Professional Documents
Culture Documents
No. 13-35716
TIMOTHY BARNES,
Plaintiff - Appellant,
v.
Defendants - Appellees.
Matthew A. Carvalho
YARMUTH WILSDON PLLC
1420 Fifth Avenue, Suite 1400
Seattle, WA 98101
206.516.3800
Pro Bono Counsel of Record for
Appellant Timothy Barnes
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TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
ISSUES PRESENTED...............................................................................................2
ARGUMENT ...........................................................................................................10
CONCLUSION ........................................................................................................21
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TABLE OF AUTHORITIES
Cases
Gilbert v. Residential Funding LLC,
678 F.3d 271 (4th Cir. 2012) ................................................................................13
Hauk v. JP Morgan Chase Bank USA,
552 F.3d 1114 (9th Cir. 2009) ....................................................................... 12, 17
In re Ferrell,
539 F.3d 1186 (9th Cir. 2008 ) ...................................................................... 17, 19
Jesinoski v. Countrywide Home Loans, Inc.,
135 S.Ct. 790, 190 L.Ed.2d 650 (2015) ....................................................... passim
Johnson v. Poway Unified Sch. Dist.,
658 F.3d 954 (9th Cir. 2011) ................................................................................11
Keiran v. Home Capital, Inc.,
720 F.3d 721 (8th Cir. 2013) ................................................................................13
McOmie-Gray v. Bank of America Home Loans,
667 F.3d 1325 (9th Cir. 2012) ..................................................................... 1, 7, 13
Miguel v. Country Funding Corp.,
309 F.3d 1161 (9th Cir 2002) ...............................................................................20
Paatalo v. JP Morgan Chase,
146 F. Supp.2d 1239 (D. Or. 2015) ......................................................................20
Rosenfield v. HSBC Bank, USA,
681 F.3d 1172 (10th Cir. 2012) ............................................................................13
Rubio v. Capital One Bank,
613 F.3d 1195 (9th Cir. 2010) ....................................................................... 12, 17
Semar v. Platte Valley Fed. Sav. & Loan Ass'n,
791 F.2d 699 (9th Cir.1986) .......................................................................... 12, 13
Sherzer v. Homestar Mortgage Servs.,
707 F.3d 255 (3d Cir. 2013) .................................................................................13
Statutes
15 U.S.C. 1601 ......................................................................................................12
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Regulations
12 C.F.R. 226, Appx. .................................................................................................4
12 C.F.R. 226.23(d)(2) ................................................................................ 18, 19, 22
26 C.F.R. 226.23(a)(2) .............................................................................................18
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INTRODUCTION
This appeal concerns an action filed pro se in the District Court by Plaintiff-
Appellant Timothy Barnes against certain financial institutions and their servicing
agents over a loan Mr. Barnes obtained to refinance his home. Mr. Barnes sought
to rescind the loan pursuant to the Truth in Lending Act based on anomalies in the
rescission claim was untimely. While the case was pending in the District Court,
this Court decided a case called McOmie-Gray v. Bank of America Home Loans,
667 F.3d 1325 (9th Cir. 2012), which supported Defendants position. The District
Court dismissed Mr. Barness rescission claim in reliance on that authority, and
This appeal followed. On January 13, 2015, after the parties finished
briefing the issues, the Supreme Court decided Jesinoski v. Countrywide Home
Loans, Inc., 135 S.Ct. 790, 190 L.Ed.2d 650 (2015), which rejected the reasoning
counsel for Mr. Barnes and has been authorized by Mr. Barnes to supplement the
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Mr. Barness other claims on a fully-developed record. This Court should thus
reverse the judgment of the District Court and remand for further proceedings.
JURISDICTIONAL STATEMENT
Timothy Barness statutory claims pursuant to 28 U.S.C. 1331, and had subject
matter jurisdiction over his remaining claims under 28 U.S.C. 1367. He timely
appealed on August 8, 2013 from a final judgment disposing of all claims, and
ISSUES PRESENTED
The issues presented for review, which are addressed in this Supplemental
Brief as well as Mr. Barness Opening Brief, are: (1) whether the District Court
erred in dismissing Mr. Barness rescission claim as untimely; (2) whether the
Mr. Barness claims for declaratory relief and statutory damages because these
claims depended on the timeliness of his rescission claim; (3) whether the
Mr. Barness claims for damages, and thus (4) whether the judgment should be
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further proceedings.
