Taylor v. Deutsche Bank National Trust Co., No. 3:2010cv00149 - Document 29 (E.D. Va. 2010)
Court Description: MEMORANDUM AND OPINION. Signed by District Judge James R. Spencer on 10/18/10. (kyou, )
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exceeding credit limits, and seller’s points. C.F.R. § . c . Real estate related fees are also excluded from the finance charge, if they are bona fide and reasonable in amount. )d. § . c . Examples of excludable real estate fees include title examination fees, credit report fees, and fees for preparing loan related documents. )d. At the time of closing, Delta disclosed the prepaid finance charge as $ , Defendant Deutsche Bank now calculates the actual finance charge as $ , representing a disclosure that was $ . . , . . greater than the amount required to be disclosed. Def.’s Mem. Supp. Summ. J. . Because the disclosed finance charge is greater than the amount required to be disclosed, it is acceptable under Regulation Z. See § . h . C.F. R. The Plaintiff does not dispute these amounts but instead argues that Delta Funding impermissibly excluded some charges from the finance charge calculation. First, he argues that two of the title related fees charged by Delta Funding were neither bona fide nor reasonable because they constituted either double charging or hidden finance charge[s] that should not have been excluded from the disclosed finance charge. Pl.’s Mem. Opp’n Summ. J. . Taylor first challenges the $ title examination and the $ abstract fee, alleging that the imposition of both fees constitutes a form of double charging and arguing that the double charging is neither bona fide nor reasonable. )d. Secondly, the Plaintiff suggests that the $ $ title examination fee, the $ release charge included in the recording fee, and other title related fees were unreasonable. (e provides information from the )nternet showing title examination fees from a variety of providers and notes that none exceed $ . Thus, he argues, [a]t least $ of that [title examination] fee was unreasonable and a hidden finance charge. Pl.’s Mem. Opp’n Summ. J. . The Plaintiff’s arguments are unsupported and unpersuasive. (is double charging argument lacks merit not only because Regulation Z recognizes both title examination fees and abstract fees as excludable from finance charge calculations, see C.F.R. § . but also because the Settlement Statement clearly indicates that those fees were paid to i, different companies. Pl.’s Ex. C, at . Similarly, the Plaintiff has no admissible evidence to support his assertion that the fees are unreasonable. The evidence from his )nternet searching was not provided in discovery and is therefore not admissible at trial. Furthermore, that searching is not sufficient to make the Plaintiff an expert suitable to testify to the bona fides or reasonableness of real estate fees included in prepaid finance charges in an October transaction. Even if the Court were to assume the veracity of Taylor’s allegations, these averments would merely establish that Taylor paid more for the title examination fee than another borrower might have. )n the absence of any evidence regarding the extent to which Delta Funding augmented its return through these or other fees and without any expert testimony on the prevailing rates for these fees on properties similar to Taylor’s in October , the Plaintiff has failed to show that the fees were neither bona fide nor reasonable. Therefore, the Court finds that the disclosed finance charge fell within Regulation Z’s tolerance range and satisfied T)LA’s requirements. C. Plaintiff’s Ability to Tender The Defendant also argues that the Complaint should fail as a matter of law because the Plaintiff failed to allege any ability to tender the principal amount of the loan back to the bank, as is required in T)LA rescission actions in the Fourth Circuit. See Shelton, F. d at The equitable goal of rescission under T)LA is to restore the parties to the status quo ante. internal quotation marks and citation omitted . Under Shelton, a borrower seeing T)LA rescission of a credit transaction secured by his primary residence must show that he has the ability to tender the proceeds of the loan to his creditor in return for the release of the security interest upon his property. )d. at . Regulation Z grants courts the authority to modify the procedures that follow a borrower’s rescission of a credit transaction, including the procedures associated with tender. . d C.F.R. § . The Plaintiff asks the Court to use that authority to alter the timing of tender to enable him to raise the funds to tender by, if necessary, selling the home. This Court ruled against a plaintiff on the issue of tender in (udson v. Bank of America, N.A., No. : CV , WL E.D. Va. June , . )n that case, the Court granted a motion to dismiss and found that the Plaintiff failed to show that he might be able to tender the funds necessary to complete rescission. That plaintiff needed more time to seek refinancing or a buyer for the home, planned to use the damages awarded in the case to provide additional funds needed to tender, and was unsure of the exact amount he would have been required to tender. )d. at * . This Court, given the context of the case and the Court’s judicial experience . . . [could not] reasonably conclude that (udson [would have been] able to pay the . . . unknown amount due within a reasonable period of time following the resolution of [that] matter. )d. Taylor is in a situation similar to that of the plaintiff in (udson, although he does purport to know the amount of tender. Nonetheless, aside from asking the Court for more time and indicating that he would be willing to sell the house as a last resort Pl.’s Mem. Opp’n Summ. J. , Taylor has not shown that he is able to tender the funds necessary to complete rescission. Therefore, he has not met that requirement of a valid rescission claim. IV. CONCLUSION Because Delta Funding provided the proper notice of the right to rescind and properly delivered the material disclosures, and because Taylor has not shown his ability to tender, Taylor does not have the right to rescind the credit transaction. Therefore, the Court GRANTS Defendant’s Motion for Summary Judgment. Let the Clerk send a copy of this Memorandum to all counsel of record. An appropriate order will issue. )t is SO ORDERED. /s/ James R. Spencer Chief United States District Judge ENTERED this th day of October
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