Robert DiNapoli and Maryann DiNapoli v. Homecomings Financial, LLC f/k/a Homecomings Financial, Inc.

Opposition to Motion for Summary Judgment (Memorandum of Law Incorporated)


This is an interesting case concerning an interest rate discrepancy in the refinance of a piece of property that I've been working on even before I became admitted to the Massachusetts Bar. I actually drafted this pleading as I was waiting for my bar exam results, and as a new attorney, was very pleased when we prevailed when summary judgment was denied.

Plaintiffs refinanced a piece of property in 2006 at an agreed rate as provided on their Rate Lock Committment letter with a certain mortgage lender. At the time the closing documents were executed, the rate contained in the promissory note was different (higher) that the one that was provided in the Rate Lock. Plaintiffs claim that they noticed the discrepancy, but were instructed to execute the documents anyway, as they were given assurances that the error would be corrected later.

5 months went by and the plaintiffs made their payments without incident, and in accordance with the rate contained in the rate lock commitment letter. Thereafter, the note was sold to a third-party. Upon transfer, the discrepancy was discovered and the bank retroactively back-charged the plaintiff's the difference in the interest rates, thereby creating a deficiency in the escrow account and drastically raising the monthly mortgage payment.

Defendant filed a motion for summary judgment essentially arguing that the parole evidence rule should bar the plaintiff's claim because they saw the rate, understood what it meant and signed it knowingly and willingly. Plaintiffs opposed arguing mistake and that the conduct of the parties during the five months after the documents were executed constituted a subsequent agreement, which are well-settled execeptions to the parole evidence rule. Motion for Summary Judgment denied.

LOADING PDF: If there are any problems, click here to download the file.

Reference Info:Pleadings | State, 1st Circuit, Massachusetts | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ellen Wright, Wright & Associates, P.C. | Attorney Advertising

Written by:


Wright & Associates, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.