Home Finance, LLC (CHF), Chase Ban USA, N.A. (CBUSA), IBM Lender
Business Process Services, Inc. (LBPS), and ten John Doe defendants on
The complaint arose from a loan agreement Mr. Barnes had entered into
November 15, 2007 to refinance his home in Independence, Oregon. ER 12. The
loan documents included a Note dated November 14, 2007 naming CBUSA as the
lender. ER 12, Supp. ER 3-7. In addition, Mr. Barnes signed a Deed of Trust
dated November 15, 2007 for the benefit of CBUSA to secure the Note. ER 12,
Supp. ER 8-22. Chase Home Finance, LLC (CHF) acted as the loan servicer on
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At the time the loan closed, First American Title Company of Oregon, acting
as CBUSAs closing agent, provided Mr. Barnes with two unsigned copies of a
Notice of Right to Cancel, which stated that the loan closed on November 14,
2007. ER 12-13. Those notices used language which wasother than the dates
consistent with the model form notice of the right to rescission under TILA
provided by the Federal Reserve Board. ER 13 (citing 12 C.F.R. 226, Appx. H-8).
However, when Mr. Barnes later obtained copies of those notices from the closing
initials. ER 43-45.
2010. ER 14; ER 194-200. His notice invoked a right of rescission under TILA
that must be effected within three years of the loan transaction. The notice sent to
CHF was received. ER 14; 194-200. For reasons that are unclear from the record,
In a letter dated September 13, 2010, CHF notified Mr. Barnes that it was
transferring the right to service the loan to LBPS effective October 1, 2010,
the role of servicer on that effective date. ER 12; ER 14; ER 201; ER 211-12.
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October 23, 2010, advising that he had rescinded the loan. ER 14; ER 211-12.
LBPS did not respond until January 21, 2011. In a letter on that date, LBPS
advised Mr. Barnes that his three-year right of rescission had expired. ER 14; ER
209-10. That letter also notified Mr. Barnes for the first time that his loan had
complaint, Mr. Barnes alleged violations of TILA and its implementing Regulation
The District Court construed Mr. Barness complaint as alleging claims for:
(1) rescission of the mortgage loan, (2) a declaratory judgment that the defendants
had no valid security interest in the subject property, (3) statutory and actual
of Mr. Barness right to rescind at the time the loan documents were signed,
(4) statutory and actual damages in connection with the failure of CHF and
CBUSA to effect rescission of the mortgage loan, and (5) injunctive relief to enjoin
on the property, from recording any deeds or mortgages regarding the property,
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or from taking any steps to deprive him of his ownership rights in the property.
ER 122.
Defendants filed motions to dismiss, and on June 10, 2011, the Magistrate
Judge hearing those motions recommended that the District Court dismiss Mr.
Barness rescission claim for lack of subject matter jurisdiction on the ground that
it was untimely, and that the court dismiss his remaining claims for failure to state
a claim. ER 114-34. The Magistrate Judge reasoned that the three-year limitations
period established by TILA required Mr. Barnes to file suit within three years, and
his complaint was thus untimely even though he had sent his rescission notices
The District Court, in an order dated October 18, 2011, declined to follow
that aspect of the Magistrate Judges recommendation and determined that having
sent notice within three years, Mr. Barnes had timely effected rescission under
TILA. ER 79-113. The District Court instructed the Magistrate Judge to consider
the remaining issues. Id. Shortly thereafter, CHF and CBUSA voluntarily
withdrew their motion to dismiss, and the Magistrate Judge recommended that
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which he amended his complaint to add the Federal National Mortgage Association
America Home Loans, 667 F.3d 1325 (9th Cir. 2012). The Court rejected the
analysis relied upon by the District Court when it declined to adopt the Magistrate
Judges January 10, 2011 Findings and Recommendation. Based on that new
authority, the Magistrate Judge renewed his recommendation that Mr. Barness
rescission claim be dismissed against all defendants for failure to state a claim
upon which relief can be granted. ER 37-58. The District Court adopted that
recommendation on June 20, 2012 and dismissed Mr. Barness rescission claim as
Discovery followed, and the parties filed cross motions for summary
judgment on the remaining claims for declaratory and injunctive relief, and for
Barness claims for declaratory and injunctive relief depend[ed] in their entirety
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in favor of defendants on that basis. ER 19. With respect to Mr. Barness claims
for damages based on the defendants failure to rescind, the Magistrate Judge
concluded that Fannie Maes obligation to rescind Mr. Barness loan was never
rescind under TILA, and that CBUSA did not violate TILA because it did not
receive the notice of rescission prior to the expiration of Mr. Barness rescission
right. ER 20-23. The District Court adopted the Magistrate Judges findings and
Mr. Barnes timely appealed (ER 1), and the parties fully briefed the appeal
in this court. See Dkt. 3-17. On December 29, 2015, the Court entered an Order
directing the Clerk of the Court to appoint pro bono counsel for purposes of this
appeal. Dkt. 22. On August 3, 2016, the Clerk entered an Order appointing
undersigned counsel as pro bono counsel for Mr. Barnes. Dkt. 23.
