UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAUL E. FISHER; CAROL S. FISHER, 

Plaintiffs-Appellees,

v.

AMERICAN GENERAL FINANCE  No. 01-2511

COMPANY, a corporation; AMERICAN

GENERAL HOME EQUITY,

INCORPORATED, a corporation,

Defendants-Appellants. 

PAUL E. FISHER; CAROL S. FISHER, 

Plaintiffs-Appellees,

v.

AMERICAN GENERAL FINANCE  No. 02-1250

COMPANY, a corporation; AMERICAN

GENERAL HOME EQUITY,

INCORPORATED, a corporation,

Defendants-Appellants. 

Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Elizabeth V. Hallanan, Senior District Judge.

(CA-00-350-2)

Argued: October 31, 2002

Decided: December 11, 2002

Before WILKINS, Circuit Judge, Frank J. MAGILL,

Senior Circuit Judge of the United States Court of Appeals

for the Eighth Circuit, sitting by designation, and

Henry E. HUDSON, United States District Judge

for the Eastern District of Virginia,

sitting by designation.
Reversed in part and vacated and remanded in part by unpublished

per curiam opinion. 

COUNSEL

ARGUED: Robert Reynold Merhige, Jr., HUNTON & WILLIAMS,

Richmond, Virginia, for Appellants. Bren Joseph Pomponio, MOUNTAIN STATE JUSTICE, INC., Charleston, West Virginia, for Appellees. ON BRIEF: John Charles Thomas, HUNTON & WILLIAMS,

Richmond, Virginia; Stephen M. Nickelsburg, HUNTON & WILLIAMS, Washington, D.C.; T. Thomas Cottingham, III, HUNTON &

WILLIAMS, Charlotte, North Carolina, for Appellants. Daniel F.

Hedges, MOUNTAIN STATE JUSTICE, INC., Charleston, West

Virginia, for Appellees. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

American General Finance Company and American General Home

Equity, Inc. (collectively, "American General") raise several challenges to a judgment arising out of a loan transaction. We reverse in

part, vacate in part, and remand. 

I.

In March 1997, Paul E. and Carol S. Fisher refinanced their home

mortgage with a $28,990.36 loan from American General ("the American General loan"). In conjunction with the loan, the Fishers intended

to divide the property on which their house was situated into three

parcels, with their home in the center parcel ("the Middle Tract"). The

parties agreed that the Middle Tract, which appraised at $68,000,

2 FISHER v. AMERICAN GENERAL FINANCE CO.
would secure the loan. A local attorney was then hired to prepare

deeds vesting ownership of the other two parcels in the Fishers and

one of their sons in joint tenancy. 

When this work was completed, Pam Elliott,1 an American General

branch manager, memorialized American General’s security interest

by preparing a deed of trust. The Fishers later realized that Elliott had

copied the description of the entire original property from the Fishers’

title report to the loan documents, instead of copying the description

of the Middle Tract from one of the new deeds. 

In March 2000, the Fishers refinanced the American General loan

with Wesbanco Bank, Inc. ("the first Wesbanco loan"). At that time,

the Fishers learned that since American General had not informed

them that they had three days in which to rescind the American General loan, by law the rescission period had extended to three years.

See 15 U.S.C.A. § 1635(a), (f) (West 1998). The Fishers rescinded

that loan on March 27, 2000—just within the three-year period—by

faxing notice to American General. In that notice, the Fishers

requested that American General calculate their payoff amount in four

days. American General did not respond during that period; by law,

it had 20 days to respond, see 15 U.S.C.A. § 1635(b) (West 1998).

Nevertheless, the Fishers closed on the first Wesbanco loan on March

31, 2000. The amount of the loan was $36,000, with $26,889.16 held

by Wesbanco in escrow to repay American General. 

Even after the loan closed, however, American General refused to

take steps to reflect the release of its lien and failed to provide the

Fishers with an exact payoff amount. Finally, on May 2, 2000, 35

days after receiving notice of the Fishers’ rescission, American General sent the Fishers a letter offering to rescind the loan if the Fishers

paid $16,771.68, which was the original principal amount of the loan

less the total of the payments the Fishers had already made. 

