EAN C. ROSENFIELD, v. Plaintiff-Appellant, HSBC BANK, USA, ET AL., Defendants-Appellees.

No. 10-1442
____________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
____________________________
JEAN C. ROSENFIELD,
v.
Plaintiff-Appellant,
HSBC BANK, USA, ET AL.,
Defendants-Appellees.
____________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
The Honorable Marcia S. Krieger
____________________________
BRIEF OF THE CONSUMER FINANCIAL PROTECTION
BUREAU AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT AND REVERSAL
____________________________
Leonard J. Kennedy
General Counsel
To-Quyen Truong
Deputy General Counsel
David M. Gossett
Assistant General Counsel
Rachel Rodman
Senior Counsel
Peter G. Wilson
Kristin Bateman
Attorneys
Counsel for Amicus Curiae
C ONSUMER F INANCIAL P ROTECTION B UREAU
1700 G Street, NW
Washington, D.C. 20552
(202) 435-7237
March 26, 2012TABLE OF CONTENTS
Page
TABLE OF CITATIONS ………………………………………………………………………………………. ii
QUESTION PRESENTED …………………………………………………………………………………… 1
INTEREST OF THE AMICUS CURIAE ……………………………………………………………… 2
STATEMENT ………………………………………………………………………………………………………… 3
A. Statutory and Regulatory Background …………………………………………………. 3
B. Facts …………………………………………………………………………………………………… 7
SUMMARY OF ARGUMENT …………………………………………………………………………….. 10
ARGUMENT ……………………………………………………………………………………………………….. 12
Section 1635 Defines The Time For Consumers To Notify Their Lender,
Not The Time For Consumers To Sue Their Lender. ……………………………………………. 12
A. Consumers exercise their right to rescind by notifying their
lender within the three-year period provided by § 1635(f). …………………. 12
B. Consumers are not required also to sue their lender within the
three-year period provided under § 1635(f). ………………………………………. 14
C. Beach does not require consumers to file suit within the three-
year period provided under § 1635(f). ……………………………………………….. 19
CONCLUSION ……………………………………………………………………………………………………. 25
CERTIFICATE OF COMPLIANCE WITH RULE 32(A)(7) ………………………………. 26
CERTIFICATE OF DIGITAL SUBMISSION …………………………………………………….. 27
CERTIFICATE OF SERVICE …………………………………………………………………………….. 28
iTABLE OF CITATIONS
Pages
Statutes
Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No.
111-243 (2010) …………………………………………………………………………………………………….. 2
§ 1061, codified at 12 U.S.C. §§ 5581 ………………………………………………………………………. 2
Truth in Lending Act, 15 U.S.C. § 1601 et seq. …………………………………………………… passim
15 U.S.C. § 1601 ………………………………………………………………………………………………….. 3
15 U.S.C. § 1635 …………………………………………………………………………………………… passim
15 U.S.C. § 1640 …………………………………………………………………………………………….. 4, 24
12 U.S.C. § 5481 ……………………………………………………………………………………………………… 2
12 U.S.C. § 5512 ……………………………………………………………………………………………………… 2
12 U.S.C. § 5581 ……………………………………………………………………………………………………… 2
Pub. L. No. 96-221 (1980) ……………………………………………………………………………………….. 5
Regulations
Regulation Z, 76 Fed. Reg. 79,768-1, 79,803 (Dec. 22, 2011) (codified at 12
C.F.R. § 1026 et seq.) ……………………………………………………………………………………… passim
12 C.F.R. § 1026.15 ………………………………………………………………………………………. passim
12 C.F.R. § 1026.23 ………………………………………………………………………………………. passim
12 C.F.R. pt. 1026, App. H. Model form H-8(A) …………………………………………………. 6
12 C.F.R. pt. 1026, supp. I, subpt. B ……………………………………………………………………. 7
Designated Transfer Date, 75 Fed. Reg. 57,252 (Sept. 20, 2010) ……………………………………. 2
Cases
American Type Founders’ Co. v. Packer, 130 Cal. 459 (1900) ………………………………………… 16
Anderson Bros. Ford v. Valencia, 452 U.S. 205 (1981) …………………………………………………. 12
Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404, 129 S. Ct. 2561 (2009) …………………… 23
Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. 2008) …………………………………………….. 21
Barnes v. Chase Home Fin., LLC, No. 11-cv-142, 2011 WL 4950111
(D. Or. Oct. 18, 2011) ………………………………………………………………………………….. 10, 24
iiBeach v. Ocwen Fed. Bank, 523 U.S. 410 (1998) ……………………………………………………. passim
Belini v. Washington Mutual Bank, FA, 412 F.3d 17 (1st Cir. 2005) …………………. 14, 15, 19
Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (9th Cir. 2008) ………………………………… 23
Bowdry v. United Air Lines, 956 F.2d 999 (10th Cir. 1992) ………………………………………… 24
Bradford v. HSBC Mortg. Corp., 799 F. Supp. 2d 625 (E.D. Va. 2011) ………………. 9, 20, 24
Coll v. First Am. Title Ins. Co., 642 F.3d 876 (10th Cir. 2011) ……………………………………… 7
Cunningham v. Pettigrew, 169 F. 335, 341 (8th Cir. 1909) …………………………………………… 15
