Hegrenes v. MGC Mortgage, Inc. et al, No. 6:2010cv00422 - Document 44 (D. Or. 2011)
Court Description: OPINION and ORDER: Denying Defendants' Motion for Rule 11 Sanctions 30 ; Denying Plaintiff's Motion for Leave to File Amended Complaint/Petition 39 ; Granting Defendants' Motion for Summary Judgment 16 . Signed on 03/03/2011 by Chief Judge Ann L. Aiken. (lg)
Download PDF
<![CDATA[
Hegrenes v. MGC Mortgage, Inc. et al Doc. 44 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CRAIG HEGRENES, Plaintiff, No. 10-422-AA OPINION AND ORDER v. MGC MORTGAGE, INC., a Texas corporation; and LNV CORPORATION, a Nevada corporation, Defendant. Terrance J. Slomins David W. Venables 7150 SW Hampton, Suite 201 T rd, OR 97223 Attorneys for plaintiff William L. Larkins, Jr. Hoesly Vacura, LLP SW Morrison St., Su e 1450 Portland, OR 97205 Attorneys for defendants AIKEN, Chief Judge: Plaintiff filed suit see rescission of a residential loan 1 - OPINION AND ORDER Dockets.Justia.com based on the lender's alleged h two copies of a "Notice pia failure ,to Right to Cancel" form of the Truth in Lending Act (TILA), 15 U.S.C. s . De s move for summary j plaintiff presen'ts arguing pia provide 1601, et § on plaintiff's claims, no evidence iff's signed acknowledgment that to rebut received such notice. Defendants' motion is granted . .FACTS In Janua 2007, plaintiff refinanced his with United 1 Mortgage Corp. signed the through a loan On January 25, 2007 plaintiff and the deed of trust at Pacific Northwest Tit the closing of Oregon, Inc. (Paci ss, it was standard pract ce of c Title). During at Pacific tie to have the borrower sign all the loan documents to the borrower a complete copy of the entire loan file to take home, including all of documents which the borrower had signed. Four Notices of plaintiff's loan file ght to Cancel (Notices) are conta produced by Pacific Tit and all Notices contain a signed statement at the bottom acknowl plaintiff had rece appears immediately signature is On all four Notices, the words "CRAIG A. dated "1-25-07." The Notices in that s HEGRENES" are s stating that the borrower s the right to cancel the transaction within three days from: 1) of the transaction, 2) t 2 - OPINION AND ORDER e TILA of s osures, or 3) the date of receipt of Hoesly Decl., Ex. F. De Right to Cancel si iff now PI 2007. He shave by plaintiff Notice. Notices of s of the their own loan file as well. ts that he signed the documents on s Decl., ~ 25, 3. fic Title and defendants also possess ies of the T in-Lending Dis osure Statements which contain signed acknowledgments of rece Hoesly Declo, Ex. F. s by pIa iff on Janua Plaintiff asserts that 2007, In ban Financial r 2008 came the loan servicer for defendant LNV Corporation 25, 2007. sed signed a osure statement on January 29, 2007. In dated s Decl., Ex. 4. Mortgage led MGC ., Inc. (MGC) intiff's loan, and in January 2009 acquired Mort Fi Corp.'s interest in the loan. On or about January 22, 2010, plaintiff mailed MGC a notice of rescission attempt to rescind his loan. On April 16, 2010, plaintiff filed suit laint, pIa copies of iff alleges notice of plaintiff had three defendants s court. In iled to right to rescind," s from the "any therefore, of the loan to exercise his of rescission. Compl., p. 3. STANDARD Summary 3 judgment OPINION AND ORDER is appropriate s "if - eadings, scovery and disclosure materials on file~ and that re is no genuine issue as to any mater moving party is entitl Civ. affidavits show P. 56 (c). 1 fact and that the, Fed. R. to judgment as a matter of law." rna teriali ty of a ct is ermined by the substantive law on the issue. Contractors Ass'n., authenticity of a such a F.2d y. 6, spute is reasonable nonmoving 248 809 630 Cir. 1987). termined by whether jury could retGrn a evidence is verdict ~~~~~~~~~~~~~~~~~, the 477 U.S. 242, (1986): moving has t a genuine issue of mater U.S. 317, 323 (1986). burden of establis 1 fact. the ~~~~~~~~~~~~~~, If the moving party shows t genuine issue of material sence of , the nonmoving 477 absence of a y must go beyond pleadings and identify facts which show a genuine issue trial. at 324. court must reso all reasonable stence of issues of material fact against construe all i s drawn the light most favorable to the nonmoving at 630. However, the issue of fact where t and sel r Circu only evi serving" testimony. 