Marr v. Bank of America, NA
662 F.3d 963, 2011 WL 6091806, 2011 U.S. App. LEXIS 24134 (2011)
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Rule of Law:
A borrower's sworn testimony that he or she did not receive the requisite number of Truth-in-Lending Act (TILA) disclosure forms is sufficient to rebut the statutory presumption of delivery created by a signed acknowledgment of receipt, thereby creating a genuine issue of material fact sufficient to defeat a motion for summary judgment.
Facts:
- In early 2007, Richard G. Marr applied to refinance his home mortgage with Countrywide Bank.
- The loan closing, handled by Summit Title, occurred on February 23, 2007.
- At the closing, Marr signed a document acknowledging he had received two copies of the Notice of his right to cancel the loan.
- The closing agent placed all of Marr's closing documents into a single folder, which Marr then took home.
- Marr placed the folder in a filing cabinet where he kept his important documents.
- Marr testified that while he may have added documents to the folder later, he never removed any of the original closing documents.
- Two years later, Marr and his attorney inspected the folder and discovered it contained only one copy of the Notice of the right to cancel.
Procedural Posture:
- Richard G. Marr sued Bank of America, N.A. (as successor to Countrywide Bank) in federal district court.
- Bank of America moved for summary judgment, arguing Marr's signed acknowledgment created an unrebutted presumption that he received two copies of the required notice.
- The district court granted summary judgment in favor of Bank of America.
- Marr, as the appellant, appealed the district court's decision to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a borrower's testimony that he received only one copy of the Truth-in-Lending Act notice of the right to rescind, supported by an affidavit describing procedural irregularities at the closing, create a genuine issue of material fact sufficient to rebut the statutory presumption of delivery created by his signed acknowledgment of receipt?
Opinions:
Majority - Wood, Circuit Judge.
Yes. A borrower's sworn testimony, combined with other evidence, is sufficient to rebut the statutory presumption of delivery at the summary judgment stage. The Truth-in-Lending Act (TILA) explicitly states that a written acknowledgment of receipt 'does no more than create a rebuttable presumption of delivery,' suggesting Congress did not intend for the presumption to be overly strong. Under Federal Rule of Evidence 301, the party challenging a presumption need only produce enough evidence to permit a reasonable jury to find in their favor. Here, Marr provided more than just his own self-serving testimony; he testified about how the documents were stored and remained undisturbed, and provided an affidavit stating his closing experience deviated from the standard procedures outlined by the closing agent. This combination of evidence is sufficient to allow a reasonable jury to find that he received only one copy of the Notice, thus defeating summary judgment.
Analysis:
This decision reinforces the consumer-protection goals and 'hypertechnical' nature of the Truth-in-Lending Act. It lowers the evidentiary burden for borrowers seeking to rebut the presumption of delivery created by a signed acknowledgment, making it more difficult for lenders to dispose of such cases on summary judgment. By holding that a borrower's sworn testimony, especially when corroborated by evidence of procedural irregularities, can create a triable issue of fact, the court ensures that these claims are more likely to be decided on their merits by a jury. This precedent may increase litigation costs for lenders and encourage settlements in cases involving alleged TILA disclosure violations.
