prepayment penalty Question

[floridadevils]

What is the name of your state?What is the name of your state? florida

Me and my husband refinanced in febuary of this year. We told the mortgage broker we did not want a prepayment penalty in the mortgage because we were going to put our house up for sale in the next year. When he sent us the truth in lending paperwork it was checked off on the anti-predatory lending disclosure that there was a prepayment penalty. We called the mortgage broker and explained what was on there and our concern over this being on there. He assured us that the penalty would only apply if we were to refinance. That if we were to sell it would not apply. When it came time to actually sign the papers I did see the prepayment penalty addendum in there and I signed it under the understanding that it would only apply if I was to refinance which was fine. I even called the bank after everything was signed just to put my fears aside. They also told me it was only if I refinanced.
Well now it is November and we put our house on the market and I called the bank about some questions about the finance charges and told them we were going to sell and he informs me there is a prepayment penalty on the mortgage. I say to him no that is only if we were to refinance and he said no there are two different types of penaltys hard and soft and ours was hard. I had never heard of this before and my mortgage broker never brought it up nor did the lady that was at the signing. In very small print on the left side of the paper it said
*******bank and federally exempted seller use only
hard prepayment addendum (1-3yrs) ARM
My husband called the mortgage broker and he said he is going to call the bank. I do not have a good feeling about this and feel like I got the raw end of the stick. I do not feel that my mortgage broker represented me right. I have a appointment with a attorney later in the week, but wanted to see what your opinion was on this. Do I have a chance of getting this fixed and do I have any legal leg to stand on. Any help would be appreciated.

[seniorjudge]

You must go by what is in writing.

If it said there was a prepayment penalty in writing, then there will be a prepayment penalty.

Y'all agreed to it and y'all signed it.

[floridadevils]

Thanks for the reply seniorjudge. My case is simply that my mortgage broker who I paid to represent me in the refinancing misrepresented me or commited fraud. If I knew what all the paperwork was I would not have needed him.
He was supposed to represent me and he clearly did not.
According to Business Law and the Regulatory environment: Concept and cases (McGraw Hill/Irwin, 11th Edition,2001) A misrepresentation is an assertion that is not in accord with the truth. When a person enters a contract because of his justifiable reliance on a misrepresentation about some important fact, the contract is voidable.
Misrepresentation can be either "innocent" or "fraudelent"
The concealment of a fact through some active conduct intended to prevent the other party from discovering the fact is considered the equivalent of an assertion. For example, if Summers is offering his house for sale and paints the ceilings to conceal the fact that the roof leaks, his active concealment constitutes an assertion of fact.
NONDISCLOSURE can also be the euivalent of an assertion of fact. Nondisclosure is the failure to volunteer information. Disclosure of a fact is required when: 1 the person has already offered some info but further info is needed to give the other party an accurate picture or 2 there is a relationship of trust and confidence between the parties

Seems to me that the mortgage broker blatantly lied to me about the penalty.

[pojo2]

Originally Posted by floridadevils

He was supposed to represent me and he clearly did not.

Agents look out after agents interests, Lenders look out after lender's interest, Brokers look out after Broker's interest so consumer needs to hire someone to look out after consumer's interest.

You think the Broker committed fraud yet when you yourself called the Lender directly you got the same info from them.

You signed a contract clearly stating there was a prepayment penalty instead of insisting the contracts be changed to reflect the no prepayment penalty if indeed that were true. YOU signed a contract with terms not agreeable to YOU.

[floridadevils]

Well TY for your OPINION pojo2. I have an appointment with a Attorney tomorrow. I will let you know how it goes.

[floridadevils]

Just wanted to write back to anyone that is of interest. I did go to a attorney who deals in real estate and he never even heard of a soft or hard prepayment penalty, so I don't think if I had hired him to look over my papers I would have been any better off. Maybe my wallet would have been a little bit lighter, but that's about all.
He told me I did have a case for fraud and that because it was under 5 thousand I could take it to small claims court. That it would not be worth it to hire a attorney to do this. He also said it would probably would not be worth my time because a) It would take some time and effort and b) they would lie about it all. He also stated that online mortgage brokers were sharks so BEWARE anyone out there that reads this.
At this time I wrote to my lender and asked if I was to get a new mortgage with them if they would wave the prepayment penalty on my current one. I read that this might work I will let you all know when I get a reply. I guess this is why they say the older you get the wiser you are.