I. Factual BackgroundSee Fidler v. Central Cooperative Bank ( In re Fidler), 210 B.R. 411, 414-417 (Bankr.D.Mass. 1997), for a more complete recitation of the facts. On January 24, 1980, the plaintiffs in this adversary proceeding, John W. Fidler and Helen M. Fidler (the "Fidlers"), purchased real property located at 6 Cross Street, Charlestown, Massachusetts (the "Property").

Indeed, without the Forensic Audit Report, the grounds for the Debtor's Complaint crumble. The court in Fidler v. Central Coop. Bank (In re Fidler), 210 B.R. 411 (Bankr.D.Mass.1997), vacated in part,226 B.R. 734 (Bankr.D.Mass.1998), observed the following with respect to affidavits used in the summary judgment context: The use of opinion evidence in the form of an affidavit is also appropriate to support a motion for summary judgment.

Mohawk Industries, Inc. v. United States of America ( In re Mohawk Industries, Inc.), 82 B.R. 174, 176 (Bankr.D.Mass.1987). In re Fidler, 210 B.R. 411, 420 (Bankr.D.Mass.1997) (parallel citation omitted), vacated in part on other grounds, 226 B.R. 734 (Bankr.D.Mass.1998). To establish a TILA claim in recoupment, the claimant must show: “(1) the TILA violation and the creditor's debt claim arose from the same transaction, (2) [the claimant] is asserting her claim as a defense, and (3) the ‘main action’ is timely.”

The issue of whether a recoupment defense for rescission under the TILA may be raised beyond the three year time limit of § 1635(f) has been the subject of debate. See e.g., Fidler v. Central Cooperative Bank (In re Fidler), 210 B.R. 411, 418-420 (Bankr.D.Mass. 1997) (statutory claim for rescission under TILA not barred by time three year time limitation); Beach v. Great Western Bank, 692 So.2d 146 (Fla. 1997) (statutory right of rescission under TILA may not be revived as a defense in recoupment beyond three year expiration period of § 1635(f)). At the hearing, the Bank represented that the issue would be decided by the Supreme Court since it granted certiorari in Beach v. Ocwen Federal Bank, ___ U.S. ___, 118 S.Ct. 294, 139 L.Ed.2d 226 (1997).

The regulation relevant in this case, 940 C.M.R. 3.16(4), states that violation of "Federal consumer protection statutes" constitutes a per se violation of Chapter 93A, § 2(a). See, e.g., Dean v. Compass Receivables Mgmt. Corp., 148 F.Supp.2d 116, 119 (D.Mass. 2001) (citing 940 C.M.R. 3.16(4) for the proposition that "regulations issued by the Massachusetts Attorney General provide that violations of the [Fair Debt Collection Practices Act] are per se violations of M.G.L. c. 93A, § 2"); Martin v. Sands, 62 F.Supp.2d 196, 201 (D.Mass. 1999) (holding that, pursuant to 940 C.M.R. 3.16(4), violation of the Fair Debt Collection Practices Act is a per se violation of Mass. Gen. Laws ch. 93A, § 2); Fidler v. Cent. Coop. Bank ( In re Fidler), 210 B.R. 411, 430 (Bankr.D.Mass. 1997) (stating that, pursuant to 940 C.M.R. 3.16(4), a violation of TILA constitutes a per se violation of M.G.L. c. 93A, § 2). As stated above, TISA is a consumer protection statute and therefore is doubtless within the scope of 940 C.M.R. 3.16(4).

Once that report was properly stricken from the record, Sheedy was left with no evidence and was unable to carry her burden. Cf. In re Ludlow Hosp. Soc., Inc., 216 B.R. 312, 322 (Bankr. D. Mass. 1997) ("Accordingly, a court must disregard an expert affidavit that is essentially conclusory and lacks specific facts."); Fidler v. Cent. Coop. Bank, 210 B.R. 411, 422 (Bankr. D. Mass. 1997) (holding that a court may consider testimony that would be admissible at trial and disregard the rest). There is no genuine issue in this case, as Sheedy was unable to present any competent factual evidence to support her allegations of fraud.

As developed [in Massachusetts] common law, the doctrine of recoupment permits the crediting of reciprocal rights against each other where those rights arose under the same transaction, typically the same contract." In re DiVittorio, 670 F.3d 273, 289 (1st Cir. 2012) (quoting In re Fidler, 210 B.R. 411, 420 (Bankr. D. Mass. 1997), vacated in part on other grounds, 226 B.R. 734 (Bankr. D. Mass. 1998) (internal quotations omitted)). Here, fatally, Raad does not bring his claim for recoupment as a defense.

Regulations promulgated pursuant to that statute provide that violations of "Federal consumer protection statutes," such as TILA, constitute per se violations of ch. 93A § 2(a). See, e.g., Fidler v. Cent. Coop. Bank (In re Fidler), 210 B.R. 411, 430 (Bankr. D. Mass. 1997) (stating that, pursuant to 940 C.M.R. 3.16(4), a violation of TILA constitutes a per se violation of Mass. Gen. Laws ch. 93A § 2). Under ch. 93A § 9(3A), the court trebles the award of actual damages. Finally, plaintiff's counsel has submitted a summary of his fees, including hours worked and rate per hour in this case.

15 U.S.C. § 1601. See, e.g., Barnes, 370 F.3d at 176 (TISA); Dean v. Compass Receivables Mgmt. Corp., 148 F. Supp. 2d 116, 119 (D. Mass. 2001) (FDCPA); Martin v. Sands, 62 F. Supp. 2d 196, 201 (D. Mass. 1999) (FDCPA); Fidler v. Cent. Coop. Bank, 210 B.R. 411, 430 (Bankr. D. Mass. 1997) (TILA), rev'd on other grounds, 226 B.R. 734 (Bankr. D. Mass. 1998). The FDCPA is also a part of the Federal Consumer Credit Protection Act, which is specifically listed in section 3.16(4).

Fourth and finally, the Court emphasizes that several other state courts with comparable consumer protection statutes that have addressed this issue have reached the same outcome. See, e.g., Pittman v. Allright Mortgage Co., 165 B.R. 586, 589 (Bkrtcy.D.Md. 1994) (declining to hold that a technical violation of TILA was a per se violation of the Consumer Protection Act); Celebrezze v. Fred Godard Ford, Inc., 27 Ohio App.3d 301, 303-04, 500 N.E.2d 881 (Ohio App. 1985) (despite state statute requiring deference to FTC interpretations, court held that violation of TILA was not a per se violation of consumer sales practices act); Williams v. Gelt Financial Corp., 232 B.R. 629, 642 (Bankr.E.D.Pa. 1999) (holding that TILA violation was not a per se violation of consumer protection statute; plaintiff must establish fraudulent conduct or pervasive illegal conduct). But see Fidler v. Central Co-op. Bank, 210 B.R. 411, 430 (Bankr.D.Mass. 1997) (holding that "[v]iolations of TILA . . . constitute `unfair and deceptive acts or practices' for purposes of [the Massachusetts consumer protection statute]"). Therefore, the Court finds that a technical violation of TILA does not constitute per se violation of H.R.S. § 480-2.