Jeanne Brown v. Chevy Chase Bank, FSB , 137 F. App'x 278 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15678 JUNE 27, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-01892-CV-JTC-1
JEANNE BROWN,
MASON BROWN,
Plaintiffs-Appellants,
versus
CHEVY CHASE BANK, FSB,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 27, 2005)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
This is an appeal from the district court’s grant of summary judgment in
favor of Chevy Chase Bank on plaintiffs’s complaint seeking Truth and Lending
Act rescission under 15 U.S.C. § 1635. Specifically, the plaintiffs sought judicial
enforcement of their alleged cancellation of a loan transaction, claiming that they
delivered the notice of rescission to the person who served as witness and notary
public on the loan documents at the same time they signed and delivered the loan
documents themselves. The case was referred to a magistrate judge under 28
U.S.C. § 636 et seq. The magistrate judge filed a report and recommendation
recommending that the bank’s motion for summary judgment be granted. After
conducting a de novo review, the district court, in a separate opinion, adopted the
magistrate judge’s report and recommendation and entered summary judgment for
the bank.
We review de novo the district court’s order granting summary judgment,
applying the same legal standards that governed the district court. Info. Sys. and
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court correctly granted summary judgment for the bank for the
following reasons: (1) the bank objected to service of process in its answer and
thus did not waive its objections to insufficient service of process and jurisdiction;
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(2) the plaintiffs are estopped from seeking judicial enforcement of an alleged
cancellation, where, at their behest, a court of competent jurisdiction necessarily
found that the subject transaction had not been rescinded and was in full force and
effect; and (3) even if the fully executed notice of cancellation was delivered as
alleged, the delivery was defective and cannot serve as the basis for judicial
enforcement.
AFFIRMED.
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