Opinion
No. CIV 08-1535 GEB KJM.
October 20, 2008
ORDER
Plaintiff's motion for leave to make deposit in court came on regularly for hearing October 1, 2008. Rachel Dollar appeared for plaintiff. Adam Kim appeared for defendant. Upon review of the documents in support and opposition, including the supplemental declaration of defendant Britton and exhibits attached thereto as well as the response by plaintiff, upon hearing the arguments of counsel at hearing, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
This is an action for declaratory relief brought under the Truth in Lending Act ("TILA"), 15 U.S.C. § 1607 et seq. Plaintiff seeks modification of the rescission procedures set forth in 15 U.S.C. § 1635(b). Plaintiff seeks leave to deposit with the court an original executed full reconveyance of the deed of trust, to be released upon defendant's tender of the amounts required under TILA, which equal approximately $319,198.91.
The court may in equity modify the procedural provisions of 15 U.S.C. § 1635(b) (as implemented in 12 C.F.R. § 226.23(d) of Regulation Z). See Yamamoto v. Bank of New York, 329 F.3d 1167, 1172 (9th Cir. 2003); see also Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1142 (11th Cir. 1992) (in deciding whether modification of procedural provisions appropriate, court should consider equitable factors such as severity of creditor's TILA violations and whether debtor has ability to repay principle amount). Upon weighing the equitable factors in this case, the court finds that the modification of the procedural provisions should be allowed pending final resolution of the action.
Accordingly, IT IS HEREBY ORDERED that the motion to make deposit of the original executed full reconveyance of the deed of trust is granted.