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BANK OF NEW YORK v. MANN

August 17, 2004.

THE BANK OF NEW YORK, acting solely in its capacity of Trustee for EQCC Trust 2001-1F, Plaintiff,
v.
MARY CLARA MANN, Defendant, MARY CLARA MANN, Counter-Plaintiff, v. THE BANK OF NEW YORK, acting solely in its capacity of Trustee for EQCC Trust 2001-1F, Counter-Defendant.



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, The Bank of New York ("BNY"), filed a complaint on December 20, 2002 seeking to foreclose its mortgage on the property commonly known as 7715 S. Paxton Ave. Chicago, IL 60649, which is owned by defendant, Mary Clara Mann ("Mann"). The Complaint alleges that Mann is in default on the note secured by the mortgage. Mann filed an Answer to the Complaint asserting an affirmative defense and two counterclaims. The affirmative defense and first counterclaim allege that the mortgage is subject to rescission under the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et. seq., on the grounds that the loan originator, EquiCredit Corporation of America ("EquiCredit"), under-disclosed the finance charge in violation of TILA.*fn1 Mann also seeks damages. Mann's second counterclaim alleges that the loan violates the Illinois Interest Act ("IIA"), 815 ILCS 205/4.1a, on the grounds that the interest rate on the subject loan exceeds 8% and the lender imposed fees exceeding 3%. Before the court is BNY's motion for summary judgment on Mann's affirmative defense and counterclaims. For the reasons set forth below, BNY's motion is granted. SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

  FACTS

  The facts as set forth herein are taken from the parties' Local Rule 56.1 statements of material facts and supporting materials. In many instances the facts are undisputed because Mann has failed to respond to BNY's statement of material facts in the manner dictated by Local Rule 56.1. Local Rule 56.1 states that a party opposing summary judgment must file "a concise response to the movant's statement that shall contain a response to each numbered paragraph in the moving party's statement, including, in the case of disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon. . . ." Mann has neglected to cite to the record in support of a substantial number of her disagreements with individual facts in BNY's statement. Furthermore, many of record citations that Mann does include neither support her denials nor provide grounds for disagreeing with BNY's facts. Accordingly, because Mann has not properly contested certain of BNY's facts, the court must accept those particular facts as true. See Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000) ("An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission."). Specifically, the court treats Mann's unsupported denials as admissions in the following paragraphs of Mann's Local Rule 56.1 response to BNY's statement of material facts: 21, 35, 36, 37,38, 39, 46, 47, 51, 60.

  On May 7, 2001, Mann entered into a home loan transaction with mortgage lender EquiCredit. (Pl. L.R. 56.1 ¶ 8.) Mann executed a mortgage on her home at 7715 S. Paxton Ave. Chicago, IL 60649 and a note for $140, 250.00. (Id. ¶¶ 9-10.) First American Title Company ("First American") acted as the settlement agent for EquiCredit at Mann's loan closing on May 7. (Id. ¶ 26.) First American branch manager Dawn Bragg ("Bragg") was the loan closer for Mann's loan. (Id. ¶¶ 27, 30.) Bragg prepared a HUD-1 settlement statement for Mann's closing, which listed the various charges paid from the loan proceeds, and provided a copy to Mann at the closing. (Id. ¶¶ 11, 21, 31.)*fn2 Mann testified that she recognized that the HUD-1 "detailed the financial transaction that was taking place." (Mann Dep. part 1, p. 42.)*fn3 The details from the HUD-1 statement are as follows: Settlement Charges (line 1400)

 
Appraisal-DHM Appraisal $275.00 Credit Report-Transunion $3.53 Broker Fee-Inventive Mortgage $2,112.50
Originator fees Processing Fee-EquiCredit $270.00 Underwriting Fee-EquiCredit $135.00 ________ $405.00 ======= Flood Ins. Determination-Fidelity $11.00
Attached Addendum (lines 812 A, B, C) Tax Service Fee-Transamerica $53.00 Courier Fee-Airborne $24.50 YSP to Inventive from EquiCredit POC 2805 $0.00 ________ $77.50 ======= Settlement-1st American Title $235.50 Title Ins-Citywide Title $335.50
  Recording Fees Mortgage $47.00 Release $23.50 ________ $70.50 ======= Overnight delivery fees-First Amer. $40.00 _______ Total Settlement Charges $3,566.03 ========= $119,070.3 Payoff Fleet Mortgage (line 104) 5 __________ Gross amount due from borrower (Line 120) $122,636.38 =========== Total Paid for Borrower/Principal amount of new loan (Line 220) $140,250.00 =========== Cash to Borrower (Line 303) $17,613.62 =========== (Ex. F.) Mann also received an original and a "corrected" TILA disclosure.*fn4 (Pl. L.R. 56.1 ¶ 14.) Jennifer Faas ("Faas"), a post-loan closing processor at EquiCredit, prepared the corrected disclosure and sent it to Mann after the closing. (Id. ¶ 43.) The original TILA disclosure listed Mann's total finance charge as $309,464.86 and the corrected TILA disclosure listed the total finance charge as $309,414.86, fifty dollars less. (Id. ¶¶ 15-16, 42.) Both TILA disclosures list a payment schedule of 359 payments of $1241.17 and one payment of $1243.33, totaling $446,823.36. (Ex. H, I.) When the loan principal amount of $140,250.00 is deducted from the total payments, the remaining $306,573.36 equals the interest amortized over the anticipated life of the loan. When the $306,573.36 interest figure is deducted from the total finance charge of $309,464.86, as listed in the original TILA disclosure, the remaining $2891.50 equals a prepaid finance charge. The prepaid finance charge included in the original TILA consists of the following individual charges:
 
