which points out that American Samoa, with 55,000 residents, has the highest rate of military enlistment of any U.S. state or territory, as well as the highest poverty rate of any state or territory—with over fifty-seven percent (57%) of the households living below the poverty line.

“Residents of American Samoa are a captive market with very limited banking options, and ANZ and its predecessors have acted as the sole residential mortgage lender in American Samoa for years,” it says, adding that the plaintiffs “live in a small community that has traditionally been underserved by financial institutions such as ANZ.”

“As a member of that community, ANZ has an obligation to treat its customers fairly and adequately; however, Defendant has taken advantage of their position and continued to prevent homeowners from properly understanding their own obligations,” the lawsuit alleges.

While the defendant has served the plaintiffs' mortgages for many years, the complaint alleges that ANZ has never sent the Parkers or Gaoteote a periodic loan statement or interest rate adjustment notice that complied with TILA requirements.

Although the bank provides documents with some information about consumers’ mortgages, ANZ does not include the information required in a periodic statement.

When the interest rates on Plaintiffs’ mortgages change and result in a changed payment, ANZ does not send them notices that comply with federal law, the complaint alleges, and noted that ANZ routinely mails its correspondence to American Samoa customers from a mailing center in Hawaii weeks after the date of the correspondence itself.

By waiting so long, Defendant knowingly sends its notices fewer than 60 days before the changed payment is due.

According to the complaint, the interest rate on each of the Plaintiffs’ mortgages is calculated based on the Amerika Samoa Bank Base Rate (ASBBR). However, the interest rate adjustment notices sent by ANZ do not discuss any source of information about the ASBBR, how it is determined, or how it is adjusted; nor does the Bank inform homeowners of the remaining term of the loan.

PLAINTIFFS’ EXPERIENCES

For the Parkers, the complaint alleges that the couple has never received a single document that satisfied the requirements for a periodic statement.

“The lack of information provided by the Bank has caused concrete and individualized harm to the Parkers,” it alleges, adding that the couple was informed in early 2015 of being overcharged in interest for years, resulting in the overpayment of $6,375.  The bank notice shows the loan balance at about $52,243.

A bank document dated Aug. 15, 2016, informed the couple of the interest rate hike, with a loan balance of $53,665, the complaint notes, and the Parkers tried unsuccessfully to get more information about their bank loan, including periodic statements as required by federal law.

In the fall of 2017, the Parkers received another interest rate adjustment notice. “Amazingly, the notice showed a projected balance of $51,952.55 on the first page and $41,564.40 on the second page, with no explanation of how these amounts were calculated or why they were different,” the lawsuit states.

For plaintiff Gaoteote, the lawsuit says Gaoteote made a payment within the grace period that met or exceeded the amount due for principal and interest.  But, unbeknownst to Gaoteote, the Bank first applied the payments to a different escrow account to pay for property insurance, then to the outstanding interest on his mortgage, and finally the remainder was applied to the principal.

As a result, the bank determined that he had not made a sufficient payment to his principal and assessed a late charge, the suit says, noting that while Gaoteote received notices in the mail,  he had not made a timely payment, and it did not clearly and conspicuously explain that the Bank did not receive enough funds to pay the entire principal amount.

Last August, the bank’s lawyers sent Gaoteote a proposed “Loan Reinstatement Agreement and Release,” which purported that Gaoteote owed more than $4,665 to the Bank. However, even this document does not provide an explanation of the payments that were received in recent months or the past year.

“Gaoteote became very upset when he received this threat, and has been trying to find out what has happened to his account even though he made timely payments,” the suit says. Gaoteote also received an interest rate adjustment notice last year, but the notice didn’t explain how the index rate was calculated, and when the new payment amount would be due.

However, the notice states on the first page that the outstanding loan balance $48,175 while the second page noted a “Projected Loan Balance” of $45,952.17. There is no explanation on how these amounts were calculated or why they were different.

According to the suit, Gaoteote’s promissory note, from May 2010, sets forth the fees the Defendant will charge if the monthly payments are late. For example, 15 days or more late, the charge is 5.000% of the regularly scheduled payment or $25.00, whichever is greater.

However, the complaint alleges that the bank “repeatedly charged Gaoteote excessive late charges”. In fact, the Bank imposed a late charge every month from April 2016 through November 2017, and in each occasion the fee exceeded 5.000%.

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