SAN DIEGO (CN) – Bank of America refused to give a gay couple a loan modification because they cannot marry under California law, the men claim in court.
James Donnelly and Randy McWhorter say they have been together for 12 years and have lived at their current home for almost six years.
“The property is in a beautiful, upscale historic, suburban neighborhood north of downtown San Diego,” according to the complaint, which estimates the home’s value at more than $500,000.
McWhorter says the economic downturn forced him to quit his job as a real estate agent and find work in the technology industry. But he and Donnelly have still allegedly had trouble making ends meet.
“Plaintiffs began struggling to make their mortgage payments in late 2008 when their ARM loan adjusted for the first time upward of nearly $600 per month,” according to the complaint, which abbreviates adjustable rate mortgage. “As a result, they sought to modify the terms of their loan with Bank of America.”
But Donnelly and McWhorter say Bank of America has refused to modify their loan for the past four years even though the terms are “abusive.”
The bank has been “lackadaisical and has not given any serious consideration to plaintiffs’ requests for a loan modification,” according to the complaint. “Each time that McWhorter and Donnelly have submitted paperwork for a loan modification they have been greeted with no response from BOA or its servicers.”
McWhorter and Donnelly say the bank contacted them only when they needed to update their paperwork. Otherwise it gave them the run around, promising but failing to mail them the loan paperwork they requested until finally denying their loan in 2011.
Fed up with waiting, McWhorter allegedly went to a Bank of America event in San Diego to try and get the documents he needed.
Bank representative Adam Manson told him McWhorter he needed to have two judgments on his credit report cleared up before he could be approved for a loan, according to the complaint. McWhorter says agent Mel Decker helped him sort things out and promised the paperwork would arrive within five business days.
“Modification documents never arrived,” the complaint states. Neither agent is named as a defendant.
At another event in Riverside, the bank allegedly told McWhorter his “cap rate” was too high because he had missed too many payments during the modification process.
“McWhorter and Donnelly allege that BOA knowingly stalled the modification process thereby increasing the ‘cap rate” to prevent the plaintiffs from obtaining the loan modification that they began working on over four years ago,” the complaint states.
The two men claim that they were eligible for the loan when they first applied, but Bank of America refuses to give them the modification because they are gay.
“BOA told McWhorter that it refused to take his partner Donnelly’s income into consideration in their application for loan modification,” according to the complaint. “Specifically, a BOA agent, Mel Decker, told McWhorter that BOA would not consider Donnelly’s income because ‘…he is not his ‘spouse’ and cannot be married because of the present legal situation in California.'”
McWhorter and Donnelly say Bank of America’s refusal to look at both of their incomes because of their sexual orientation violates the Unruh Civil Rights Act.
As a result, their application was denied, and they “are now threatened with losing their home,” according to the complaint.
The couple also says that Bank of America’s blatant discrimination has caused them to suffer from emotional distress.
“Plaintiffs are informed and believe that the actions of defendants … were intentional, extreme, and outrageous and were done with the intent to cause emotional distress or with reckless disregard of the probability of causing plaintiffs’ emotional distress,” the complaint states.
They also say that “the conduct of defendant subjected plaintiffs to cruel and unjust hardship in conscious disregard of plaintiffs’ rights, as it was anticipated and expected by defendant that plaintiffs would be emotionally distressed and hampered in their ability to function in the usual and ordinary activities of daily living and to perform without emotional distraction the various functions necessary to conduct their personal lives.
“As a consequence of the aforesaid oppressive, malicious, and despicable conduct, plaintiffs are entitled to an award of punitive damages in a sum to be shown according to proof,” they added.
McWhorter and Donnelly want an injunction to end Bank of America’s alleged discrimination, plus punitive damages. They are represented by Steven Haskins of Bonita, Calif.