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Mitchell vs. Beneficial Loan & Thrift Company,

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(United States Court of Appeals for the Eight Circuit)

In the first reported decision we've seen emanating from the Home Ownership and Equity Protection Act (HOEPA), borrowers had sued asserting HOEPA disclosure violations. They claimed their loan was covered because of the total points and fees they paid at closing. Lender argued the appraisal and title insurance fees were bona fide and reasonable, and thus excluded from the definition of total points and fees under HOEPA. Borrowers disagreed and claimed the fees violated RESPA, and therefore weren't bona fide or reasonable. The court held they were paid to an unaffiliated third party for services actually performed; the lender derived no benefit from them. Therefore, held the 8th Circuit, those fees didn't violate RESPA, were bona fide and reasonable, were excludable from the points and fees calculation for HOEPA purposes, and the loan was thus not covered by HOEPA and no HOEPA disclosures were necessary.

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