347 F.3d 749 (9th Cir. 2003), 02-35426, Geraci v. Homestreet Bank

Docket Nº:02-35426
Citation:347 F.3d 749
Party Name:Geraci v. Homestreet Bank
Case Date:October 20, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 749

347 F.3d 749 (9th Cir. 2003)

Gregory GERACI and Beverly Geraci, husband and wife on behalf of themselves and of all others similarly situated, Plaintiffs-Appellants,


HOMESTREET BANK, Defendant-Appellee.

No. 02-35426.

United States Court of Appeals, Ninth Circuit

October 20, 2003

Submitted Sept. 11, 2003. [*]

Page 750

Hart L. Robinovitch, Zimmerman Reed, P.L.L.P., Scottsdale, AZ, for the plaintiffs-appellants.

Michael J. Agoglia, Morrison & Foerster L.L.P., San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for Western District of Washington, Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-01-1465-Z.

Before: HAWKINS and BERZON, Circuit Judges, and QUACKENBUSH, Senior District Judge. [**]

QUACKENBUSH, Senior District Judge:

This is another action in a series of claims by parties who have obtained mortgage loans contending that the origination fee they paid their mortgage broker, in this case, Windermere Mortgage (Windermere), and the yield spread premium (YSP) paid by the mortgage lender, in this case the Defendant Homestreet Bank (Homestreet), to Windermere, exceeded a statutory 1% cap on fees paid by the borrowers. See Lane v. Residential Funding Corp., 323 F.3d 739 (9th Cir. 2003); Bjustrom v. Trust One Mortgage Corp., 322 F.3d 1201 (9th Cir. 2003); Schuetz v. Banc One Mortgage Corp., 292 F.3d 1004 (9th Cir. 2002), cert. denied, 537 U.S. 1171, 123 S.Ct. 994, 154 L.Ed.2d 913 (2003).

The Plaintiffs Gregory and Beverly Geraci contend the YSP, added to the origination fee, exceeded the 1% cap on Veteran Administration (VA) fees. The Plaintiffs also contend that the YSP paid by Homestreet to Windermere was "excessive," although the Plaintiffs' First Amended Complaint does not specifically allege that the Homestreet payment to Windermere constituted an illegal "kickback" or referral fee in violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2607 (RESPA). Lastly, the Plaintiffs included a state law claim for unjust enrichment based upon the foregoing federal claims.

The district court, in Geraci v. Homestreet Bank, 203 F.Supp.2d 1211 (W.D.Wash.2002), granted the Defendant's Motion for Judgment On The Pleadings contained in the Plaintiffs' First Amended Complaint, dismissing the 1% cap breach of contract claim with prejudice and the RESPA and unjust enrichment claims without prejudice, and subsequently entered a final Judgment to that effect. The court did not grant leave to amend the First Amended Complaint. The Plaintiffs elected to stand on their pleadings and did not file or seek leave to file a Second...

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