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Bonnano v. Security Atlantic Mortgage Co.

May 26, 2010

DOMENICK BONANNO, PLAINTIFF,
v.
SECURITY ATLANTIC MORTGAGE CO., INC., SECURITY AMERICAN MORTGAGE COMPANY, AND BANK OF NEW YORK AS TRUSTEE FOR CERTIFICATEHOLDERS CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2006-IMI, AND JOHN DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

In 2005, Domenick Bonnano borrowed $625,000 from defendants Security American Mortgage Company, Inc. ("Security American") and Security Atlantic Mortgage Company, Inc. ("Security Atlantic"), and granted them a security interest in his home. Bonnano later brought this action alleging that, in the course of the mortgage transaction, the defendants violated the Real Estate Settlement Procedures Act of 1974 ("RESPA") and the Truth in Lending Act of 1968 ("TILA"). The defendants contend that they complied with their statutory obligations and move for summary judgment. For the reasons set forth below, the motion for summary judgment is granted.

BACKGROUND

A. The Mortgage Transactions

This case arises out of Bonnano's desire to refinance the mortgage on his home in Freeport, New York in 2005. On August 30 of that year, he entered into two simultaneous mortgage transactions with the defendants, one for $500,000, and another for $125,000. The broker for the transactions was Mortgage Zone, and the settlement agent was Anthony Mangiaracina. Bonnano was not represented by counsel at the closing.

In support of their motion for summary judgment, the defendants have submitted the following documents, each of which bears Bonnano's signature:*fn1

* The mortgage documents and promissory notes, all signed by Bonnano on August 30, 2005;

* HUD-1 Settlement Statements,*fn2 purporting to explain the transaction fees, signed by Bonnano and Mangiaracina on August 30, 2005;

* Notices of Bonnano's right to cancel the transaction. Bonnano's signature appears twice on the document: (i) once to say that he received notice of the right to cancel on August 30, 2005; (ii) again to say that, on August 30, 2005, three days had elapsed since he received notice of right to cancel;

* "Good Faith Estimates" of the charges at settlement, provided by Mortgage Zone, and signed by Bonnano on August 30, 2005;

* TILA Disclosure Statements, itemizing among other things the annual percentage rates of the interest on the loans, the monthly payments, and the total payments Bonnano would have to make, signed by Bonnano on August 30, 2005.

Though he does not dispute that he signed all these documents at the closing,

Bonnano swears that he never received "a complete and executed set of the pertinent loan documents." Bonnano Aff. ¶ 8. He says he was not provided with "signed and dated Notices of Right to Cancel," and that he was not advised of his right to cancel "in any of the documents provided to me or by any of the parties present at the closing." Id. Bonnano also states that he "did not receive complete and executed HUD-1 Settlement Statements at the closing and moreover, was not provided with any opportunity to inspect said Settlement Statements prior to or at the closing despite my request made to Defendant's agent, the mortgage broker for the transactions, Mortgage Zone." Id. ¶ 9. Moreover, Bonnano denies ever receiving "complete and executed copies of Good Faith Estimates for the subject mortgage loan transactions or the required HUD Special Information Booklets prior to or at the subject closing," or "fully completed and executed TILA Disclosures for both mortgage transactions." Id. ¶ 10.

B. The Procedural History

Bonnano, acting pro se, filed this action on January 9, 2007. In addition to Security American and Security Atlantic, the complaint also names as a defendant the Bank of New York, trustee for the alleged assignees of the mortgages, which was prosecuting a foreclosure action against Bonnano in state court. The Bank of New York has not appeared in this action.*fn3 The complaint seeks rescission of the mortgages, an injunction against foreclosure proceedings, and damages pursuant to TILA and RESPA.

Bonnano is now represented by counsel. On April 7, 2010, the defendants made this motion for summary judgment.

DISCUSSION

A. Standards on a Motion for ...


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