Ask the Expert: Foreclosure Defenses

CAROLYN HOLBERT,

Plaintiff and Appellant,

v.

FREMONT INVESTMENT & LOAN,

Defendant and Respondent.
C058026

(Super. Ct. No. 06AS01940)


Plaintiff contends issues of fact remain on her claims for violation of the federal Truth in Lending Act (15 U.S.C. § 1601 et seq.) (TILA), as amended by the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. §§ 1602(aa) & 1639) (HOEPA), unfair business practices and financial elder abuse stemming from a home loan issued to plaintiff by Fremont.

We conclude Fremont was not required to comply with HOEPA, which applies when the finance charges imposed on a loan exceed a certain threshold. We conclude two charges imposed on plaintiff, one to pay off a preexisting debt to another lender and another to satisfy a prepayment penalty on a prior home loan, were not finance charges within the meaning of HOEPA.

M.Soliman: Has the plaintiff considered the time period the acceptance was provided to the borrower necessary for determining any bias against the subject. This is logical whereby pricing is seen as abusive by comparison to other borrowers considered more astute and unwilling to accept the same pricing?

We conclude plaintiff has not established a claim against Fremont for unfair business practices. While unfair business practices may include both unlawful and unfair acts, the complaint in this matter alleges only unlawful acts. Furthermore, the alleged unlawful act is a violation of HOEPA, which we conclude did not occur here.

Soliman: Has the plaintiffs counsel considered the intent of the lender for which its lawful business practices were breached. Was there a "delegated Underwriting system in place to the secondary market and was the system breached, as it often is, in order to circumvent the desk top acceptance for ensuring against predatory lending and practices?

Finally, while plaintiff may have a viable claim against her loan broker for financial elder abuse based on various misrepresentations made during the loan process, she failed to link that claim to Fremont, who is as much a victim of the broker’s misrepresentations as plaintiff.

Soliman: the brokers activity's are subject to a agency agreement and specifies a plethora of Do's and Don't subjecting the parties to terminate the broker relationship.Broker business is highly deceptive in origination and calls for the lender to ensure significantly a higher level of safeguards. These protections offered the secondary markets are to ensure against liability for the claims the plaintiff is making here. A derelict quality control and risk mitigation department is easy to determine from published SEC documents with respect to enforceable controls for mitigating risk and to circumvent the indifference made by the registrant in its solicitation of investors.

We therefore affirm the judgment of dismissal.

Labels: (court), (freemont), (judgement), (mortgages), appeal, dismissal, law, trial