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October 10, 1995

ROBERT MULLIGAN, et al., Plaintiffs,

James Robertson, United States District Judge

The opinion of the court was delivered by: ROBERTSON

Plaintiffs, who executed a note and a deed of trust to secure a mortgage loan made to them sixteen years ago, now assert that the lender violated truth in lending laws and sue for damages and equitable relief. Defendant Resolution Trust Corporation moves for summary judgment for failure to state a claim upon which relief may be granted, asserting the affirmative defenses of immunity and statute of limitations. Intervenor/defendant Boatmen's National Mortgage, Inc. has joined the RTC motion.

 After reviewing the arguments and materials submitted by the parties and hearing oral argument, I have concluded that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law.


 On June 20, 1979, plaintiffs Robert and Eileen Mulligan borrowed $ 275,000 from The National Bank of Washington in connection with their purchase of a home in Potomac, Maryland. They executed three documents of interest to this case. The first was a note promising to pay the principal sum of $ 275,000

"with interest on the unpaid principal balance from the date of this Note, until paid, at the rate of ten and one-half (10-1/2%) percent per annum. Principal and interest shall be payable . . . in consecutive monthly installments of Two Thousand Four Hundred seventy-eight and 57/100ths dollars (U.S. $ 2478.57) . . . . Such monthly installments shall continue until the entire indebtedness evidenced by this Note is fully paid, except that any remaining indebtedness, if not sooner paid, shall be due and payable on July 1, 2004. " (Emphasis added.)

 The second document was a deed of trust reciting the existence of the note and describing it as a note date June 20, 1979 in the principal sum of $ 275,000 "with interest thereon, providing for monthly installments of principal and interest, with the balance of the indebtedness, if not sooner paid, due and payable on July 1, 2004.. . ." (Emphasis added.)

 The third document, without which this lawsuit would not exist, is a Federal Truth In Lending Disclosure Statement. This document indisputably contains a mistake. It describes a

"Real Estate Note . . . for $ 275,000.00 . . . payable in 300 consecutive payments of $ 2,478.57 each, including interest, commencing on the 1st of August 1979 and due thereafter on the 1st day of each succeeding month, with the entire balance being due and payable on the 1st day of July 2004. If a balloon payment is involved, it is in the amount of $ none. . . . " (Emphasis added.)

 The TILA statement recites that the amount of the loan is $ 275,000, that the finance charge is $ 468,571 (described as interest at 10.50 percent per annum), and that the total of payments is $ 743,571.

 In order to complete the refinancing while maintaining their position that the balloon payment was improper, the Mulligans paid the full amount demanded by NMC into the registry of the Montgomery County Circuit Court and obtained a judicial release of the mortgage lien. The precise nature of the proceedings in Montgomery County are not of record here, but it appears that plaintiffs sued both RTC and NMC in Maryland; that RTC was dismissed on jurisdictional grounds there; that the question whether NMC is a proper party defendant is now pending before the Maryland Court of Special Appeals; that the funds deposited to secure the judicial release of lien remain on deposit in the Circuit Court for Montgomery County; and that neither RTC nor NMC has affirmatively sought to recover the payoff amount. At oral argument on the instant motion, counsel explained that if NMC prevails in the Maryland Court of Special Appeals, the Mulligans will be entitled to the return of their deposit from the registry of the Court because the underlying lawsuit will have been dismissed. In that event, their original mortgage will not be released, however, so that the Mulligans could find themselves with two unpaid mortgage loans against their residence.

 In this Court, the Mulligans have sued only Resolution Trust Corporation. *fn2" They invoke 12 U.S.C. § 1821(d)(6) in support of their claim of federal jurisdiction. They seek damages in the amount of approximately $ 53,000, plus "consequential damages . . . for the resultant increase in market interest rate upon refinancing occasioned by the delay in refinancing caused by the defendant's actions," plus prejudgment interest, costs and attorneys fees. Their complaint is stated in five counts: (1) violation of the truth in lending laws; (2) breach of the Mulligans' original contract with NBW; (3) violations of Maryland consumer credit laws by NMC, as servicer of the note, allegedly "ratified, endorsed and adopted" by RTC; (4) equitable reformation of the original note to reduce its stated annual interest rate from 10.5 percent to 9.8949 percent, in effect providing for the 25-year payoff the Mulligans say was their original deal; and (5) misrepresentation by NBW in connection with the making of the original mortgage loan.

 RTC moves for summary judgment on numerous grounds: failure to state a claim against RTC because FDIC and not RTC was appointed receiver for NBW; lack of pecuniary damages because plaintiffs had the use of the $ 275,000 for 14 years; failure to state a claim against either RTC or Boatmen's National Mortgage; failure to state a claim under the Truth In Lending Act or for breach of ...

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