William & Mary Business Law Review


Arthur Durst


The United States Circuit Courts of Appeals are split on how to calculate restitution in a criminal loan fraud situation where collateral is involved. This trend is best illustrated in cases involving mortgage fraud. The split stems from disagreement over how to account for the lender’s receipt of collateral property. The Third, Seventh, Eighth, and Tenth Circuit Courts of Appeals consider the property returned when the person defrauded receives cash from the sale of collateral property. The Second, Fifth, and Ninth Circuits deem the property returned when the lender takes ownership of the collateral property. This Note argues that the former conception of the offset value ought to govern. This Note also supports a view of property that considers the lender’s lost opportunity from fraud. Even when restitution is mandatory, the governing rule should take into account the alternative investment the lender would have made if there had been no fraud.