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Dufay v. Bank of America N.T. & S.A.

filed: August 26, 1996.

FRANK DUFAY AND MARY DUFAY, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
BANK OF AMERICA N.T. & S.A., OF OREGON AND TRW INC., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon. D.C. No. CV-93-00929-MFM. Malcolm F. Marsh, District Judge, Presiding.

Before: Alfred T. Goodwin, and Mary M. Schroeder, Circuit Judges, and Saundra Brown Armstrong, District Judge.*fn* Opinion by Judge Goodwin.

Author: Goodwin

GOODWIN, Circuit Judge:

Frank and Mary Dufay appeal a summary judgment in favor of defendant Bank of America Oregon ("Bank of America" or the "Bank"). The district court held as a matter of law that Bank of America had responded to the plaintiffs' loan application within 30 days of its completion as required by the Equal Credit Opportunity Act (the "ECOA") 15 U.S.C. § 1691. We vacate the summary judgment and remand.

STATEMENT OF THE CASE

The Dufays sued the bank and two credit reporting agencies for their alleged misconduct with respect to the handling of the Dufays' credit reports and applications for a loan secured by real property. (The claims against the credit agencies are not at issue in this appeal). The Dufays alleged that Bank of America failed to make a decision within 30 days after the completion of their loan application as required by the ECOA. The Dufays claimed to have suffered "out-of-pocket expenses, extra interest expense, damage to their credit reputation, inconvenience, embarrassment and, now, attorney fees." For relief, the Dufays requested, pursuant to 15 U.S.C. § 1691e, "actual damages in a sum to be proven at trial, plus punitive damages and plaintiffs' costs, disbursements and attorney fees incurred herein."

After substantial discovery had been accomplished and a status report was made, the bank's motion for summary judgment was heard before Magistrate Judge John Jelderks. In due course, the district court, the Honorable Malcolm Marsh, presiding, adopted the Findings and Recommendation of the magistrate Judge and granted summary judgment in favor of Bank of America.

FACTS

This litigation arose out of a loan application that became controversial when the plaintiff borrowers learned, possibly after undue delay, that the appraisal of the real property offered as security did not reach a value necessary to induce the bank to lend as much money as the borrowers wanted to borrow. Apparent inconsistencies and changed dates on documents are urged by the Dufays as ground for reversal because, they assert, material questions of fact exist in the record which cannot be resolved on motion for summary judgment.

The bank argues, in support of the judgment, that no matter how the dates of documents are interpreted, the loan application was not "complete" within the meaning of the relevant statute until questions about the appraisal were resolved to the bank's satisfaction. The bank also asserts that it acted within 30 days of the completed review of the appraisal to notify the Dufays that their application was denied. The following time line has been gleaned from the record.

3/31/92

Dufays went to Bank of America and signed loan documents, and wrote a check for appraisal fee.

4/3/92

Bank orders preliminary title report.

4/7/92

Date Bank of America claims loan application was made. Date bank requested appraisal. Also original date on the Mortgage Cover Letter in which Bank stated that the loan application was complete. The date on this Letter was apparently changed to 7/1/92 by the bank after the review of the appraisal was completed.

4/9/92

Bank of America requested first credit report.

4/13/92

Mr. Dufay's employer filled out employer verification form to send to Bank of America.

4/14/92

First credit report ...


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