The same day that the letter was sent, the Fishers filed suit against

American General. Two of their claims ("the TILA claims") asserted

that American General violated the Truth in Lending Act ("TILA") by

1Prior to trial, Elliott changed her surname to Perry. 

FISHER v. AMERICAN GENERAL FINANCE CO. 3
failing to notify them of their three-day right of rescission and by failing to release the lien within 20 days of receiving the Fishers’ rescission notice. See id. § 1635(a), (b). A third claim ("the bad faith

claim") alleged that American General breached its contractual duty

of good faith and fair dealing by intentionally misidentifying the

property securing the loan in the deed of trust. A fourth claim ("the

fraud claim") alleged that American General fraudulently induced the

Fishers into entering the loan transaction. 

Despite American General’s offer to release its lien if the Fishers

tendered $16,771.68, American General failed to comply with its

legal duty to take the steps needed to demonstrate release of its security interest even after the Fishers filed suit. See id. § 1635(b) (requiring creditor to take steps to demonstrate release of security interest

within 20 days of debtor’s request for rescission). Accordingly, on

May 25, 2000, in order to avoid continuing to pay interest on the

money the Fishers had borrowed to pay off American General, the

Fishers paid off the $36,000 first Wesbanco loan and obtained a second mortgage from Wesbanco of approximately $9,000 ("the second

Wesbanco loan").2

The Fishers also received six monthly default statements at their

home after filing suit against American General. The Fishers asserted

in an amended complaint that these statements were sent in violation

of W. Va. Code Ann. § 46A-2-128(e) (Michie 1999), which prohibits

a debt collector from communicating directly with a consumer when

it appears that the consumer is represented by counsel ("the WVCCPA claim"). 

Following discovery, both parties moved for summary judgment.

The district court concluded as a matter of law that American General

had violated TILA both by failing to notify the Fishers of their threeday right of rescission and by failing to demonstrate release of its lien

within 20 days of receiving the Fishers’ rescission notice. The court

also ruled, however, that as a matter of equity, the Fishers’ right of

rescission was conditioned upon their tendering of $15,837.48, which

represented the principal remaining on the loan less the interest and

2This loan was a second mortgage because American General had not

yet taken steps to reflect the release of its security interest. 

4 FISHER v. AMERICAN GENERAL FINANCE CO.
closing costs the Fishers had paid. The court further ordered American General to pay a $2,000 statutory penalty under TILA. Finally,

the court granted summary judgment to American General on the

fraud claim and ruled that the Fishers could not recover punitive damages on their remaining causes of action. The court therefore ordered

a trial as to actual damages on the TILA claims and both liability and

damages on the bad faith and WVCCPA claims. 

Prior to trial, American General moved in limine to exclude the testimony of Troy Mynes. Mynes was a former American General

employee who had been deposed for discovery in another suit shortly

after the present lawsuit was filed. The Fishers sought to elicit testimony from Mynes that Elliott and other American General employees

had fabricated personal property on some loan applications in order

to have those applications approved. American General maintained,

inter alia, that Mynes’ testimony was irrelevant character evidence.

The district court disagreed and held the testimony admissible to

show that Elliott’s inclusion of all of the Fishers’ property in the deed

of trust was done in bad faith and that American General had a pattern

and practice of such actions. 

During trial, Mynes failed to appear in response to a subpoena.

Counsel for the Fishers represented to the court that Mynes had

recently suffered a herniated disk. Counsel suggested that excerpts

from Mynes’ discovery deposition taken in the unrelated suit be read

into the record. American General objected, arguing that it had not

had an adequate opportunity to cross-examine Mynes in the prior

case. The court overruled this objection, however, and the excerpts

were read into the record. They included Mynes’ testimony (1) that

in order to qualify Mynes for a loan for which he had applied, Pam

Elliott falsified his loan application to make it appear that he owned

personal property that he did not really own; (2) that Elliott subsequently told him that she would not be punished for the fabrication

because no one would ever find out; (3) that fabricating property on

loan applications in order to qualify the applicants happened on "numerous" occasions at American General, J.A. 239; and (4) that

although Mynes did not know whether it was American General’s

"policy" to qualify people for loans by falsifying their applications, he

"kn[e]w that’s what they did," id. at 241. 

