Jennifer St. Hill v. Tribeca Lending Corp , 403 F. App'x 717 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 09-2214, 09-2215 & 09-2367
_______________
JENNIFER ST. HILL,
Appellant (No. 09-2214)
v.
TRIBECA LENDING CORPORATION;
LASALLE BANK NATIONAL ASSOCIATION;
LITTON LOAN SERVICING; FINANCIAL &
CONSULTING STRATEGIES, INC.
LASALLE BANK NATIONAL,
Appellant (No. 09-2215)
TRIBECA LENDING CORPORATION,
Appellant (No. 09-2367)
_______________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-07-cv-05300)
District Judge: Honorable Juan R. Sanchez
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Submitted Under Third Circuit LAR 34.1(a)
November 15, 2010
_______________
Before: AMBRO, FISHER, and GARTH, Circuit Judges
(Opinion filed: December 8, 2010)
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OPINION
_______________
AMBRO, Circuit Judge
Debtor Jennifer St. Hill appeals from the District Court’s decision after trial that
neither the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., nor the
Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S.
§ 201-1 et seq., entitles her to rescind her mortgage in favor of Tribeca Lending
Corporation (“Tribeca”). St. Hill also appeals the District Court’s order denying her
claims for money damages against Financial & Consulting Strategies, Inc. (“FCS”),
under Pennsylvania’s Credit Services Act (“CSA”), 73 P.S. § 2181, et seq., and Loan
Broker Trade Practice Regulations (“LBTPR”), 37 Pa. Code § 305.1. She appeals as well
the District Court’s rejection of her fraud-related claims under the UTPCPL. Tribeca
cross-appeals the District Court’s ruling that it violated the TILA by failing to disclose
the fees that St. Hill paid her mortgage broker. For the reasons that follow, we affirm the
District Court’s rejection of rescission, though for a different reason.1
I. Background
St. Hill obtained a home mortgage loan from Tribeca for $1.3 million that she now
seeks to rescind. In 2004, she experienced financial difficulty in connection with her debt
collection business, and filed for Chapter 7 bankruptcy. In 2006, St. Hill decided to
refinance her home mortgage to pay her trustee in bankruptcy to satisfy the creditors of
her business. To that end, a friend referred St. Hill to Francis Kilson, who provided
general financial advice but was not a mortgage broker. Kilson then introduced St. Hill
to David Diamond, who worked for FCS as a mortgage broker. Diamond arranged the
1
The other parties affected are LaSalle Bank National Association (current holder of the
mortgage) and Litton Loan Servicing (the servicer for LaSalle).
2
loan with Tribeca. At the outset, St. Hill agreed with Kilson to a charge of $13,500 for
his services, but the payment was not to come out of the loan proceeds. St. Hill also
entered into a brokerage contract with Diamond, in which she agreed to pay him $13,000.
In the course of the transaction (and prior to closing), Tribeca’s loan officer, Adam
Turkewicz, told Diamond and St. Hill that Diamond would have to waive his fees in
order to proceed with the particular type of loan that was arranged for St. Hill. The
District Court found that Turkewicz told both Diamond and St. Hill that Diamond would
have to pursue his fees outside the settlement papers. St. Hill paid Diamond $6,500 a few
days after settlement and $6,500 or $7,000 (the amount is disputed) over the course of the
year after settlement.
Fourteen months after closing the loan, St. Hill attempted to rescind it on the
ground that there were disclosure violations. After a two-day bench trial, the District
Court determined that St. Hill was not entitled to rescind the loan. It also concluded that
the TILA did not require disclosure of Kilson’s fees because he was not a mortgage
broker. However, because the TILA requires disclosure of all finance charges, which are
defined by the statute’s implementing regulation (Regulation Z) as any “fees charged by
a mortgage broker,” the Court found that Tribeca had violated the TILA by failing to
disclose Diamond’s broker fees. Nonetheless, it concluded that St. Hill could not recover
damages because the one-year limitations period for recovery had elapsed. The District
Court also rejected St. Hill’s claims under the UTPCPL.2
2
Prior to trial, the District Court granted partial summary judgment in favor of FCS on
St. Hill’s CSA and LBTPR claims.
