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Lunt v. Nationstar Mortgage

United States District Court, D. Utah, Central Division

May 17, 2018

JASON LUNT, Plaintiff,
v.
NATIONSTAR MORTGAGE, JAMES H. WOODALL, Trustee, and DOES 1-10, Defendants.

          MEMORANDUM DECISION AND ORDER

          Dee Benson United States District Judge

         Before 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.[1] 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.

         BACKGROUND

         In 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.

Ex. B.[2]

         The 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.

         The 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.

         In 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. ...


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