Madonna v. Nations Home Mortgage Corporation et al

1This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b). This is a core
proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(B) and (K).
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re 	: 	CHAPTER 13
:
DEBORAH W. MADONNA and 	:
BRUCE L. WILSON, 	:
: 	Bankruptcy No. 04-13510 KJC
Debtors. 	:
:
:
DEBORAH W. MADONNA, 	:
Plaintiff 	:
:
v. 	:
:
NATIONS HOME MORTGAGE CORP. :
and OPTION ONE MORTGAGE 	:
CORPORATION 	:
Defendants 	: 	Adversary No. 04-0933 KJC
MEMORANDUM1
BY: 	KEVIN J. CAREY, UNITED STATES BANKRUPTCY JUDGE
On March 11, 2004, Deborah W. Madonna and Bruce L. Wilson (together, “the
Debtors”) filed a joint voluntary petition under Chapter 13 of the United States Bankruptcy
Code. On October 2, 2004, Deborah W. Madonna (the “Plaintiff”) filed a two-count Adversary
Complaint against Nations Home Mortgage Corporation and Option One Mortgage Corporation
(the “Defendants”).
Count One seeks rescission and damages for violations of the Truth-in-Lending Act, 15
U.S.C. §1601 et seq. (“TILA”), alleging that the Defendants failed to: (i) provide required
disclosures for adjustable rate loans prior to settlement, (ii) properly disclose certain terms of the
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2The Plaintiff’s deposition will be referred to as “Pl. Dep. at ___.”
2
loan transactions (particularly, the finance charge), and (iii) provide the required copies of the
Notice of Right to Cancel. Count Two seeks damages for violations of the Equal Credit
Opportunity Act, 15 U.S.C. § 1691 et seq. (“ECOA”), alleging that the Defendants failed to
provide credit on the terms requested by the Plaintiff and, instead, significantly changed those
terms without advising the Plaintiff.
On April 29, 2005, the Defendants filed a motion for partial summary judgment (docket
no. 22)(the “SJ Motion”), seeking dismissal of (i) the claim in Count One regarding improper
disclosure of finance charges under TILA, and (ii) the ECOA claim in Count Two. The
Defendants have not requested summary judgment on the issues in Count One regarding whether
the Defendants gave the Debtors the appropriate disclosures for variable rate loans or the correct
number of copies of the Notice of Right to Cancel at settlement.
For the reasons which follow, the Defendants’ motion for partial summary judgment will
be granted as to the finance charge disclosure claim in Count One, and denied as to the ECOA
claim in Count Two.
Facts
The pleadings, depositions, affidavits and other evidence submitted by the parties to
support or oppose the Summary Judgment Motion establish the following facts:
1. 	The Plaintiff purchased her residence at One Christian Street, Philadelphia, PA (the
“Property”) in 1993. (Plaintiff’s Deposition 3/17/05 at 11).2 She lives at the Property
with her husband, Bruce Wilson (“Wilson”), although he has never been an owner of the
Property. (Pl. Dep. at 11).
2. 	In August 2002, the Debtors decided to refinance the existing mortgages on the Property.
As a result of a search on the internet, the Debtors contacted two mortgage lenders, and
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3Wilson’s deposition will be referred to as “Wilson Dep. at ___.”
3
ultimately decided to pursue a mortgage with Nations Home Mortgage Corporation
(“Nations”). (Wilson Deposition 3/17/05 at 20-22; Pl. Dep. at 13). 3
3. 	The Debtors’ contact at Nations was Heather Bolgen (“Bolgen”) and the Plaintiff’s
understanding from her conversations with Bolgen was that the loan’s interest rate would
be a fixed rate in the range of 7.9%. (Pl. Dep. at 18).
4. 	On or about August 21, 2002, the Plaintiff signed a “Uniform Residential Loan
Application” requesting a loan in the amount of $260,000 for a term of 30 years with an
interest rate of 10.55% and an “ARM” (adjustable rate mortgage) amortization feature.
(SJ Motion, Ex. C). The Application is also signed by Bolgen.
