Woman sues to rescind ARM home loan

Kelly Holleran Jul. 20, 2009, 9:00am

A woman with learning disabilities claims she should not have to repay a loan for more than $45,000 she took out more than two and a half years ago because she was not fully explained the terms of the loan.

In a complaint she filed on July 10 in St. Clair County Circuit Court, Anita Oglesby also claims the neighbors who promised to make necessary repairs to her home with the loan money failed to complete the work.

Named as defendants in the suit are Lime Financial Services, LNV Corporation, Electronic Registration Systems, Ultimate Title, Equity One Mortgage, Solomon Butler, Eagle Investors, Venetha A. Davis and Kerry Davis.

Oglesby claims her grandmother quickclaimed a home at 617 Terrace Dr. to her in 1997. Years later, in 2004, Venetha A. Davis and Kerry Davis moved into a home a few doors down from Oglesby at 629 Terrace Dr.

Over the years, the couple became friendly with Oglesby, and after seeing repairs they had performed to their home, Oglesby told the Davises she would like repairs done to her house, according to the complaint.

Kerry Davis told Oglesby he was a home contractor and promised to make repairs to her home if she could obtain a loan, the complaint says.

Soon, Butler was visiting Oglesby's home after Venetha Davis told him Oglesby wanted to make home repairs, the suit states. He went on to say that he could help Oglesby obtain a loan for those repairs.

Later, Venetha Davis told Oglesby that Butler had helped her and Kerry Davis obtain a loan for their purchase of the home on Terrace Drive, Oglesby claims.

So, Oglesby went back to Butler and asked him if she could obtain a loan for $1,300 for repairs to her home. But he told her she would need at least $15,000 for all the work she wanted done and promised her he could redo her kitchen, living room, bedrooms, bathroom and utility room with the money, according to the complaint. Butler said he would hire Venetha and Kerry Davis to complete the work.

On Sept. 29, 2006, Venetha Davis brought Oglesby to Ultimate Title where she signed more than 30 documents to close her loan for $47,250, the suit states.

However, Oglesby did not understand what she was signing and was never explained the details of the mortgage, the complaint says. Oglesby claims she was not aware she was signing an adjustable rate mortgage where her interest rates would fluctuate between 10.2 percent and 16.2 percent.

In addition, Oglesby did not realize who would be receiving money from the loan. For example, Eagle Investors received $17,000 as a mortgage broker for obtaining the loan and Equity One was paid $800 for its mortgage services, according to the complaint.

"Ms. Oglesby was harmed by the misrepresentations of Ultimate Title because she was deprived of an opportunity to make an informed decision as to the cost of the loan and she now faces a loan she cannot afford that stripped her of the equity in her home," the suit states.

At the time of the closing, Oglesby was handed a check for $20,527.45, the suit states. Immediately following the closing, Venetha Davis drove Oglesby to the bank where she instructed Oglesby to cash the check and to give her the money, which she promised to keep in a safe and to use only on Oglesby's home repairs, the complaint says.

So, Oglesby handed all but $5,000 to the Davises, but she claims she was forced to wait until Thanksgiving 2006 before Kerry Davis began to perform any repairs to her home.

However, he never finished the repairs, and those repairs Kerry Davis did complete were performed in a shoddy manner, according to the complaint.

"Kerry Davis made the following repairs to Ms. Oglesby's home: installed a new front door that does not close and lock; installed two different styles of cabinets in the kitchen; replaced only half the kitchen flooring; painted the living room," the suit states.

When the Davises failed to make the promised repairs, Butler brought another man named Alan to Oglesby's home to finish the work, the complaint says.

Alan began the remaining task in spring 2007, but also failed to complete the repairs. Those he did complete were not done in a workmanlike manner, Oglesby claims.

"Butler's agent, Alan, made the following repairs to Ms. Oglesby's home: improperly installed vinyl siding on only a portion of the outside of the home; installed new flooring in the kitchen and utility room that has buckled and is starting to come up from the floor; installed new flooring in the bathroom without removing the old flooring; installed new faucet and pipes in the bathtub," the suit states. "The actual value of the home repairs complete by Venetia Davis, Kerry Davis, Butler and Butler's agent Alan were worth no more than $300."

Oglesby contends she should never have been allowed to receive the loan because she makes only $1,380 per month and has fixed monthly debts of $145.

"Ms. Ogleby's debt-to-income ratio totaled about 58% of Ms. Oglesby's monthly income at the time her loan was approved," the suit states. "Based on a fully indexed rate of 16.2% interest, Ms. Oglesby's monthly proposed mortgage payment, including taxes and insurance, totaled $875. With her other fixed monthly debts of $145, Ms. Oglesby's debt-to-income ratio totaled about 74% of her monthly income at the time her loan was approved."

According to a High Risk Home Loan Act, creditors are not allowed to offer a loan to any borrower that does not have the ability to repay the loan. A borrower is only presumed to be able to repay the loan if the loan plus the borrower's other debts are less than 50 percent of his or her monthly income.

Therefore, since Oglesby's debt-to-income ratio was going to be 74 percent after she received the loan, her mortgage broker should never have approved her for the loan, she claims.

Oglesby claims her mortgage loan should be void because the notice of her right to cancel the loan had been sent more than three days after she had a right to rescind the loan. All borrowers who secure a non-purchase money loan with their principal dwelling have three days from the receipt of the notice of right to cancel to cancel the loan, according to a provision under the Truth in Lending Act, the complaint says.

If the borrower is not given three business days to cancel the loan, his or her right to rescind it extends for three additional years, according to the complaint.

"Ms. Oglesby's rescission period was extended for three years after consummation of the loan because Lime Financial violated the Truth in Lending Act by improperly underdisclosing the finance charge, and by failing to deliver a proper Notice of Right to Cancel giving Ms. Oglesby three business days to rescind the loan from the date she received it," the suit states.

Oglesby blames the Davises and Butler for enticing her into accepting the loan with false representations.

"Venetha Davis, Kerry Davis and Butler induced Ms. Oglesby to finance her home to her detriment so they could receive unearned proceeds," the complaint says.

In the 10-count suit, Oglesby is asking the court to rescind her loan transaction; to order the defendants to terminate any security interest in her home and to declare any security interests void; to award her statutory damages of twice the financial charge, not to exceed $4,000, for their failure to rescind the loan; to order the right to retain proceeds vested in Oglesby; to enjoin the defendants from instituting foreclosure proceedings on Oglesby's property; and to enjoin Butler from arranging any more loans in Illinois without an Illinois mortgage broker license.

In addition, Oglesby is seeking actual damages and other relief the court deems just.

Debby R. Knoblock and Susan M. Simone of the Land of Lincoln Legal Assistance Foundation in East St. Louis will be representing her.

St. Clair County Circuit Court case number: 09-L-369.

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