This case requires us to decide whether a borrower’s assertion of the right to rescind a loan transaction subject to the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601 et seq., has the effect of voiding the transaction without resort to the arbitration procedure called for by a provision in the loan agreement between the parties. Concluding that the mere assertion of the right of rescission does not undo the obligation to take the rescission claim to arbitration, we affirm the district court’s grant of defendant-lender’s motion to compel arbitration. We also conclude that plaintiffs’ motion to conduct discovery on the question of the costs of arbitration is moot.
I. Background
The relevant facts are undisputed. William E. Large and Diane A. Large purchased a home in Johnston, Rhode Island, in September of 1998. On March 28, 2000, the Larges obtained a $20,000 mortgage loan from Conseco Finance Servicing Corp. at an annual percentage rate of 20.192%. A year later, on March 20, 2001, the Larges wrote to Conseco to give notice of their rescission of the transaction based on Conseco’s alleged failure to make accu *51 rate material disclosures concerning the rate of interest, as required under the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. 1 The statute grants the borrower an unconditional right of rescission .for the first three days following the consummation of the transaction. It also grants a right of rescission if the creditor fails to deliver certain forms and to disclose certain information. The statute provides, in pertinent part:
in the case of any consumer credit transaction ... in which a security 'interest ... is or will be retained or acquired in any property which is used as the. principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under, this section together with a statement containing the material disclosures required under this subchapter, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so.
15 U.S.C. § 1635(a). Section 1635(f) establishes a three-year time limit on the exercise of the conditional right of rescission. It is the conditional, three-year right of rescission that is at issue in this case. As noted, the Larges acted well .within that time frame.
In their March 20, 2001, letter the Larges indicated to Conseco that because of its alleged violation of TILA’s disclosure rules, it had “twenty days after receipt of this notice of rescission to return all monies paid and to take any action necessary and appropriate to reflect termination of [Conseco’s] security interest” in the Larges’ home, pursuant to 15 U.S.C. § 1635(b). Conseco replied nine days later, stating that it “fail[ed] to see any issues with regard to the disclosures made,” and therefore would “not comply with this disputed rescission request.”
Before receiving Conseco’s letter, the Larges filed a complaint in federal district court on March 26, 2001, seeking to enforce their alleged rescission of the transaction. An amended complaint was filed on April 26. Conseco filed an answer on May 11, 2001, and moved to compel arbitration of the Larges’ claims pursuant to the following arbitration clause in the loan agreement:
All disputes, claims, or controversies arising from or relating to this note or the relationships which result from this note, or the validity of this arbitration clause or the entire note, shall be resolved by binding arbitration by one arbitrator selected by [Conseco] with [the borrower’s] consent.
The Larges opposed Conseco’s motion to compel arbitration on the ground that the arbitration clause had been automatically rescinded, along with the remainder of the loan contract, when the Larges gave Con-seco notice of rescission on March 20, 2001. The Larges also requested discovery on the question of the costs of arbitration. On June 18, 2001, Conseco wrote to the Larges offering “to pay all costs of arbitration” and to hold the arbitration in Rhode Island “as a convenience” to the Larges.
*52 On July 26, 2001, the district court granted Conseco’s motion to compel arbitration, denied the Larges’ request for discovery, and dismissed the action. The district court rejected the Larges’ “claim that their notice of rescission under the TILA invalidated all provisions of the mortgage contract, including the arbitration clause.” The court explained that “absent an attack on the specific arbitration clause included within a contract, general rescission claims are resolvable by arbitration.” The court also rejected the Larges’ request for discovery on the costs of arbitration, noting that Conseco had offered to pay their costs and to hold the arbitration in Rhode Island, and that the TILA authorized the award of costs and attorney’s fees if the Larges prevailed. See 15 U.S.C. § 1640(a)(3). The Larges filed a timely appeal.
II. The Motion to Compel Arbitration
The Federal Arbitration Act (FAA) “requires a federal court in which suit has been brought ‘upon any issue referable to arbitration under an agreement in writing for such arbitration’ to stay the court action pending arbitration once it is satisfied that the issue is arbitrable under the agreement.”
Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
The problem with this argument is that the right to rescind under the TILA does not extend beyond three days unless the lender fails to “deliver[ ] ... the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter.” 15 U.S.C. § 1635(a). Since the right to rescind after three days is conditioned on the lender failing to make certain disclosures required under the TILA, a borrower is not entitled to rescind after the initial three-day period has ended unless the required disclosures have In fact not been made. The question, then, is who should decide whether the statutory disclosure requirements have been met: the district court, or the arbitrator provided for in the loan *53 agreement which the Larges claim to have rescinded?
The Supreme Court addressed this issue in
Prima Paint,
concluding that an arbitration clause is severable from the contract in which it is embedded.
