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Jesinoski v. Countrywide Home Loans, Inc.

United States Court of Appeals, Eighth Circuit

February 28, 2018

Larry D. Jesinoski; Cheryle Jesinoski Plaintiffs - Appellants
v.
Countrywide Home Loans, Inc., doing business as America's Wholesale Lender, a subsidiary of Bank of America, N.A.; BAC Home Loans Servicing, LP, a subsidiary of Bank of America, N.A., a Texas limited partnership, formerly known as Countrywide Home Loans Servicing, L.P.; Mortgage Electronic Registration Systems, Inc., a Delaware corporation; John and Jane Does 1-10 Defendants - Appellees

          Submitted: December 13, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges.

          MELLOY, Circuit Judge.

         Mortgage loan borrowers Larry and Cheryle Jesinoski received Truth in Lending Act ("TILA") disclosure documents at their loan closing. Pursuant to TILA and its regulations, borrowers may rescind their loan within three days of closing, but the rescission period extends to three years if the lender fails to deliver "the required notice or material disclosures." 12 C.F.R. 1026.23(a)(3)(i); see also 15 U.S.C. § 1635(a), (f). Admitting that the lender delivered the required notice (the "Notice") and material disclosures, but arguing that the lender did not provide the required number of copies, the Jesinoskis sought to rescind their loan on a date just shy of the three-year anniversary of loan execution.

         The lender denied rescission, asserting the Jesinoskis had signed an acknowledgment indicating receipt of the required disclosures. The Jesinoskis sued more than three years after closing, alleging TILA violations. The district court dismissed the action as untimely, holding that, even if the three-year limitation period applied, borrowers must file suit and not merely provide notice within the three-year time period. On appeal, our court affirmed, recognizing that our circuit had already taken a position on this issue within an existing circuit split. Jesinoski v. Countrywide Home Loans, Inc., 729 F.3d 1092, 1093 (8th Cir. 2013) (per curiam). The Supreme Court granted certiorari and reversed, holding the three-year limitation period applied to the provision of notice rather than the filing of suit. Jesinoski v. Countrywide Home Loans, Inc., 135 S.Ct. 790, 792 (2015).

         On remand, the district court[1] granted summary judgment, concluding the signed acknowledgment created a rebuttable presumption that the Jesinoskis had received the required number of copies. The court also concluded the Jesinoskis failed to generate a triable question of fact rebutting the presumption. We affirm.

         I.

         At loan closing, the Jesinoskis signed their names to an acknowledgment form stating in material part:

The undersigned each acknowledge receipt of two copies of NOTICE of RIGHT TO CANCEL, and one copy of the Federal Truth in Lending Disclosure Statement. Each borrower/owner in this transaction has the right to cancel. The exercise of this right by one borrower/owner shall be effective to all borrowers/owners.

         In this litigation, the Jesinoskis do not claim to remember whether they received a total of two or four copies of the Notice. Rather, they attempt to demonstrate that they received only two copies by establishing that, several years later, their file of closing documents contained only two copies. Specifically, Larry Jesinoski states that he took a file containing his closing documents home immediately after the closing and placed it in an inconvenient-to-access, but unlocked, filing cabinet. Then, more than two years later, in an attempt to negotiate better loan terms, the Jesinoskis contacted Mark Heinzman, a mortgage specialist at a firm named Financial Integrity. Heinzman referred the Jesinoskis to a firm named Modify My Loan USA. The Jesinoskis claim they paid Modify My Loan USA $3, 000 but were defrauded and received no assistance. They then recontacted Heinzman who asked them to look in their mortgage file for certain documents. Larry Jesinoski asserts that, at that time, he opened the file for the first time since closing, but he did not understand what Heinzman wanted him to locate. As such, the Jesinoskis agreed to bring their file to Heinzman.

         According to the Jesinoskis, they were present when Heinzman received and reviewed their file approximately two years and nine months after loan closing. Also according to the Jesinoskis, Heinzman told them they were entitled to rescind their loan because their file did not contain all necessary copies of disclosure documents. Soon after the meeting, the Jesinoskis paid Heinzman $3, 000 to draft a rescission notice and send it to the lender.

         The lender refused rescission based on the acknowledgment, and the Jesinoskis eventually contacted an attorney to initiate this suit. Larry Jesinoski could not recall whether he kept the closing file after his in-person meeting with Heinzman and gave the closing file to his attorney himself, or whether he left the closing file with Heinzman and Heinzman gave it to their attorney. Cheryle Jesinoski, in contrast, stated that they took their closing file home again after the meeting with Heinzman. Heinzman, however, stated in a declaration that he remembers nothing about the Jesinoskis' file and, if deposed, would answer that he does not remember the Jesinoskis' file.

         At Larry Jesinoski's deposition, counsel for the lenders asked him whether he had seen various paginated closing documents that the Jesinoskis produced in discovery and that were missing pages. Larry did not know if he had seen the documents before and did not know if the missing pages had been present at an earlier time. Then, in Cheryle Jesinoski's deposition, her attorney interrupted opposing counsel's questioning to emphasize that, although the Jesinoskis produced documents in response to discovery, they did not actually "represent[] whether or not [the documents produced were] the entire contents of what was contained ...


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