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In early December 2007, plaintiff discussed his refinancing options with defendant Sutherlin. The Board’s construction of section 1635(d)(2) is entitled to deference. The burden of proof that plaintiff can repay the loan proceeds rests with plaintiff, without such a showing, plaintiff cannot prove that he is likely to succeed on the merits. Plaintiff represents to this court that he intends to modify his current bankruptcy plan to make monthly adequate protection payments toward tender through his Chapter 13 plan in a manner similar to making payments on secured personal property under 11 U. Brian Lynch, the Chapter 13 trustee, is agreeable to working with plaintiff in putting together a proposal to pay the tender requirement.
When there is clear and convincing evidence of predatory lending and fraud, the court can use its equitable powers to remediate the inequities.
In , on September 22, 2005 Plaintiff refinanced his home for 4,900 at 7.54% with a one year balloon payment of 5,999.66.
Defendant received ,800 as a loan origination fee and Plaintiff signed an option to extend the loan for an additional fee of 80.
Judge Ann Aiken found it troubling that Plaintiff was charged a total of , 418.81 in loan origination fees for three transactions over a four-year period, stating that considering the FHA recently announced a limitation of loan origination fees charged to borrowers as no more than 1% of the loan amount, Plaintiff’s loan fees of 5% and 7%, even considering the increased risk associated with a sub-prime loan, runs counter to 12 C. The court stated that HOEPA rescission does not have a statute of limitations subject to tolling, but a statute of repose that creates a substantive right not subject to tolling. The Bankruptcy Court ordered relief from the automatic stay on September 2, 2009.
Notwithstanding the foregoing the judge held that pursuant to , there was authority to allow Plaintiff to rescind the first transaction under the doctrine of equitable tolling. In September 2005, plaintiff contacted defendant Gregory Funding, LLC (“Gregory”) to request information regarding refinancing his home.
He made a payment of ,500 on November 15, 2007, and another payment of ,500 on November 29, 2007. Defendants also argue that plaintiff is not likely to succeed on the merits. The amount financed, 6,216 exceeded the balance of the second transaction (4,400), and therefore plaintiff had a right to rescind the third transaction. The first two transactions contained a term of five years or less along with a balloon payment. provide the authority for this court to allow plaintiff to rescind both the second and third transactions with defendant. Plaintiff’s loan has been in default status for several years. The tender, including the interest rate of 7.547%, would be amortized over 30 years.
On December 1, 2007, plaintiff was an estimated ,177.26 in arrears. Plaintiff agrees that the only claim supporting his motion for injunction is the rescission claim under TILA. While true that section 1635(e)(2) limits a rescission of a refinance with no new advances, the Board’s regulation clearly states that new amounts financed that exceed the unpaid principal balance, any earned unpaid finance charge on the existing debt, and amounts attributed solely to the costs of refinancing or consolidation are rescindable under the TILA. He obtained protection of the bankruptcy court and then defaulted on the Loan post-petition, thus causing the bankruptcy court to order relief from the stay. 2003)(when lender contests notice of rescission, the security interest is not extinguished upon giving the notice and instead occurs only when the court so orders, and upon terms the court deems just, including conditioning rescission on the repayment of the loan proceeds). Defendant would file an amended proof of claim using the tender amounts as the secured debt.Finally to overcome Plaintiffs inability to obtain new financing for tender purposes, the court ordered Defendant to file an amended proof of claim with the bankruptcy court using the tender amount as the secured debt payable at 7.547% interest over 30 years. Plaintiff was not asked to provide tax returns, pay stubs, or complete a credit application at any point during the refinance.There is no record of a real estate appraisal completed at any point to determine the value of plaintiff’s home. The loan to plaintiff occurred on September 12, 2005.Plaintiff filed a motion for temporary restraining order/preliminary injunction (“TRO/PI”). BACKGROUND Plaintiff brings this action for injunctive relief, actual damages, statutory damages, attorney fees and costs against defendants for violation of the Truth in Lending Act, 15 U. As a result, plaintiff exercised his right to rescind the 20 loans under TILA, and filed the action at bar to enforce those rights.The court granted plaintiff’s motion for a TRO on November 10, 2010, prohibiting defendants from executing its proposed sale of plaintiff’s property on the Multnomah County Courthouse steps scheduled November 10, 2010 at a.m. section 226.23(f)’s comment that fees must be bona fide and reasonable. Plaintiff filed for bankruptcy protection in the District of Oregon on September 22, 2008, which was confirmed on April 16, 2008.Plaintiff was not provided a good faith estimate prior to closing or a HUD statement at closing detailing the loan fees and costs paid to defendant. “Speculative injury does not constitute irreparable injury.” Goldie’s Book Store v. The loan had been originated by CTX Mortgage who had sold it to Goldman Sachs who subsequently sold it to Freddie Mac. Foreclosures are routinely and justifiably conducted by trustees of securitized mortgages.