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Hearns v. Parisi

March 3, 2008


The opinion of the court was delivered by: Judge Vanaskie


In this fraudulent home sales and predatory lending action, Plaintiff Gaines E. Hearns, Jr. sued three categories of Defendants: (1) Steve Parisi, Donald Kishbaugh, and their affiliated companies (the "PK Defendants");*fn1 (2) Appraiser Defendants Kevin Kennedy and Kathleen Spitzfaden; and (3) Lender Defendants M&T Bank, successor by merger to M&T Mortgage Corporation ("M&T"), and Chase Manhattan Mortgage Corporation ("Chase"). Plaintiff asserts violations of both the Racketeer Influenced and Corrupt Organizations Act ("Racketeering Act" or "RICO"), 18 U.S.C. §§ 1961-1968, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. §§ 201-1 to -9.3.*fn2

Pending are motions for summary judgment filed on behalf of each category of Defendants, each of whom argues that Mr. Hearns cannot present facts sufficient to warrant a trial on any of his claims. M&T also seeks summary judgment as to its breach of contract Counterclaim. Because Mr. Hearns has not presented evidence sufficient to warrant an inference that Defendants engaged in some fraudulent or predatory lending scheme, or that he sustained any loss as a result of the alleged wrongful conduct, Defendants' motions will be granted. Moreover, because there is no dispute that Mr. Hearns defaulted on his promissory note, M&T's Motion for Summary Judgment on its Counterclaim will be granted.


On February 15, 2005, Mr. Hearns commenced this action. All Defendants filed motions to dismiss, except Appraiser Kevin Kennedy.*fn3 This Court, in an opinion issued on March 27, 2006, granted in part and denied in part Defendants' motions to dismiss. See Hearns v. Parisi, No. 3:CV-05-323, 2006 WL 839362 (M.D. Pa. March 27, 2006). As a consequence of this Court's ruling, coupled with Plaintiff's failure to file an amended complaint addressing the deficiencies in the original complaint identified in this Court's ruling, there remain the following causes of action: (1) the PK Defendants conducted the affairs of an enterprise through a pattern of racketeering activity ("First Claim"); (2) M&T and Chase conspired with the PK Defendants to violate the Racketeering Act ("Second Claim");*fn4 (3) the Appraiser Defendants conspired with the PK Defendants to violate the Racketeering Act ("Third Claim"); (4) the PK and Appraiser Defendants violated the UTPCPL ("Fourth and Fifth Claims"); and the PK Defendants violated the UTPCPL by a "bait and switch" scheme ("Sixth Claim").

Discovery has been completed. Now pending before the Court are Defendants' motions for summary judgment. The motions have been fully briefed and are ripe for resolution.


On October 16, 2000, Mr. Hearns elected to purchase a 2.5 acre parcel of land and house package from P&K Developers, LLC and Eagle Valley Homes Inc. for $36,500 and $179,400, respectively. (PK Defs.' App. Vol. I Mem. Supp. Mot. Summ. J., Dkt. Entry 70-2, at 70a-73a.) On November 19, 2000, Mr. Hearns signed and entered into a Mortgage Loan Origination Agreement with Nations 1st Mortgage Company for the purpose of obtaining financing for his home. (Id. at 83a, 84a.) On that same day, Mr. Hearns also filled out and signed a Uniform Residential Loan Application, prepared by a representative of Nations 1st Mortgage Company, (Ex. 14, Def. M&T's App. Supp. Mot. Summ. J., Dkt. Entry 102-2, at 21), and a Private Mortgage Insurance ("PMI") Initial Disclosure document, which notifies a borrower of the obligation to obtain PMI. (PK Defs.' App. Vol. II Mem. Supp. Mot. Summ J., Dkt. Entry 70-3, at 122a.) As an explanation for entering into this allegedly unfair contract, Mr. Hearns claims the PK Defendants used excessive pressure in selling the property by encouraging him to put down a deposit at the time of his visits.*fn5 (Id. at 150a-153a.)

