Opinion
Bankruptcy No. 97-6-4705-SD, Adversary No. 98-5039-SD.
August 4, 1999
MEMORANDUM OPINION AND ORDER
This matter arises by the Second Amended Complaint of Debtor-Plaintiff Sheila Anderson ("Anderson"), filed on February 19, 1999, against Defendants Advanta Mortgage Corporation USA ("Advanta"), One Stop Mortgage, Inc. ("One Stop"), and Aames Financial Corporation ("Aames"). Count II was previously dismissed by Order of this Court (the Hon. E. Stephen Derby), on February 19, 1999. Count III was similarly dismissed on March 19, 1999, but only as to Aames and Advanta.
Thus remaining are Count I, under which Anderson alleges numerous violations under the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. ("TILA" or "Act," alternatively), on the part of One Stop and Aames; and Count III, as against One Stop alone, and under which Anderson alleges violations of the Maryland Consumer Protection Act, Md. Code Ann., Com. Law II § 13-301, et seq. ("MCPA"). As relief, Anderson seeks, inter alia, a determination that a mortgage lien held by Aames is void; an award of $2,000.00 in statutory damages for an alleged failure by Advanta to rescind the loan made with Anderson; an award of actual damages; as well as her costs and reasonable attorney fees.
At trial, Plaintiff sought, and the Court granted, dismissal of her claim under Count I as against Advanta.
Trial was conducted in this matter before the undersigned, sitting by special designation, on June 16, 1999. From the evidence presented in this matter, the Court finds the following facts to be material to the issues raised, and makes the following conclusions of law:
I. FINDINGS OF FACT
Anderson resides in a house located at 1403 Lemmon Street, Baltimore, Maryland, the property which is the subject of this dispute. The home is Anderson's primary residence.
In March 1995, Anderson entered into a mortgage transaction with Regal Savings and Loan, from which she received a loan disbursement in the amount of $6,825.00. In 1996, she fell behind on her mortgage. When foreclosure became imminent, Anderson submitted a loan application to Dynasty Mortgage ("Dynasty"), a mortgage broker, in the hope of receiving new funds with which to preserve her home. Dynasty then located a lender to which it presented the application for approval, to wit, One Stop, a wholesale lender engaged in strictly residential purchase-money and refinance transactions.
Anderson's stated purpose for obtaining a loan was "so [she could] pay off all [her] bills and bring [her] mortgage up to date." (Defendants' Exhibit 14.)
According to Anderson, she was on the verge of losing her home when she received word that her application had been approved by One Stop. At that time, a Dynasty broker also informed Anderson that she would be required to obtain fire, or "hazard," insurance on her home as a precondition to loan consummation. In this respect, Anderson stated at trial that she understood that the loan transaction would not be consummated absent the procurement of such coverage, and further, that at that time, she did not have any insurance coverage. She also testified that, at that time, she lacked the necessary funds with which to obtain any coverage for her home.
At trial, Anderson testified that she would not have had the money with which to prevent Regal's foreclosure action if it had not been for the funds provided by One Stop.
Settlement was scheduled between Anderson and One Stop for October 10, 1996. Prior to settlement, however, Anderson received preliminary disclosure documents from One Stop pertaining to her loan transaction, including, inter alia, a preliminary HUD-1 Settlement Statement, which indicated a "cash to borrower" figure of $6,278.13. (Plaintiff's Exhibit 3.) This preliminary document contained no provision for the insurance coverage required for consummation of the actual loan transaction, itself; coverage which, again, Anderson had not then obtained.
Also at this time, Anderson received a preliminary Truth-in-Lending Disclosure Statement from One Stop containing estimates of, inter alia, her annual percentage rate, finance charge, amount financed, total of payments, and payment. (Defendants' Exhibit 16.) The preliminary Disclosure Statement also notified Anderson that hazard insurance was required of the loan transaction. (Id.)
