“Pursuant to the Ninth Circuit’s ruling in King, supra, it is permissible for district courts to evaluate specific claims of fraudulent concealment and equitable tolling to determine if the general rule would be unjust or frustrate the purpose of the Act”. At that time there was a pending foreclosure sale on plaintiff’s home. Defendant Sutherlin visited plaintiff’s home to discuss refinancing and spent about fifteen minutes with plaintiff.The court found those circumstances existed here and therefore warranted tolling. GREGORY FUNDING, LLC, an Oregon limited liability company, and RANDAL SUTHERLIN, Defendants. Later that day, Sutherlin phoned plaintiff to inform him that the loan was approved and the closing would take place within a couple of weeks.
Plaintiff was not asked to provide proof of his income or ability to repay the loan prior to signing the second amendment. The property at issue was sold at a foreclosure sale on October 27, 2009, and a Trustee’s Deed was recorded on November 6, 2009. Justiciability requires the existence of an actual case or controversy. He intends to make a monthly payment through his chapter 13 bankruptcy plan as adequate protection to defendants.As such Plaintiff had to extend his loan with Defendant for another year and in the process ended up paying Defendant additional 00 in fees. On December 19, 2007 Plaintiff entered in to a third transaction with Defendant by signing an amendment for 6,216 at 7.54% that included advances for property taxes, legal fees and a modification fee totaling ,320.68. Plaintiff filed for bankruptcy protection in the District of Oregon on September 22, 2008, which was confirmed on April 16, 2009. On November 23, 2010, the date scheduled to hear plaintiff’s motion for a preliminary injunction, the parties elected to forego oral argument and submit the matter to the court on the briefs. Defendants originated a series of three loan transactions with plaintiff signed on September 12, 2005, September 26, 2006, and December 19, 2007.The Bankruptcy Court ordered relief from the automatic stay on September 2, 2009. Plaintiff’s motion for a preliminary injunction is granted. Plaintiff alleges those loans “stripped plaintiff of his home equity and put him at risk of losing his home.” Plaintiff alleges that he failed to receive accurate, material disclosures required by TILA and the Home Ownership and Equity Protection Act of 1994 (“HOEPA”) at the closing of both his second and third loans.Finally to overcome Plaintiffs inability to obtain new financing for tender purposes, the court ordered Defendant to file an amended proof of claim with the bankruptcy court using the tender amount as the secured debt payable at 7.547% interest over 30 years. Plaintiff was not asked to provide tax returns, pay stubs, or complete a credit application at any point during the refinance.There is no record of a real estate appraisal completed at any point to determine the value of plaintiff’s home. The loan to plaintiff occurred on September 12, 2005.