Marr v. Bank of America, NA
2011 U.S. App. LEXIS 24134
7th Cir.2011Background
- Marr refinanced his mortgage in 2007 with Countrywide Bank (predecessor to Bank of America) and Summit Title closed the loan.
- Regulation Z requires two copies of the Notice of Right to Cancel at closing; the statute creates a three-day right to rescind, extendable to three years if the lender fails to provide two copies.
- Marr signed an acknowledgment at closing stating he received two copies of the Notice.
- Marr's loan folder was later reviewed; he testified the closing did not follow Summit's described closing practices and that only one Notice copy was present.
- An attorney later found only one copy of the Notice in Marr's folder, and Marr asserted the folder's contents may have changed over time.
- The district court granted summary judgment to the bank, relying on the presumption from the signed acknowledgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marr received two copies of the Notice | Marr contends he received only one copy and that the folder contents were not as Summit described. | Bank argues the signed acknowledgment created a rebuttable presumption that two copies were delivered. | Overturned; evidence could allow a jury to find Marr received only one copy. |
| Whether the presumption can be rebutted by Marr's evidence | Marr's affidavits and testimony show deviations from closing procedures and the possible absence of two copies. | Summit contends the acknowledgment alone should suffice to sustain summary judgment after the presumption. | Reversed; genuine dispute exists regarding delivery of two copies. |
| Proper standard of review for overcoming a presumption on summary judgment | Marr cites evidence showing lack of two copies and nonconforming closing practices supporting trial. | Bank maintains the presumption should resolve the issue at summary judgment. | Evidence may raise a triable issue; summary judgment inappropriate. |
Key Cases Cited
- Cappuccio v. Prime Capital Funding LLC, 649 F.3d 180 (3d Cir.2011) (burden to rebut presumption is minimal; borrower evidence may defeat summary judgment)
- Andrews v. Chevy Chase Bank, 545 F.3d 570 (7th Cir.2008) (rescission principles; borrower may be limited by return of loan principal)
- Montgomery v. American Airlines, Inc., 626 F.3d 382 (7th Cir.2010) (uncorroborated, self-serving testimony may defeat summary judgment)
- Brown v. Payday Check Advance, Inc., 202 F.3d 987 (7th Cir.2000) (TILA hypertechnical scrutiny of disclosures)
- Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990 (7th Cir.2011) (de novo review for summary-judgment posture; draw all favorable inferences)