5. 	On September 13, 2002, the Debtors attended a loan closing in New Jersey. (Pl. Dep. at
30-31; Wilson Dep. at 39-40). At the closing, the Plaintiff signed several documents,
including the following:
a. 	A revised Uniform Residential Loan Application, that requested a loan in the
amount of $251,000 for a term of 30 years with an interest rate of 10.55% and an
“ARM” amortization feature (SJ Motion, Ex. D);
b. 	A Hazard Insurance Requirements & Authorization (SJ Motion, Ex. E);
c. 	A Federal Truth-In-Lending Disclosure Statement, which was also signed by
Wilson (SJ Motion, Ex. F);
d. 	An Adjustable Rate Mortgage Loan Program Disclosure (SJ Motion, Ex. G);
e. 	An Adjustable Rate Rider (SJ Motion, Ex. H);
f. 	A Mortgage granting a lien against the Property in favor of Nations to secure the
note (described below) from the Plaintiff to Nations, which was also signed by
Wilson (SJ Motion, Ex. I);
g. 	An Adjustable Rate Note promising to pay Nations the principal amount of
$247,000, plus interest (SJ Motion, Ex. J); and
h. 	A Uniform Settlement Statement, which was also signed by Wilson (Pl. Dep., Ex.
6).
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Standard - Summary Judgment
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(c), made applicable to this adversary proceeding by Fed.R.Bankr.P.
7056. In a motion for summary judgment, the moving party “always bears the initial
responsibility of informing the...court of the basis for its motion, and identifying those portions
of ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with
the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
Once the moving party has made a proper motion for summary judgment, the burden
shifts to the non-moving party, pursuant to Rule 56(e), which states, “[w]hen a motion for
summary judgment is made and supported as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s
response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the adverse party.” Fed R. Civ. P. 56(e); see
also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89
L. Ed. 2d 538 (1986). The party opposing the motion “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
Before a court will find that a dispute about a material fact is genuine, there must be
sufficient evidence upon which a reasonable jury could return a verdict for the non-moving
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party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986). The court must view the facts and draw inferences in a light most favorable to the non-
moving party. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513-14. “[W]here the non-moving
party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore
v. Bell Tel. Co., 24 F.3d 508, 512 (3d Cir. 1994). It is not the role of the judge to weigh the
evidence or to evaluate its credibility, but to determine “whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
Discussion
A. Proper disclosure of the finance charge under the TILA.
The Defendants seek partial summary judgement with respect to the claim in Count One
alleging that the Defendants failed to disclose properly the loan’s finance charge. As part of
discovery, the Defendants asked the Plaintiff to identify the closing fees she claimed were “very
high” or “unreasonable” and which closing fees and charges should have been included in the
finance charge under TILA. (SJ Motion, Ex. K, ¶14). The Plaintiff’s response to this
interrogatory (SJ Motion, Ex. L, ¶14), which incorporated paragraph 9 of the Complaint, states
that the following charges should have been included in the TILA finance charge:
Loan Discount Fee 	$ 9,880.00
Credit Report Fee 	$ 	12.50
Funding Fee 	$ 	50.00
Tax Service Fee 	$ 	70.00
Application Fee 	$ 	350.00
Underwriting Fee 	$ 	515.00
Flood Cert. Fee 	$ 	12.00
UPS Package Fee 	$ 	25.00
Notary Fee 	$ 	25.00
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4For the purpose of deciding this Summary Judgment Motion, the Defendants are not contesting
that the Plaintiff was entitled to the lower reissue rate for title insurance. This “overcharge” fee was
calculated by determining the difference between the title insurance charge that appears on the settlement
sheet ($1,799.38) and the proper reissue rate, as claimed by the Plaintiff ($1,434.38). Fees for title
insurance are excluded from the finance charge, if they are bona fide and reasonable in amount. 	12
C.F.R. § 226.4(c)(7)(i). To the extent the Plaintiff was overcharged, however, only the unreasonable
portion of the fee is disclosed as part of the finance charge under TILA. Johnson v. The Know Financial
Group, L.L.C., No. 03-378, 2004 WL 1179335, *7-*8, *10 (E.D.Pa. May 26, 2004).
5TILA vests the Board of Governors of the Federal Reserve System with the power to promulgate
regulations for the interpretation and implementation of the Act. See 15 U.S.C. § 1604(a). The TILA
regulation, known as “Regulation Z,” is found at 12 C.F.R. Part 226.
6
Title Insurance Overcharge 	$ 	365.00 4
Interest from 9/18/02 to 10/01/02 	$ 	801.84
Hazard Insurance (3 months) 	$ 	430.89
Homeowner’s Insurance 	$ 1,732.00
_____________________________________________
Total 	$14,269.23
The Defendants argue that the charges related to property insurance, included on the
above list in the amounts of $430.89 and $1,732.00, are not finance charges. TILA’s regulation
clearly provides that premiums for insurance against loss of or damage to property may be
excluded from the finance charge calculation if: (i) “the insurance coverage may be obtained
from a person of the consumer’s choice, and this fact is disclosed” and, (ii) if the coverage is
obtained from or through the creditor, the premium for the initial term of insurance coverage
shall be disclosed.5 12 C.F.R. §226.4(d)(2) (i) and (ii)(2005). See also 15 U.S.C.
