Jobe v. Argent Mortgage Co., LLC , 373 F. App'x 260 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3677
___________
IAN JOBE, Husband; CATHERINE JOBE, Wife,
Appellants
v.
ARGENT MORTGAGE COMPANY, LLC
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civial Action No. 06-cv-00697
(Honorable Thomas I. Vanaskie)
________________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 22, 2010
Before: SCIRICA, Chief Judge, JORDAN and STAPLETON, Circuit Judges
(Filed: April 2, 2010)
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OPINION OF THE COURT
_________
PER CURIAM.
Plaintiffs husband and wife Ian and Catherine Jobe, proceeding pro se, appeal the
order of the District Court entering judgment in favor of defendant Argent Mortgage
Company, LLC. For the following reasons, we will affirm.
I.
This action arises out of the plaintiffs’ attempt to rescind a mortgage obligation
incurred when they refinanced their home in 2005. They allege that they did not receive
two copies of the “Notice of Right to Cancel” (“Notice”) at the closing, as the Truth in
Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., requires. They seek a declaratory
judgment affirming their withdrawal from the contract and to quiet title to their property.
They also seek statutory damages in the amount of $300,000.
At the March 25, 2005 closing on the loan, plaintiffs signed numerous documents,
including the Notice, which provided them the right to cancel the transaction until March
30, 2005, and an “Importance Notice to Borrower(s),” in which they expressly
acknowledged receiving a full and complete set of loan documents. Plaintiffs stopped
making any payments in July 2005. In February 2006, plaintiffs wrote to defendant
stating that were rescinding the mortgage; defendant denied the attempted rescission.
Plaintiffs filed suit in April 2006. Both parties moved for summary judgment. The
District Court partially granted defendant’s motion, finding that plaintiffs’ statutory claim
for damages was untimely. Following a bench trial, the District Court denied plaintiffs’
remaining claims. Plaintiffs timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. Following a bench trial, we review
a District Court’s findings of fact for clear error and exercise plenary review over its
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conclusions of law. Am. Soc’y for Testing and Materials v. Corrpro Cos., 478 F.3d 557,
566 (3d Cir. 2007).
In reviewing a District Court’s grant of summary judgment, we apply the same test
the District Court applied. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001).
Summary judgment is proper when, viewing the evidence in the light most favorable to
the non-moving party and drawing all inferences in that party’s favor, there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
at 232; Fed. R. Civ. P. 56(c). The party opposing summary judgment “may not rest upon
the mere allegations or denials of the . . . pleading,” but “must set forth specific facts
showing that there is a genuine issue for trial.” Saldana, 260 F.3d at 232 (citing Fed. R.
Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
III.
A. Compliance with TILA
A creditor is required to provide two copies of the notice of the right to rescind to
each consumer entitled to rescind. 12 C.F.R. § 226.23(b)(1) (2009). Plaintiffs contend
that defendant’s failure to comply with this regulation triggered their right to rescind. See
12 C.F.R. § 226.23(a). Plaintiffs acknowledge, however, that they each signed the
Notice, which creates a rebuttable presumption of delivery of the two copies. 15 U.S.C. §
1635(c) (“written acknowledgment of receipt of any disclosures under [TILA]...create(s)
a rebuttable presumption of delivery thereof”). Plaintiffs offered their testimony that
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defendant failed to provide them with two copies each of the Notice as rebuttal evidence,
but did acknowledge receiving at least one copy each.1 The closing agent testified that he
always followed all applicable procedures and provided the relevant number of copies to
borrowers at closings.
Where a borrower’s testimony is self-serving and unreliable, such testimony has
been found insufficient to rebut a presumption of delivery. See, e.g., Williams v. First
Gov’t Mortgage & Investors Corp., 225 F.3d 738, 751 (D.C. Cir. 2000). The District
Court noted that plaintiffs have a compelling motive to claim that they did not receive the
two copies, and that they stopped making payments on the loan six months before they
attempted to rescind the mortgage obligation. The court found their deposition testimony
“plainly obstructive,” and found the closing agent’s testimony credible. We find no clear
error in the District Court’s conclusions and agree that plaintiffs failed to rebut the
presumption that they received the requisite copies.
B. Rescission Inappropriate
Plaintiffs claim that they had three years to rescind their obligation. See 12 C.F.R.
§ 226.23(a)(3) (the right to rescind expires three years after consummation where the
required notice or material disclosures are not delivered). Pursuant to 15 U.S.C. §
1635(b), courts have the “discretion to condition rescission on tender by the borrower of
1
At their depositions, plaintiffs testified that they could not remember what was
given to them at the closing, and they refused to acknowledge that their signatures
appeared on the Notice.
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the property he has received from the lender.” Ljepava v. M.L.S.C. Props, Inc., 511 F.2d
935, 944 (9th Cir. 1975). Other courts have denied rescission where the borrowers were
unable to tender payment of the loan amount. See American Mortgage Network, Inc. v.
Shelton, 486 F.3d 815, 819 (4th Cir. 2007); Yamamoto v. Bank of New York, 329 F.3d
1167, 1173 (9th Cir. 2003); Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1140
(11th Cir. 1992).
Here, plaintiffs testified that they are unable to repay the loan advanced to them,
and they have not made any payments for more than four years. Accordingly, the District
Court properly found that, even assuming plaintiffs’ testimony regarding the Notice was
credible, they would not be able to rescind the mortgage obligation because they are
unable to return the money defendant advanced to them in reliance on their performance
under the contract.
C. Quiet Title
The District Court properly denied plaintiffs’ claim to quiet title. An action to
quiet title may be brought “to compel an adverse party to file, record, cancel, surrender or
satisfy of record, or admit the validity, invalidity or discharge of, any document,
obligation or deed affecting any right, lien, title or interest in land.” Pa.R.C.P.
1061(b)(3). Because they cannot validly rescind their mortgage, there is no basis for the
quiet title claim.
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D. Statutory Damages
Finally, plaintiffs argue that their complaint was timely filed and that the District
Court erred in granting defendant’s motion for summary judgment on their claim for
statutory damages. They argue for the first time on appeal that defendant failed to
correctly disclose the interest rate on the loan at the closing, and that they first learned of
the rate when they received the first monthly statement. This argument need not be
considered here because plaintiffs did not assert it in the District Court. See Brown v.
Phillip Morris, Inc., 250 F.3d 789, 799 (3d Cir. 2001) (“arguments asserted for the first
time on appeal are deemed waived and consequently are not susceptible of review in this
Court absent exceptional circumstances”). A claim for statutory damages under TILA
must be brought “within one year from the occurrence of the violation.” 15 U.S.C. §
1640(3). The alleged violation in the complaint–defendant’s failure to provide two copies
to each plaintiff at the March 25, 2005 closing–occurred more than one year prior to the
April 6, 2006 filing. Accordingly, the District Court properly concluded that defendant
was entitled to judgment in its favor on this claim.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment.
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