DeCosta v. U.S. Bancorp, No. 10-0301, 2010 WL 3824224
(D. Md. Sept. 27, 2010) ……………………………………………………………………………………….. 9
E.T.C. Corp. v. Title Guarantee & Trust Co., 271 N.Y. 124 (1936) ……………………………… 17
Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980) ……………………………………………… 13
Geraghty v. BAC Home Loans Serv. LP, No. 11-336, 2011 WL 3920248
(D. Minn. Sept. 7, 2011) …………………………………………………………………………………. 9, 21
Goess v. A.D.H. Holding Corp., 85 F.2d 72 (2d Cir. 1936) …………………………………………. 15
Grabowski v. Bank of Boston, 997 F. Supp. 111 (D. Mass. 1997) ………………………………… 22
Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,
545 U.S. 409 (2005) ……………………………………………………………………………………………. 24
Griggs v. E.I. DuPont de Nemours & Co., 385 F.3d 440 (4th Cir. 2004) ………………………. 15
Household Credit Servs. v. Pfennig, 541 U.S. 232 (2004) ……………………………………………… 2, 3
Iacono v. Office of Personnel Mgmt., 974 F.2d 1326 (Fed. Cir. 1992) ……………………………… 21
In re Hunter, 400 B.R. 651 (N.D. Ill. 2009) …………………………………………………………. 10, 24
Johns v. Coffee, 133 P. 4 (Wash. 1913) ………………………………………………………………………. 16
Johnson v. Long Beach Mortg. Loan Trust, 451 F. Supp. 2d 16 (D.D.C. 2006) ………………. 10
Jones v. Bohn, 311 N.W.2d 211 (S.D. 1981) ………………………………………………………………. 17
Jones v. Saxon Mortg., Inc., 537 F.3d 320 (4th Cir. 1998) ……………………………………………. 13
Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991) …………… 22, 23
Ma v. Merrill Lynch, 597 F.3d 84 (2d Cir. 2010) ……………………………………………………….. 21
McKenna v. First Horizon Home Loan Corp., 475 F.3d 418 (1st Cir. 2007) ……………… 15, 19
McOmie-Gray v. Bank of Am., 667 F.3d 1325 (9th Cir. 2012)
(petition for rehearing pending) ……………………………………………………………………. passim
Omlid v. Sweeney, 484 N.W.2d 486 (N.D. 1992) ………………………………………………….. 16, 17
iiiOmni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987) ……………………………… 23
Peterson v. Highland Music, Inc., 140 F.3d 1313 (9th Cir. 1998) …………………………………… 16
Prewitt v. Sunnymead Orchard Co., 189 Cal. 723 (1922) ……………………………………………….. 16
Rachback v. Cogswell, 547 F.2d 502 (10th Cir. 1976) ………………………………………………….. 13
Radford v. Gen. Dynamics Corp., 151 F.3d 396 (5th Cir. 1998) ……………………………………. 23
Regatos v. North Fork Bank, 257 F. Supp. 2d 632 (S.D.N.Y. 2003) ……………………………. 22
Sterlin v. Biomune Sys., 154 F.3d 1191 (10th Cir. 1998) ……………………………………………… 20
Taylor v. Domestic Remodeling, Inc., 97 F.3d 96 (5th Cir. 1996) ……………………………………. 13
Wilcox Trux v. Rosenberger, 156 Minn. 487 (1923) …………………………………………………….. 17
Williams v. Homestake Mortg. Co., 968 F.2d 1137 (11th Cir. 1992) ……………………….. 13, 17
Williams v. Wells Fargo Home Mortg., Inc., 410 Fed. Appx. 495
(3d Cir. Feb. 8, 2011) ……………………………………………………………………………………… 9, 21
Zengen, Inc. v. Comerica Bank, 158 P.3d 800 (Cal. 2007) …………………………………………….. 22
Other Authorities
90 C ONG . R EC . H14388 (daily ed. May 22, 1968) (statement of Rep. Sullivan) …………. 4
90 C ONG . R EC H14384 (daily ed. May 22, 1968) (statement of Rep. Patman) …………… 4
Henry Campbell Black, A Treatise On The Rescission Of Contracts And
Cancellation Of Written Instruments, Vol. 2, p. 1355, § 577 (1916) ……………………………. 16
S. R EP . N O . 96-368 (1979), reprinted in 1980 U.S.C.C.A.N. 236 ……………………………….. 24
ivQUESTION PRESENTED
Section 125 of the Truth in Lending Act (TILA or Act), 15 U.S.C. § 1601 et seq.,
provides consumers a statutory right to rescind certain types of mortgage loans. This
rescission right expires three days after consummation of the loan, unless a lender fails
to provide the consumer with disclosures mandated by the Act. 15 U.S.C. § 1635(a).
In that case, the right to rescind is extended until the lender provides the disclosures.
Id. If the disclosures are never provided, the right to rescind expires three years after
consummation of the loan or upon sale of the home, whichever occurs first. Id.
§ 1635(f). The consumer exercises the right to rescind “by notifying the creditor, in
accordance with regulations of the [Consumer Financial Protection] Bureau, of his in-
tention to do so.” Id. § 1635(a).
This appeal presents a question concerning the timeliness of lawsuits arising
out of a consumer’s exercise of the right to rescind under the Act: When a consumer
timely exercises an allegedly valid right of rescission by providing notice to the lender
within three years, but the lender does not recognize the rescission, must the consum-
er also file a lawsuit against the lender within three years?
