Financing mixup leads to foreclosure, couple seeks restraining order to stop it

Kelly Holleran Nov. 11, 2009, 3:45pm

Two Jefferson County residents have asked the court to stop a bank from foreclosing on their home after they stopped making their monthly mortgage payments.

Brandon Elliott and Mary Elizabeth Dotson claim they are attempting to refinance a home they own at 35 Pond Circle in Beaumont.

Elliott and Dotson claim they obtained financing through defendant PNC Bank National Association doing business as National City Mortgage for the construction of a new home for $235,000.

"The financing was intended to be a 'one-time close' construction/permanent mortgage financing," the suit states.

"It was intended that Plaintiffs would draw on the $235,000 loan as construction was completed to pay for the construction of the residence."

Initially, the home was supposed to contain 1,980 finished square feet with 580 square feet of bonus area to be completed later, according to the complaint filed Nov. 3 in Jefferson County District Court.

However, Elliott and Dotson were told that because of permit and ordinance issues, they would be required to complete the 580 additional square feet while the home was being constructed, the complaint says.

But when the plaintiffs attempted to obtain additional funds from National City Mortgage, the bank refused to release the money.

Only when they attempted to refinance their home did the plaintiffs claim they learned National City Mortgage and defendants The PNC Financial Services Group, National City Bank and PNC Mortgage had placed liens on their home.

So, Elliott and Dotson continued to timely make their mortgage payments from Sept. 17, 2007, through May 18 when they were informed their interest rate was going to increase to 11.75 percent, according to the complaint.

"After that, on May 11, 2009, during a series of e-mails to bank defendants about the situation they asked Tom Goheen with bank defendants, 'At this time, is there any benefit to paying the note each month if default is imminent?' to which he replied, 'Honestly, I would say no,'" the suit states. "Because of this statement from Mr. Goheen, Plaintiffs stopped making payments to bank defendants."

On June 23, Elliott and Dotson began working with Wells Fargo to refinance their home. They learned that because of the liens on their home, they would be required to refinance the house as a cash-out refinance, the complaint says.

But by the time Elliott and Dotson claim they informed the banking defendants of their plans to refinance, the bank had already begun the foreclosure process and had placed it on the plaintiffs' credit.

"As bank defendants know and as Plaintiffs informed them, Wells Fargo will not loan Plantiffs the funds to refinance the house and pay off bank defendants until the foreclosure is removed," the suit states.

The bank posted the plaintiffs' home for foreclosure on Nov. 3, and without a hearing, Elliott and Dotson say they will become homeless.

"If Plaintiffs are not allowed to remain in possession the house, they will be forced out on the street to find a new residence for which they do not currently have the monetary means," the complaint says.

In addition to the banks, the plaintiffs name Carolyn Ciccio, Tommy Jackson and Suzy Chaney as defendants.

They are seeking a temporary and permanent restraining order restraining the defendants from interfering with the possession of their property and a declaratory judgment that the foreclosure is improper and illegal.

In addition, they are asking that the defendants be required to pay damages, costs, attorney's fees and other relief the court deems just.

They will be represented by Thomas P. Roebuck Jr. of Roebuck, Thomas, Roebuck and Adams in Beaumont.

The case has been assigned to Judge Gary Sanderson, 60th District Court.

Jefferson County District Court case number: B185-253.

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