§1605(c)(2005).
The Plaintiff signed the TILA Disclosure Statement, which stated that she could obtain
property insurance from anyone “that is acceptable to the Lender”. (Pl. Dep., Ex. 7). Wilson
testified in his deposition that he obtained the hazard insurance for the Property from Farmers
Insurance Group. (Wilson Dep. at 38-39). The Plaintiff, however, argues that the insurance
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6The amount of $430.89 for three months of hazard insurance is excluded from the finance charge
calculation also pursuant to 15 U.S.C. §1605(e) which provides, in pertinent part, as follows:
(e) 	Items exempted from computation of finance charge in extensions of credit secured by an
interest in real property.
The following items, when charged in connection with any extension of credit secured by an
interest in real property, shall not be included in the computation of the finance charge with
respect to that transaction:
....
(3) 	Escrows for future payments of taxes and insurance.
7
charges must be included in the finance charge calculation because the Defendants required any
insurer selected by the Plaintiff to be “acceptable to the Lender.” The Plaintiff claims this “veto
power” curbs her right to select an insurer and causes the cost to fall outside the finance charge
exception. This argument, however, fails, in light of the language of Regulation Z, which
provides that: “A creditor may reserve the right to refuse to accept, for reasonable cause, an
insurer offered by the consumer.” 12 C.F.R. §226.4(d)(2)(i) n.6 (2005). The insurance charges,
therefore, may be excluded from the finance charge. See Clark v. U.S. Bank Nat'l Ass'n, No. 03-
5452, 2004 WL 1380166, *5 (E.D.Pa. June 18, 2004)(holding that the property insurance cost
was properly excluded from the finance charges because the TILA Disclosure Statement stated,
"you may obtain property insurance from anyone you want that is acceptable to Ameriquest
Mortgage Company.").
The charge identified as “Homeowner’s Insurance” on line 1112 of the Settlement
Statement, and payable to Farmers Insurance Group, in the amount of $1,732, and the charge
identified as three months of hazard insurance premiums on line 1001 of the Settlement
Statement, in the amount of $430.89, both fall within the finance charge exception set forth in
TILA and Regulation Z, and were properly excluded from the finance charge.6
When the insurance charges are removed from the Plaintiff’s list of items to be included
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7The Plaintiff argues that the Defendants should not be able to “back into” this number, but
should disclose a complete breakdown of the amounts that make up the disclosed “finance charge” of
$561,672.80. The disclosed finance charge need not be itemized. 15 U.S.C. §1638(a)(3)(2005).
815 U.S.C. §1605(f) provides, in pertinent part, as follows:
(f) 	Tolerances for accuracy
In connection with credit transactions not under an open end credit plan that are secured
by real property or a dwelling, the disclosure of the finance charge and other disclosures
affected by any finance charge - -
(1) 	shall be treated as accurate for purposes of this subchapter if the amount
disclosed as the finance charge - -
....
(B) 	is greater than the amount required to be disclosed under this subchapter;
....
8
in the finance charge, the total amount is reduced to $12,106.34. The Defendants argue that the
TILA Disclosure Statement received by the Plaintiff at closing is based upon prepaid finance
charges in the amount of $12,258.84. The Defendants arrive at this figure by subtracting the
“amount financed” ($234,741.16), as disclosed on the TILA Disclosure Statement, from the
principal amount of the loan, as set forth in the note ($247,000).7 Because the disclosed prepaid
finance charges of $12,258.84 are actually greater than the finance charges as calculated by the
Plaintiff, the Defendants have not violated TILA’s requirements for finance charge disclosures.
15 U.S.C. §1605(f)(2005).8 The Defendants’ request for summary judgment on this claim in
Count One will be granted.
B. ECOA claim.
In Count Two of the Complaint, the Plaintiff claims that the Defendants violated ECOA
by changing significantly the terms of the credit transaction and substituting less favorable terms
without notice to the Plaintiff. 	The Defendants request summary judgment on this claim,
contending that the Plaintiff’s deposition testimony shows that she did not request specific loan
terms and, therefore, there was no “counteroffer” under ECOA. In the alternative, the
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9The Board of Governors of the Federal Reserve System is authorized “to prescribe regulations to
carry out the purposes of [ECOA].” 15 U.S.C. §1691b(a)(1)(2005). Accordingly, the Board
implemented regulations known as “Regulation B.” 12 C.F.R. §202.1 et seq. (2005).