1INTEREST OF THE AMICUS CURIAE
This case presents a frequently litigated question regarding the interpretation of
TILA and its implementing regulation, Regulation Z, 12 C.F.R. § 1026 et seq., as they
apply to the rescission of certain mortgage loans. Many courts incorrectly restrict con-
sumers’ rescission rights under TILA by concluding that consumers must both exercise
their right of rescission—by providing notice to their lenders—within three years of
the loan’s consummation, and sue their lenders within that same three-year period to
resolve any disputes that arise regarding the rescission. As a result, these courts have
erroneously dismissed rescission lawsuits as untimely, leaving consumers unable to
litigate their claims on the merits.
Congress granted the Consumer Financial Protection Bureau the authority to
interpret and promulgate rules regarding TILA. See 12 U.S.C. §§ 5481(12)(O),
5512(b)(1), 5581(b)(1). With enactment of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Congress transferred this authority from the Board of
Governors of the Federal Reserve System to the Bureau on July 21, 2011. See Pub. L.
No. 111-243, §§ 1061(b)(1), (d) (2010), codified at 12 U.S.C. §§ 5581(b)(1), (d); Designat-
ed Transfer Date, 75 Fed. Reg. 57,252 (Sept. 20, 2010). Exercising this authority, the Bu-
reau republished Regulation Z in December 2011. See 76 Fed. Reg. 79,768-01, 79,803
(Dec. 22, 2011) (codified at 12 C.F.R. § 1026 et seq.). The Bureau is now “the primary
source for interpretation and application of truth-in-lending law,” Household Credit
2Servs. v. Pfennig, 541 U.S. 232, 238 (2004), and thus has a substantial interest in this
case.
In addition to the case on appeal, at least ten other appeals pending in four cir-
cuits present the same question posed here. See Bureau Mot. for Leave to File Brief as
Amicus Curiae at n.2 (Mar. 2, 2012) (listing cases). The Bureau has a substantial interest
in ensuring the correct and consistent interpretation of TILA and Regulation Z on
this important issue. Accordingly, the Bureau moved for leave to file an amicus brief in
this case despite the fact that briefing was complete and oral argument had occurred
on November 14, 2011. The Court granted the Bureau’s request and instructed it to
file this brief by March 26, 2012. The Bureau also plans to file amicus briefs in at least
three other appellate cases—in the Third, Fourth and Eighth Circuits—in which
briefing is still pending. See Sherzer v. Homestar Mortg. Servs., No. 11-4254 (3d Cir. dock-
eted Dec. 16, 2011); Wolf v. Fed. Nat’l Mortg. Ass’n, No. 11-2419 (4th Cir. docketed
Dec. 23, 2011); Sobieniak v. BAC Home Loans Servicing, LP, No. 12-1053 (8th Cir. dock-
eted Jan. 1, 2012).
STATEMENT
A.
Statutory and Regulatory Background
Congress enacted TILA in 1968 to establish a comprehensive scheme requiring
lenders to disclose credit terms to consumers, with the aim of promoting the “in-
formed use of credit.” 15 U.S.C. § 1601(a). TILA requires lenders to provide “clear
and accurate disclosures of terms dealing with things like finance charges, annual per-
3centage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank, 523 U.S.
410, 412 (1998). TILA entitles consumers to statutory and actual damages to remedy
violations of its disclosure and other provisions. 15 U.S.C. § 1640.
Section 125 of the Act, 15 U.S.C. § 1635, also provides consumers a statutory
right to rescind certain types of mortgage loans by giving timely notice to their lend-
ers. Specifically, the right to rescind applies to open-end and closed-end loans secured
by a lien on the consumer’s principal dwelling (e.g., home equity lines of credit, second
mortgages, and refinances). See generally 12 C.F.R. §§ 1026.15, 1026.23. The right to re-
scind does not apply to first mortgages. 15 U.S.C. § 1635(e)(1).
Congress enacted § 1635 in response to fraudulent home-improvement
schemes in which “homeowners, particularly the poor,” were “trick[ed] * * * into
signing contracts at exorbitant rates, which turn out to be liens on the family residenc-
es.” 90 C ONG . R EC . H14388 (daily ed. May 22, 1968) (statement of Rep. Sullivan); see
id. at H14384 (statement of Rep. Patman). Section 1635 combats this unfairness by
requiring lenders to disclose the material terms of transactions, providing consumers
an opportunity to reflect on those terms, and establishing a statutory right to cancel
transactions should consumers have a change of heart. Section 1635(a) provides:
[T]he [consumer] shall have the right to rescind [qualifying
mortgage loans] 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,
4whichever is later, by notifying the creditor, in accordance
with regulations of the Bureau, of his intention to do so.
In operation, § 1635(a) grants consumers a three-day “cooling off” period to cancel
their loans for any reason. But this period is meaningful only if consumers are aware
of their rights and the material terms of their transactions. Thus, § 1635(a) extends the
right of rescission until “the delivery of the information and rescission forms required
under this section together with * * * the material disclosures required under this sub-
chapter[.]”
In 1980, Congress amended § 1635 to establish a definite time period in which
consumers who never receive the required disclosures must exercise their right to re-
scind. See Pub. L. No. 96-221 § 612 (1980). Under that new provision, § 1635(f), Con-
gress provided:
(f) Time limit for exercise of right
[A consumer’s] right of rescission shall expire three years
after the date of consummation of the transaction or upon
the sale of the property, whichever occurs first,
notwithstanding the fact that the information and forms
required under this section or any other disclosures
required under this part have not been delivered to [the
consumer][.]
