Washington v. LaSalle Bank National Ass'n
817 F. Supp. 2d 1345
S.D. Fla.2011Background
- On March 28, 2007, Washington executed a $332,500 promissory note and mortgage in favor of First Franklin for property in Oakland Park, FL, with monthly payments of $2,455.89.
- Washington defaulted on June 1, 2008, and LaSalle, as assignee of First Franklin, filed a foreclosure in Broward County; foreclosure proceedings were stayed when Washington filed this action in December 2009.
- Prior to closing, Washington observed numerous unfinished items at the property and spoke with a real estate agent; at closing she again saw unfinished items and did not discuss construction issues with First Franklin or HLS; Washington notified HLS of problems in April after closing.
- At closing, Washington did not read the documents; she learned that loan terms differed and that payments would exceed $2,500 per month; the increased payment was not discussed with anyone other than the real estate agent, D'Elia.
- D'Elia allegedly pressured Washington to close that day by threatening market conditions; Washington proceeded with closing and signed a TILA disclosure, which she later claimed to be forged.
- Washington contends that misrepresentations were made by D'Elia and the developers, not the Defendants, and she could not recall any misrepresentations by the Defendants themselves.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraud claim viability | Washington alleged misrepresentations induced the loan; Defendants made false statements. | No Defendants made false statements prior to closing; fraud claim lacks elements. | Summary judgment for Defendants on fraud and derivative claims. |
| FDUTPA liability for closing fees | Defendants charged excessive fees at closing violating FDUTPA. | Only the lender fee by First Franklin matters; Plaintiff was not misled and fees were disclosed. | Summary judgment for Defendants on FDUTPA claim. |
| TILA claim timeliness | Equitable tolling of TILA due to concealment by Defendants. | Equitable tolling not proven; claim time-barred since closing in 2007 and suit in 2009. | TILA claim time-barred; no equitable tolling. |
| RESPA claim timeliness | RESPA § 2607 claim timely; tolling possibly applicable. | Same tolling failure; claim time-barred. | RESPA claim time-barred; no equitable tolling. |
Key Cases Cited
- Butler v. Yusem, 44 So.3d 102 (Fla. 2010) (elements of fraudulent misrepresentation)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (one-sided nature of summary judgment evidence)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (summary judgment standard; no genuine issue of material fact)
- Hill v. Texaco, Inc., 825 F.2d 333 (11th Cir. 1987) (equitable tolling burden requires concealment and diligence)
- Rollins, Inc. v. Butland, 951 So.2d 860 (Fla. 2d DCA 2006) (FDUTPA elements and standards)
- In re Smith, 737 F.2d 1549 (11th Cir. 1984) (TILA violation timing and occurrence)