FISHER v. AMERICAN GENERAL FINANCE CO. 5
On the issue of damages, the Fishers sought compensation for damage to their credit and for expenses they incurred with regard to both

Wesbanco loans. They also sought to recover for emotional distress.

The Fishers testified that American General’s actions caused them

"stress," "agony," and "worry" because they were concerned American General would foreclose on their home. Id. at 115, 182. Mrs.

Fisher further testified that she developed shingles, and that the cause

"had to be" the stress caused by American General’s actions. Id. at

115. 

Following the parties’ presentation of their cases, American General moved for judgment as a matter of law on several issues. As is

relevant here, American General maintained that the Fishers had

failed to present sufficient evidence that American General breached

its duty of good faith and that its actions caused the Fishers emotional

distress. American General also challenged the sufficiency of the

Fishers’ evidence relating to several injuries for which they sought

damages on their TILA claims. The district court denied the motion.

Attempting to capitalize on the admission of Mynes’ testimony,

counsel for the Fishers argued to the jury that American General had

built its business "with shady practices and questionable conduct,"

and by "taking advantage" of relatively uneducated people. Id. at 316.

Counsel asked the jury to return a verdict that "tells American General that this is not how you treat people." Id. at 325. And on reply,

counsel stated, "You heard Troy Mynes, they’ve done this thing

before; they will continue to do it again, unless they know that they

have to compensate people for the harm that they caused." Id. at 342.

The jury found in favor of the Fishers on all counts, awarding

$7,500 in actual damages on the TILA claims, $200,000 on the bad

faith claim, and $35,000 on the WVCCPA claim. The district court

then imposed $15,000 in civil penalties under the WVCCPA. American General subsequently renewed its motion for judgment as a matter of law and alternatively moved for a new trial or at least a

remittitur. 

During the pendency of these motions, the district court awarded

the Fishers $57,188 in attorneys’ fees and costs. The court then

denied American General’s motion for judgment as a matter of law

6 FISHER v. AMERICAN GENERAL FINANCE CO.
but reduced the bad faith verdict from $200,000 to $26,534 on remittitur. 

II.

American General argues that the district court abused its discretion in admitting the excerpts from Mynes’ deposition because the

testimony was irrelevant and unduly prejudicial. See United States v.

Van Metre, 150 F.3d 339, 349 (4th Cir. 1998) (stating standard of

review). We agree. 

The Federal Rules of Evidence provide that evidence of prior bad

acts "is not admissible to prove the character of a person in order to

show action in conformity therewith." Fed. R. Evid. 404(b). However,

it may "be admissible for other purposes, such as proof of . . . intent

. . . or absence of mistake or accident." Id. In order for evidence of

prior bad acts to be admissible under Rule 404(b) to show a pattern

tending to refute a claim of mistake, the prior acts "must be similar

in nature to" the act at issue at trial. United States v. Queen, 132 F.3d

991, 996 (4th Cir. 1997). The similarity of the acts is what distinguishes evidence "introduced to show a particular intent" from evidence "introduced only to show a much more generalized intent,"

such as the intent to commit illegal or dishonest acts. Id. The former

may be admissible, while the latter is not. See id.

Here, the dissimilarity between Elliott’s and American General’s

alleged prior acts and Elliott’s incorrect description of the property

securing the loan demonstrates that the evidence of the prior acts was

inadmissible. Mynes’ testimony at most tended to show that Elliott

and American General regularly fabricated personal property on loan

applications in order to qualify applicants for loans. Here, however,

the Fishers had already qualified for their loan. Thus, any dishonesty

by Elliott here would have served an entirely different goal.3 In light

3Although the misstatement in the Fishers’ deed of trust and the fabrications described in the Mynes deposition all involved security for loans,

these statements are not similar in nature. The statement in the deed of

trust operated to the Fishers’ detriment. By contrast, the false statements

described by Mynes apparently assisted applicants in obtaining loans for

which they may not have been eligible. 