3
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. § 1331, the TILA, 15 U.S.C.
§ 1640(e), and the Real Estate Settlement Practices Act, 12 U.S.C. § 2614. It also
exercised supplemental jurisdiction over St. Hill’s state law claims under 28 U.S.C.
§ 1367(a). We have jurisdiction over a final order from the District Court under 28
U.S.C. § 1291.
“On the appeal of a bench trial, we review a district court’s findings of fact for
clear error and its conclusions of law de novo.” McCutcheon v. Am. Servicing Co., 560
F.3d 143, 147 (3d Cir. 2009).
III. Discussion
A. St. Hill’s rescission claims
St. Hill argues that she has a right to rescind her loan under both the TILA and the
UTPCPL’s Door-to-Door Sales Act provision, 73 P.S. § 201-7. As bases for rescission,
she claims that Tribeca under-disclosed the financing charges in connection with
Diamond’s and Kilson’s fees and made other disclosure violations in connection with the
adjustable interest rate and the Notice of Right to Cancel.3 The District Court held that
3
Though we do not reach the issue (as we conclude the TILA does not apply), we
agree with the District Court that, even if the TILA were applicable, Kilson’s fees are not
finance charges subject to disclosure. Kilson is not a mortgage broker subject to the
TILA; he is simply a “third party” for its purposes. Per Regulation Z, the TILA requires
disclosure of third-party fees only if the lender “requires the use of a third party as a
condition of or an incident to the extension of credit, even if the consumer can choose the
third party; or [the lender] retains a portion of the third-party charge, to the extent the
portion is retained.” 12 C.F.R. § 226.4(a)(1) (emphasis added). In this context, we make
no further reference to St. Hill’s arguments concerning Kilson.
4
St. Hill was not entitled to rescind the loan because she had received the requisite
disclosures, with the exception of Diamond’s fees. As for the latter, the failure to
disclose Diamond’s fees violated the TILA. However, no remedy existed, as St. Hill
filed her claim too late.
We agree with the District Court that neither the TILA nor the UTPCPL supports
St. Hill’s arguments for rescission, but for a different reason. We believe that neither
statute applies to the transaction here because St. Hill’s loan was principally for business,
not consumer, purposes. Therefore, we do not reach the question of whether St. Hill
would be entitled to rescind if either statute applied.
The TILA and the UTPCPL (including the Pennsylvania Door-to-Door Act) apply
only to consumer credit transactions. Under the TILA, consumer credit means credit
“offered or extended” to a consumer “primarily for personal, family, or household
purposes.” 15 U.S.C. § 1602(h); see 12 C.F.R. § 226.2(12). Similarly, the UTPCPL is
limited to the same transactions. 23 P.S. § 201-9.2(a). The TILA does not apply to
“[c]redit transactions involving extensions of credit primarily for business, commercial,
or agricultural purposes.” 15 U.S.C. § 1603(1).
In this regard, whether we reach the merits of St. Hill’s claims depends on the
loan’s primary purpose. Was it is personal or commercial? Our inquiry goes to the
“transaction as a whole.” See Gombosi v. Carteret Mortg. Corp., 894 F. Supp. 176,
By contrast, as a mortgage broker, the “[s]pecial rule” on “mortgage broker fees”
applied to Diamond and FCS. Id. § 226.4(a)(3). It requires that any “[f]ees charged by a
mortgage broker . . . are finance charges even if the creditor does not require the
consumer to use a mortgage broker and even if the creditor does not retain any portion of
the charge.” Id.
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181 (E.D. Pa. 1995). Even if a transaction has some personal purpose, the TILA does not
necessarily apply. Quinn v. A.I. Credit Corp., 615 F. Supp. 151, 154 (E.D. Pa. 1985).
