Gisondi v. Countrywide Bank, N.A. (In re Gisondi)
487 B.R. 423
Bankr. E.D. Pa.2013Background
- Bankruptcy Court held a trial on the remaining TILA claims of Debtor Maureen Gisondi against Countrywide Bank and Wells Fargo.
- Defendants moved for judgment on partial findings, challenging rescission, disclosures, title insurance overcharge, yield spread premium disclosure, and tender ability.
- Court granted the motion on the title insurance overcharge claim and denied ruling on credibility of Debtor’s testimony regarding disclosure receipts, leaving other issues for later decision.
- Court concluded Wells Fargo may be dismissed if Debtor cannot show it holds an interest in the loan; Countrywide Bank may remain as holder and be rebutted; and the yield-spread premium is not separately disclosed.
- Court found no proof that Wells Fargo held the loan; Court assumed Countrywide Bank retained its original interest for purposes of the motion; current holder identity was unresolved.
- Court noted rescission may be available even if the Debtor cannot tender proceeds immediately and scheduled rebuttal from Countrywide Bank.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Debtor can obtain rescission from Countrywide or Wells Fargo. | Debtor contends current holder is Countrywide or Wells Fargo; rescission available against present holder. | Wells Fargo not holder; BONY or other current holder necessary; claims fail if holder not present. | Grant in part: dismiss Wells Fargo; preserve Countrywide Bank for further evidence; current holder unresolved. |
| Whether Debtor received the Disclosures as required. | Debtor did not receive copies despite signing acknowledgments; presumption of receipt rebuttable only by credible testimony. | Signed acknowledgments create a presumption of receipt; Debtor must show credible non-receipt. | Resolution deferred; tender/receipt issues to be addressed after Debtor’s likelihood of non-receipt is evaluated at close of evidence. |
| Whether yield spread premium disclosure renders the finance charge inaccurate. | Yield spread premium not disclosed separately, making finance charge potentially inaccurate. | Yield spread premium is already included in the finance charge and need not be separately disclosed. | Grant: yield spread premium not separately disclosed; claims dismissed as to inaccuracy. |
| Whether Debtor’s inability to tender precludes rescission. | Tender is a traditional condition but may be adjusted by court; inability to tender should not bar rescission entirely. | Tender is necessary; inability to tender defeats rescission. | Court adopts discretionary approach; cannot rule on tender until Debtor’s receipt issue is resolved; tender issue deemed not necessarily fatal. |
Key Cases Cited
- Cappuccio v. Prime Capital Funding LLC, 649 F.3d 180 (3d Cir.2011) (credibility needed to rebut signed receipt presumption)
- Jobe v. Argent Mortg. Co., LLC, 373 Fed.Appx. 260 (3d Cir.2010) (courts may recognize discretion to condition rescission on tender)
- McCutcheon v. America's Servicing Co., 560 F.3d 143 (3d Cir.2009) (finance charge accuracy tolerance; separate disclosure not required)
- In re Meyer, 379 B.R. 529 (Bankr.E.D.Pa.2007) (assignees may be liable for rescission and named as defendants)
- Sherzer v. Homestar Mortgage Services, 707 F.3d 255 (3d Cir.2013) (rescission exercised by sending notice)