SUMMARY OF ARGUMENT
herein supplement those made in Mr. Barness Opening Brief. This Supplemental
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untimely was based on now-abrogated authority. Under the United States Supreme
Courts decision in Jesinoski v. Countrywide Home Loans, Inc., 135 S.Ct. 790, 190
L.Ed.2d 650 (2015), Mr. Barnes did everything required to effect rescission of his
mortgage loan under TILA, and the District Courts judgment of dismissal of
Mr. Barness rescission claim against all defendants should thus be reversed.
claims for declaratory and injunctive relief because those claims were dependent
dismissal of the rescission claim was error, the District Courts grant of summary
Third, the District Court erroneously decided that neither CBUSA nor
statutory damages for failing to rescind the loan. With respect to both defendants,
the District Court concluded that the obligation to rescind was not triggered
because the notice of rescission was not received before the right of rescission
expired. This finding does not survive Jesinoski. In this circumstancewhere Mr.
Barness effected rescission of his loan, despite certain anomalies involving receipt
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ensure that the District Court may craft a remedy with respect to Mr. Barness
rescission claim on a fully developed record. For practical and policy reasons,
outcome in which Mr. Barnes did everything required to effect rescission but a
remedy is foreclosed.
STANDARD OF REVIEW
judgment and denied Mr. Barness motion for summary judgment. ER 2-5. This
Court reviews that decision de novo. Johnson v. Poway Unified Sch. Dist., 658
ARGUMENT
addressed in Mr. Barness Opening Brief. As explained below, the District Court
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Jesinoski v. Countrywide Home Loans, Inc., 135 S.Ct. 790, 190 L.Ed.2d 650
(2015) when it dismissed Mr. Barness claim for rescission under TILA. The
District Court also erred by later granting the Defendant-Appellees motions for
summary judgment on Mr. Barness claims for declaratory and injunctive relief
and damages. Accordingly, the District Courts judgment should be reversed and
disclosure of credit terms so that the consumer will be able to compare more
readily the various credit terms available to him and avoid the uninformed use of
credit, and to protect the consumer against inaccurate and unfair credit billing and
credit card practices. Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1118
(9th Cir. 2009) (quoting 15 U.S.C. 1601). Consistent with that purpose, courts
must construe the Acts provisions liberally in favor of the consumer. Rubio v.
Capital One Bank, 613 F.3d 1195, 1202 (9th Cir. 2010).
grants the buyer the right to rescind within three days of either the consummation
of the transaction or the delivery of the information and rescission forms required
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under this section together with a statement containing the material disclosures
v. Platte Valley Fed. Sav. & Loan Ass'n, 791 F.2d 699, 701 (9th Cir.1986). The
right to rescind expires three years after the date of consummation of the
transaction or upon the sale of the property, whichever occurs first. Id. 1635(f).
rescind, good for three business days after the transaction, and a conditional right
to rescind if the lender failed to meet its disclosure obligations. The conditional
right of rescission expires three years after the transaction or upon the sale of the
property.
When a borrower exercises his right to rescind, he is not liable for any
finance or other charge, and any security interest given by the obligor, including
any interest arising by operation of law, becomes void upon such a rescission.
lender must return to the obligor any money or property given as earnest money,
downpayment, or otherwise, and shall take any action necessary . . . to reflect the
termination of any security interest created under the transaction. Id. At that
point, the borrower is required to tender the property to the creditor[.] Id.
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At the time of the District Courts judgment, this court and certain other
circuit courts interpreted TILA to require a borrower to file suit to enforce the right
Loans, 667 F.3d 1325, 1326 (9th Cir. 2012); see also, e.g., Rosenfield v. HSBC
Bank, USA, 681 F.3d 1172, 1188 (10th Cir. 2012); Keiran v. Home Capital, Inc.,
720 F.3d 721, 727-728 (8th Cir. 2013); but see Sherzer v. Homestar Mortgage
Servs., 707 F.3d 255, 263 (3d Cir. 2013) (declining to follow McOmie-Gray and
holding that notice itself, rather than filing suit, effects rescission); Gilbert v.