A consumer who wishes to rescind a loan must “notify[ ] the creditor, in ac-
cordance with regulations of the Bureau, of his intention to do so” within the
timeframe provided by § 1635(f). 15 U.S.C. § 1635(a). Regulation Z, in turn, specifies
that “[t]o exercise the right to rescind, the consumer shall notify the creditor of the
5rescission by mail, telegram or other means of written communication.” 12 C.F.R.
§§ 1026.15(a)(2), 1026.23(a)(2). The Bureau promulgated several model forms for this
purpose. See 12 C.F.R. pt. 1026, App. H. Model form H-8(A), for example, provides:
H–8(A) Rescission M odel Form (General)
Your Right to Cancel This Loan
You Could Lose Your
Home You are giving us the right to take your home if you do not repay the money
you owe under this loan.
Your Right to Cancel You have the right under federal law to cancel this loan on or before the date
stated below. Under federal law, we cannot make any funds available to you until
after this date.
If You Cancel If you cancel, we will:
•
•
Not charge you a cancellation fee; and
Refund to you any fees you paid to get this loan.
How to Cancel To cancel, you may submit the bottom portion of this notice to
________
___________ [or
_
or
_
].
Deadline to Cancel If you want to cancel this loan, you must submit the bottom portion of this
notice on or before
_
, _
.*
*In certain circumstances, your right to cancel this loan may extend beyond this
date. In that case, you must submit the bottom portion of this notice to either the
current owner of your loan or the person to whom you send payments.
[If two or more people have the right to cancel this loan, cancellation by one person is effective for all of them.]
[Initial here
to acknowledge receipt of this notice on
.]
(initials)
(date)
cut here → – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -
I AM CANCELLING THIS LOAN.
______________________________
Name
______________________________
Property Address
[12345678 ___________] [Loan Number]
When the consumer exercises a valid right of rescission under § 1635(a), the
transaction is cancelled. The effect of cancellation is governed by § 1635(b): The con-
6sumer “is not liable for any finance or other charge, and any security interest given by
the obligor * * * becomes void upon such a rescission.” 15 U.S.C. § 1635(b); 12
C.F.R. §§ 1026.15(d)(1), 1026.23(d)(1). Section 1635(b) also governs the process of
cancellation: Within 20 calendar days after receipt of a notice of rescission, the lender
must return any money or property given in connection with the transaction and take
all necessary action to reflect the termination of the security interest. 15 U.S.C.
§ 1635(b); 12 C.F.R. §§ 1026.15(d)(2), 1026.23(d)(2). When the creditor has performed
its obligations, the consumer must tender the money or property to the lender or,
where the latter is impracticable or inequitable, tender the property’s reasonable value.
15 U.S.C. § 1635(b); 12 C.F.R. §§ 1026.15(d)(3), 1026.23(d)(3). This statutory proce-
dure may be modified by court order. 1 15 U.S.C. § 1635(b); 12 C.F.R.
§§ 1026.15(d)(4), 1026.23(d)(4).
B.
Facts 2
This case concerns Jean Rosenfield’s alleged rescission of her mortgage re-
finance loan under § 1635. Rosenfield entered into a loan with Ownit Mortgage Solu-
tions (Ownit) on November 3, 2006. Order at 1-2. At the time Rosenfield received
1
For example, a court might modify these procedures when a consumer is in bank-
ruptcy proceedings and prohibited from returning anything to the creditor, or when
the equities otherwise dictate that modification is appropriate. 12 C.F.R. pt. 1026,
supp. I, subpt. B at 15(d)(4).
2
Because this is an appeal from an order granting the appellees’ motion to dismiss,
the Court and the Bureau must accept Rosenfield’s allegations as true. Coll v. First Am.
Title Ins. Co., 642 F.3d 876, 886 (10th Cir. 2011). The Bureau takes no position on the
merits of Rosenfield’s claims.
7her loan, Ownit allegedly violated the Act’s disclosure requirements by failing to noti-
fy Rosenfield of her right to rescind the loan, providing incomplete disclosures re-
garding the adjustable interest rate, and inaccurately stating the total finance charges.
Id. Ownit subsequently sold or assigned the loan to appellee HSBC Bank. Id.
Within three years of obtaining the loan, Rosenfield sent a notice of rescission
to HSBC. Id. at 2. HSBC did not respond. Id. On December 21, 2009, three years and
one month after obtaining the loan, Rosenfield sued HSBC in Colorado state court,
seeking an injunction to bar HSBC from foreclosing on her home, a declaratory
judgment that she had rescinded the loan, and damages. Id. at 2, 10. HSBC removed
the case to the federal district court and moved to dismiss Rosenfield’s claims. See
HSBC Br. at 3.
The district court (Krieger, J.) granted HSBC’s motion to dismiss. Invoking the
Supreme Court’s decision in Beach v. Ocwen Federal Bank, 523 U.S. 410 (1998), the court
held that a consumer’s rescission “must both be noticed and (if ignored or rejected by
the lender) sued upon within three years.” Order at 9 (emphasis in original). While ac-
knowledging that Beach was “not directly on point” because there was “no indication
in that case that the borrowers purported to give timely notice of Rescission to the
lender, unlike the Plaintiff here,” the court held that Beach nevertheless “made clear”
that
the three-year period that marks the lifespan of the right of
Rescission must necessarily be coterminous with the
‘limitation on the time for seeking a remedy’ of Rescission,
8as the statutory language made it ‘superfluous’ to have a
separate limitations period for enforcing the right.
