Lonberg v. Freddie Mac
2011 U.S. Dist. LEXIS 23137
D. Or.2011Background
- Lonberg filed an amended complaint alleging TILA violations and breach of contract regarding NRTCs and a HAMP-based modification.
- Plaintiff claims the NRTC copied to her bore the wrong loan date and lacked the three-day rescission deadline.
- Plaintiff alleges BAC failed to provide a permanent loan modification after a TPP, breaching the modification terms.
- She sought rescission under TILA and specific performance on the contract/TPP breach.
- Defendant Freddie Mac moved to dismiss rescission and contract claims under Rule 12(b)(6).
- Key facts include: unsigned/incomplete closing documents, death of plaintiff’s husband, and subsequent TPP approval.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Assignee liability for TILA rescission | Rescission right survives against assignees per §1641(c). | Narrowed to assignee defenses; originator liability only. | Rescission claim survives against an assignee. |
| Reliance on defendant's NRTC copy | Complaint relies on incomplete unsigned NRTC; defendant's NRTC not central. | Plaintiff relied on completed NRTC showing proper date and deadline. | Court cannot incorporate complete NRTC; dismissal on this basis denied at pleading stage. |
| Tender requirement for rescission | Tender obligation should not be required at this stage; relief may be conditioned later. | TILA requires ability to tender; pleading must show tender capability. | Tender need not be pleaded at the Rule 12(b)(6) stage; potential summary judgment considerations reserved. |
| Breach of contract via TPP modification | Plaintiff complied with TPP and is entitled to permanent modification. | No binding contract; TPP terms require executed modification agreement and new payment. | Breach claim dismissed with leave to amend. |
Key Cases Cited
- Yamamoto v. Bank of New York, 329 F.3d 1167 (9th Cir. 2003) (courts may condition rescission on tender in certain contexts; pleading not always required)
- Ritchie v. U.S., 342 F.3d 903 (9th Cir. 2003) (limits on considering materials beyond pleadings; judicial notice concepts)
- Coto Settlement v. Eisenberg, 593 F.3d 1031 (9th Cir. 2010) (incorporation of documents into pleadings; reliance standards)