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001 Tila Rescission Case Adversary Proceeding Ruling in Favor of Borrowers

001 Tila Rescission Case Adversary Proceeding Ruling in Favor of Borrowers

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Categories:Business/Law, Finance
Published by: Carrieonic on May 17, 2009
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08/29/2011

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Mass. Gen. Laws ch. 140D, § 10.
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UNITED STATES BANKRUPTCY COURTDISTRICT OF MASSACHUSETTSEASTERN DIVISION
 _________________________________________  IN RE:ERNEST E. JAASKELAINEN andChapter 13KATHLEEN M. JAASKELAINEN,Case No. 07-12832-WCHDEBTORS. _________________________________________ ERNEST E. JAASKELAINEN andKATHLEEN M. JAASKELAINEN,PLAINTIFFS,Adversary Proceedingv.No. 07-01242WELLS FARGO BANK, N.A., in trust for theCertificateholders of Carrington Mortgage LoanTrust, Series 2006-OPT1 Asset Backed Pass-Through Certificates, and OPTION ONEMORTGAGE CORPORATION,DEFENDANTS. _________________________________________ 
MEMORANDUM OF DECISIONI. INTRODUCTION
The matters before the Court are the Complaint filed by Ernest E. and Kathleen M.Jaaskelainen (collectively, the “Debtors”) against Wells Fargo Bank, N.A. (“Wells Fargo”) andOption One Mortgage Corporation (“Option One”) (collectively, the “Defendants”) allegingviolations of the Massachusetts Consumer Credit Cost Disclosure Act (“CCCDA”) and the Debtors’
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Objection to Claim #1 filed by Option One (the “Objection”). The Debtors seek,
inter alia
,
 
Joint Pre-Trial Statement (“PTS”), Docket No. 46, ¶ II.1.
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Trans. April 29, 2008 at 30, ¶ 3-4; 31, ¶11-15.
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PTS at ¶ II.2.
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Plaintiff’s Ex. 3.
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2rescission of a refinancing transaction and declarations that the mortgage granted to the Defendantsis void and that the Debtors have no tender obligation to effectuate the rescission. For the reasonsset forth below, I will enter judgment for the Debtors and sustain the Objection.
II. BACKGROUND
The facts of this case are largely in dispute. This is further complicated by the fact that nowitness appears to have an independent recollection of the determinative facts and circumstancessurrounding the underlying transaction or subsequent events. The parties have, however, stipulatedto some undisputed facts.In November, 2005, the Debtors were facing an impending foreclosure of their home at 11Howarth Avenue in Attleboro, Massachusetts (the “Property”) by Countrywide Home Loans. In aneffort to stave off foreclosure, the Debtors entered into a consumer credit transaction (the“Refinancing”) with Option One on November 28, 2005. The Debtors testified that the closing
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occurred at the Property around 7:30pm and took approximately one hour. In connection with the
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Refinancing, the Debtors executed a note and mortgage to Option One secured by the Property. The
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HUD-1 Settlement Statement reveals the total loan amount was $158,950, $13,624.29 of which wentto the Debtors.
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Attorney Robert P. Marks (“Attorney Marks”), was engaged by Professional Settlement
 
Trans. April 29, 2008 at 116, ¶ 2-9.
6
 
 Id.
at 116, ¶ 1; 134, ¶ 3-6.
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 Id.
at 119, ¶ 12-18.
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 Id.
at 117, ¶ 2-8.
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 Id.
at 118, ¶ 4-8.
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 Id.
at 118, ¶ 14-17.
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 Id.
at 129, ¶ 1-7.
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 Id.
at 120, ¶ 5-17; 130, ¶ 10-13.
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 Id.
at 129, ¶ 15-24.
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3Services (“PSS”) to act as closing agent for the Refinancing. By 2005, he had approximately 20
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years experience and completed over two thousand closings. At trial, Attorney Marks testified that
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he had no specific recollection of the Refinancing, and did not retain a copy of the Debtors’ closingdocuments in his records. As such, he could only state what his practice was at that time.
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In his capacity as closing agent, Attorney Marks was responsible for printing out the closingdocuments, presiding over the closing, and returning the signed documents to the lender. He
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testified that he would typically receive a set of closing documents from PSS as an attachment to anemail. Upon receipt, it was his office’s procedure to first print out the documents. This process
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could take up to forty-five minutes depending on the file and printer. After the closing documents
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were printed, Attorney Marks’ secretary would make a duplicate set for the borrowers. Borrowersreceived either a stapled legal sized single-sided copy, or an 8.5" x 11" double-sided copy boundwith a plastic comb. Generally, it took about five minutes longer to prepare the bound 8.5" x 11"
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double-sided copy of the closing documents. A bound booklet, opposed to the stapled copies, was
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