Id. (quoting Beach, 523 U.S. at 417). To “hold otherwise,” the court observed, would
create “a lacuna between the expiration of the right to rescind and the time in which
the lender might learn of a purportedly timely Rescission that it does not recall receiv-
ing[.]” Order at 9. The court accordingly dismissed as untimely Rosenfield’s request
for a declaratory judgment that her rescission was valid, despite her allegation that she
notified HSBC of her rescission within three years of obtaining her loan.
Two appellate courts have addressed the same question posed by the decision
on appeal. These courts have held that consumers, despite having timely exercised
their right of rescission by providing notice to the lender, were also required to file a
lawsuit within the time prescribed under § 1635(f). See McOmie-Gray v. Bank of Am.
Home Loans, 667 F.3d 1325 (9th Cir. 2012) (petition for rehearing pending); Williams v.
Wells Fargo Home Mortg., Inc., 410 Fed. Appx. 495 (3d Cir. Feb. 8, 2011) (unpublished).
In the district courts, there is a split. The majority view is consistent with the district
court’s holding in this case. See, e.g., Geraghty v. BAC Home Loans Serv. LP, No. 11-336,
2011 WL 3920248 (D. Minn. Sept. 7, 2011); Bradford v. HSBC Mortg. Corp., 799 F.
Supp. 2d 625 (E.D. Va. 2011); DeCosta v. U.S. Bancorp, No. 10-0301, 2010 WL
3824224 (D. Md. Sept. 27, 2010). The minority view holds that § 1635(f) only limits
the time during which consumers must exercise their right of rescission by notifying
the lender. See, e.g., Barnes v. Chase Home Fin., LLC, No. 11-cv-142, 2011 WL 4950111
9(D. Or. Oct. 18, 2011); In re Hunter, 400 B.R. 651 (N.D. Ill. 2009); Johnson v. Long Beach
Mortg. Loan Trust, 451 F. Supp. 2d 16 (D.D.C. 2006). Because the Bureau agrees that
§ 1635(f) defines the time to notify the lender, and not the time to sue the lender, we
are filing this brief with the Court.
SUMMARY OF ARGUMENT
Section 1635 provides consumers a statutory right to rescind qualifying mort-
gage loans when they do not receive the disclosures mandated by the Act. 15 U.S.C.
§ 1635. Under the plain terms of § 1635—and the Bureau’s controlling interpretation
of that provision—consumers exercise their rescission right by providing notice to
their lender within three years of obtaining the loan. When a consumer has the right
to rescind, timely notice to the lender effectuates the rescission as a matter of law;
consumers need not go to court to unwind the loan. Requiring consumers to file suit
within the three-year timeframe disregards the statutory and regulatory text, forces po-
tentially unnecessary litigation on lenders, and wastes valuable judicial resources—all
in contravention of the statutory scheme to provide a private, non-judicial mechanism
to rescind mortgage loans.
The language of § 1635 is plain: Within three years of loan consummation, con-
sumers must exercise their right of rescission by notifying their lender that they are doing
so. If there were any ambiguity in that mandate, Regulation Z resolves it by also speci-
fying that consumers exercise the right to rescind by providing written notice to the
lender. Section 1635 and Regulation Z require no more. See pages 12-14.
10Contrary to the reasoning of the district court, § 1635 in no way mandates that
consumers also file suit to rescind within that three-year period. Rescission under
TILA—like rescission in many other contexts—is a non-judicial mechanism, and is
accomplished by notice, not a lawsuit. Litigation may ensue, but that litigation ad-
dresses whether the consumer’s rescission was valid under the Act, not whether the
court should award rescission. Accordingly, it is the consumer’s exercise of the right
to rescind (by providing written notice to the lender) that must occur within the three-
year period—not the filing of suit to confirm the validity of the rescission. See pages
14-19.
The Supreme Court’s decision in Beach v. Ocwen Federal Bank, 523 U.S. 410
(1998), is not to the contrary. Even though Beach is not directly on point, courts have
interpreted that decision to hold that § 1635(f) is a “statute of repose.” That, they rea-
son, by definition requires the filing of a lawsuit. But statutes of repose often are satis-
fied by acts other than initiating litigation. Thus, even assuming § 1635(f) is a “statute
of repose,” it may be satisfied by providing notice to the lender. See pages 19-24.
Section 1635 should be interpreted consistent with its plain language and the
Bureau’s regulations to limit only the time for the consumer to exercise the right of
rescission by notifying the lender, not to limit the time in which a court may consider
the validity of the consumer’s previous exercise of that right.
11ARGUMENT
Section 1635 Defines The Time For Consumers To Notify Their Lender, Not
The Time For Consumers To Sue Their Lender.
A.
Consumers exercise their right to rescind by notifying their lender
within the three-year period provided by § 1635(f).
Section 1635(f) defines the period of time during which consumers who do not
receive the disclosures required under the Act are permitted to rescind their loan. It
provides that the “right of rescission shall expire three years after the date of con-
summation of the transaction or upon the sale of the property, whichever occurs
first[.]” This language specifies when consumers must rescind, but it is silent on how
they must do so. The answer to how consumers rescind is supplied by § 1635(a) and
Regulation Z.