The document, itself, clearly indicates that "all dates and numerical disclosures except late payment disclosures are estimates." (Emphasis added.)
Subsequently, on October 9, 1996, a temporary insurance contract was secured by Anderson, or on Anderson's behalf ("Insurance Policy"), insuring her residence as required under the proposed loan agreement, from Murray S. Hankin Insurance, Baltimore, Maryland, for the policy period October 10, 1996 to October 10, 1997. (Defendant's Exhibit 3.) The policy was conditioned upon payment of its $329.43 premium on its effective date, that is, October 10, 1996, the proposed date of Anderson's settlement with One Stop.
It is unclear from the trial evidence, including Anderson's spotty testimony, which party procured the policy; it is only certain that it was indeed procured as just described. As Plaintiff's counsel, itself, acknowledged in somewhat of an understatement, "there is confusion around" this subject.
On October 10, 1996, settlement of the loan transaction occurred at Valley Title Company ("Valley Title"). In this connection, Anderson's Insurance Policy premium was paid out of her loan proceeds. (Defendants' Exhibits 3 7.)
At settlement, Anderson also executed, and received copies of, other documents, including her HUD-1 Settlement Statement which indicated a "cash to borrower" figure of $5,810.54. (Defendant's Exhibit 7.) Additionally, Anderson signed a dated Notice of Right to Cancel, outlining her rights to rescind the loan transaction (Defendants' Exhibit 3), and, concomitantly, also executed a written acknowledgment of having received two completed copies of this Notice in the form prescribed by law advising her of her right to cancel the loan transaction. She also received a notice from One Stop which provided, in full, as follows:
Anderson had previously received a preliminary Settlement Statement, Plaintiff's Exhibit 3, indicating a "cash to borrower" figure of $6,278.13. However, Defendants' Exhibit 7 is the "final" Settlement Statement which was provided to Anderson, and is marked as such. Moreover, only Defendants' Exhibit 7 contains a stamp of certification as to its preparation signed by Michael E. Fine, Esquire — an attorney admitted to the Maryland Bar and a principal of Valley Title — and only Defendants' Exhibit 7 is signed by both Anderson and a Valley Title settlement agent. With respect to the latter, the Valley Title agent's signature appears just beneath the following: "The HUD-1 which I have prepared is a true and accurate account of this transaction. I have caused the funds to be disbursed in accordance with this statement," and is dated October 10, 1996. Plaintiff's Exhibit 3 contains no such signature nor such date. In this respect, the evidence, including testimony and admissions, demonstrates that Plaintiff's Exhibit 3 was simply one of the preliminary documents, containing estimates, provided to Anderson for her information prior to settlement.
Anderson certified, by her signature on the Notice document itself, Defendants' Exhibit 3, that she had received as much. No credible evidence to the contrary was adduced at trial. Indeed, throughout Anderson's trial testimony, her memory regarding many of the facts pertaining to the events surrounding the loan transaction was cloudy. Finally, and as a representative of One Stop testified at trial, the lender would have no reason to refuse or deny such documentary provision to Anderson, for, indeed, such action would be unlawful; rather, its motivations, which would necessarily include the avoidance of spurious lawsuits, would be entirely directed towards statutory compliance.
BORROWERS' COPIES
ATTENTION: BORROWER(S)
If this is a rescindable transaction, please ensure that each of you receives two (2) copies of the completed (DATED) RIGHT TO CANCEL for your records. Please ask your closing agent for the copies.Thank you.
(Defendants' Exhibit 15.)
Subsequently, on October 18, 1996, Anderson received a check by mail in the amount of $5,810.54. On December 1, 1996, One Stop assigned Anderson's loan to Advanta.
Several months after settlement, Anderson defaulted anew. Consequently, Advanta filed a foreclosure action which, in turn, prompted Anderson to file a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code, 11 U.S.C. § 101, et seq. Advanta then filed a proof of claim in Anderson's bankruptcy case. Thereafter, it assigned Anderson's loan to Aames, an entity which purchases loan instruments on the secondary market.
