United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
Benson United States District Judge
the Court are the following motions: Defendant Nationstar
Mortgage (Nationstar)'s motion for summary judgment [Dkt.
112]; Plaintiff's motion to strike portions of
Nationstar's memorandum in support of its motion for
summary judgment [Dkt. 118]; Nationstar's Renewed Motion
for Summary Judgment [Dkt. 132]; and Plaintiff's motion
to strike Nationstar's renewed summary judgment motion.
[Dkt. 136]. A hearing on Nationstar's original summary
judgment motion and Plaintiff's first motion to strike
was held on January 10, 2018. Plaintiff was represented by
Judson Pitts and Defendant Nationstar was represented by
Anthony Kaye and David Mooers-Putzer. At the hearing, the
Court ordered the parties to prepare and submit additional
briefing to address each other's arguments. The parties
have now submitted their supplemental briefing. Based on the
written and oral arguments of the parties and on the relevant
facts and the law, the Court hereby enters the follow
Memorandum Decision and Order.
2007, Plaintiff spoke to his friend, Gordon O'Neill, who
worked at Platinum Mortgage, about refinancing the mortgage
on the home he shares with his wife, Nicole Lunt, located at
112 Oakwood Drive in Layton, Utah (“the
Property”). Plaintiff had previously refinanced his
home and conducted mortgage transactions on a number of
occasions with O'Neill. Dkt. 58-1 ¶6. Plaintiff was
desirous of receiving a cash-out of $50, 000. App. Ex. A
& B. On August 10, 2007, O'Neill met with Plaintiff
and Nicole at their home to discuss the proposed refinance.
The Lunts are co-owners as joint tenants of the Property. Ex.
D, E. It is undisputed that during the meeting the Lunts
executed documents including the following:
(A) federal truth-in lending disclosure statement;
(B) adjustable rate note;
(C) deed of trust;
(D) adjustable rate rider
(E) prepayment note addendum to the note; and
(F) prepayment rider to the deed of trust.
Lunts are named as co-borrowers on the loan documents. Ex. D
at 4. The documents evidence that Direct Mortgage loaned the
Lunts $320, 000, $270, 000 of which was used to pay off their
former mortgage. Ex. D at 1. The note is secured by a trust
deed encumbering the Property. Ex. E. at 1. Both
Plaintiff's and Nicole's names are on the trust deed.
Ex E at 1. The initial interest rate of the note was 7.750%,
but the note provides that the interest rate is adjustable
and “may change.” Ex. D. at 1.
following week, Plaintiff met with O'Neill, who delivered
to him a $50, 000 check representing the cash-out portion of
the loan proceeds. Ex. B. at 21-22. Less than ten days later,
Plaintiff deposited the check and the Lunts subsequently
invested the money. Id.
October 2007, the Lunts received a coupon book from Aurora
Loan Servicing (“Aurora”) reflecting payment
terms that Plaintiff alleges were different than he and his
wife expected. Ex. A. at 30-31. Plaintiff claims it was not
until after they reviewed the loan paperwork in November
2007, that he and Nicole realized the loan was an adjustable
rate mortgage, a negative amortization loan, and that there
was a pre-payment penalty of $10, 000. Ex. A. at 33-34, Ex. I
at 34. Plaintiff alleges that he had been misled by
O'Neill to believe the mortgage had a 30-year fixed
interest rate. ...