FISHER v. AMERICAN GENERAL FINANCE CO. 7
of this critical difference, Mynes’ testimony at most tended to prove

Elliott’s or American General’s "generalized intent" to commit dishonest acts when it served their interests, rather than the "particular

intent" to take a security interest for American General in more property than the Fishers had authorized. Id.; cf. Coast-to-Coast Stores,

Inc. v. Womack-Bowers, Inc., 818 F.2d 1398, 1403-04 (8th Cir. 1987)

(holding that evidence of prior misrepresentations was properly

excluded when acts were "different in kind" from the acts giving rise

to the suit). The court therefore abused its discretion in admitting the

evidence. 

Moreover, the erroneous admission of the deposition excerpts was

not harmless. See 28 U.S.C.A. § 2111 (West 1994) (stating that appellate court may not reverse judgment based on errors that do not affect

substantial rights). As we will discuss in greater detail, there simply

was no other evidence that could support a verdict for the Fishers on

their bad faith claim. And, the Fishers relied heavily on Mynes’ testimony in closing argument, in which they alleged that American General had a pattern and practice of dishonesty that had to be stopped.

Indeed, the size of the damages verdicts—when viewed in conjunction with the Fishers’ modest damages evidence—indicates that

American General was prejudiced by the admission of this evidence.

We therefore vacate the judgment against American General.4

III.

American General next contends that the district court erred in

denying its motion for judgment as a matter of law. We review the

denial of a motion for judgment as a matter of law de novo. See

Anderson v. Russell, 247 F.3d 125, 129 (4th Cir.), cert. denied, 122

S. Ct. 342 (2001). We must view the evidence in the light most favorable to the Fishers, the non-movants, and draw all reasonable infer4The size of the verdicts also strongly supports American General’s

argument that the verdicts were the result of passion and prejudice, and

therefore that the district court abused its discretion in not granting a new

trial on this basis. We need not decide this issue, however, in light of our

vacatur of the judgment. 

Because we vacate the judgment, we also vacate the award of attorneys’ fees and costs. 

8 FISHER v. AMERICAN GENERAL FINANCE CO.
ences in their favor without weighing the evidence or assessing the

witnesses’ credibility. See Sales v. Grant, 158 F.3d 768, 775 (4th Cir.

1998). Judgment as a matter of law is proper only if "there can be but

one reasonable conclusion as to the verdict." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986). 

A.

American General first claims that the Fishers presented insufficient evidence that they were entitled to actual damages on the TILA

claims. To establish actual damages from a TILA violation, a plaintiff

must prove that the violation proximately caused his damages. See

Peters v. Jim Lupient Oldsmobile Co., 220 F.3d 915, 917 (8th Cir.

2000). The Fishers have not claimed any injury from American General’s first violation, its failure to disclose the Fishers’ rescission

rights. Accordingly, we focus on the question of whether there was

sufficient evidence of injury resulting from the second violation,

American General’s failure to take actions to reflect the release of its

lien within 20 days of the Fishers’ cancellation notice. We conclude

that there was. 

The Fishers presented testimony that had American General demonstrated release of its lien within the 20-day period, the second Wesbanco loan would have been a first mortgage rather than a second

mortgage, and their interest rate would have been at least one-andone-quarter percent lower. American General asserts that the

increased interest was not recoverable as damages because the Fishers

would have incurred liability for that interest even had it demonstrated release of the lien, because the Fishers would have needed to

borrow money to repay the American General loan. This argument

misses the mark. Had American General demonstrated release of the

lien within the 20-day period, any money that the Fishers would have

borrowed would have been at the first-mortgage rate, rather than the

higher second-mortgage rate, because Wesbanco would have known

it was the only lender with a lien on the property. 

American General also argues that the Fishers cannot recover costs

associated with the second Wesbanco loan because that loan was not

obtained for the purpose of paying off American General. However,

it is not the purpose of the second Wesbanco loan that serves as the

FISHER v. AMERICAN GENERAL FINANCE CO. 9
causal link between the increased interest and the TILA violation. The

reason that the extra interest may be recoverable is that American

General’s failure to timely demonstrate release of the lien caused the

Fishers to pay second-mortgage rates for any money they borrowed

using their house as collateral—regardless of the purpose for which

the loan was obtained. We therefore conclude that the district court

correctly denied American General’s motion for judgment as a matter

of law on the TILA damages claim.5 Accordingly, we remand for further proceedings regarding this claim. 

