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Johnson v. GMAC Mortgage Corp.2/22/2005
Opinion Vote: REVERSED AND REMANDED.
Hardwick, P.J., and R. Ulrich, J., concur.
Opinion:
This appeal stems from a failed mortgage loan refinancing transaction. Mr. Stephen M. Johnson contends that respondents GMAC Bank (GMAC) and GMAC Mortgage Corporation (Mortgage Corporation) violated the federal Truth in Lending Act (TILA) and that he properly exercised his right to rescind the loan agreement, triggering their duty to return his money to him and to release the deed of trust over the property. The trial court dismissed all of Mr. Johnson's claims for relief against respondents, and he now appeals from that judgment of the trial court.
We conclude that Mr. Johnson's TILA claims are not barred by the applicable statute of limitations because these claims relate back to his previous pleadings. We also conclude that Mr. Johnson stated a claim for relief against respondents in the declaratory judgment, quiet title, and conversion counts of his second amended petition. The trial court's decision is reversed and remanded for further proceedings.
I . FACTUAL AND PROCEDURAL BACKGROUND
On September 7, 2002, Mr. Johnson filed a petition against Mortgage Corporation, GMAC, Advantage Investors Mortgage (AIM), and Darrell G Jarman. In his petition, Mr. Johnson alleged that he had received a mailing from AIM in February 2002 that advertised AIM's mortgage lending and refinancing services. Mr. Johnson alleged that he responded to the mailing because he was interested in refinancing his house and paying off first and second mortgage loans on the house. Mr. Johnson alleged that AIM never furnished him with any written estimate of the interest rate, monthly payment, applicable fees and the like, but that AIM did make several verbal representations: that the interest rate on the new loan would not exceed 6.5%; that the monthly payment would not exceed $1,102; and that the " ees and closing costs would not exceed normal and customary charges."
Mr. Johnson further alleged that he appeared for closing on March 28, 2002, only to learn the following: that the lender would not be AIM but GMAC; that the loan actually carried an interest rate of 7.375%; that the monthly payment actually would be $1,268.43; and that fees and points would exceed $8,000. Mr. Johnson alleged that he had "no interest in proceeding with the deal" ; at this point, but went ahead and signed the loan documents. He further alleged that he decided to cancel the loan the very next day, signing the cancellation notice that day, sending it via FedEx to the address shown on the cancellation notice, and confirming that it had been delivered to GMAC on April 1, 2002.
Mr. Johnson alleged that his cancellation of the loan voided the deed of trust and the loan agreement under the applicable truth in lending laws, but that GMAC ignored his cancellation notice, proceeded to pay off his previous first and second mortgages, and then recorded the deed of trust, despite his efforts to contact GMAC and resolve the situation. He further alleged that a GMAC representative demanded payment on the loan and threatened that his credit would be harmed if he failed to pay, so he agreed to make payment on the GMAC loan.
Mr. Johnson asserted eight claims in his original petition: a claim for fraud against AIM and Jarman (count one); a claim for fraud against GMAC and Mortgage Corporation (count two); a claim for violations of the Missouri Merchandising Practices Act against AIM, GMAC, and Mortgage Corporation (count three); a claim for slander of title against GMAC (count four); a claim for declaratory judgment against GMAC (count five); a claim for prima facie tort agains
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