The opinion
ROSALYN B. BELL, Judge,
concurring.
The opinion on this case holds that a bank owes no duty of care to a consumer in deciding whether to grant or refuse a loan application. I concur in the result limited to the facts of this case, although not necessarily in the holding espoused by the opinion. I do not agree that the case law cited to support the lack of duty precludes entirely the possibility of finding such an obligation in an appropriate case. We do not have a special verdict here, so we do not know what the jury concluded the negligent act or acts of the bank were. There is a thin line between common law negligence and intentional wrongs. While they are not necessarily and always repugnant, we note that the allegations in this case sound in intentional tort and not in negligence.
Additionally, I concur in the result because Maryland law does not recognize an action for breach of fidelity by a bank, but neither party raises that issue on appeal. I *66 respectfully suggest that a cause of action for breach of fidelity should exist in Maryland. First Federal Savings & Loan Association v. Caudle, 425 So.2d 1050 (Ala.1982), in which the Supreme Court of Alabama held that a bank owed a duty of care to its customer, supports this position. In that case, First Federal agreed to aid the Caudles in obtaining a federal loan to build a house. Because they could not afford the building costs without the loan, the Caudles instructed the builders “to delay construction until the loan was approved.” Id. at 1051 . A bank employee finally informed them that the loan was approved, and the Caudles proceeded to build their house. Only after completion did they learn that the loan, in fact, had been denied. Id. The Alabama court held that, once the bank voluntarily agreed to help the Caudles obtain a loan, it had a duty to act with due care. In further emphasis of this duty, the court pointed out that there was evidence in the case from which “the jury could have concluded that the Caudles’ desire to build a home was predicated on their receiving a low interest loan which they could afford.” Id. at 1052 .
Similarly, the Jacques sought a low interest loan for two reasons: (1) the contingency in their agreement with the seller required a mortgage with a specified interest rate; and (2) the contingency provided that the Jacques would increase their down-payment to qualify for a loan. Their purchase of the house, therefore, depended on obtaining a large enough loan to keep the down-payment affordable and within the specified range of interest rates. The bank’s approval of such a small loan forced the Jacques to choose between breaching their purchase agreement or obtaining a larger loan with an interest rate two percent higher.
There was evidence submitted to the jury which would have supported an inference that the bank did not exercise good faith in evaluating the Jacques’ request for a loan. At trial, the loan officer testified that at the time the Jacques’ filed their application, in August of 1980, the bank was trying to limit the extension of low rate loans. It did this because the bank resold many of its loans and sought to *67 take advantage of the increasing interest rates. The officer further related that when considering the Jacques’ request, the bank failed to follow the guidelines published by the Federal Home Loan Mortgage Corporation despite its ordinary adherence to those standards. For example:
(1) The loan officer averaged only two years of the Jacques’ income. Bank practice usually involved an evaluation of the applicant’s tax returns for the preceding three years. In addition, the officer knew that due to illness the Jacques’ income for the two years was lower than usual and, therefore, distorted their financial status.
(2) Payments on the Jacques’ current home were erroneously included in the calculation. The bank typically reviewed only unsecured consumer debts, as provided by the guidelines.
(3) Income from stock was not considered at all. Its inclusion would have bolstered the strength of the Jacques’ income.
Furthermore, the loan officer admitted that he did not consider alternate factors, such as good credit history or substantial net worth.
The bank’s failure to act in good faith when evaluating the Jacques’ financial status, if believed, could have resulted in an injury that would not have occurred if the bank followed its standard practice and refused the loan outright. Rather than denying the loan, the bank acted in bad faith in approving it. By imposing a duty of care on a bank, consumers would be protected from such procedures.