Larry D. Jesinoski; Cheryle Jesinoski Plaintiffs - Appellants
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
from United States District Court for the District of
Minnesota - Minneapolis
WOLLMAN, LOKEN, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
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.
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).
remand, the district court 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.
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.
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.
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.
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.
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