This article explores the basis for defending against a restitution claim or Guidelines loss calculation when victims fail to mitigate losses based on a recent concurrence in a U.S. Supreme Court decision. In Robers v. United States, 134 S. Ct. 1854 (2014), the Supreme Court resolved a circuit split concerning the calculation of restitution in mortgage fraud cases, pursuant to the Mandatory Victim Restitution Act of 1996 (MVRA), 18 U.S.C. §3663A. Robers was convicted of conspiracy to commit wire fraud for submitting fraudulent loan applications to purchase two residences. When he failed to repay, the banks foreclosed and sold the homes for less than their purchase prices. Robers argued that the district court erred by ordering him to pay restitution in the amount of the difference between the loan amount and the sale proceeds as opposed to the fair market value of the homes on the dates the banks took title. The Supreme Court rejected that argument unanimously, holding that a “sentencing court must reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it.” 134 S. Ct. at 1856.
The Supreme Court’s approach to loss under the MVRA is consistent with the U.S. Sentencing Guidelines’ (the Guidelines) approach to calculating “loss” in mortgage fraud cases. It provides an offset for the “amount the victim has recovered at the time of sentencing from disposition of the collateral, or if the collateral has not been disposed of by that time, the fair market value of the collateral at the time of sentencing.” U.S.S.G. §2B1.1, App. Note 3(E)(ii).
