Wane v. Loan Corp.

926 F. Supp. 2d 1312, 2013 WL 672574, 2013 U.S. Dist. LEXIS 25245
CourtDistrict Court, M.D. Florida
DecidedFebruary 23, 2013
DocketCase No. 8:11-cv-2126-T-33AEP
StatusPublished
Cited by2 cases

This text of 926 F. Supp. 2d 1312 (Wane v. Loan Corp.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wane v. Loan Corp., 926 F. Supp. 2d 1312, 2013 WL 672574, 2013 U.S. Dist. LEXIS 25245 (M.D. Fla. 2013).

Opinion

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

The Wanes executed an Adjustable Rate Mortgage and Note in 2006, and, after several years of making scheduled payments, have become disenchanted with their lender, Bank United, N.A.1 The Wanes sought to rescind their Mortgage when their monthly payments were scheduled to increase from $1,213.05 to $3,264.29, and thereafter, ceased their remittance of Mortgage payments altogether.2 When notified that their Mortgage was in default, the Wanes filed an action to quiet title. Bank United, N.A. responded by filing its counterclaims for breach of note and money lent. Cross motions for summary judgment on the claims and various motions to strike are before the Court. After considering the parties’ arguments and independently plumbing the record, the Court finds in favor of Bank United, N.A.

I. Factual Background

A. The Obligation and Default

Amadou Wane (“Mr. Wane”) executed and delivered an Adjustable Rate Note in the principal amount of $400,000.00 to Defendant The Loan Corporation on September 15, 2006, to refinance two then-existing loans from Wells Fargo, secured by the Wanes’ residence located at 14614 Canopy Drive, Tampa, Florida. (Fallmann Aff. Doc. # 167-3 at 3, ¶ 11; Doc. # 49-1 at 2-7). On that same day, the Wanes executed and delivered a Mortgage securing payment of the Note to The Loan Corporation. (Fallmann Aff. Doc. # 167-3 at 3, ¶ 12; Doc. # 151-1 at 13-26). Later that day, the Note was sold to Bank United FSB as evidenced by the Allonge (Doc. #49-1 at 9), and the Mortgage was assigned to Bank United FSB via an Assignment (Doc. # 151-3 at 1-2).

The Note and Mortgage replaced and satisfied the two existing mortgages on the Property. (Doc. # 151-2 at 13, 24). The excess funds from the refinance, $38,092.00, were paid to Mr. Wane via wire transfer. (Doc. # 151-2 at 26).

The Note and Mortgage went into default as a result of the Wanes’ failure to make the required payment due on January 1, 2009, and all subsequent payments. (Fallmann Aff. Doc. # 167-3 at 4, ¶ 19). Bank United FSB sent the Wanes a Default Letter dated February 5, 2009. (Doc. # 49-1 at 11).

On May 21, 2009, Bank United FSB was taken over by the FDIC, and the FDIC subsequently sold the assets of Bank United FSB to Bank United, N.A. via a Purchase and Assumption Agreement. (Fallmann Aff. Doc. # 167-3 at 4, ¶ 17; Doc. # 57-1-Doc. # 57-3).

On August 30, 2009, the Wanes sent The Loan Corporation a letter purporting to rescind their loan pursuant to the Truth in [1315]*1315Lending Act (“TILA”), 15 U.S.C. § 1635, and Regulation Z, 12 C.F.R. § 226.23. (Doc. # 41-11). The timing of this letter coincided with a scheduled monthly Mortgage payment increase from $1,213.05 to $3,264.29. The Wanes carbon copied “Bank United” on the rescission letter. Id.

B. The State Court Proceedings

On March 19, 2010, the Wanes filed an action to quiet title against The Loan Corporation in state court (case number 10-CA-006301), asserting that the Mortgage was unenforceable because it had been rescinded. (Doc. # 1-5 at 8). The Wanes named neither Bank United FSB nor Bank United, N.A. as a defendant in the complaint.3 On September 7, 2010, the state court entered a final default judgment quieting title against The Loan Corporation. Bank United, N.A. intervened in that case, and on August 5, 2011, Judge William P. Levens held an evidentiary hearing on whether the default judgment against The Loan Corporation should be vacated. A complete transcript of that hearing is before this Court. (Doc. # 165-1-Doc.# 165-2).

At the hearing, Judge Levens heard testimony from Patricia Fallmann, Bank United, N.A.’s Default Mediation Administrator of the Asset Conservation Division Default Administration. (Doc. # 165-1 at 19). Judge Levens found Ms. Fallmann to be a credible witness competent to testify about the business records of Bank United, N.A. (Doc. # 165-3 at 2). Through Ms. Fallmann, Judge Levens admitted into evidence the Mortgage, the Allonge, the Assignment, the Purchase and Assumption Agreement, and other relevant documents. (Doc. # 165-1 at 31, 41, 43, 55).

During the hearing, Mr. Wane submitted that Bank United, N.A. lacked proof that it was the owner of the Note and Mortgage. (Doc. # 165-1 at 16). The Court found against Mr. Wane on this issue. (Doc. # 165-3 at 2, ¶ (E)).

After the hearing, Judge Levens entered an order containing the following findings, among others, and setting aside the default judgment previously entered against The Loan Corporation:

(A) The Plaintiffs took out a loan on September 15, 2006 from The Loan Corporation to refinance two then-existing loans from Wells Fargo, which indebtedness was secured by developed real property located at 14614 Canopy Drive, Tampa, Florida 33626.
(B) The same day of that closing, the loan was assigned via an Allonge to Bank United, FSB (the predecessor to Bank United, and a banking entity that was taken over by the FDIC on May 21, 2009, and through a receivership absorbed by the new entity, BankUnited). The subject loan became the property of BankUnited through the actions of the FDIC.
(C) At the exact time when his loan payments were scheduled to escalate from $1,213.05 a month to $3,264.29 a month, Mr. Wane sought to rescind his loan by sending a letter dated August 30, 2009, to The Loan Corporation — even though Mr. Wane had been making loan payments to BankUnited for almost 3 years — at an address unconnected with either BankUnited, FSB or BankUnited.
[1316]*1316(E) There is no evidence that the actual owner and holder of the note and mortgage, BankUnited, ever received the attempted rescission letter.... In fact, the credible testimony of Ms. Fallmann was that BankUnited did not learn of either the attempted rescission or the quiet title action until their lawyers found out about it while they were pursuing the separate foreclosure action against Mr. and Mrs. Wane ... in February 2011.

(Id. 1-2).

On August 10, 2011, two days after Judge Levens entered his order, the Wanes filed their “Amended Complaint to Quiet Title” against The Loan Corporation, Bank United, N.A. and the FDIC in state court. (Doc. #2). The Wanes appealed Judge Levens’ order to Florida’s Second District Court of Appeal (Doc. # 165-4), which issued a per curiam affirmance. (Doc. # 165-5).

C. Federal Court Proceedings

The FDIC removed the Wanes’ action to this Court on September 16, 2011. (Doc. # 1). The FDIC reached a settlement with the Wanes at mediation, and the FDIC has been dismissed from this action. (Doc. # 38).

On March 16, 2012, the Wanes filed the Second Amended Complaint, which is the operative complaint, against Bank United, N.A. and The Loan Corporation. (Doc. # 41). Therein, the Wanes seek to quiet title based on rescission pursuant to TILA, and in the alternative, seek to quiet title under state law arguing that their Mortgage is unenforceable, invalid, and void.

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Bluebook (online)
926 F. Supp. 2d 1312, 2013 WL 672574, 2013 U.S. Dist. LEXIS 25245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wane-v-loan-corp-flmd-2013.