B.

American General also maintains that the district court erred in

denying its motion for judgment as a matter of law on the Fishers’

contractual bad faith claim. In light of our conclusion that the Mynes

deposition excerpts were inadmissible, we agree. See Weisgram v.

Marley Co., 528 U.S. 440, 457 (2000) (holding that courts of appeals

are authorized to direct district courts to enter judgment as a matter

of law when there is insufficient evidence to support the jury verdict

once erroneously admitted evidence is excised from the record). 

Nothing in the record showed that Elliott had any motive to claim

a security interest greater than what was authorized by the Fishers,

because the amount loaned was less than half the appraised value of

the Middle Tract alone. Indeed, American General presented unrebutted testimony from one of its former managers that American General

had no motive to obtain additional security, for this very reason.6

Without any evidence that Elliott had a motive to misidentify the

secured property in the deed of trust, a conclusion that her overbroad

5Because we conclude that the evidence was sufficient to support a

damages verdict for the TILA cause of action, we do not address the

Fishers’ other arguments that American General was not entitled to judgment as a matter of law on this claim. 

6At oral argument, the Fishers suggested that the record contained testimony that a foreclosure sale might bring less than the appraised value

of the property. Although the former American General manager did

agree on cross-examination that sometimes properties are sold at foreclosure for far less than their appraised value, he would not agree that they

sell for "as little as 50 or 60 percent of [their] market value." J.A. 278.

10 FISHER v. AMERICAN GENERAL FINANCE CO.
description of the secured property was the result of intentional

deception, rather than simple carelessness, could only be based on speculation.7 Cf. Gibson v. Old Town Trolley Tours of Washington, D.C.,

Inc., 160 F.3d 177, 181-82 (4th Cir. 1998) (holding that conclusion

that failure of former employer to complete and return reference form

sent by former employee was due to retaliatory animus rather than

"slopp[iness]" would be speculative absent other evidence of retaliatory animus). Accordingly, American General is entitled to judgment

as a matter of law on the bad faith claim. 

C.

American General also argues that the Fishers’ damages evidence

on the WVCCPA claim was insufficient. A plaintiff may recover

damages under West Virginia law for injuries proximately caused by

the defendant’s negligent violation of a statute. See Flanagan v. Mott,

114 S.E.2d 331, 335 (W. Va. 1960). However, the only injury the

Fishers claimed as the result of American General’s sending the

default notices directly to them was emotional distress, and American

General argues that the Fishers’ emotional distress evidence was

insufficient to justify a damages award. We agree. 

Although the Fishers testified that American General’s refusal to

release the lien and its default notices caused them concern that

American General would foreclose on their house, no evidence

showed that their anxiety was any greater as the result of American

General’s sending the default notices directly to them rather than

communicating through their counsel, as the statute required. Accordingly, the Fishers’ evidence was insufficient to support a damages

award on this claim, and American General was entitled to judgment

as a matter of law. 

7Mrs. Fisher testified that Elliott had the Fishers sign the deed of trust

before Elliott filled in the description of the property securing the loan.

The Fishers argue that a fair inference from this procedure was that

Elliott did not want the Fishers to see her falsification. However, absent

evidence that Elliott had a motive to describe the loan security incorrectly, it cannot be reasonably inferred that the misdescription was intentional merely because it was facilitated by the procedures Elliott

followed during this transaction. 

FISHER v. AMERICAN GENERAL FINANCE CO. 11
IV.

For the aforementioned reasons, we reverse the denial of judgment

as a matter of law on the bad faith claim and the WVCCPA damages

claim, vacate the balance of the judgment in favor of the Fishers, and

remand for further proceedings. 

REVERSED IN PART; VACATED AND REMANDED IN PART

12 FISHER v. AMERICAN GENERAL FINANCE CO.