Section 1635(a) provides that the consumer “shall have the right to rescind
* * * by notifying the creditor, in accordance with regulations of the Bureau, of his in-
tention to do so.” 15 U.S.C. § 1635(a). The Bureau has interpreted this provision con-
sistent with its unambiguous meaning. Under Regulation Z, “[t]o exercise the right to
rescind, the consumer shall notify the creditor of the rescission by mail, telegram or
other means of written communication.” 12 C.F.R. §§ 1026.15(a)(2), 1026.23(a)(2).
Even if § 1635 were silent or ambiguous on this issue, “absent some obvious repug-
nance to the statute, the * * * regulation implementing [TILA] should be accepted by
the courts[.]” Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219 (1981). Because the
“complexity and variety” of credit transactions “defy exhaustive regulation by a single
12statute,” Congress “delegated expansive authority” to the agency charged with imple-
menting TILA “to elaborate and expand the legal framework governing commerce in
credit.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559-60 (1980). Accordingly,
“[u]nless demonstrably irrational,” the Bureau’s constructions of TILA “should be
dispositive.” Id. at 565.
The principle that consumers exercise the TILA right of rescission through no-
tice is well established. As this Court recognized in Rachback v. Cogswell, 547 F.2d 502,
505 (10th Cir. 1976), “[s]ection 1635(a) requires only that the obligor exercise his right
of rescission by notifying the creditor within the prescribed time limit of his intent to
rescind.” Every appellate decision of which we are aware that has considered this
question has acknowledged the same. See McOmie-Gray, 667 F.3d at 1327 (“Regulation
Z * * * confirms that notification is the means by which borrowers exercise their right
to rescind.”); Jones v. Saxon Mortg., Inc., 537 F.3d 320, 325 (4th Cir. 1998) (“In order to
exercise a right to rescind, a borrower must notify the creditor of the rescission by
mail, telegram, or other means of written communication.”); Taylor v. Domestic Remodel-
ing, Inc., 97 F.3d 96, 98 (5th Cir. 1996) (per curiam) (“In order to exercise the right to
rescind, the consumer shall notify the creditor of the rescission by mail, telegram or
other means of written communication.”); Williams v. Homestake Mortg. Co., 968 F.2d
1137, 1139 (11th Cir. 1992) (“Congress provided the consumer with the right to re-
scind a credit transaction under § 1635(a) solely by notifying the creditor within set
time limits of his intent to rescind.”).
13Reading subsections (a) and (f) together, § 1635 simply requires consumers to
exercise their right of rescission by notifying their lender before the earlier of (1) three
years following consummation of the loan or (2) sale of the home.
B.
Consumers are not required also to sue their lender within the
three-year period provided under § 1635(f).
Although courts generally recognize that the right to rescind is exercised
through notice, most courts, including the district court here, then wrongly conclude
that consumers also must sue their lenders within three years of obtaining the loan.
This view apparently rests on the erroneous assumption that, in a contested case, re-
scission must be awarded by a court. Such an interpretation of the Act has no basis in
the language of § 1635. These courts fail to understand that the statutory right of re-
scission under TILA—consistent with rescission under the common law and many
other statutes—is accomplished privately by notice. The consumer files suit not to ob-
tain an award of rescission, but to have the court confirm the rescission, which the
consumer already effectuated by providing timely notice to the lender.
Section 1635, like any statutory provision, must be interpreted in accordance
with its “plain language.” Beach, 523 U.S. at 416. No language anywhere in § 1635 re-
quires consumers to file suit to exercise their rescission right. Certainly, the district
court did not identify any. This is because “section 1635 is written with the goal of
making the rescission process a private one, worked out between creditor and debtor
without the intervention of the courts.” Belini v. Washington Mut. Bank, FA, 412 F.3d
1417, 25 (1st Cir. 2005). Thus, when a consumer has a right to rescind under § 1635 and
“elects to rescind, the mechanics of rescission are uncomplicated.” McKenna v. First
Horizon Home Loan Corp., 475 F.3d 418, 422 (1st Cir. 2007). Subsection (a) permits a
consumer to “exercise[ ] his right to rescind” by “notifying the creditor” using “ap-
propriate forms” provided “in accordance with regulations of the Bureau.” Subsection
(b) establishes that, within twenty days of receiving the notice of rescission, the lender
must return “any money or property that has been given to anyone in connection with
the transaction and shall take any action necessary to reflect the termination of the se-
curity interest.” 12 C.F.R. §§ 1026.15(d)(2), 1026.23(d)(2). The consumer then tenders
to the lender the loan principal. 12 C.F.R. §§ 1026.15(d)(3), 1026.23(d)(3).
The private, non-judicial rescission process reflected in § 1635 is in keeping
with the historical understanding of how rescission operates in other contexts. “Re-
scission is a fact, the assertion by one party to avoidable contract of his right (if such
he had) to avoid it, and when the fact is made known to the other party, whether by a
suit or in any other unequivocal way, the rescission is complete.” Cunningham v. Petti-
grew, 169 F. 335, 341 (8th Cir. 1909); accord, e.g., Griggs v. E.I. DuPont de Nemours & Co.,
385 F.3d 440, 445-56 (4th Cir. 2004) (“[R]escission itself is effected when the plaintiff
gives notice to the defendant that the transaction has been avoided and tenders to the
defendant the benefits received by the plaintiff under the contract.”); Goess v. A.D.H.