Broker Fee to Inventive Mortgage $2112.50 Processing and Underwriting Fees to EquiCredit $405.00 Flood Certification Fee to Fidelity $11.00 Settlement/Closing Fee to First America $235.50 Tax Service Fee to Transamerica and courier $77.50 Courier Fees to First America $50.00
Total $2891.50
  (Pl. L.R. 56.1 ¶ 47, 51; Def. Memo. p. 3.) The $50 difference in the two TILA disclosures resulted from Faas' excluding from the corrected disclosure the courier charge paid to First American. (Pl. L.R. 56.1 ¶ 46.) This $50 charge was an estimate of courier fees to mail overnight the loan package to EquiCredit and to mail overnight the payoff of the prior mortgage to Fleet Mortgage ("Fleet"). (Id. ¶ 35.) First American's actual charge for the two courier fees was only $40 and consisted of $25 for sending the loan documents to Equicredit and $15 for sending the prior loan payoff to Fleet. (Id. ¶¶ 36-37.) EquiCredit required First American to mail overnight the loan documents but did not require First American to mail overnight the payoff of the previous loan to Fleet; First American made the decision to mail overnight the payoff based on its own policy and Fleet's suggestion. (Id. ¶¶ 38-39.)*fn5

  The original TILA disclosure states that the amount financed is $137,358.50. (Ex. H.) This amount equals the prepaid finance charge of $2891.50 subtracted from the note amount of $140,250.00. Prior to the loan closing, EquiCredit provided First American with the following estimate of disbursements and payments:

  Disbursement Paid To Description of Disbursement Hold From Proceeds EquiCredit Processing Fee $270.00 EquiCredit Underwriting Fee $135.00 Transunion Credit Report Fee $3.53 Transamerica Tax Service Fee $53.00 Airborne Courier Fee $24.50 Fidelity National Flood Determination Fee $11.00 _________ $497.03 ======= Paid Receipt (POC) Inventive Mortgage Yield Spread Premium $2,805.00 Wire Funds Mary Clara Mann Proceeds to Borrower $16,966.13 Inventive Mortgage Corp Broker Fee Financed $2,112.50 Fleet Creditor $119,070.35 1st Installment 00 taxes Creditor $620.99 First American/Courier Fee Creditor $50.00 Release Fee/First American Creditor $40.00 Clerk of County Court Recording Fees-Mortgage $47.00 First American Title Insurance $335.50 DHM Appraisal Appraisal Fee $275.00 First American Settlement or Closing Fee $235.50 _______ $139,752.97 =========== Total Disbursed $140,250.00 Total Prepaid Finance Charge $2,891.50 ___________ Amount Financed $137,358.50 ===========

  (Ex. J p. 24, Ex. K.) Actual disbursements varied from this estimate in three respects. First, Mann was issued check #10964 for $17,613.62; second, First American retained a total fee of $346.00; and third, no payment was withheld for the first installment of 2000 property taxes.*fn6 (Ex. J, Escrow Ledger and check copies.)

  By comparing the actual disbursements to the HUD-1 statement, the court can determine the cause of these variances. The payment direct to Mann of $17,613.62 was $647.49 more than the $16,966.13 estimated by EquiCredit. This was in part because Fleet paid the $620.99 year 2000 tax installment prior to closing and the amount estimated for this escrow payment was therefore paid directly to Mann. (Ex. J. Inventive Fax.) Subtracting the $620.99 tax estimate from the $647.49 difference between the actual and estimated payments direct to Mann leaves a remaining amount of $26.50 paid to Mann but not directly accounted for. However, the source of this $26.50 can be reasonably inferred from examining the funds retained by the closing agent, First American. First American was entitled to its closing fee of $235.50, and to fees for recording and courier services, which it provided. The estimated and actual mortgage recording fee was $47.00. However, while the estimated fee for release of the prior mortgage was $40.00, First American only paid and collected $23.50 for this service, $16.50 less than estimated. (Ex. F.) Furthermore, as Bragg testified, the actual amount First American collected for courier fees, $40.00, was $10.00 less than estimated by EquiCredit. (Pl. L.R. 56.1 ¶¶ 36-37.) When the $16.50 overestimate related to recording fees and $10.00 overestimate related to courier charges is added together, the sum equals the additional $26.50 payment to Mann in excess of the estimate, computed above.

  Inventive Mortgage ("Inventive"), Mann's mortgage broker, received a total fee of $4917.50. (Ex. J, Check #010966.) This fee consisted of $2112.50 paid out of Mann's loan proceeds from EquiCredit and $2805.00 paid directly by EquiCredit and outside of closing as a Yield Spread Premium ("YSP"). (Ex. D, sub-Ex. 12.)

  Mann did not question any of the expenses detailed on the HUD-1 statement she was given at the closing and, apart from a discussion she had weeks prior to the loan closing with Darnell Calhoun, her broker at Inventive, Mann never discussed canceling or rescinding her loan from EquiCredit. (Mann Dep. part 1, pp. 61,64.) She commenced repayment of the loan and continued until August of 2002 when she made her last payment. (Pl. L.R. 56.1 ¶ 13.) EquiCredit later ...


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