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MCCARRICK v. POLONIA FED. S&L ASSN. OF PHILADELPHI

December 11, 1980

Thomas J. McCARRICK and Eunice McCarrick, h/w
v.
POLONIA FEDERAL SAVINGS AND LOAN ASSOCIATION of Philadelphia



The opinion of the court was delivered by: GREEN

FINDINGS OF FACT, DISCUSSION AND CONCLUSIONS OF LAW

 This case alleges certain violations of the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. and the Real Estate Settlement Procedures Act ("RESPA"), as amended, 12 U.S.C. §§ 2601 et seq. Following a bench trial I make the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 1. Defendant, Polonia Federal Savings and Loan Association ("Polonia"), is a federally chartered savings and loan association organized under the laws of the state of Pennsylvania with its principal place of business at 2646 E. Allegheny Avenue, Philadelphia, Pennsylvania.

 2. On February 8, 1977 plaintiffs, Thomas and Eunice McCarrick, as tenants by the entireties, agreed to purchase from sellers, Francis and Dolores Graff, real estate located at 2429 Brown Street, Philadelphia, Pennsylvania for the gross sale price of $ 45,000. The McCarricks intended to use the upper floors of the premises as a family residence and to continue using the first floor as a butcher shop/grocery store.

 3. The terms agreed to by the parties were reduced to writing by Emil Karatnjchy, a licensed real estate broker, recommended by the sellers and employed by the purchasers, the McCarricks.

 4. Paragraph 4(f) of the agreement of sale provided that a mortgage application was to be made by buyers through the office of buyers' attorney Michael J. Pepe, Jr., Esq. However, there is no evidence that Mr. Pepe took any action to obtain the mortgage required by his clients.

 5. After the agreement was executed, Mr. Graff inquired of Mr. McCarrick as to the status of his search for a mortgage loan. Mr. McCarrick advised Mr. Graff that he had not succeeded in obtaining a loan. Mr. Graff then suggested they contact Emil Karatnjchy and have him seek the mortgage loan. Thereafter, the McCarricks engaged Mr. Karatnjchy to obtain a loan for them. The McCarricks agreed to compensate Mr. Karatnjchy at settlement by the payment of a fee of 1% of the mortgage loan. Mr. Karatnjchy submitted a loan application to Polonia Federal Savings and Loan Association for plaintiffs. Also, pursuant to the authorization of plaintiffs, Mr. Karatnjchy ordered title insurance from Commonwealth Land Title Insurance Company.

 6. Polonia approved plaintiffs' mortgage loan request in the amount originally requested of $ 45,000 and, thereafter, approved plaintiffs' request for an increase in the amount to $ 48,000. The loan was to be secured by a mortgage on the premises located at 2429 Brown Street and the McCarricks' residence at the time, 4745 Meridian Street, Philadelphia, Pennsylvania.

 7. Polonia delivered to Mr. Karatnjchy a commitment letter advising that the commitment would expire on May 18, 1977 and that settlement could be scheduled any time after April 18, 1977.

 8. On May 24, 1977, Mr. Karatnjchy sent a letter to plaintiffs, with carbon copies to Polonia, and to Mr. Pepe, the McCarricks' attorney, advising that financing had been obtained from Polonia and title insurance from Commonwealth Land Title Insurance Company. The letter ended, "With this letter we wish to point out to you that you engaged us to perform this services (sic) for you in return for a fee of $ 480.-together with $ 150.-to Commonwealth Land Title Ins. Co. for the title search for two properties pledged as collateral."

 9. Neither the McCarricks nor their attorney voiced any disagreement to Mr. Karatnjchy as to the terms of the agreement for his services.

 10. Thereafter Mr. Pepe notified Polonia, Mr. Karatnjchy and the plaintiffs that he had scheduled settlement for May 31, 1977 at 2:00 p.m. at the Industrial Valley Bank from ...


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