1477, 1481 (9th Cir. 1996). 4 - OPINION AND doubts as moving rlying to the y and s in t T.W. Elec., 809 F.2d has refus to find a genuine presented is "uncorrobora Kennedy v. Applause, Inc., 90 F.3d DISCUSSION In his Complaint, he did not receive iff alleges a refore his rescission rights copies of the Notices, and not expire until late January 2010, three years a See 15 U. S. c. of his loan transaction. 226.23. 35(f); § Defendants move for summary judgment on t aintiff can present no and therefore, Not er consummation le 12 C.F.R. § ground of non-receipt of the in light of s signed acknowledgment of receipt, plaintiff's claim fails as a matter of law. The purpose of the disclosure of c TILA is terms" and c informed use of credit." TILAallows to borrowers consumers tions and to "encourage the 15 U.S.C. to "meaningful rescind 1601 (a). § certain Further, consumer c t J trans ions in which a se ty interest is acquired in property used as the borrower's principal s, in tion to lling. 15 U.S.C. r two of C.F.R. § to res midnight of the third r event " 12 del ss day" a ry of loan transaction "until er 1) consummat occurs 5 - OPINION AND ORDER of the required documents and ' mat disclosures, or 3) receipt of the notice of the ri whi , (1). Borrowers may seek rescission of 2) r s of the notice right to rescind to each consumer ent transaction, 1635(a). sclosure of the borrow's obligations the transactions, creditors must "del 226.23(b) § er. 15 U.S.C. § al to rescind, 1635(a). "If the required notice or material right to resc shall transactionJ." re 3 sclosures are not delivered, the rs after consummation [of the 12 C.F.R. § 226.23(a) (3); 15 U.S.C. 1635(f). § A borrower's written acknowledgment of receiving notice of the right to rescind creates "a 15 U.S.C. 1635(c). § present To this presumption, of non-rece =-~~~~~-=~~, table presumption of delivery." borrowers must Williams v. First Gov't Morta. 225 F.3d 738, 751 (D.C. Cir. 2000) (presumption res borrower to come forward with evidence to meet of del presumption) . Here, sents no evidence to rebut the presumption i of del Rat signed "mult , pIa iff admits that on January 25, 2007, e Notice of Right to Cancel." Hegrenes Decl., ~ 3. The Notices p You are entering a transaction that will result a mort ,lien or security interest on or in your home. You a 1 right under federal law to cancel transaction, without cost, within three business from whichever of the following events occurs last: date of the transaction, which ·is JANUARY 25, 2007; or 2. date you receive your ng Truth ures; or s 3. date you receive this notice of r to cancel. 1. Hoesly Decl. f Ex. F, p. 2. The Notices r "[iJf you cancel by mail or telegram, you must send the not midnight of 1/29/07 (or midnight of the lowing the latest of the three events lis 6 - OPINION AND ORDER no later business day .) " Thus, the Not s identify transaction third business day after as January 29, 2007 and aga cancel expires t bus iff advise pia ss his right to after the transaction or latest of the events enumerat All four Notices contain pia es, and e of states 1 of the Notices contain pia "1/25/07" that under "EACH RECEIPT OF TWO CANCEL." iff's initials next to both OF (2) the THE iff's signature and "ACKNOWLEDGMENT OF ,RECEIPT" UNDERSIGNED HEREBY which ACKNOWLEDGES THE COMPLETED COPIES OF THIS NOTICE OF RIGHT TO Id. Notably, in his Declaration receipt of the Notices. iff does not assert non- Instead, plaintiff admits that signed dated the Notices,Hegrenes Decl., , 3, and also that he "was given loan documents and took them home." 1. While plaintiff admits that copies loan documents, pi not rebut the [s ] "bel iff asserts unable to locate his original loan I find that plaintiff's Ie." ility to f sumption that Hoesly Decl., Ex. C., p. "re II that he some" "has Hegrenes Decl., , 13. his set of rece es does s of the Notice of Right to Cancel as dence by on January 25, 2007. See Jackson v. New Century Mortg. Corp., 320 F. Supp. plaintiffs 2d 608, were 611 12 "unable s signed acknowledgment of receipt (E.D. to Mich. identify 2004) with documents they received at closing" he 7 - OPINION AND ORDER (evidence any insu that certainty the which ent to rebut presumption created by signed acknowledgment'of receipt); 2 0 1 0 WL 715 61 7 , at * 4 ( 0 . N. J . Mar. 1, 2010) receiving (borrowers' rescission "insuffic