Mitchell v. Beneficial Loan & Thrift Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 05-3068
___________

Ty S. Mitchell; Kimberly S. Mitchell,*
*
Appellants, *
*
Christopher Mauer; Mary Jo Mauer; *
James L. Engstrom; Kathleen P. *
Engstrom, *
* Appeal from the United States
Plaintiffs, * District Court for the
* District of Minnesota.
v. *
* [PUBLISHED]
*
Beneficial Loan & Thrift Company, *
a Minnesota corporation, *
*
Appellee, *
*
Household Industrial Finance *
Company, *
*
Defendant. *
___________

Submitted: May 18, 2006
Filed: June 21, 2006
___________

Before MURPHY, BEAM, and BENTON, Circuit Judges
___________

PER CURIAM.
 The district court1 granted summary judgment to Beneficial Loan & Thrift
Company. Ty S. Mitchell and Kimberly S. Mitchell appeal.

The Mitchells assert that Beneficial violated the Home Ownership and Equity
Protection Act (HOEPA). HOEPA, as relevant here, requires creditors to make
additional disclosures to borrowers if the total points and fees payable at closing
exceed 8 percent of the total loan amount, or $400, whichever is greater. 15 U.S.C.
§§ 1602(aa)(1)(B), 1639(a). The Mitchells argue that the $355 appraisal fee, $821
title insurance fee, $67 phone-bill charge, or $1,178 principal disbursement should be
included in the total points and fees of their loan. If any one of these were included,
the total points and fees would exceed 8 percent of the total loan amount, making the
loan subject to HOEPA.

Appraisal and title insurance fees, if bona fide and reasonable, are excluded
from HOEPA's definition of total points and fees. 15 U.S.C. § 1605(e) ; 12 C.F.R. §
226.4(c)(7). On appeal, the Mitchells claim that these fees are not bona fide and not
reasonable because they violate the Real Estate Settlement Procedures Act (RESPA),
12 U.S.C. § 2607(b). The district court correctly found that these fees did not violate
RESPA because they were paid to an unaffiliated third party for services actually
performed, and, in any event, Beneficial derived no benefit from the payments. See
Haug v. Bank of America, 317 F.3d 832, 836 (8th Cir. 2003). As for the telephone
charge and principal disbursement, the statute does not include them in total points
and fees. 15 U.S.C. § 1602(aa)(4). The Mitchells' loan did not need HOEPA
disclosures.

After de novo review, see Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016
th
(8 Cir. 1999), this court affirms the district court's judgment.

______________________________

1
The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.

-2-