Moreover, several courts have agreed that simply because the loan is secured by a family
home does not mean that the loan was primarily personal. See, e.g., Sherrill v. Verde
Capital Corp., 719 F.2d 364, 367 (5th Cir. 1983); Bokros v. Assocs. Fin., Inc., 607 F.
Supp. 869, 872 (N.D. Ill. 1984); In re DiPietro, 135 B.R. 773, 777 (Bankr. E.D. Pa.
1992).
To prevail on a TILA claim, St. Hill had the burden of showing that the Act
applied to her case.4 See Katz v. Carte Blanche Corp., 496 F.2d 747, 751 (3d Cir. 1974).
We do not believe that she proved at trial that the primary purpose of her loan was
sufficiently consumer-oriented to put it within the ambit of the TILA.
The record shows that, though St. Hill’s home served as collateral, the purpose of
the loan was to pay her business creditors. Prior to the refinancing, St. Hill used her
home as collateral for her business debts. When her business ran into trouble, she had to
file for personal bankruptcy to protect her home. She testified that “the sole reason for . .
. getting the refi[nancing] was because the house had increased in value and [she] wanted
4
She claims that Tribeca waived the argument that the TILA does not apply because it
both “admitted” this in its answer and failed to raise the claim until a post-trial
submission. We disagree. To the former, we are not bound by a party’s admissions
“concerning questions of law.” Mintz v. Am. Gen. Fin. Servs., 434 F.3d 222, 228 (3d Cir.
2006). To the latter, “[t]he purpose of requiring the defendant to plead available
affirmative defenses in his answer is to avoid surprise and undue prejudice by providing
the plaintiff with notice and the opportunity to demonstrate why the affirmative defense
should not succeed.” In re Sterten, 546 F.3d 278, 285 (3d Cir. 2008) (quoting Robinson
v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)). We do not believe that disagreement
over this threshold issue could possibly shock St. Hill, a person skilled in debt collection
matters.
6
to pay off the trustee and . . . the creditors. There was no other reason . . . .” App. 949-
50 (emphases added). In light of this evidence, the District Court found that St. Hill
needed the loan “for the trustee to satisfy her business creditors during a Chapter 7
bankruptcy.” For St. Hill, the likely alternative to refinancing was the seizure of her
home as an asset in bankruptcy. In short, her business debts were the but-for cause of the
loan.
St. Hill points out that only 29% of the loan went directly to her creditors. The
rest of the principal went to settlement charges, the satisfaction of a pre-existing
mortgage, taxes and liens, and the trustee’s fees and commission. However, we do not
believe that these other payments indicate the loan’s primary purpose. The District Court
in Gombosi encountered a similar situation. There, as here, the Gombosi family had
refinanced their home and a portion of the proceeds were used to pay off business loans.
It was clear to the Court that the Gombosis did not refinance to obtain a lower interest
rate or lower monthly payments. Also, the satisfaction of the prior mortgage was a
necessary condition of the second loan. With respect to fees and taxes, the Court stated
that “[s]ince these costs would have been incurred whatever the purpose of the loan, we
find that they do not carry any weight in the determination of the primary purpose of this
transaction.” 894 F. Supp. at 181. It concluded that
[a]ll these facts indicate that the refinancing of an existing residential
mortgage and the making of tax payments were not the primary purpose of
the . . . loan. Rather, the primary purpose of the . . . loan was to acquire the
remaining proceeds after the satisfaction of all the conditions of obtaining
the loan. Thus, we find that the disposition of those remaining proceeds
must weigh heavily in determining the primary purpose of the . . . loan.
7
Id. (emphasis added).
