Brunelle v. Bank of New York Mellon

161 N.H. 64
CourtSupreme Court of New Hampshire
DecidedOctober 27, 2010
DocketNo. 2009-689
StatusPublished
Cited by5 cases

This text of 161 N.H. 64 (Brunelle v. Bank of New York Mellon) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brunelle v. Bank of New York Mellon, 161 N.H. 64 (N.H. 2010).

Opinion

Broderick, C.J.

The plaintiffs, Stephen and Ellen Brunelle, appeal an order of the Trial Court (McHugh, J.) authorizing the defendants, Bank of New York Mellon; Novastar Mortgage, Inc.; Harmon Law Offices, P.C.; and Saxon Mortgage Services, Inc., to foreclose on the plaintiffs’ property if they fail to repay funds required to allow rescission of the mortgage contract. They argue that the trial court erred in modifying their rescission rights under the Truth in Lending Act (“the Act”), see 15 U.S.C.A. §§ 1601 et seq. (West 2009). We affirm.

The following facts appear in the record. The plaintiffs obtained a loan for $346,500.00 from Novastar Mortgage, Inc. (Novastar) in August 2005 for property located at 7 Crane Crossing Road in Newton, New Hampshire. Of the loan proceeds, $231,190.74 was paid to Novastar to pay off a preexisting mortgage and $109,371.55 was paid directly to the plaintiffs in cash. Defendants Saxon Mortgage Services, Inc. and Bank of New York Mellon (hereinafter “defendants”) were subsequently assigned Novastar’s rights under the note. The defendants initiated foreclosure proceedings against the plaintiffs in early July 2008. The plaintiffs then filed an equity proceeding seeking to enjoin the foreclosure.

By letter dated July 14, 2008, the plaintiffs wrote to the Harmon Law Offices in Newton, Massachusetts, stating in part: “We are writing to officially rescind or cancel the loan referenced above, dated August 17th 2005 by Novastar Mortgage Inc. Upon examining our notice of right to cancel, we discovered that there was no address for Novastar Mortgage, which is in violation of regulation Z of the [Act].” The defendants agreed to forego foreclosure and to allow the plaintiffs to rescind; under the defendants’ rescission proposal, the plaintiffs would repay the cash they received at closing, minus finance charges and closing costs. By letter dated September 8, 2008, the plaintiffs rejected this proposal, arguing that they were not liable for repayment of any cash received at the closing, and were also entitled to a cash payment of $67,260.

When no agreement concerning rescission was reached, trial was held on the original equity petition filed by the plaintiffs. We note that the appellate record does not contain a copy of that petition. The trial court found, however, that the plaintiffs “raised in their pleadings a series of ‘technical defenses.’ ” The court was asked to enjoin the foreclosure because the [66]*66lender did not have the original note, the annual percentage rate disclosed on the truth-in-lending disclosure was incorrect, and the notice of the right to cancel provided to the plaintiffs at the closing on the loan did not contain the address of the lender as required under Regulation Z of the Act.

The court found that the only defense with any legal merit was the fact that the Notice of Right to Cancel document given to the plaintiffs at closing included only the name of the lender and not the lender’s address. The court further found, however, that this omission did not prejudice the plaintiffs because at the time of the closing they worked for the mortgage holder and obviously knew its address. The trial court concluded that “there is no legal or equitable basis for the continued prohibition against the defendants from foreclosing on the mortgage.” The trial court then stated: “Although this would appear to be an exercise in futility, so as to give the plaintiffs one last opportunity to implement their right of rescission, the Court orders that the defendants notify the plaintiffs within thirty days as to exactly how much monies they would have to pay for rescission to take place.” The plaintiffs were then allowed thirty days from receipt of the calculation of the amount due to pay that amount to the defendants by cash or certified check.

On appeal, the plaintiffs argue that the trial court erred in finding that the defendants were entitled to proceed with foreclosure because even though the defendants conceded at trial that they violated the Act, they failed to perform their rescission duties. Given this failure, the plaintiffs argue that their duty to tender never arose and that rescission is a complete defense to foreclosure of the property. Because the issues before us present only questions of law, we review them de novo. See Coco v. Jaskunas, 159 N.H. 515, 518 (2009).

The Act provides, in pertinent part:

When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its [67]*67reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it. The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.

15 U.S.C.A. § 1635(b).

Regulation Z of the Truth in Lending Regulations, with respect to the effects of rescission, provides:

(d) Effects of rescission.
(1) When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.
(2) Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.
(3) If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the consumer shall tender the money or property to the creditor or, where the latter would be impracticable or inequitable, tender its reasonable value. At the consumer’s option, tender of property may be made at the location of the property or at the consumer’s residence. Tender of money must be made at the creditor’s designated place of business. If the creditor does not take possession of the money or property within 20 calendar days after the consumer’s tender, the consumer may keep it without further obligation.
(4) The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order.

12 C.F.R. § 226.23(d) (2010).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carlos Santos v. Zenandre Braccio
Supreme Court of New Hampshire, 2018
Allen Williamson v. Zen Braccio
Supreme Court of New Hampshire, 2018
Vatche Manoukian v. PennyMac Loan Services, LLC
Supreme Court of New Hampshire, 2016
In the Matter of Tonia Kennedy and Joanne Bairos
Supreme Court of New Hampshire, 2016

Cite This Page — Counsel Stack

Bluebook (online)
161 N.H. 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brunelle-v-bank-of-new-york-mellon-nh-2010.