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Hinchliffe v. Option One Mortgage Corp.

June 16, 2009



Savage, J.

In this action seeking relief for alleged violations of the Truth in Lending Act ("TILA"),*fn1 the Real Estate Settlement Procedures Act ("RESPA"),*fn2 Pennsylvania's Fair Credit Extension Uniformity Act ("FCEUA"),*fn3 and Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"),*fn4 the defendant Option One Mortgage Corporation ("Option One") has moved for summary judgment, arguing that these statutes do not apply because the plaintiffs, James and Yong Sun Hinchliffe,*fn5 refinanced their residence primarily for business purposes. The parties do not dispute that these statutes cover only personal consumer credit transactions and not commercial ones. Although Hinchliffe asserts that the loan at issue was for personal use, the undisputed facts demonstrate that the loan proceeds were to finance his real estate investments. Therefore, because the statutes relied upon by the Hinchliffes do not apply to the transaction at issue, Option One is entitled to judgment as a matter of law and its motion for summary judgment will be granted.

Factual Background

On September 15, 2006, Hinchliffe borrowed $283,500 from H&R Block Mortgage Corporation.*fn6 The loan was secured by property owned only by him and consisting of four apartments located at 107 National Avenue, Linwood, Pennsylvania (the "Property").*fn7 H&R Block assigned the loan to Option One that same day.*fn8

Prior to signing the loan documents, Hinchliffe knew that the adjustable interest rate was 10.925%. Deposition of James Hinchliffe ("Hinchliffe Depo.") at Tr. 45:17-46:8. Even though he "expected" a 6.75% and "hoped" for a 5.5% rate, he still closed on the loan at the 10.925% interest rate. Id. at 48:2-11. When questioned why he still proceeded and did not decline to sign the loan upon learning that the adjustable interest rate was 10.925%, Hinchliffe testified that he had "already committed [himself] to other obligations," which he later defined as maintaining "[his] other properties and the taxes and holding onto them." Id. at 77:13-14, 23-24.*fn9 After satisfaction of a pre-existing mortgage held by Option One and payment of closing costs, Hinchliffe received $75,940.82 at closing, most of which he spent "paying taxes and maintenance" on another property in the Borough of Trainer. Id. at 79:3-15, 80:6-18.

Procedural History

Almost two years after the closing date of September 15, 2006, the Hinchliffes filed a complaint asserting seventeen (17) causes of action against Option One and unidentified "John Does" in May 2008. After Option One moved to dismiss the Complaint, the Hinchliffes filed a First Amended Complaint followed by an Amended First Amended Complaint ("Amended Complaint"), which reduced the number of the original claims. The remaining four counts assert federal causes of action under TILA and RESPA and state causes of action under Pennsylvania law, the FCEUA and the UTPCPL.

After Option One answered the amended complaint and asserted several affirmative defenses, it moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c),*fn10 which the Hinchliffes opposed. While that motion was pending and after discovery was completed, Option One filed its motion for summary judgment, asserting that none of the statutes relied upon by the Hinchliffes apply because the loan was primarily a business transaction. Alternatively, Option One argues that the Hinchliffes' claims are barred by the applicable statute of limitations or must fail because there are no facts of record to support them. Id.*fn11

The Hinchliffes filed an untimely response to Option One's motion for summary judgment.*fn12 First, they argue that Option One's "claims" in its motion "are barred . . . to the extent not raised in its Motion to Dismiss (No. 6) or via its Affirmative Defenses (No. 19)."*fn13

Second, they argue that the loan was primarily consumer in nature because it was secured by the Hinchliffes' residence and because they were provided with a "Truth-in-Lending disclosure and TILA Notice of Right of [sic] Rescind." Id. at 5. Third, they contend that the applicable statute of limitations does not bar claims for recoupment.*fn14 Finally, the Hinchliffes make allegations that do not appear in the Amended Complaint.*fn15

The day after the Hinchliffes filed their untimely opposition, Option One responded in further support of their motion for summary judgment. It noted that the Hinchliffes failed to cite to facts in the record to support their arguments, thus failing to show that there are any material facts in dispute that would preclude summary judgment. Additionally, it pointed out that the fact that the loan was secured by the Hinchliffes' residence does not trump the fact that both Hinchliffes testified that the Property was refinanced to secure funds for Hinchliffe's development properties. Consequently, they argue TILA, RESPA, the FCEUA and the UTPCPL do not apply. Option One further contends that the record is devoid of facts to support the Hinchliffes' claims and that the statute of limitation bars certain of their claims, none of which are for recoupment.

The day after Option One filed its reply memorandum, the Hincliffes filed the transcripts of their deposition testimonies, which apparently are intended as exhibits to their untimely opposition filed two days earlier. Despite plaintiffs' disregard of the requirements for responding to a motion for summary judgment,*fn16 the entire record is considered in deciding Option One's motion for summary judgment.

Summary Judgment Standard

Summary judgment is appropriate if "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). In examining Option One's motion, we must view the facts in the light most favorable to Hinchliffe, the nonmoving party, and draw all reason-able inferences ...

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