Larry Jesinoski v. Countrywide Home Loans, Inc., 729 F.3d 1092

Larry Jesinoski v. Countrywide Home Loans, Inc.

729 F.3d 1092

8th Cir.

2013

Check Treatment

Docket

Larry D. JESINOSKI and Cheryle Jesinoski, individuals, Plaintiffs-Appellants v. COUNTRYWIDE HOME LOANS, INC., subsidiary of Bank of America N.A., doing business as America‘s Wholesale Lender; BAC Home Loans Servicing, LP, a subsidiary of Bank of America, N.A., a Texas Limited Partnership, formerly known as Countrywide Home Loans Servicing, L.P.; Mortgage Electronic Registration Systems, Inc., a Delaware Corporation; and John and Jane Does 1-10, Defendants-Appellees.

No. 12-2202.

United States Court of Appeals, Eighth Circuit.

Sept. 10, 2013.

729 F.3d 1092

Submitted: Dec. 11, 2012.

admissible, so long as officers do not purposefully elicit an unwarned confession from a suspect in an effort to circumvent Miranda requirements. Missouri v. Seibert, 542 U.S. 600, 604, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion); id. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment); United States v. Torres-Lona, 491 F.3d 750, 757-58 (8th Cir.2007) (treating Justice Kennedy‘s concurrence as “controlling“). When officers have made no such calculated effort to elicit a confession, Seibert is not implicated, and the admissibility of postwarning statements is governed by the principles of Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). See Torres-Lona, 491 F.3d at 758; Seibert, 542 U.S. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment). Here, Morgan does not argue that Normandin‘s question about the lockbox was “a designed, deliberate, intentional, or calculated circumvention of Miranda,” United States v. Black Bear, 422 F.3d 658, 664 (8th Cir.2005), and there is no significant evidence that the officer deployed such a strategy. So Morgan‘s warned statements are admissible if his waiver of rights was voluntary, knowing, and intelligent. Elstad, 470 U.S. at 318, 105 S.Ct. 1285.

After the officers read Morgan his Miranda rights, Morgan volunteered that he was a drug dealer from Fremont who sold drugs in Omaha. Normandin then asked Morgan what was the white powdery substance in the lockbox, and Morgan replied that it was cocaine. “[T]here is no contention that [Morgan] did not understand his rights; and from this it follows that he knew what he gave up when he spoke.” Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2262, 176 L.Ed.2d 1098 (2010). No evidence suggests that these postwarning statements were coerced, compelled, or otherwise involuntary. We therefore conclude that Morgan‘s postwarning statements are admissible.

For these reasons, the order of the district court suppressing physical evidence and statements is reversed, except with respect to the statement that Morgan made before the administration of Miranda warnings. The case is remanded for further proceedings.

Michael J. Keogh, argued, Saint Paul, MN, for appellants.

Sparrowleaf Dilts McGregor, argued, Minneapolis, MN, (Ronn B. Kreps, Andre Timothy McCoy Hanson, Minneapolis, MN, Andrew Brooks Messite, New York, NY, on the brief) for appellees.

Before LOKEN, MELLOY, and COLLOTON, Circuit Judges.

PER CURIAM.

Mortgagors Larry and Cheryle Jesinoski appeal the district court‘s grant of judgment on the pleadings to their lenders in a dispute regarding a $611,000 home loan. Three years to the day after consummating the loan, the Jesinoskis mailed notices to the lenders seeking to rescind the loan due to alleged violations of the Truth in Lending Act (TILA); the lenders denied the Jesinoskis’ requests to rescind. One year and one day after mailing the letters—now more than four years after consummating the loan—the Jesinoskis sued the lenders to rescind the loan. The sole issue on appeal is whether mailing a notice of rescission within three years of consummating a loan is sufficient to “exercise” the right to rescind a loan transaction pursuant to 15 U.S.C. § 1635(a) or, alternatively, whether a party seeking to rescind the transaction is required to file a lawsuit within the three-year statutory period.

This Court recently weighed in on the circuit split regarding this precise issue and held that a party seeking to rescind a loan transaction must file suit within three years of consummating the loan. Keiran v. Home Capital, Inc., 720 F.3d 721, 726-29 (8th Cir.2013) (adopting the Tenth Circuit‘s view in Rosenfield v. HSBC Bank, USA, 681 F.3d 1172 (10th Cir.2012)); see Hartman v. Smith, 734 F.3d 752, 759-61 (8th Cir. Aug. 19, 2013) (following Keiran). “It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.” Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir.2002). Accordingly, we affirm the district court‘s judgment on the pleadings in favor of the lenders.

MELLOY, Circuit Judge, concurring in the judgment.

I concur in the judgment insofar as this Court is bound by decisions of prior panels. See Owsley, 281 F.3d at 690. Were we writing on a clean slate, however, I would hold for the reasons stated in my separate concurrence in Hartman, 734 F.3d at 762-64, that sending notice within three years of consummating a loan is sufficient to “exercise” the right to rescind. See 12 C.F.R. § 1026.23(a)(2).

COLLOTON, Circuit Judge, concurring.

I concur in the per curiam opinion based on circuit precedent, but I believe that Keiran v. Home Capital, Inc., 720 F.3d 721 (8th Cir.2013), was wrongly decided, see id. at 731 (Murphy, J., dissenting); Sherzer v. Homestar Mortg. Servs., 707 F.3d 255 (3d Cir.2013), and I would reverse the judgment of the district court if the question presented were open in this circuit.