Layell v. Home Loan & Invest ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHAWN K. LAYELL,
Debtor-Appellant,
v.
HOME LOAN AND INVESTMENT BANK,
No. 99-1744
F.S.B.,
Defendant-Appellee,
KEITH L. PHILLIPS, Trustee,
Party-in-Interest.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-98-652-3, BK-97-38756-DOT, AP-98-03025-A)
Argued: March 2, 2000
Decided: April 13, 2000
Before WILKINS and LUTTIG, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Henry Woods McLaughlin, III, CENTRAL VIRGINIA
LEGAL AID SOCIETY, INC., Richmond, Virginia, for Appellant.
Damon William Dunstan Wright, VENABLE, BAETJER, HOWARD
& CIVILETTI, Washington, D.C., for Appellee. ON BRIEF: Law-
rence B. Bernard, VENABLE, BAETJER, HOWARD & CIVILETTI,
Washington, D.C., for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Shawn K. Layell appeals an order of the district court affirming in
part and reversing and remanding in part two orders of the bankruptcy
court that primarily granted judgment against Layell in an adversary
proceeding in which Layell sought rescission of a loan agreement pur-
suant to the Truth in Lending Act (TILA or "the Act"), see 15
U.S.C.A. §§ 1601-1677 (West 1998). We dismiss the appeal as inter-
locutory.
I.
As relevant here, TILA requires a lender to disclose to a borrower
the finance charge associated with a loan, see id. § 1638(a)(3), and
entitles the borrower to sue for rescission of a loan upon the initiation
of any foreclosure process on his principal dwelling if the lender's
finance charge disclosure was not accurate, see id. § 1635(i); 12
C.F.R. § 226.23(a) (1999). TILA defines the term "finance charge"
generally as "the sum of all charges, payable directly or indirectly by
the person to whom the credit is extended, and imposed directly or
indirectly by the creditor as an incident to the extension of credit." 15
U.S.C.A. § 1605(a). When a loan is secured by an interest in real
property, however, TILA specifically provides that"[f]ees for prepa-
ration of loan-related documents" are not included in the finance
charge. Id. § 1605(e)(2). Further, regulations promulgated by the Fed-
eral Reserve Board pursuant to TILA exclude from the definition of
"finance charge" under such circumstances"[f]ees for preparing loan-
2
related documents, such as deeds, mortgages, and reconveyance or
settlement documents" provided the fees are "bona fide and reason-
able in amount." 12 C.F.R. § 226.4(c)(7)(ii) (1999); see 15 U.S.C.A.
§ 1604(a) (providing authority for the promulgation of regulations
interpreting TILA).
In 1996, Layell refinanced a mortgage on residential property that
he inherited from his mother and which was his primary residence.
Home Loan and Investment Bank, F.S.B. (Home Loan) loaned Layell
$48,188, secured by a mortgage on the property. In connection with
the closed-end credit transaction, the settlement attorney delivered to
Layell a disclosure statement stating that the amount financed by the
loan was $44,916.03 and the finance charge was $143,160.33. The
attorney also provided Layell with a statement itemizing the settle-
ment charges that were to be paid from the loan proceeds. These
charges were not disclosed as finance charges. The two charges rele-
vant to this appeal are a $16 recording fee and a $175 fee payable to
the attorney's firm for document preparation. The $16 recording fee
represented the amount charged by the Henrico County, Virginia
Clerk's Office for recording the release of a lien connected with the
mortgage Layell repaid in conjunction with the refinancing. The $175
fee represented $50 for preparation of a quitclaim deed and $125 for
preparation of loan-related documents.
Five months after settlement of the loan, Layell ceased making
payments, and Home Loan subsequently instituted foreclosure pro-
ceedings. After receiving notice of the foreclosure, Layell declared to
Home Loan that the credit transaction was rescinded pursuant to 15
U.S.C.A. § 1635(i).
On the date of the foreclosure sale, Layell filed for bankruptcy pur-
suant to Chapter 7, resulting in the automatic stay of the foreclosure.
See 11 U.S.C.A. § 362(a) (West 1993 & Supp. 1999). When Home
Loan filed a motion for relief from the automatic stay, see 11
U.S.C.A. § 362(f) (West 1993), Layell filed an adversary complaint
against Home Loan alleging that he was entitled to rescind the loan
agreement.1 Layell contended at trial that more than $35 of the $175
_________________________________________________________________
1 Layell subsequently amended his complaint, but the substance of the
amendment is not relevant here.
3
document preparation fee was attributable to the preparation of docu-
ments required by TILA and the Real Estate Settlement Procedures
Act (RESPA) of 1974, see 12 U.S.C.A. §§ 2601-2617 (West 1989 &
Supp. 1999), and that the amount attributable to preparation of those
documents constituted a finance charge because the charge for prepar-
ing these documents was not "bona fide" within the meaning of 12
C.F.R. § 226.4(c)(7)(ii). As for the $16 recording fee, Layell con-
tended that it was a finance charge because it had not been paid to the
Henrico County Clerk's Office at the time he sought rescission.