On November 26, 1997, Anderson sent notice of rescission to Advanta concerning the October 10, 1996 loan transaction. (Plaintiff's Exhibit 22.) On December 2, 1998, Anderson sent similar rescission letters to One Stop and Aames. (Plaintiff's Exhibits 24 26, respectively.) None of these entities accepted the attempted rescission. At trial, Anderson testified that if rescission had been accepted, she "didn't know" where she would have obtained the funds with which to complete its performance.
On January 29, 1998, Anderson filed her initial Complaint in this matter, requesting enforcement of her rescission efforts. On July 6, 1998, she filed a first Amended Complaint. Finally, on February 19, 1999, she filed her Second Amended Complaint, portions of which, as previously described, raise the issues now before the Court.
II. CONCLUSIONS OF LAW
The first claim on which the Plaintiff seeks judgment concerns alleged violations of TILA. The second, which is premised upon the former, involves the MCPA. Each will be addressed in turn.
1. TILA
Congress' declared purpose in enacting TILA was "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U.S.C. § 1601(a); see Beach v. Ocwen Federal Bank, 523 U.S. 1408, 118 S.Ct. 1408, 1410, 140 L.Ed. 566 (1998); Mars v. Spartanburg Chrysler Plymouth, Inc., 713 F.2d 65, 67 (4th Cir. 1983). In order to implement TILA, and pursuant to its authority under § 1604, the Federal Reserve Board promulgated Regulation Z, 12 C.F.R. part 226, and also issued the Official Staff Commentary to Regulation Z and TILA. These regulations and staff commentary "are `dispositive' unless `demonstrably irrational.'" Cades v. H R Block, Inc., 43 F.3d 869, 875 (4th Cir. 1994) (quoting Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980)), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995); see Purtle v. Eldridge Auto Sales, Inc., 91 F.3d 797, 800 (6th Cir. 1996), cert. denied, 502 U.S. 1252, 117 S.Ct. 2411, 138 L.Ed.2d 177 (1997).
Both the Act and its implementing regulations require creditors to make various "material disclosures," and also prescribe their form, in the granting of consumer credit. 15 U.S.C. § 1602(u), 1631, 1632(a) (c), 1638; 12 C.F.R. § 226.17-20, 226.23; see Pittman v. Allright Mortgage Co. (In re Pittman), 165 B.R. 586, 588 (Bankr. D. Md. 1994); cf. Purtle, 91 F.3d at 800 (regulations mandate specific disclosures in credit transactions); Walker v. Contimortgage (In re Walker), 232 B.R. 725, 730 (Bankr. N.D. Ill. 1999) (the Act mandates such disclosures). As respecting "closed-end credit," these disclosures include, inter alia: the amount financed, an itemization of the amount financed, the finance charge, the annual percentage rates of interest, the payment schedule, and the total number of payments. 15 U.S.C. § 1602(u), 1638(a);
12 C.F.R. § 226.18; see In re Walker, 232 B.R. at 730; Hill v. Allright Mortgage Co. (In re Hill), 213 B.R. 934, 938 (Bankr. D. Md. 1996), aff'd in part and rev'd in part, on other grounds, 213 B.R. 943 (D. Md. 1997).
Pursuant to § 226.18, "the creditor shall disclose the following information as applicable" to each transaction: the creditor, the amount financed, the itemization of the amount financed, the finance charge, the mortgage loans, other credit, the annual percentage rate, the variable rate, the payment schedule, the total of payments, the demand feature, the total sale price, terms of prepayment, the charge for late payment, the security interest, insurance and debt collection, certain security interest charges, contract reference, the assumption policy, and the required deposit, all of which are more fully set forth in the regulation itself. 12 C.F.R. § 226.18.