9
Defendants argue that, even if there was a counteroffer, written notice was not required under
ECOA.
The Defendants point to the Plaintiff’s deposition testimony in which she admitted that
Bolgen never guaranteed a 7.9% rate [Pl. Dep. at 72-73], and in which the Plaintiff indicated that
she did not request a loan with specific terms, but rather a loan “with a reasonable rate that
would fit within our budget.” [Pl. Dep. at 24]. In response, the Plaintiff submitted an Affidavit
stating that her discussions with Bolgen prior to settlement led her to believe that she would
receive a loan with a fixed interest rate of 7.9%. 	[Madonna Aff. ¶6]. 	The Plaintiff also stated
that she was told by Bolgen to disregard any figures on the application that were different from
the fixed 7.9% interest rate because the figures on the application were just “to get the loan
process started.” [Madonna Aff. ¶7].
Among other things, ECOA and its implementing regulations set forth certain procedures
that lenders must follow when responding to credit applications. 9 The ECOA regulations define
the terms “application” and “completed application” as follows:
Application means an oral or written request for an extension of credit that is made in
accordance with procedures used by a creditor for the type of credit requested. ... A
completed application means an application in connection with which the creditor has
received all the information that the creditor regularly obtains and considers in evaluating
applications for the amount and type of credit requested (including, but not limited to,
credit reports, any additional information requested from the applicant, and any approvals
or reports by governmental agencies or other persons that are necessary to guarantee,
insure, or provide security for the credit or collateral).
12 C.F.R.§ 202.2(f)(2005). The Official Staff Commentary to the ECOA Regulations provides
further guidance to determine when a potential borrower’s “inquiry” becomes an application:
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A creditor is encouraged to provide consumers with information about loan terms.
However, if in giving information to the consumer the creditor also evaluates information
about the consumer, decided to decline the request, and communicates this to the
consumer, the creditor has treated the inquiry... as an application and must then comply
with the notification requirements under § 202.9. Whether an inquiry... becomes an
application depends on how the creditor responds to the consumer, not on what the
consumer says or asks.
Official Staff Commentary, 12 C.F.R. Pt. 202, Supp. I, § 202.2(f), ¶3. The record established by
the parties thus far is not sufficient to determine when the Defendants received a “completed
application” from the Plaintiff and the terms requested in that application.
The Defendants argue that, even if I were to assume the Plaintiff submitted an application
requesting terms different from those ultimately contained in the loan documents, ECOA does
not require written notice of a counteroffer that is accepted by the borrower. Whether a lender is
required under ECOA to provide written notice of a counteroffer depends on whether the
information being evaluated is a “complete application” or an “incomplete application.” The
ECOA Regulations set forth notification requirements as follows:
§202.9 Notifications
(a) 	Notification of action, ECOA notice, and statement of specific reasons - -
(1) 	When notification is required. A creditor shall notify an applicant of
action taken within:
(i) 	30 days after receiving a completed application concerning the
creditor’s approval of, counteroffer to, or adverse action on the
application;
(ii) 	30 days after taking adverse action on an incomplete application,
unless notice is provided in accordance with paragraph (c) of this
section;
12 C.F.R. §202.9 (2005)(emphasis supplied). According to this regulation, written notice of a
counteroffer is not required for an incomplete application. For incomplete applications, lenders
may provide written notice of an “adverse action,” or comply with the “notice alternatives” (such
as sending notice of an incomplete application or orally requesting additional information). 12
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10 An “Adverse Action” is defined, in pertinent part, as:
(i) 	A refusal to grant credit in substantially the amount or on substantially the terms
requested in an application unless the creditor makes a counteroffer (to grant credit in a
different amount or on other terms) and the applicant uses or expressly accepts the credit
offered.
11 In their Reply Brief, the Defendants argue that two courts in the Eastern District of
Pennsylvania have held that a counteroffer accepted by the borrower is not an adverse action requiring
written notice under ECOA, citing Thomas v. Cendant Mortgage, No. 03-1672, 2004 WL 2600772
(E.D.Pa. Nov. 15, 2004); and Ricciardi v. Ameriquest Mortgage Co., No. 03-2995, 2004 WL 739965
(E.D.Pa. March 15, 2004). While these decisions hold that a counteroffer accepted by the borrower is not
an “adverse action” under ECOA, they do not resolve the notice issue as argued by the Defendants. In
Thomas, the court did not address the notice issue, holding, in pertinent part, that the counteroffer
exception did not apply when the borrower did not accept the counteroffer. Thomas, 2004 WL 2600772
at *7. 	In Ricciardi, the court determined that the lender provided appropriate notice of the counteroffer
under ECOA by presenting the borrower with a “Borrower’s Acknowledgment Form” at closing that
“clearly set forth the originally requested terms and the final terms of the loan.” Ricciardi, 2004 WL
739965 at *4. 	These cases do not support the Defendants’ position that written notice of a counteroffer is
not required under ECOA.
