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Bonnie Hargis v. Access Capital Funding

March 5, 2012

BONNIE HARGIS, APPELLANT,
v.
ACCESS CAPITAL FUNDING, LLC; WEBSTER BANK, NA, APPELLEES.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Wollman, Circuit Judge.

Submitted: December 13, 2011

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

Bonnie Hargis sued Webster Bank and Access Capital Funding (Defendants) in Missouri state court. Hargis, on behalf of a putative class of similarly situated borrowers, alleged that Defendants engaged in the unauthorized practice of law, in violation of Mo. Rev. Stat. § 484.020, when they charged certain fees in the course of refinancing Hargis's mortgage. Defendants removed the suit to federal court under the Class Action Fairness Act (CAFA). 28 U.S.C. § 1332(d). Hargis appeals the district court's*fn1 denial of her motion to remand to state court, as well as the grant of summary judgment for Defendants. We affirm in part, vacate in part, and remand.

I.

In 2007, Hargis refinanced her home with a loan from Webster Bank (Webster) that was brokered by Access Capital Funding (Access). At the time, Webster did not have a retail operation in Missouri, so without a broker Hargis would have been unable to obtain a loan from Webster. The principal amount of Hargis's loan was $170,672.00. Hargis's loan from Webster was a 30-year fixed interest loan with a 6.75% interest rate insured by the Federal Housing Administration (FHA). Prior to refinancing, Hargis had two mortgages on her home, with a blended, adjustable,

8.125% interest rate. Due to Hargis's low credit score and high debt to income ratio, it was difficult for her to find a new loan.

Hargis brought $2,500.00 cash to the loan closing. The loan and Hargis's cash, totaling $173,172.00, were placed in an escrow account and used to pay off Hargis's two existing mortgages, her 2007 real estate taxes, some credit card debt, and settlement charges for the loan. The Final Settlement Statement (HUD-1) shows that the funds from the escrow account were disbursed as follows:

Primary loan to First Franklin $131, 278.20 Second mortgage to First Franklin $33, 337.03 Settlement charges to borrower $5,356.19 2007 real estate taxes $1,126.42 Providian credit card balance $2,074.16

TOTAL: $173,172.00

The settlement charges, in turn, went to pay mortgage and hazard insurance premiums, county real estate taxes, and more credit card debt:

Mortgage insurance premium $2,522.25 Hazard insurance premium $1,006.00 Jefferson County property taxes $251.63 Payment to City Financial $1,660.00

Subtotal: $5,439.88 Less adjustment to Webster ...


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