The timing of the various disclosure requirements is also controlled by statute. Generally, TILA's disclosure requirements do not arise until just before "consummation," that is, the moment of contractual obligation between the parties. 15 U.S.C. § 1638(b)(1); 12 C.F.R. § 226.17(b); cf. Purtle, 91 F.3d at 801 ("TILA's disclosure requirements do not arise until a contractual relationship exists between the parties"). However, under certain, statutorily-enunciated circumstances, creditors may be required to make good faith disclosure estimates, "not later than three business days after the creditor receives the consumer's written application." 12 C.F.R. § 226.19(a)(1); see 15 U.S.C. § 1631(c), 1638(b)(2).
Regulation Z § 226.2(a)(13) defines consummation as "the time that a consumer becomes contractually obligated on a credit transaction." 12 C.F.R. § 226.2(a)(13).
Section 1631(c) provides, in pertinent part, that: "The Board may provide by regulation that any portion of the information required to be disclosed by this subchapter may be given in the form of estimates where the provider of such information is not in a position to know exact information." 15 U.S.C. § 1631(c).
Nevertheless, under this last or other specified circumstances, where preconsummation disclosures become inaccurate due to a subsequent event or events, the creditor must redisclose prior to consummation. Specifically, where § 226.17 disclosures are required, incorporating those listed in § 226.18, the creditor must redisclose: "(1) Any changed term unless the term was based on an estimate in accordance with § 226.17(c)(2) and was labeled an estimate; [or] (2) All changed terms, if the annual percentage rate at the time of consummation varies from the annual percentage rate disclosed earlier by more than 1/8 of 1 percentage point in a regular transaction, or more than ¼ of 1 percentage point in an irregular transaction, as defined in § 226.22(a)." 12 C.F.R. § 226.17(f); see Ramsey v. Vista Mortgage Corp. (In re Ramsey), 176 B.R. 183, 186 (B.A.P. 9th Cir. 1994). In turn, where § 226.19 disclosures are mandated, the creditor must, in accordance with statutory language identical in substance to that of § 226.17(f)(2), redisclose "all the changed terms no later than consummation or settlement," where "the annual percentage rate at the time of consummation varies from the annual percentage rate disclosed earlier by more than 1/8 of 1 percentage point in a regular transaction or more than ¼ of 1 percentage point in an irregular transaction, as defined in § 226.22[.]" 12 C.F.R. § 226.19(a)(2); see 15 U.S.C. § 1638(b)(2).
Section 226.17(c)(2) provides, in pertinent part, that, "[i]f any information necessary for an accurate disclosure is unknown to the creditor, the creditor shall make the disclosure based on the best information reasonably available at the time the disclosure is provided to the consumer, and shall state clearly that the disclosure is an estimate." 12 C.F.R. § 226.17(c)(2)(i).
Section 1638(b)(2) provides, in pertinent part, as follows: "If the disclosure statement furnished within three days of the written application contains an annual percentage rate which is subsequently rendered inaccurate within the meaning of section 1606(c) of this title, the creditor shall furnish another statement at the time of settlement or consummation." 15 U.S.C. § 1638(b)(2). In turn, § 1606(c) provides:
The disclosure of an annual percentage rate is accurate for the purpose of this subchapter if the rate disclosed is within a tolerance not greater than one-eighth of 1 per centum more or less than the actual rate or rounded to the nearest one-fourth of 1 per centum. The Board may allow a greater tolerance to simplify compliance where irregular payments are involved.
15 U.S.C. § 1606(c).
Finally, in order to effect Congress' intent that consumers be protected, TILA, and the regulations implementing it, must "be absolutely complied with and strictly enforced." Mars, 713 F.2d at 67; see Purtle, 91 F.3d at 801; In re Hill, 213 B.R. at 938. Noncompliance with the TILA disclosure requirements subjects a lender to the possibility of criminal penalties, see 15 U.S.C. § 1611; as well as to civil liability in the form of statutory and actual damages traceable to noncompliance, see id. at § 1640(a)(1) (a)(2)(A)(i); and, where a TILA plaintiff succeeds, to payment of his or her costs and reasonable attorney fees, id. § 1640(a)(3). In this connection, "[a]ssignees can be held liable for the conduct of assignors."Walker, 232 B.R. at 730; see 15 U.S.C. § 1641.