Residential Funding LLC, 678 F.3d 271, 278 (4th Cir. 2012) (same).
rescission within three years but waited until four years and one day after the
transaction to file suit. The district court ruled that the lawsuit was untimely and
granted judgment for the lender; the Eighth Circuit affirmed. The Supreme Court
disagreed, holding that a borrower need only provide written notice to a lender in
respondents written notice of their intention to rescind within three years of their
loans consummation, and because this is all that a borrower must do in order to
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exercise his right to rescind under the Act, the Court reversed and remanded for
As the Jesinoski decision makes clear, the District Court erred in concluding
that Mr. Barness right of rescission was extinguished before he filed suit, and in
dismissing Mr. Barness rescission claim against all defendants on that basis.
Mr. Barness claims for declaratory and injunctive relief because it found that
those claims depend[ed] in their entirety on the dismissed rescission claim. The
District Court did not engage in any further construction or analysis of those claims
and the evidence supporting them. Accordingly, because (as explained in the
preceding section), dismissal of the rescission claims was error, this aspect of the
damages against CBUSA and Fannie Mae on the ground that those institutions did
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not receive notice before Mr. Barness right of rescission expired. ER 20-23. 1 The
addition to making clear when a borrower must exercise his right of rescission, the
Supreme Court also made clear in Jesinoski how that right is exercised: all that a
supplied by the District Court). However, the District Court concluded that such a
rule was in tension with 12 C.F.R. 226.23(d)(2), pursuant to which the twenty-
day period within which a creditor must effect the noticed intent to rescind does
not begin to run until after receipt of . . . notice of rescission. Id. Noting that
this Court does not appear to have resolved or to have expressly commented upon
that tension, the District Court went on to tip the scales of interpretation in favor
of the lender:
Material to the question of how the tension between the two provisions
should be resolved . . . is Barnes actual knowledge that CBUSA did not
open and did not receive Barnes written notice. Absent such knowledge,
it could fairly be said that, despite CBUSAs failure to receive the mailed
notice, Barnes had done all that he was reasonably required to do under
the governing statutory framework to effect his right of rescission.
1
Liability of a servicing agent like CHF or LBPS, including as a potential
assignee, is addressed in Mr. Barness Opening and Reply Brief.
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However, Barnes actual knowledge that his written notice had not been
delivered, considered together with his subsequent failure to take any
steps to effect delivery or to make inquiry as to why his mailing had not
been received, provides no compelling ground for construing Section
226.23(d)(2) as imposing any greater burden than is suggested by its
plain language. By its plain language, Section 226.23(d)(2) obliges a
creditor to rescind a loan only after receipt of the loan consumers notice
of intent to rescind. Having never received notice of Barnes intent to
rescind prior to expiration of Barnes rescission right, CBUSA did not
violate Section 226.23(d)(2) when it failed to rescind Barnes loan.
ER 22-23.
Not only does this analysis fail in light of Jesinoskibecause it is not true
that CBUSA never received notice of Barness intent to rescind prior to expiration
ambiguity in favor of the lender. While reluctant to impos[e] any greater burden
than is suggested by [the] plain language on the lender, the District Courts
analysis does precisely that to the borrower. Mailing notice of rescission is all
that he was reasonably required to doand yet the District Court imposed the
additional burden of taking steps to effect delivery even though the postal
service apparently failed, and to make inquiry as to why his mailing had not been
received. Id. That analysis imposes a far greater burden on the borrower than is
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TILAs provisions liberally in favor of the borrower. Rubio, 613 F.3d at 1202; see
also Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1118 (9th Cir. 2009)
(To effectuate TILA's purpose, a court must construe the Act's provisions
liberally in favor of the consumer) (quoting In re Ferrell, 539 F.3d 1186, 1189
(9th Cir. 2008 )).2 Here, Mr. Barnes mailed notice of rescission to the lender,
CBUSA, within three years of the transaction, and rescission was thus effective as
a matter of law on the date of the notice. CBUSAs position that it received notice
after Mr. Barness rescission right had expired was incorrect, and accordingly it
should not provide refuge from the consequences imposed by the statute.
