Summary
finding deposition testimony insufficient to overcome presumption
Summary of this case from Jesinoski v. Countrywide Home Loans, Inc.Opinion
Civil No. 02-3627 (DWF/JGL)
February 3, 2004
John M. Tancabel, Esq., Tancabel Law Office, St. Paul, MN, counsel for Plaintiffs
James K. Langdon, II, Esq., DorseyWhitney, Minneapolis, MN, counsel for Defendants
Seth J. Sergent-Leventhal, Esq., DorseyWhitney, Minneapolis, MN, counsel for Defendants
Marisa A. Hesse, Esq., DorseyWhitney, Minneapolis, MN, counsel for Defendants
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter came on for hearing before the undersigned United States District Judge on December 19, 2003, pursuant to Defendant Town Country Credit Corporation's Motion for Summary Judgment. For the following reasons, Defendant's Motion is granted.
Background
This cases arises out of an attempt by Plaintiffs Vallear J. Golden, Jr., and Joni Golden to seek rescission of a home mortgage refinance loan pursuant to the Truth in Lending Act, 15 U.S.C. § 1635, et seq. Plaintiff's refinanced their home mortgage through Town Country Credit Corporation ("Town Country") in April 2000.
On April 6, 2000, Brian Enochs, Town Country's loan officer, conducted the loan closing at the Goldens' home in Clearwater, Minnesota. Undisputedly, the Goldens signed a copy of their Notice of Right to Cancel dated April 6, 2000 (the "Notice"), which stated as Mows:
The undersigned each acknowledge receipt of two copies of this NOTICE OF RIGHT TO CANCEL and one copy of the Federal Truth in Lending Disclosure Statement, all given by lender with Truth in Lending Simplification and Reform Act of 1980 (Public law 96-221).
( See Affidavit of Marisa A. Hesse at ¶ 3, Ex. A.) This notice provided for a three-day rescission period. ( See id.) Plaintiff Vallear Golden also acknowledges being verbally informed that the Goldens had three days in which to rescind the loan. ( See id. at ¶ 4, Ex. B, "Dep. of Vallear J. Golden, Jr." at 34.) The Goldens assert that after they signed the loan documents, Enochs took all of the loan documents back to his office for copying, but did not leave a copy of the Notice with the Goldens. The Goldens assert that they did not receive a copy of the loan documents, including the Notice, until May 16, 2000, when they received a Federal Express package from Enochs. Enochs has no specific recollection of the closing with the Goldens, although Enochs testified that it is standard practice to leave the copies of the documents with the borrowers at the closing. ( See id. at ¶ 6, "Dep. of Brian Enochs" at 14, 29, 30.) Plaintiffs initially attempted to rescind the transaction in December 2001. Later, Plaintiffs defaulted on the loan and foreclosure proceedings were commenced against them.
Plaintiff Joni Golden acknowledges that she was no longer at the closing when Enochs left and did not look through the remaining pile of documents that Enochs left on the table. ( See Hesse Affidavit at ¶ 4, Ex. C, "Dep. of Joni R. Golden" at 20-21.)
At the oral argument on this matter, the Court requested that the Goldens' counsel provide the Court with copies of the documents that were enclosed in the May 16, 2000, Federal Express package. The Goldens' counsel sent a packet of documents to the Court, including several copies of the Notice of Right to Cancel that were unsigned by the Goldens. Although the Goldens' counsel asserts that these were "actual copies of the original documents that were in the Fed. Ex. package," the Goldens' counsel also stated: "Because the contents of my file have been copied and recopied several times for discovery and other purposes, the actual documents can no longer be identified with certainty." Thus, it is not clear to the Court what documents were actually sent to the Goldens in the May 16, 2000, Federal Express package.
The Goldens brought this action on September 12, 2002, asserting that they did not receive proper notice of their right to rescind the mortgage loan transaction at the time of the transaction pursuant to the Truth in Lending Act, 15 U.S.C. § 1635, et seq., and thus seeking rescission of their loan. Based on this alleged violation of the Truth In Lending Act, the Goldens contend that they are entitled to an extended right to rescind of up to three years beyond the date of the closing. Plaintiffs also allege violations of the Minnesota Consumer Fraud Act and the Uniform Deceptive Trade Practices Act. Defendant Town Country has moved for summary judgment, asserting that the Goldens have not provided clear and convincing evidence of non-receipt of the copies of the Notice and thus have failed to overcome the presumption of delivery of the Notice.
Discussion
1. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Fed.R.Civ.P. 1; Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.
2. Plaintiffs' Truth-In-Lending Act Claim
Under the regulations implementing the Truth in Lending Act, a lender must provide a borrower with two copies of the notice of the right to rescind, clearly and conspicuously stating how the borrower may exercise the right to rescind, among other requirements. See 12 C.F.R. § 226.15(b). If the required notice is not provided, the borrower may have up to three years after the consummation of the loan to rescind. See 12 C.F.R. § 226.23(a)(3). The Truth in Lending Act further provides:
Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom such information, forms, and a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.15 U.S.C. § 1635(c).
The Goldens acknowledged receipt of the copies of the Notice of Right to Cancel when they signed the Notice on April 6, 2000. The Goldens do not dispute that the signed acknowledgment creates a rebuttable presumption of receipt. The only dispute at issue here is whether the Goldens have overcome this presumption by clear and convincing evidence.
The only evidence provided to the Court to rebut the presumption of receipt was Plaintiff Vallear Golden's deposition testimony that Enochs failed to leave any notice or loan documents with the Goldens when he left their home. Plaintiff Joni Golden, who was not present at the time that Enochs left the Goldens' house, did not look through the papers and thus does not know whether the copies of the Notice were left behind. The testimony of Vallear Golden alone is insufficient to rebut the presumption of delivery created by the written acknowledgment of receipt. See, e.g., Williams v. First Gov't Mortgage Investors Corp., 225 F.3d 738, 751 (D.C. Cir. 2000) (holding that plaintiff failed to rebut statutory presumption of delivery where only evidence of non-delivery was plaintiff's own trial testimony); see also In re Rhoades, 80 B.R. 938, 943-44 (C.D. Ill. 1987) (holding that "something more" than the borrowers' assertions of non-receipt were required to rebut the section 1635(c) presumption of delivery). As such, Plaintiffs have not overcome the rebuttable presumption of delivery, and Defendants' motion for summary judgment is granted as to the Goldens' claim under the Truth In Lending Act.
3. Remaining Claims
The Goldens' remaining claims under the Minnesota Consumer Fraud Act and the Uniform Deceptive Trade Practices Act are premised upon the allegation that Town Country did not provide copies of the Notice of Right to Cancel. Because the Goldens have failed to overcome the presumption of delivery of the copies of the Notice, summary judgment is appropriate as to these claims as well.
For the reasons stated, IT IS HEREBY ORDERED:
1. Defendant's' Motion to for Summary Judgment (Doc. No. 31) is GRANTED. The Second Amended Complaint (Doc. No. 22) is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.