Marr v. Bank Of America, N.A.

662 F.3d 963 (7th Cir. 2011)

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Nature of the Case

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Facts

In the world of the Truth-in-Lending Act (TILA), 15 U.S.C. §§ 1601 et seq., it often seems that no detail is too insignificant to matter. The TILA requires the creditor to provide the consumer with 'clear and conspicuous' notice of his right to rescind this type of loan within three business days following the transaction. Regulation Z requires the lender to give the consumer two copies of the notice of his three-day right to cancel at closing. If the lender fails to comply with this rule the time to rescind is extended from three days to three years. In 2007, P refinanced his mortgage with Countrywide Bank, the predecessor in interest to D. P purchased a home in Wauwatosa, Wisconsin, in 1973, using funds secured by a mortgage. He has refinanced that loan several times since then to help pay the bills. Countrywide accepted P's application. Summit Title, the title insurance company that provided closing services for Countrywide, closed the loan on February 23, 2007. P testified that the closing agent put a duplicate of every document he signed in a pile next to him, but he did not have time to review them. P signed an acknowledgment that he had been given the required two copies of the Notice. Summit's agent gave P a folder in which to put the documents. The agent stuffed everything into the folder, and then P left. P put the folder in a filing cabinet in his dining room where he keeps all of his important documents. P maintained that he did not disturb the folder until two years later when his attorney inspected it in connection with an unrelated lawsuit. P discovered it only contained one copy of the right to cancel. P admitted that there were a few documents inside his loan folder that post-dated the February 23 closing. P stated, 'Those extra documents may have been when I refinanced again and I dropped those in the envelope thinking that that was the envelope for . . . the August [refinancing].' P was certain that none of the February 23 loan documents had been removed, even if other documents were later added. The Summit closing agent, Smith, submitted an affidavit stating that she put at least two copies of the Notice in the borrower's document pile. She was confident that she must have given Marr two copies of the Notice because she could not recall a time when she did not follow these practices. It was simply part of her closing routine. P asserted that his closing did not follow the standard practices and procedures outlined by Smith in her affidavit. P said, 'The closing agent did not review anything at the end of the closing.' She 'did not look through my documents, her documents, or anything else between the time when I finished signing the closing documents and when I left Summit Title's office.' The district court granted D's motion summary judgment. It held that the signed acknowledgment that he had received two copies of the Notice created a rebuttable presumption that this was true. P's evidence was simply not enough to overcome the presumption. P appealed.