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Garrett v. Fleet Fin. Inc. of Ga.

The 3-year statute of repose for claims based on recission under the Truth in Lending Act barred plaintiff's suit to set aside a second mortgage on his property more than four years after he closed the loan.

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Gerald Turner Garrett, plaintiff, sought to set aside a second mortgage assigned to Fleet Finance, Inc. of Georgia, which he sought to rescind orally; Frances Garrett, his ex-wife, obtained the loan proceeds from Bruce W. Baggarly, Jr., the closing attorney, and had Myrtle Manas, her mother, deposit the funds secretly in her savings account. Fleet Finance, Inc. of Georgia, the assignee of the second mortgage, and Baggarly moved for summary judgments which were granted. Garrett separately appeals each grant of summary judgment. We affirm.

Garrett applied for a home improvement loan with Mortgage Matters, Inc. and Don Akers, mortgage broker, on his residence at 2028 Kenwood Place, Smyrna, Cobb County, Georgia. Mortgage Matters, Inc. approved a $12,750.00 loan, which on February 6, 1990, it subsequently assigned to Fleet Finance; after the origination fee and closing costs, Garrett netted $10,300. On February 1, 1990, Baggarly closed the loan with Garrett. Baggarly had Garrett execute various loan closing documents; Garrett received and executed a real-estate loan disclosure statement, notice of the right to cancel, and a waiver of borrower’s rights to rescind. The right to rescind could be exercised within three days but had to be in writing and made by February 5, 1990. The notice of the right to rescind read: “HOW TO CANCEL : If you decide to cancel this transaction, you may do so by notifying us in writing, at Mortgage Makers, Inc., 1901 Powers Ferry Road, Suite 230, Marietta, Georgia 30067.” The closing statement disclosed that the funds would not be disbursed for three days until February 4.

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