Holding Corp., 85 F.2d 72, 74 (2d Cir. 1936) (explaining that a party “may exercise the
power to avoid the transaction by giving notice of rescission, demanding the return of
15the consideration given, and offering to restore what he received” and that the rescis-
sion right “becomes fixed as of that time”); Johns v. Coffee, 133 P. 4, 7 (Wash. 1913) (re-
jecting argument that “the mere giving notice of rescission to the corporate officers is
not in itself sufficient to accomplish a rescission”); Henry Campbell Black, A Treatise
On The Rescission Of Contracts And Cancellation Of Written Instruments, Vol. 2, p. 1355,
§ 577 (1916) (“an overt act or outward manifestation” of the intent to rescind will ef-
fect a rescission). 3
Of course, litigation may ensue after one party to a contract asserts a unilateral
right to unwind that contract. The issue in these cases is not whether to grant rescis-
sion, but rather whether rescission was accomplished because the party was entitled to
rescind in the first instance. “[W]here one contracting party * * * served notice of re-
scission on the latter, ‘the rescission was complete and perfect’” as of the notice, not the
litigation. Prewitt v. Sunnymead Orchard Co., 189 Cal. 723, 732 (1922) (quoting Am. Type
Founders’ Co. v. Packer, 130 Cal. 459, 467 (1900)); accord, e.g., Peterson v. Highland Music,
Inc., 140 F.3d 1313, 1322 (9th Cir. 1998) (holding that under California law, “[w]hen a
party gives notice of rescission, it has effected the rescission, and any subsequent judi-
cial proceedings are for the purpose of confirming and enforcing that rescission”);
Omlid v. Sweeney, 484 N.W.2d 486, 490 & n.3 (N.D. 1992) (when a party “satisf[ies] the
3
Section 1635(b) reflects “a reordering of common law rules governing rescission,”
in that it requires the lender to release the security interest before the consumer ten-
ders. Williams, 968 F.2d at 1140. Section 1635(b) also allows a court to modify this de-
fault procedure as necessary.
16requirements of a unilateral rescission,” “the contract no longer exists” and the suit
“is essentially an action for restitution based upon [the] prior unilateral rescission”);
Jones v. Bohn, 311 N.W.2d 211, 213 (S.D. 1981) (explaining that a plaintiff can sue “to
enforce his rights arising from the rescission” that “has already been accomplished by
[his] unilateral act”); E.T.C. Corp. v. Title Guarantee & Trust Co., 271 N.Y. 124, 127-28
(1936) (“[I]n legal theory, the ex parte act of rescission reinvests [a party] with the legal
title to the thing for the possession of which he subsequently sues.”); Wilcox Trux v.
Rosenberger, 195 N.W. 489, 490-91 (1923) (explaining that a rescission need not be
awarded by the court, but rather that “[t]he rescission may be by the unaided act of
the defrauded party”).
Consistent with the rescission process in these other contexts, § 1635 entitles
consumers to relief upon their exercise of a valid rescission right, which is accom-
plished by notifying the lender. 15 U.S.C. § 1635(b) (“When an obligor exercises his
right to rescind * * * he is not liable for any finance or other change, and any security
interest given by the obligor * * * becomes void upon such a rescission.”); see also Wil-
liams, 968 F.2d at 1140 (“Under § 1635(b) * * * all that the consumer need do is notify
the creditor of his intent to rescind. The agreement is then automatically rescind-
ed[.]”). Notifying the lender either effects the rescission as a matter of law (because
the consumer had the right to rescind and properly exercised it), or does nothing (be-
cause the consumer did not have the right to rescind or improperly exercised it). Sec-
tion 1635(f), in turn, establishes a definite period of time in which the consumer must
17deliver notice to the lender. When disputes arise, either the lender or the consumer
may initiate litigation. If the court finds the consumer was entitled to rescind, it will
order the procedures specified by § 1635(b) and Regulation Z, or modify them as the
case requires. If the court finds the consumer was not entitled to rescind, the loan re-
mains in place.
The district court’s opinion reflects a misunderstanding of these concepts. The
court held that “the right of Rescission must necessarily be coterminous with the limi-
tation on the time for seeking a remedy of Rescission.” Order at 9; see also HSBC Br.
at 15. This logic assumes that, in a contested case, the consumer sues to obtain the
remedy of rescission. That is incorrect. Even in a contested case, TILA rescission is
accomplished by notice; it is not awarded by the court as a remedy. Thus, when con-
sumers sue under § 1635, they are not asking the court to grant rescission, but rather
to confirm that rescission has been accomplished and to compel the lender to act ac-
cordingly by, e.g., releasing the security interest. The timeliness of the consumer’s law-
suit is entirely independent of the timeliness of the consumer’s exercise of the right to
rescind. Accordingly, if the court finds the consumer rescinded the transaction (be-
cause she properly exercised a valid right under § 1635), the lender must be ordered to
honor the rescission, even if the underlying right to rescind has expired.
In any event, tethering the time in which consumers must initiate litigation to
the length of the underlying rescission right would vitiate the statutory scheme estab-
lished by Congress. Requiring consumers not only to notify their lender but also to
18file a lawsuit within three years would incentivize consumers to file suit immediately,
rather than working privately with the lender to unwind the transaction. It would also
encourage lenders to stonewall in response to a notice of rescission, because if the
consumer failed to file suit before the right expired, even a valid rescission would be-
come a nullity. These consequences are inefficient for lenders, consumers, and the
courts and contravene the purpose of § 1635 to make “[t]he rescission process * * *
private, with the creditor and debtor working out the logistics of a given rescission.”
McKenna, 475 F.3d at 421; accord Belini, 412 F.3d at 25.
C.
Beach does not require consumers to file suit within the three-year
period provided under § 1635(f).