Section 1611 provides that:
Whoever willfully and knowingly
(1) gives false or inaccurate information or fails to provide information which he is required to disclose under the provisions of this subchapter or any regulation issued hereunder,
(2) uses any chart or table authorized by the Board under section 1606 of this title in such a manner as to consistently understate the annual percentage rate determined under section 1606(a)(1)(A) of this title, or
(3) otherwise fails to comply with any requirement imposed under this subchapter,
shall be fined not more than $5,000 or imprisoned not more than one year, or both.
15 U.S.C. § 1611.
Section 1640(a)(1) and (a)(2) provide, in pertinent part, as follows:
Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part, including any requirement under section 1635 of this title, or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of —
(1) any actual damage sustained by such person as a result of the failure;
(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction[.]
15 U.S.C. § 1640(a)(1) (a)(2)(A)(i).
In the case at hand, Anderson seeks rescission and damages, as well as her costs and reasonable attorney fees. In this respect, Anderson claims that each of the defendants, either alone or as an assignee, violated TILA by: (1) failing to properly notify her, prior to consummation, of her right to rescission; and (2), failing to disclose the amount of her Insurance Premium prior to consummation.
i. Notice of Rescission
Rescission is the subject of § 1635, which provides, in pertinent part, as follows:
(a) Disclosure of obligor's right to rescind
Except as otherwise provided in this section, in the case of any consumer credit transaction . . . in which a security interest . . . is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, appropriate forms for the obligor to exercise his right to rescind any transaction subject to this section.
. . . .
(c) Rebuttable presumption of delivery of required disclosures
Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom information, forms, and a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof. 15 U.S.C. § 1635(a) (c); see 12 C.F.R. § 226.23.
Section 226.23 provides, in pertinent part, as follows:
(a) Consumer's right to rescind. (1) In a credit transaction in which a security interest is or will be retained or acquired in a consumer's principal dwelling, each consumer whose ownership interest is or will be subject to the security interest shall have the right to rescind the transaction. . . .
(2) To exercise the right to rescind, the consumer shall notify the creditor of the rescission by mail, telegram or other means of written communication. Notice is considered given when mailed, when filed for telegraphic transmission or, if sent by other means, when delivered to the creditor's designated place of business.
(3) The consumer may exercise the right to rescind until midnight of the third business day following consummation, delivery of the notice required by paragraph (b) of this section, or delivery of all material disclosures, whichever occurs last. If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation, upon transfer of all of the consumer's interest in the property, or upon sale of the property, whichever occurs first. . . .
. . . .
(b)(1) Notice of right to rescind. In a transaction subject to rescission, a creditor shall deliver 2 copies of the notice of the right to rescind to each consumer entitled to rescind. The notice shall be on a separate document that identifies the transaction. . . .
. . . .
(d) Effects of rescission. (1) When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including the finance charge.
12 C.F.R. § 226.23(a)(1-3), (b)(1), (d)(1).
Thus, under subpart (a), TILA provides for an initial three-day period during which the obligor has the right to rescind for any or no reason at all. 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23(a)(3); see Abel v. Knickerbocker Realty Co., 846 F. Supp. 445, 448 (D.Md. 1994); Walker, 232 B.R. at 732. Only where a creditor fails to properly deliver the rescission notice or any "material disclosure" is the right to rescind extended. 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23(a)(3); Abel, supra.
As an initial, jurisdictional matter, the Court concludes that each of the defendants is a "creditor" within the meaning of TILA, 15 U.S.C. § 1602(f), and that the loan in question is a "consumer" transaction within the meaning of the Act and pertinent regulations, 15 U.S.C. § 1602(h); 12 C.F.R. § 226.2(a)(11-12).
