John M. Bennett and Nancy L. Bennett, Appellants,
Mortgage Electronic Registration Systems, Inc., Home Loan Alliance, LLC f/k/a Leverage Financial, LLC d/b/a LF Loans, Jamal M. Wilson, and GTE Federal Credit Union, Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 12-41600, Michael Hanzman, Judge.
Russo, for appellants.
Jay Feder, P.A. and Scott Jay Feder, for appellees.
SALTER, FERNANDEZ and LUCK, JJ.
ancient Greek playwright Sophocles asked in one of his best
known dramas, Antigone, "what prowess is it to
slay the slain anew?" (Nowadays we would ask, "why beat
a dead horse?") Congress must have had Sophocles in mind
when it drafted the truth-in-lending act. Section 1640(b) of
the act shields creditors from liability if they fix
disclosure errors and pay back debtors within sixty days of
discovering the error. Why allow a federal cause of action
where the clerical error has been timely corrected?
and Nancy Bennett sued Mortgage Electronic Registration
System, Inc., LF Loans, LF Loan's president, Jamal
Wilson, and GTE Federal Credit Union for fraud, declaratory
relief, and violating the truth-in-lending act because the
defendants failed to disclose at closing that the Bennetts
would have to pay for private mortgage insurance as part of
the refinance on the couple's home. Because there was no
genuine issue of material fact that the defendants fixed the
mortgage insurance discrepancy and paid back the Bennetts for
the premiums they paid within sixty days of discovering the
error, there was no liability under the truth-in-lending act,
no damages for fraud, and no present need for declaratory
relief. We, therefore, affirm the trial court's summary
judgment for the defendants.
Background and Procedural History
April 2012, the Bennetts were looking for assistance to
refinance the mortgage on their home. They learned of a
government program, the Home Affordable Refinance Program,
intended to assist borrowers whose mortgages exceeded the
value of their home. The Bennetts completed a loan
application with their broker, Advance Mortgage. With the
assistance of their broker, on April 17, 2012, they applied
for a HARP II loan from LF Loans. The truth-in-lending act
disclosure statement attached to the application form
estimated a monthly payment of $1, 345.68, which included
$237.60 in escrow for taxes, property insurance, and private
mortgage insurance. The loan was closed on June 12, 2012 by
Stewart Title Company, at which time the Bennetts initialed
and signed several documents, including a payment letter and
an initial escrow account disclosure statement. At closing,
the estimated monthly payment was $1, 237.96 and did not
include private mortgage insurance.
closing, the Bennetts' loan was assigned to GTE Federal
Credit Union. Prior to the first payment due in August 2012,
the Bennetts received a monthly payment statement from GTE.
Mr. Bennett noticed that the monthly payment listed on the
statement was less than the estimated monthly payment he
received at closing. Mr. Bennett called GTE to avoid future
issues with the loan. A few days later GTE called back and
told Mr. Bennett the correct payment amount; however, this
time the amount was greater than the amount he was told at
closing. Mr. Bennett asked GTE to send him a copy of the
documents he signed agreeing to the higher payment. Within a
week he received several documents, including a payment
letter and initial escrow account disclosure statement, which
the Bennetts contend were forgeries. Unlike the Bennetts'
copies of the closing documents, the documents sent to Mr.
Bennett by GTE included a $100.92 charge for private mortgage
10, 2012, the Bennetts' counsel sent a demand letter to
GTE with copies to LF Loans and Stewart Title. The letter
informed GTE: of the discrepancy; the Bennetts had no
obligation to pay private mortgage insurance on the loan; and
the Bennetts would be paying the insurance under protest
until GTE corrected its records. The letter also stated:
we demand that this matter be fully rectified within 60 days.
Failure to fully rectify this matter within that time will
lead to the filing of legal action. In order to fully rectify
this matter you must not only correct your Loan Statement and
purge all the fraudulent documents in order to avoid a
repetition of the fraud through further transfer of the
mortgage instruments, but you must also pay compensation for
fees and costs suffered by the borrowers, as well as credit
back to them the overpayments for the improperly charged PMI.
To date the borrowers attorney's fees paid are $200.00
with an anticipated additional amount of $300.00 to become
due. Accordingly, you should issue a payment or credit to the
borrowers of $200 and a send a separate check for $300
payable to me . . . .
16, 2012, LF Loans electronically mailed the Bennetts'
counsel the following message:
The issue with the documents being falsified lies at the feet
of the title company. We sent out a final package with
[private mortgage insurance] on all loan documents. I
don't have corroboration from the title company but my
thought process is that they mistakenly got the initial
documentation signed realized ...