The Larges do not allege that Conseco engaged in illegal conduct with respect to the arbitration clause itself. Prima Paint, therefore, would seem to support the district court’s decision to grant Conseco’s motion to compel arbitration. The Larges counter that the district court “overlooked the recent clarifications by the majority of circuits, which found that the [Prima Paint severability] doctrine does not apply to allegations of nonexistent contracts.” However, the Larges cite cases involving allegations that the contract with the arbitration clause never existed. The “clarification” of Prima Paint in these cases does not bear on a dispute over a purported rescission of a contract that is acknowledged to have once existed, but is alleged to have been rescinded subsequently.
For example, in
Three Valleys Municipal Water District v. E.F. Hutton & Co., Inc.,
Here, it is undisputed that the loan agreement existed between March 28, 2000, and March 20, 2001. The Larges contend, however, that their letter of March 20, 2001, had the automatic and immediate effect of voiding the entire transaction. In their view, the letter did not simply demand rescission of the transaction, but in fact rescinded the transaction the moment it was mailed. They argue that the loan agreement (and with it the arbitration clause) ceased to exist with the dispatch of the March 20, 2001, letter, and therefore has no more force at this point than a contract that never existed in the first place.
In support of their theory of automatic rescission, the Larges point to 15 U.S.C. § 1635(b), which states that “[w]hen an obligor exercises his right to rescind under [§ 1635(a) ], he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission.” In addition, the TILA provides that, “[wjithin 20 days after receipt of a notice of rescission, the creditor shall return to the obli-gor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.” 15 U.S.C. § 1635(b). Likewise, Federal Reserve Board Regulation Z stipulates that “[w]hen a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.” 12 C.F.R. § 226.23(d)(1).
The Larges misread these provisions. Neither the statute nor the regulation establishes that a borrower’s mere assertion of the right of rescission has the automatic effect of voiding the contract. Section 1635(b) states that, “[w]hen an obligor exercises his right to rescind,” the creditor’s security interest “becomes void.” The natural reading of this language is that the security interest becomes void when the obligor exercises a right to rescind that is available in the particular case, either because the creditor acknowledges that the right of rescission is available, or
*55
because the appropriate decision, maker, has so determined. If a lender disputes a borrower’s purported right to rescind, the designated decision maker — here an arbitrator — must decide whether the conditions for rescission have been met. Until such decision is made, the Larges have only advanced a claim seeking rescission. The agreement remains in force, and is subject to the general rule that “a federal court must not remove from the arbitrator[] consideration of a substantive challenge to a contract unless there has been an independent challenge to the making of the arbitration clause itself.”
Unionmutual,
The Larges cite several cases from other jurisdictions in an attempt to muster support for their claim that rescission under the TILA is automatic upon the giving of notice, even if the lender denies that the requirements for rescission have been met. However, most of those cases are inappo-site because the lender, unlike Conseco here, had
conceded
that there had been a violation of the TILA’s disclosure rules.
See In re Quenzer,
The Eleventh Circuit has explained the meaning' of references to “automatic” rescission under the TILA. In
Williams v. Homestake Mortgage Co.,
The one case the Larges cite that offers some support for their position is
Wilson v. Par Builders II, Inc.,
We find more compelling the holding of
Dorsey v. H.C.P. Sales, Inc.,
III. Discovery on the Costs of Arbitration
In
Green Tree Fin. Corp. v. Randolph,
where ... a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs. [Plaintiff] did not meet that burden. How detailed the showing of prohibitive expense must be before the party seeking arbitration must come forward with contrary evidence is a matter we need not discuss; for in this case neither during discovery nor when the case was presented on the merits was there any timely showing at all on the point.
Id. at 92. Here, however, no such showing is possible because Conseco has agreed to cover the costs of arbitration. Conseco’s offer to pay the costs of arbitration and to hold the arbitration in the Larges’ home state of Rhode Island mooted the issue of *57 arbitration costs. The district court did not err in refusing to permit the Larges to take discovery on the costs of arbitration.
We explained the controlling principle in
Ortiz-Gonzalez v. Fonovisa,
The Larges cite
Perez v. Globe Airport Security Services, Inc.,
Affirmed.
Notes
. Because of the high interest rate, Conseco was required to make special disclosures regarding the interest rate pursuant to 15 U.S.C. § 1639 and 12 C.F.R. § 226.32(c). The Larges alleged that Conseco’s disclp^pre understated the annual percentage rate for the loan, and included an additional item, "Nominal Interest Rate,” which the statute does not require, and which "contradicts and undermines the conspicuousness of the required annual percentage rate disclosure."
. The core provision of the FAA is found in 9 U.S.C. § 2, which provides:
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
. The court observed that "[a] contrary rule would lead to untenable results. Party A could forge party B's name to a contract and compel party B to arbitrate the question of the genuineness of its signature.” Three Valleys, 925 F.2d at 1140.
. The Larges cite
Matterhorn, Inc. v. NCR Corp.,
. The procedure for effecting a rescission under the TILA is as follows:
Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the perfor- *56 manee of the creditor's obligations under this section, the obligor shall tender the property to the creditor....
15 U.S.C. § 1635(b).
.
Franklin v. Hartland Mortgage Centers, Inc.,
No. 01 C 2041,