The term "creditor" is defined, for purposes of TILA, within § 1602(f) to mean:
only . . . a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement.
15 U.S.C. § 1602(f).
Section 1602(h) defines the adjective "consumer," as used with reference to a credit transaction as "characteriz[ing] the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes." 15 U.S.C. § 1602(h). Similarly, § 226.2(a)(11) defines the term to mean, in pertinent part, "a natural person to whom consumer credit is offered or extended. However, for purposes of rescission under §§ 226.15 and 226.23, the term also includes a natural person in whose principal dwelling a security interest is or will be retained or acquired, if that person's ownership interest in the dwelling is or will be subject to the security interest." 12 C.F.R. § 226.2(a)(11). In turn, § 226.2(a)(12) defines "consumer credit" to mean, "credit offered or extended to a consumer primarily for personal, family, or household purposes." Id. at § 226.2(a)(12).
Under the instant facts, and with particular reference to Defendant's Exhibit 3, the Court concludes that a rebuttable presumption exists that the requisite disclosure, and delivery of the statutorily-prescribed number of copies, of the Notice of Right to Cancel to Anderson was properly completed in this matter. See 15 U.S.C. § 1635(c). The Court further concludes that the Plaintiff has failed to surmount this presumption through the proffer of any evidence, in isolation or in the aggregate, which, alone or in combination, is in even the slightest degree as, or more, credible than her written acknowledgment of having received two completed copies of this Notice in the form prescribed by law.
Moreover, the Court is compelled to note that it will not lightly infer that a lender has failed to meet its statutory duties respecting disclosure of, and delivery of copies of, the notice of rescission where such an acknowledgment is present. This acknowledgment must have some meaning and import if the secondary and tertiary lending markets are to function properly, or even at all. Indeed, it must be remembered that subsequent assignees, who, as mentioned, may be liable for the acts of assignors, have no other proof of statutory compliance, and will likely have recourse to no other document in defending themselves from allegations of statutory noncompliance, credible or not, than this acknowledgment.
In sum, the weight of the evidence in this case supports the conclusion that Anderson received two copies of her properly completed notice of rescission, in compliance with TILA and the regulations promulgated thereunder.
ii. Material Disclosures at Consummation
The final Settlement Statement, Defendants' Exhibit 7, was prepared on or just prior to the date of consummation, October 10, 1996. At that time, the document did properly make all requisite material disclosures to Anderson, including, but not limited to, disclosure of the cost of her insurance premium in the amount of $329.43, and her cash disbursement amount of $5,810.54. In sum, then, and borrowing from the language ofArnold v. Waterfield Mortgage Co., 966 F. Supp. 387 (D. Md. 1996), aff'd, 116 F.3d 472 (4th Cir. 1997), "not simply with regard to rescission under § 1635, but also with regard to any question of a right to other TILA relief under § [§] 1640 [and 1641], the Court is of the opinion that plaintiff simply has no case." Id. at 388. Accordingly, Count I of her Complaint will be dismissed as to each of the defendants.
2. MCPA
Anderson's arguments under Count III, presuppose, and are premised entirely upon, TILA violations as constituting unfair and deceptive practices under, and per se violations of, the MCPA. As this Court has concluded that no such TILA violations exist in this matter, Anderson's claims under the MCPA, as memorialized in Count III of her Complaint, will likewise be dismissed.
III. CONCLUSION
Accordingly, and for the foregoing reasons, IT IS HEREBY ORDERED THAT the last remaining Counts of Plaintiff Sheila Anderson's Second Amended Complaint, filed on February 19, 1999, to wit, Count I against Defendants One Stop Mortgage, Inc. and Aames Financial Corporation, and Count III as against One Stop, alone, are DISMISSED. All other requests in this matter, including those for costs and attorney fees, are DENIED.
JUDGMENT MAY BE ENTERED ACCORDINGLY.
SO ORDERED.