M r t a. Co., 0 testimony notices not they and sclosure remember statements he this presumption"); 0 1 ana I Am v. Nat' 1 City to 2 0 10 WL 5 7 1 93 6 , at * 5 ( 0 . Haw. Feb. 1 7, 2 0 1 0 ) ( aft e r the plaintiff asserted under penalty of perjury that rescission notices were presented to she was uncerta during closing, later testimony t whether she rece such notices "doom[ J any to overcome the presumption of receipt") . In response to defendant's mot claim that the Notice is pI defi incorrect date on which his e of res to plaintiff, he returned to Pacific sign new copies of his loan appl to correct ntains were s stakes in his loan 2007, and the dates "JANUARY 25, the because new ntiff asserts a new it contains red. ssion the }\ccording tIe on January 29, 2007 to ion and disclosure statements stated closing costs. sclosure forms Plaintiff other documents transaction "consummated" on January 29, ified the Not as t transaction, 2007," and three days after the transaction, "1-29 07," were incorrect and in violation of the TILA. Notably, intiff did not allege s theo supporting it in his Complaint, even though pIa he was in possess of 8 - OPINION AND ORDER es of his loan or s iff asserts that in early 2009, over See Hegrenes one year before he filed suit against defendants. Dec!., '.Il In their reply, 14. defendants argue that the court should not consider such allegations, given that they are untimely, prejudicial, and futile. Plaintiff now seeks leave to amend his complaint. 1 I delay am not inclined to grant such leave on grounds of undue and prejudice, particularly in light of the fact that plaintiff admittedly possessed the loan documents underlying his new allegations in early 2009, well before he filed suit. Hegrenes Decl., '.Il 14. Even if I considered plaintiff's amendments, I find them futile. Nunes v. Ashcroft, 375 F.3d'805, 808 (9th Cir. 2004). Plaintiff offers no authority or evidence transaction did not consummate on January 25, . that 2007. his loan Even though plaintiff may have signed revised disclosure statements on January 29, 2007, the fact remains that he signed the loan agreement and deed of trust on January 25, obligated on the loan. dates on the Notices 2007 and thus became contractually 12 C.F.R. correctly § 226.2 (a) (13). indicate transaction and three days thereafter. the I find that the date of Regardless, the loan the Notices clearly state that plaintiff's right to rescind expires three days after the loan transaction, the date he received disclosure lAI though plaintiff complains of confusing disclosure statements in his response to defendants' -motion, he does not seek to amend his complaint to allege a cause of action on such grounds. Therefore, I do not consider these allegations. 9 - OPINION AND ORDER statements, or the date he received the Notice, whichever occurs Therefore, later. I find that the Notices accurately informed plaintiff of his right of rescission. Accordingly, defendants' motion for summary judgment is granted. Defendants also move for sanctions pursuant to Federal Rule of Civil Procedure 11. Defendants maintain that plaintiff ~nd counsel were notified of the deficiencies in the Complaint and failed to correct or investigate them, and then altered the theory of plaintiff's case after defendants moved for summary judgment. I can appreciate defendants' position and agree that plaintiff changed his judgment. theory only Although a after close defendants question, I moved cannot for summary find that plaintiff's Complaint was so legally and factually baseless as to warrant sanctions, 1127 (9th assertion Cir. that see Christian v. MatteI, 2002) , he did given not plaintiff's receive copies Inc., 286 F.3d 1118, apparent of the and initial Notices (an assertion not repeated in his Declaration) and case law finding that a borrower's testimony of non-receipt can create a material fact. *4 question of Jobe v. Argent Mortg. Co., LLC, 2008 WL 450432, at (M.D. Pa. Feb. 15, 2008) III III III III 10 - OPINION AND ORDER (citing cases). " CONCLUSION pI s' motion for summary j (doc. 16) is GRANTED, s' Motion for Rule 11 Sanct De . 30) is DENIED, and ntiff's Motion for Leave to File DENIED. IT IS SO ORDERED. s ~ay of March, 2011. Ann Aiken United States District 11 - OPINION AND ORDER Complaint (doc. 39) is
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
