Alan Keiran v. Home Capital, Inc.
2017 U.S. App. LEXIS 9767
| 8th Cir. | 2017Background
- In Dec. 2006 the Keirans executed a $404,000 mortgage; they stopped payments in Nov. 2008.
- On Oct. 8, 2009 the Keirans sent a notice seeking rescission under TILA, alleging inadequate/misleading disclosures at the 2006 closing.
- The bank refused rescission; the Keirans sued for rescission, damages, and a declaratory judgment voiding the bank's security interest.
- District court granted summary judgment for the bank, treating money-damages claims as time-barred and holding rescission barred because the Keirans had failed to rebut a presumption they received required TILA disclosures and the disclosures were not materially inaccurate.
- This court initially affirmed but was vacated and remanded after the Supreme Court decided Jesinoski; on remand the district court again granted summary judgment for the bank and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was rescission timely under TILA's three-year rule? | Keirans: timely because they gave notice in Oct. 2009 (within three years) | Bank: rescission window expired three days after closing because no TILA violation occurred | Held: rescission was barred; no TILA violation shown, so three-day window controlled and expired in Jan. 2007 |
| Did the Keirans each receive the required copies of disclosure statements? | Keirans: they received only one copy each and their affidavits rebut the §1635(c) presumption of delivery | Bank: signed acknowledgments create a rebuttable presumption of delivery that Keirans failed to rebut with mere conclusory affidavits | Held: Keirans failed to rebut the presumption; their late, conclusory affidavits insufficient; summary judgment for bank affirmed |
| Were the disclosed finance charges materially inaccurate? | Keirans: certain charges (insurance premium and lender fees) produced inaccuracies exceeding the statutory tolerance, entitling them to rescission | Bank: accuracy was already decided for the bank (law of the case / waiver) and, in any event, challenged items like insurance premiums are excluded or do not produce a variance over the tolerance | Held: argument waived / law of the case; even on merits, challenged items do not exceed the tolerance threshold; no TILA violation |
| Did the bank fail to timely/adequately respond to the Oct. 2009 rescission notice, making the security interest void? | Keirans: bank did not return money/property within 20 days as §1635(b) requires, so rescission took effect | Bank: no rescission right existed beyond the three-day period because no disclosure violation; thus no duty to respond under §1635(b) | Held: because no TILA violation existed, rescission right had expired and the §1635(b) contention fails |
Key Cases Cited
- Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015) (notice of rescission, not filing suit, suffices to effectuate rescission within three-year period)
- Keiran v. Home Capital, Inc., 720 F.3d 721 (8th Cir. 2013) (earlier appellate decision in same litigation; vacated in light of Jesinoski)
- Bank of America, N.A. v. Peterson, 746 F.3d 357 (8th Cir. 2014) (borrower affidavits and contemporaneous bank correspondence supported rebuttal of delivery presumption)
- Stutzka v. McCarville, 420 F.3d 757 (8th Cir. 2005) (affidavit evidence can rebut §1635(c) presumption where facts support denial of delivery)