Central to the ability to secure financing was a valuation of the 2.5 acre lot with the house constructed on it. On November 29, 2000, NEPA Appraisal Services performed an appraisal of the property with improvements, valuing it at $220,000. (Id. at 124a-135a.) This appraisal was performed by Defendant Kennedy as an independent contractor of NEPA Appraisal Services. Defendant Spitzfaden, President of NEPA Appraisal Services, singed the appraisal in a supervisory capacity. The appraisal was commissioned by Nations 1st Mortgage Company, one of the PK Defendants.

Nations 1st ultimately obtained financing for Mr. Hearns through M&T, which agreed to loan him $209,000 in the form of a construction and home loan. (Id. at 96a-119a.) M&T verified information contained in the NEPA appraisal, including the comparable properties used by Kennedy as well as the adjustments made by Kennedy with respect to the comparable properties. (Aff. of Sheri Edwards, Dkt. Entry 107-3, ¶¶ 15-21.) M&T also followed accepted underwriting standards in extending financing to Mr. Hearns. (Id. at ¶¶ 25-33.) The information available to M&T indicated a primary housing expense/income ratio of 25.44%; a total obligation/income ratio of 36.05%; and a credit score of 748. (Id. at ¶¶ 31-33.) M&T asserts that a credit score above 700 is regarded as "exceptional." (Id. at ¶ 33.)

In completing the purchase, Mr. Hearns executed several documents, which included signing a note in favor of M&T Mortgage. (Id. at 96a-119a.) Mr. Hearns agreed to the following provisions in the note:

(B) Default: If I do not pay the full amount of each monthly payment on the date it is due, I will be in default.

(C) Notice of Default: If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me. . . . (Ex. A, Def. M&T's Mot. Summ. J., Dkt. Entry 100-2, at 23, ¶ 6(B), (C), & (E)).

Mr. Hearns also executed a HUD-1 Settlement Statement indicating his actual settlement costs, (PK Defs.' App. Vol. II Mem. Supp. Mot. Summ. J., at 120a-121a), a Mortgage Insurance Rider relative to his mortgage insurance obligations,*fn6 (id. at 115a-118a), and a Uniform Residential Loan Application. (PK Defs.' App. Vol. I Mem. Supp. Mot. Summ. J., at 85a-95a.) Finally, to complete the closing process, Mr. Hearns signed a form acknowledging his responsibility to pay any increased taxes resulting from assessments for improvements on his property. (Ex. 37, Def. M&T's App. Mot. Summ. J., Dkt. Entry 102-3, at 47.)

On May 7, 2001, Mr. Hearns signed a Note Modification Agreement with M&T, converting his construction loan to a permanent loan. (Ex. 18, Def. M&T's App. Mot. Supp. Summ. J., Dkt. Entry 102-2, at 36; PK Def.s' App. Vol. II Mem Supp. Mot. Summ. J., at 27.) According to the agreement, Mr. Hearns agreed to repay M&T $209,000 at an annual interest rate of 7.75% over thirty years, with a monthly principal and interest payment of $1,497.30.*fn7

(Id.) M&T again advised Mr. Hearns by letter of his responsibility to pay the real estate taxes. (Ex. 36, Def. M&T's App. Supp. Mot. Summ. J., p. 46.)

In July of 2001, M&T transferred the right to service Mr. Hearns' loan to Chase. (Aff. Claudia Heath, Dkt. Entry 100, ¶ 10.) A few months later, on October 16, 2001, Mr. Hearns obtained a second mortgage on his house from Beneficial Consumer Discount Company in the amount of $17,000 to pay for a water filter and pay off credit card debt. (PK Defs.' App. Vol. II Mem. Supp. Mot. Summ. J., at 138a-144a; Dep. Mr. Hearns, Dkt. Entry 102-4, at 27.)

Later, in June of 2003, Mr. Hearns hired John J. Lavelle Appraisal Service, who performed an appraisal of his property, valuing it at $210,000 as of June 2, 2003. (App. Pl's Mem. Opp'n PK Def.'s Mot. Summ. J., Dkt. Entry 115, at 1a-7a.) Believing that the 2003 appraisal suggested that the initial appraisal of $220,000 in November of 2000 was fraudulent, Mr. Hearns halted mortgage payments. (PK Defs.' App. Vol. II Mem. Supp. Mot. Summ. J., at 173.) He has since failed to set aside mortgage payments. (Id. at 174a.) Mr. Hearns also ...

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