The same analysis applies to Fannie Mae in a slightly different way. The
District Court concluded that Fannie Mae did not receive notice at any material
2
To the extent it is appropriate to consider what additional actions Mr. Barnes
could have taken, but did not, to ensure that CBUSA actually received the notice,
it is equally appropriate to consider what actions CBUSA and its servicer, CHF
(which undisputedly received the notice) could have taken. For example, CBUSA
could have required, in its servicing agreement with CHF, that any and all notices
received from borrowers be transmitted to CBUSA. Given the importance of a
rescission notice, CHFs own policies could have required immediate transmission
of such notice to CBUSA. It is unclear from the record whether such a
requirement existed, because the Defendant-Appellants refused to produce
servicing agreements. ER 143-74. To the extent the Court were to decide that
balancing of such facts is appropriate, the case should be remanded for further
proceedings sufficient to develop the record on such issues.
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means that Fannie Mae did not receive notice before the rescission right
supposedly expired. The record indicates that Fannie Mae was aware that
Mr. Barnes claimed to have rescinded the loan as early as January 21, 2011, when
its servicer, LBPS, notified Mr. Barnes in a letter that Fannie Mae was the owner
of his loan and stating that Mr. Barness rescission right has now expired.
Fannie Mae did not take any action to fulfill the obligations of a creditor under
damages claim against Fannie Mae should likewise be reversed for further
proceedings.
additional arguments, which, if accepted, could render Mr. Barness rights under
TILA meaningless. Fannie Mae, who did not become the creditor until after the
transaction was rescinded, argues that it should be dismissed because it did not
receive notice of rescission from Mr. Barneseven though Mr. Barnes effected
rescission before Fannie Mae was assigned the loan. See Joint Answering Br. at 7.
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Both CHF and LBPS argue that they cannot be liable at all as servicers. Id.
CBUSA may argue that because it assigned Mr. Barness loan to Fannie Mae, it
And yet, because the District Court made its decision on timeliness grounds,
the record is undeveloped on several key factual matters. 3 It is not clear from the
record, for example, if: (a) CBUSA notified Fannie Mae at the time of assignment
that a notice of rescission had been received by its servicer; (b) Fannie Maes due
diligence prior to assignment revealed the notice of rescission; (c) the contracts
pursuant to which the assignment occurred contain provisions that would affect
(d) the servicing agreements under which CHF and LBPS served required them
to notify their respective principals when they received notice of rescission from
a borrower. All of these factual issues, which the District Court did not have
3
It appears from the record that significant discovery occurred after the District
Court dismissed Mr. Barness rescission claim. See, e.g., ER 143-74.
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cannot), they may have liability for some role in a rescissionary remedy, or liability
for declaratory and/or injunctive relief.4 The District Court on remand will need to
consider how, given the circumstances, to provide Mr. Barnes with a remedy given
his effective rescission. The record is insufficient to relieve any of the Defendant-
appropriate. See, e.g., Paatalo v. JP Morgan Chase, 146 F. Supp.2d 1239, 1245-
46 (D. Or. 2015) (It is unclear what should happen this many years down the
road, after the original lender has failed and been replaced in receivership, and the
property has been sold at a trustees sale, then re-sold following the trustees sale.
However, because Plaintiff has adequately alleged (1) he had a conditional right to
rescind, and (2) he exercised that right, he has stated a claim for at least some of
the relief he seeksa declaratory judgment deeming the foreclosure of the Deeds
Mr. Barness rescission was effective when the notice was sent, but his remedies
have been foreclosed by the subsequent actions of lenders and servicers. This
4
This Courts decision in Miguel v. Country Funding Corp., 309 F.3d 1161 (9th
Cir 2002) says nothing contrary. In that case, the Court held that notice to a loan
servicer does not suffice to effect rescission where the borrower did not send notice
to the lender. Here, notice was sent to both the servicer and lender, and rescission
was effective.
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could render the statutory right illusory, enabling lenders to avoid their rescission
obligation by simply handing off the loan to another lender against whom the
Congresss intent to protect borrowers and this Courts direction to construe TILA
CONCLUSION
For the reasons set forth above, in addition to those arguments made by Mr.
Barnes in his Opening Brief, Mr. Barnes respectfully submits that the Court should
reverse the judgment of the District Court and remand for further proceedings.
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32(a)(7)(B) because this brief contains 4,679 words, excluding the parts of the
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
s/Matthew A. Carvalho
Matthew A. Carvalho
Pro Bono Counsel of Record for
Appellant Timothy Barnes
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CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
I certify that all participants in the case are registered CM/ECF users and
s/Matthew A. Carvalho
Matthew A. Carvalho
999.11 qj112501 24