Mitchell v. Beneficial Loan & Thrift Co.

Eighth Circuit

Mitchell v. Beneficial Loan & Thrift Co.

451 F.3d 913, 2006 WL 1686668

CourtCourt of Appeals for the Eighth Circuit

DecidedJune 21, 2006

Docket05-3068

StatusPublished

Cited by1 cases

This text of 451 F.3d 913 (Mitchell v. Beneficial Loan & Thrift Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mitchell v. Beneficial Loan & Thrift Co., 451 F.3d 913, 2006 WL 1686668 (8th Cir. 2006).

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Opinion

PER CURIAM.

The district court 1 granted summary judgment to Beneficial Loan & Thrift Company. Ty S. Mitchell and Kimberly S. Mitchell appeal.

The Mitchells assert that Beneficial violated the Home Ownership and Equity *914 Protection Act (HOEPA). HOEPA, as relevant here, requires creditors to make additional disclosures to borrowers if the total points and fees payable at closing exceed 8 percent of the total loan amount, or $400, whichever is greater. 15 U.S.C. §§ 1602(aa)(l)(B), 1639(a). The Mitchells argue that the $355 appraisal fee, $821 title insurance fee, $67 phone-bill charge, or $1,178 principal disbursement should be included in the total points and fees of their loan. If any one of these were included, the total points and fees would exceed 8 percent of the total loan amount, making the loan subject to HOEPA.

Appraisal and title insurance fees, if bona fide and reasonable, are excluded from HOEPA’s definition of total points and fees. 15 U.S.C. § 1605(e); 12 C.F.R. § 226.4(c)(7). On appeal, the Mitchells claim that these fees are not bona fide and not reasonable because they violate the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2607(b). The district court correctly found that these fees did not violate RESPA because they were paid to an unaffiliated third party for services actually performed, and, in any event, Beneficial derived no benefit from the payments. See Haug v. Bank of America, 317 F.3d 832, 836 (8th Cir.2003). As for the telephone charge and principal disbursement, the statute does not include them in total points and,fees. 15 U.S.C. § 1602(aa)(4). The Mitchells’ loan did not need HOEPA disclosures.

After de novo review, see Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir.1999), this court affirms the district court’s judgment.

1

. The Honorable James M. Rosenbaum, Chief Judge, United States District Court for the District of Minnesota.

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PER CURIAM.

The district court 1 granted summary judgment to Beneficial Loan & Thrift Company. Ty S. Mitchell and Kimberly S. Mitchell appeal.

The Mitchells assert that Beneficial violated the Home Ownership and Equity *914 Protection Act (HOEPA). HOEPA, as relevant here, requires creditors to make additional disclosures to borrowers if the total points and fees payable at closing exceed 8 percent of the total loan amount, or $400, whichever is greater. 15 U.S.C. §§ 1602(aa)(l)(B), 1639(a). The Mitchells argue that the $355 appraisal fee, $821 title insurance fee, $67 phone-bill charge, or $1,178 principal disbursement should be included in the total points and fees of their loan. If any one of these were included, the total points and fees would exceed 8 percent of the total loan amount, making the loan subject to HOEPA.

Appraisal and title insurance fees, if bona fide and reasonable, are excluded from HOEPA’s definition of total points and fees. 15 U.S.C. § 1605(e); 12 C.F.R. § 226.4(c)(7). On appeal, the Mitchells claim that these fees are not bona fide and not reasonable because they violate the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2607(b). The district court correctly found that these fees did not violate RESPA because they were paid to an unaffiliated third party for services actually performed, and, in any event, Beneficial derived no benefit from the payments. See Haug v. Bank of America, 317 F.3d 832, 836 (8th Cir.2003). As for the telephone charge and principal disbursement, the statute does not include them in total points and,fees. 15 U.S.C. § 1602(aa)(4). The Mitchells’ loan did not need HOEPA disclosures.

After de novo review, see Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir.1999), this court affirms the district court’s judgment.

1

. The Honorable James M. Rosenbaum, Chief Judge, United States District Court for the District of Minnesota.

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451 F.3d 913, 2006 WL 1686668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-beneficial-loan-thrift-co-ca8-2006.

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