Berghaus v. U.S. Bank

• Decision Date: 10 February 2012
• Docket Number: No. 2010–CA–002050–MR.,2010–CA–002050–MR.
• Citation: 360 S.W.3d 779
• Parties: Rachel L. BERGHAUS, Appellant, v. U.S. BANK, Appellee.
• Court: Kentucky Court of Appeals

360 S.W.3d 779

Rachel L. BERGHAUS, Appellant,

v.U.S. BANK, Appellee.

No. 2010–CA–002050–MR.

Court of Appeals of Kentucky.

Feb. 10, 2012.

Clement L. Bezold, Jr., Wilder, KY, for appellant.

Christopher M. Hill, Frankfort, KY, for appellee.

Before COMBS and NICKELL, Judges; LAMBERT,¹ Senior Judge.

OPINION

COMBS, Judge:

The Campbell Circuit Court dismissed the counterclaim of Rachel L. Berghaus in litigation initiated by U.S. Bank. The court also entered a judgment and order of sale in favor of U.S. Bank, trustee for the registered holders of Home Equity Asset Trust 2004–2, Home Equity Pass–Through Certificates, Series 2004–2. Berghaus now appeals. After our review, we affirm in part, vacate in part and remand.

On December 19, 2003, Berghaus, a subprime borrower, signed a note for a residential mortgage loan. Decision One Mortgage Co., LLC (a subprime mortgage lender and, at that time, subsidiary of HSBC Finance Corporation) was the loan originator. The loan was one commonly identified as a 2/28 hybrid ARM (adjustable rate mortgage) since it contained both fixed and adjustable rate features. Berghaus borrowed $68,000.00.

According to the terms of the note, her first twenty-four monthly mortgage payments were based on a fixed rate of 7.49%. The amount of the remaining mortgage payments was to be adjusted every six months. The adjustments were subject to defined caps and a floor and were tied to a widely used variable index (the London Interbank Offered Rate—“LIBOR”), plus a “margin” of 7.24% (set by the lender). Pursuant to the note, the first rate change could not result in an interest rate exceeding 10.49%. And, regardless of the LIBOR index, Berghaus's interest rate would never change by more than one percentage point from the rate that she had been paying for the preceding six months. In no event was her interest rate ever to exceed 13.49%. Finally, the interest rate would never fall below the initial rate charged by the lender.

In addition to the note and various other closing documents, Berghaus signed a federal Truth–in–Lending disclosure statement. To secure repayment of the loan, Berghaus mortgaged her home at 51 16th Street in Newport, Kentucky.

Berghaus was advised in writing that the lender might transfer the note and mortgage. On March 1, 2004, Berghaus's note and mortgage were assigned to U.S. Bank in its capacity as trustee for the registered holders of Home Equity Asset Trust 2004–2, Home Equity Pass–Through Certificates, Series 2004–2.

In accordance with federal regulations, Berghaus was advised in writing and in advance of each of the periodic rate increases. By July 2007, Berghaus's interest rate had risen to 12.625%, and she could no longer afford the mortgage payments on her home.

On February 25, 2009, U.S. Bank, in its capacity as trustee, filed a foreclosure action against Berghaus. The bank alleged that Berghaus had defaulted on her obligations under the terms of the note and mortgage.

Berghaus answered the bank's complaint and denied the default. She essentially asserted a claim for recoupment as an affirmative defense. Additionally, Berghaus asserted a counterclaim alleging: (1) that Decision One Mortgage (the loan originator) had violated numerous provisions of the federal Truth–in–Lending Act (“TILA”), 15 U.S.C. § 1601 et seq. ; and (2) that Decision One Mortgage had “engaged in predatory lending practices and a bait and switch fraud” scheme to induce her to sign the loan documents. Answer, Counterclaim and Jury Demand at 2. Based upon her assertions, Berghaus demanded statutory and punitive damages, costs, and attorney fees. She also sought release of the lien and dismissal of the foreclosure action.²

U.S. Bank filed a timely motion to dismiss for failure to state a claim upon which relief could be granted. On April 27, 2009, the bank filed a memorandum in support of its motion to dismiss Berghaus's counterclaims. It contended that Berghaus's TILA claims were time-barred. In the alternative, it argued that Berghaus was not entitled to relief since the bank as an assignee—and not the original lender subject to TILA's disclosure requirements—“enjoyed safe-harbor” under TILA's provisions. U.S. Bank contended that the fraud claims also must fail since Berghaus admitted that she had fully understood and consented to the loan documents at the time that she was asked to sign them.