11
C.F.R. §202.9(a) and (c). The term “adverse action,” as defined in 12 C.F.R. §202.2(c)(1)(i),
does not include a counteroffer that the “applicant uses or expressly accepts.” 12 C.F.R.
§202.2(c)(1)(i)(2005). 10
However, the same is not true for completed applications. Upon receipt of the completed
application, the lender has 30 days to give notice of its decision on the application. There are
three types of action a lender might take with respect to a completed application, each triggering
a notice requirement: an approval, a counteroffer, or an adverse action. Newton v. United
Companies Fin. Corp., 24 F.Supp.2d 444, 459 (E.D.Pa. 1998); Armstrong v. Nat’l Mortgage
Plan/Trust, 288 B.R. 404, 422 (Bankr.E.D.Pa. 2003). “Notice of an approval can be implicit, by
granting the credit requested. There is no provision, however, for implicit notice of either an
adverse action or a counteroffer.” Newton, 24 F.Supp.2d at 460 citing Official Staff
Commentary, 12 C.F.R. Pt. 202, Supp. I, § 202.9(a)(1), ¶2. Therefore, written notice of an
adverse action or counteroffer is required on completed applications. 11 As stated earlier, there is
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an issue of material fact regarding when the Plaintiff’s application became complete and what
terms were finally requested. The Defendants’ request for summary judgment as to Count Two
will be denied.
An appropriate order follows.
BY THE COURT:
KEVIN J. CAREY
UNITED STATES BANKRUPTCY JUDGE
Dated: November 21, 2005
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UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re 	: 	CHAPTER 13
:
DEBORAH W. MADONNA and 	:
BRUCE L. WILSON, 	:
: 	Bankruptcy No. 04-13510 KJC
Debtors. 	:
:
:
DEBORAH W. MADONNA, 	:
Plaintiff 	:
:
v. 	:
:
NATIONS HOME MORTGAGE CORP. :
and OPTION ONE MORTGAGE 	:
CORPORATION 	:
:
Defendants 	: 	Adversary No. 04-0933 KJC
ORDER
AND NOW, this 21 st day of November, 2005, upon consideration of the Motion for
Partial Summary Judgment filed by Nations Home Mortgage Corporation and Option One
Mortgage Corporation (the “Defendants”)(docket no. 22), and the response by Deborah
Madonna (the “Plaintiff”) thereto, and after oral argument, and for the reasons set forth in the
accompanying Memorandum, it is hereby ORDERED that:
1. 	The Defendants’ motion for partial summary judgment with respect to Count One
is hereby GRANTED, in part, and judgment is entered in favor of the Defendants
and against the Plaintiff with respect to any alleged failure to disclose any finance
charges in violation of the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq., in
Count One of the Plaintiff’s Complaint;
2. 	The Defendants’ motion for partial summary judgment with respect to the claims
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2
under the Equal Credit Opportunity Act, 15 U.S.C. §1691 et seq, in Count Two of
the Plaintiff’s Complaint is hereby DENIED;
AND, it is further ORDERED that a pre-trial conference will be held on January 18,
2006 at 2:00 p.m. in Bankruptcy Courtroom No. 1, Robert N.C. Nix Federal Building &
Courthouse, 900 Market Street, Second Floor, Philadelphia, Pennsylvania.
BY THE COURT:
KEVIN J. CAREY
UNITED STATES BANKRUPTCY JUDGE
Copies to:
Deborah W. Madonna
1 Christian Street, Unit 1
Philadelphia, PA 19147
David A. Scholl, Esquire
Regional Bankruptcy Center of Southeastern Pennsylvania
Law Office of David A. Scholl
6 St. Albans Avenue
Newtown Square, PA 19073
Alan C. Gershenson, Esquire
James A. Timko, Esquire
Blank Rome LLP
12 Four Penn Center Plaza
Philadelphia, PA 19103
William C. Miller, Esquire
(Chapter 13 Trustee )
111 S. Independence Mall
Suite 583
Philadelphia, PA 19106
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Frederic J. Baker, Sr., Esquire
Senior Assistant United States Trustee
833 Chestnut Street, Suite 500
Philadelphia, PA 19107
Timothy B. McGrath, Clerk, U. S. Bankruptcy Court
Pamela Blalock, Courtroom Deputy Clerk
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