In our case, refinancing was obviously not the primary purpose of the $1.3 million
Tribeca loan, as it resulted in a higher interest rate and higher monthly payments (as in
Gombosi). Also, the $738,634.59 payment to satisfy the existing mortgage was an
express condition of the Tribeca loan—again, not the primary purpose. Finally, the
settlement charges, taxes, fees, and commission would have been paid regardless of the
loan’s purpose or the nature of the bankruptcy debts. Thus, as in Gombosi, we are
persuaded that the destination of the remaining proceeds is the most relevant
consideration in the designation of the loan as consumer or commercial.
Turning to our facts, after satisfying the pre-existing mortgage ($738,634.59), the
bankruptcy trustee’s fees and commission ($137,500), settlement charges ($75,558.29),
and other taxes and liens against the home (about $40,000), the remaining balance of
$377,533.43 was paid directly to St. Hill’s creditors. Though she quibbles that the record
does not conclusively show her creditors were business and not consumer, the testimony
noted above convinces us they were the former. In the circumstances before us, that St.
Hill could only apply 29% of the principal directly toward her commercial liabilities does
not detract from our conclusion that the loan’s primary purpose was commercial.
Therefore, we conclude that the TILA does not apply to St. Hill’s loan as a matter of law.
We likewise reject that the Pennsylvania Door-to-Door Act applies to the
transaction in this case. As noted above, we do not believe this loan is within the ambit
of the UTPCPL because it is not a consumer loan. Even if it were, we also note an
additional reason why this transaction is not covered by the Door-to-Door Act.
8
The Door-to-Door Act protects the consumer at home from solicitation or other
inappropriate pressure to assume debt. Here, neither Diamond nor Tribeca solicited St.
Hill in her home, personally or by telephone. The only contact with the home was the
closing, which was held there. But as the District Court found, the closing was at St.
Hill’s home office, for her convenience, as it was her principal place of business.
Therefore, we conclude that the loan was not entered into as the result of or in connection
with in-person contact or a call on St. Hill at her home. We will not stretch the statute to
apply to this case.
Claims against FCS under the CSA and the LBTPR
St. Hill also argues that the District Court erred in granting summary judgment to
FCS on St. Hill’s CSA and LBTPR claims for misrepresenting the terms of the loan. We
disagree.
We exercise plenary review over the District Court’s grant of summary judgment,
viewing “the underlying facts and all reasonable inferences therefrom in the light most
favorable to the party opposing the motion.” McGreevy v. Stroup, 413 F.3d 359, 363 (3d
Cir. 2005).
As noted by the District Court, the CSA does not apply to FCS. It covers “credit
services organizations.” 73 P.S. § 2183. They do not, however, include “[a]ny person
organized, chartered or holding a license or authorization certificate to make loans or
extensions of credit pursuant to the laws of the Commonwealth or the United States who
is subject to regulation and supervision by an official or agency of the Commonwealth or
9
the United States.” Id. § 2182. FCS is a mortgage broker licensed by the
Commonwealth and regulated by the Pennsylvania Department of Banking.
The LBTPR covers “[l]oan broker[s].” 37 Pa. Code § 305.2. Excluded from that
definition is any “person, copartnership, association or corporation expressly regulated by
a regulatory body or officer of this Commonwealth or of the United States, such as State
and nationally chartered banks, savings and loan associations and their regulated
subsidiaries.” Id. As FCS is regulated in a manner contemplated by this exclusion, the
LBTPR also does not apply to it.
Because neither the CSA nor the LBTPR applies to this case, FCS was entitled to
judgment as a matter of law. See also Parker v. Long Beach Mortg. Co., 534 F. Supp. 2d
528, 537-38 (E.D. Pa. 2008) (holding licensed mortgage brokers are not covered by either
the CSA or the LBTPR).
Fraud and the UTPCPL
St. Hill also appeals the District Court’s denial of her fraud claims brought under
the UTPCPL against Tribeca and FCS. As noted above, the UTPCPL does not apply to
non-consumer transactions. Thus, we do not address these claims.
* * * * *
For the reasons discussed above, though our reasoning differs in part, we affirm
the District Court’s judgments.
10