On December 15, 2009, after hearing extensive oral arguments and after having reviewed the mortgage, note, adjustable rate rider, floor rate rider, and disclosure statement, the trial court granted the bank's motion to dismiss Berghaus's counterclaim. The court granted the motion to dismiss on the basis that U.S. Bank (again as assignee rather than the loan originator) was entitled to the protection of TILA's safe-harbor provisions. Subsequently, the trial court: denied Berghaus's motion to alter, amend, or vacate the order dismissing; denied Berghaus's motion to amend her counterclaim to add a claim for fraud in the inducement; and granted the bank's motion for summary judgment and an order of sale. This appeal followed.

The issue of safe harbor is a troubling one—both as to equity and the public policy of protecting borrowers that was supposed to be the raison d'être of truth in lending. We have discussed in detail whether an assignee of a loan has a duty—either direct or implied—to investigate loan application documents underlying the loans transferred to it, to discover any defects or omissions for which the assignor might have been responsible.

And we have been confronted with yet another confirmation of the harsh consequences of the economic times in which we live. There is no duty to investigate. An assignor under these circumstances enjoys safe harbor just as a bona fide purchase for value (BFP) protected in other commercial transactions. However, while a BFP cannot claim that protection unless he is equitably entitled to do so, such is not the result in cases like the one before us now. U.S. Bank as an assignee is wholly entitled to claim safe harbor under the pertinent provisions. Berghaus has suffered a wrong for which the current state of the law lamentably provides neither remedy nor safeguard.

Berghaus contends that the trial court erred by granting summary judgment in favor of the bank with respect to her counterclaims; by failing to grant her motion to amend her counterclaim; and by granting summary judgment and an order of sale with respect to the bank's claim of default.

In response to the bank's motion, the trial court dismissed Berghaus's counterclaims on December 15, 2009. A motion to dismiss should be granted only where “it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim.” Pari–Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801 (Ky.1977). However, because the trial court considered matters outside the pleadings in this matter, we must review the dismissal of Berghaus's counterclaims as if it were a summary judgment. Johnson v. United Parcel Service, Inc., 326 S.W.3d 812 (Ky.App.2010). If it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Kentucky Rules of Civil Procedure (CR) 56.03. On appeal, we must decide whether the trial court correctly determined that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.App.1996). Since factual findings are not at issue, an appellate court does not defer to the trial court and conducts its review de novo. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky.App.2000).

Berghaus argues that the trial court erred by granting summary judgment in favor of the bank with respect to her counterclaims. She argues first that the court failed to fully consider her allegations that Decision One Mortgage had violated provisions of TILA by failing to disclose prior to closing the potential for an enormous increase in the interest rate on her loan and the existence of a rate floor. She contends that these omissions should have been apparent to U.S. Bank as the successor to Decision One Mortgage.

Congress enacted the Truth in Lending Act in 1968 in order to “assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit....” 15 U.S.C. § 1601(a). The Act and its implementing regulation-drafted by the Federal Reserve Board of Governors and commonly known as “Regulation Z” (12 C.F.R. § 226.1 et seq.) ³—require creditors to disclose “clearly and conspicuously” (in writing and in a form that the borrower may keep) specific information pertaining to credit transactions. See 15 U.S.C. §§ 1632(a), 1635(a); 12 C.F.R. §§ 226.17, 226.18. If a creditor fails to make the required disclosures, the Act provides for a private right of action for statutory damages. 15 U.S.C. § 1640(a)(1). In addition to damages, the borrower may also be entitled to collect costs and attorney's fees. 15 U.S.C. § 1640(a)(3). Under certain limited circumstances, the borrower may even rescind the loan agreement or assert a right of set-off. See Beach v. Ocwen Federal Bank, 523 U.S. 410, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998).

Berghaus was required by the Act's provisions to file her claims “within one year from the date of the occurrence of the violation....” 15 U.S.C. § 1640(e); Coombs v. Beneficial Finance Co., 549 S.W.2d 327 (Ky.App.1977). Where an alleged TILA violation is based upon insufficient disclosure, the limitation period generally begins as of the date of consummation of the transaction. Berghaus's loan agreement was consummated on December 19, 2003. She filed her counterclaim against U.S. Bank on April 1, 2009. Berghaus has not identified any facts that would serve to extend the ordinary limitations period in ...