The bankruptcy court simultaneously held a hearing on Home
Loan's motion for relief from the automatic stay and conducted a trial
of the adversary proceeding. In separate orders entered on June 23,
1998, the bankruptcy court granted Home Loan's motion for relief
from the automatic stay and dismissed with prejudice Layell's
amended complaint in the adversary proceeding, holding in relevant
part that neither the $16 fee nor the $175 fee constituted an undis-
closed finance charge.
On appeal, the district court agreed with the bankruptcy court
regarding the $16 fee but concluded that the bankruptcy court erred
in not determining that a "fee charged for the preparation of a TILA
disclosure statement must be considered a finance charge." Layell v.
Home Loan & Inv. Bank, F.S.B., 244 B.R. 345, 348-51 (E.D. Va.
1999). On this basis, the district court remanded to the bankruptcy
court for a determination of the amount of the document preparation
fee attributable to the preparation of "the TILA disclosure statement."2
Id. at 351.
Layell now appeals to this court, contending that the district court
erred in not also holding that any part of the fee attributable to the
preparation of documents required by RESPA was an undisclosed
finance charge.
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2 Layell contends that the order of the district court applies to the fees
attributable to preparation of all documents that TILA required. How-
ever, the ruling of the district court clearly is limited to "the TILA disclo-
sure statement." Id. at 351.
4
II.
Although Home Loan does not challenge our jurisdiction to hear
this appeal, "the Court is obligated to review its jurisdiction sua
sponte in all cases." United States v. Blackwell, 900 F.2d 742, 746
(4th Cir. 1990). We conclude that we do not have jurisdiction because
the district court order is not final. See Foremost Guar. Corp. v. Com-
munity Sav. & Loan, Inc., 826 F.2d 1383, 1386 (4th Cir. 1987)
(explaining that interlocutory appeals from orders of district courts
prior to entry of final judgment generally are not permitted).
District courts have jurisdiction over appeals from final judgments
of bankruptcy courts. See 28 U.S.C.A. § 158(a) (West Supp. 1999).
We, in turn, have jurisdiction to hear appeals from"final decisions,
judgments, orders, and decrees entered under" 28 U.S.C.A. § 158(a).3
28 U.S.C.A. § 158(d) (West 1993). "A final decision generally is one
which ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment." Catlin v. United States, 324
U.S. 229, 233 (1945) (internal quotation marks omitted). District
court orders remanding to the bankruptcy court for further consider-
ation generally are not final orders. See Legal Representative for
Future Claimants v. Aetna Cas. & Sur. Co. (In re The Wallace &
Gale Co.), 72 F.3d 21, 24 (4th Cir. 1995).
Here, the order appealed from clearly is not final because litigation
on the merits has not ended; on remand, litigation will be necessary
to determine whether more than $35 of the document preparation fee
is attributable to the TILA disclosure statement. See Capitol Credit
Plan of Tenn., Inc. v. Shaffer, 912 F.2d 749, 750 (4th Cir. 1990)
(holding that district court order remanding for the bankruptcy court
to address two arguments not previously addressed by the bankruptcy
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3 We also have jurisdiction over appeals of certain interlocutory "collat-
eral" orders, and we have discretionary authority to assume jurisdiction
over appropriately certified interlocutory orders. See Legal Representa-
tive for Future Claimants v. Aetna Cas. & Sur. Co. (In re The Wallace
& Gale Co.), 72 F.3d 21, 24 (4th Cir. 1995). However, the district court
order here clearly is not a "collateral" order, see Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949), nor has it been certified
pursuant to 28 U.S.C.A. § 1292(b) (West 1993).
5
court was not a final decision).4 Indeed, if the bankruptcy court deter-
mines that more than $35 of the document preparation fee is attribut-
able to the TILA disclosure statement, Layell's allegation of error will
become moot. Accordingly, the order of the district court is not an
appealable order, and we must dismiss this appeal for lack of jurisdic-
tion. Because we lack jurisdiction to hear this appeal, we express no
opinion regarding the merits.
III.
Because we conclude that the district court order did not end the
litigation on its merits, we hold that it was not a final order and that
we lack jurisdiction over this appeal.
DISMISSED
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4 We note that in Cooper v. Delaware Valley Shippers (In re Carolina
Motor Express, Inc.), 949 F.2d 107 (4th Cir. 1991), rev'd on other
grounds sub nom. Reiter v. Cooper, 507 U.S. 258 (1993), a panel of this
court followed the practice adopted in certain jurisdictions of applying a
"relaxed" definition of "final district court order" when the district court
has reviewed a final bankruptcy court order. Cooper, 949 F.2d at 108
n.1. Applying the more relaxed definition, this court held in Cooper that
a district court order was final when the order reversed a final bankruptcy
court judgment even though the order also referred a question affecting
the merits of the case to the Interstate Commerce Commission. See id.at 108 & n.1. However, because Cooper conflicts with Shaffer and Shaf-
fer preceded Cooper, we are bound to follow Shaffer. See Harter v. Ver-
non, 101 F.3d 334, 343 (4th Cir. 1996) (Luttig, J., dissenting from denial
of rehearing en banc) (stating that when two published Fourth Circuit
panel opinions conflict, the law as stated in the earlier opinion controls).
6