Relying on the Supreme Court’s decision in Beach v. Ocwen Federal Bank, the dis-
trict court characterized § 1635(f) as a “statute of repose” requiring that rescission
claims be both noticed and sued upon within three years. Order at 8, 9. While
§ 1635(f) has features of a statute of repose, there is no general rule that a statute of
repose can be satisfied only by filing a lawsuit, and Beach should not be read to require
that result.
Beach involved a consumer who attempted to rescind a loan by raising rescis-
sion “as an affirmative defense in a collection action brought by the lender more than
three years after the consummation of the transaction.” 523 U.S. at 411-12. The Court
concluded that the language of § 1635(f) “takes us beyond any question whether it
limits more than the time for bringing a suit, by governing the life of the underlying
19right as well.” Id. at 417. Because section 1635(f) “completely extinguishes the right of
rescission at the end of the three-year period,” the consumer in Beach was not entitled
to assert it for the first time as a defense to a foreclosure action. Id. at 411-12.
Although the term appears nowhere in the Supreme Court’s opinion, the dis-
trict court and numerous other courts have understood Beach to hold that § 1635(f) is
a “statute of repose.” Order at 10; McOmie-Gray, 667 F.3d at 1328-29; Bradford, 799 F.
Supp. 2d at 630; see also HSBC Br. at 11. These decisions correctly perceive that
§ 1635(f) is much like a statute of repose, because it measures the time within which
consumers must exercise their right to rescind from “a fixed date readily determinable
by the [lender][.]” Sterlin v. Biomune Sys., 154 F.3d 1191, 1196 n.9 (10th Cir. 1998).
Time periods under § 1635 are measured from the date of the relevant credit transac-
tion, rather than being measured from the (possibly indeterminate) date when con-
sumers learn that they did not receive required disclosures, as with a typical statute of
limitations. Beach thus acknowledges that the rescission right set out in § 1635 is
“completely extinguishe[d]” if the consumer has not exercised her right to rescind
within three years from the date of the credit transaction, even if the consumer does
not learn that the lender failed to provide the required disclosures until after the three-
year period has passed. 523 U.S. at 412. The Act “permits no federal right to rescind,
defensively or otherwise, after the 3-year period of § 1635(f) has run.” Id. at 419 (em-
phasis added).
20Even accepting the conclusion that Beach holds § 1635 to be a “statute of re-
pose,” numerous courts—including the district court here—have misunderstood the
effect of that label. According to these courts, because § 1635(f) is a “statute of re-
pose,” it implicitly must require the filing of a lawsuit within three years. Order at 8-9;
Williams, 410 Fed. Appx. at 499; McOmie-Gray, 667 F.3d at 1326; Geraghty, 2011 WL
3920248 at * 4. This logic is incorrect. Beach does not hold that lawsuits must be filed
within the time provided under § 1635(f), and construing Beach to hold that § 1635(f)
is a “statute of repose” does not require that result either.
There is no general rule that “statutes of repose” can be satisfied only by filing
lawsuits. On the contrary, statutes of repose are frequently used to limit the time for
taking other types of actions, such as filing notices or claims for benefits. The
Uniform Commercial Code, for example, contains a one-year “statute of repose
pursuant to which a bank is not required to reimburse its customer” for an
unauthorized wire transfer from the customer’s account if the customer “did not
object within one year of receiving notice of the account’s debit.” Ma v. Merrill Lynch,
597 F.3d 84, 88-89 (2d Cir. 2010) (discussing N.Y. UCC § 4-A-505). Other statutes
that have been identified as “statutes of repose” require applicants for immigration
relief or public benefits to submit applications within a defined period of time. See, e.g.,
Balam-Chuc v. Mukasey, 547 F.3d 1044, 1048-50 (9th Cir. 2008); Iacono v. Office of
Personnel Mgmt., 974 F.2d 1326, 1328 (Fed. Cir. 1992). These statutes provide repose
21by establishing a date certain for the applicants to invoke their right to relief by taking
the act specified in statute.
Of course, applicants claiming relief under these statutes may resort to litiga-
tion: The government might reject a claim for benefits as untimely, or a bank might
refuse to refund a wire transfer by claiming its customer failed to give proper notice.
See, e.g., Regatos v. North Fork Bank, 257 F. Supp. 2d 632, 642-45 (S.D.N.Y. 2003). But
the statute of repose in such a case defines the time for taking the act specified in the
statute, not the time for filing any ensuing litigation. See Zengen, Inc. v. Comerica Bank,
158 P.3d 800, 811 (Cal. 2007) (explaining that a statute regarding unauthorized wire
transfers was “not a statute of limitation but merely a statute of repose. It requires the
customer only to notify the bank of the claim, not actually to commence the action.”)
(citation omitted); Grabowski v. Bank of Boston, 997 F. Supp. 111, 119 (D. Mass. 1997)
(explaining that a similar provision was “in the nature of a statute of repose” and
“does not create a statute of limitations on the time allowed to bring suit under [the
statute]. Instead, it creates a one year notice requirement.”) (citation omitted).
When Congress intends to use a statute of repose to define the period of time
for filing lawsuits, it does so unambiguously. The Securities Exchange Act of 1934, for
example, refers expressly to litigation in providing a “3-year period of repose”: “No
action shall be maintained to enforce any liability created under this section unless
brought within one year after the discovery of the facts constituting the cause of ac-
tion and within three years after such cause of action accrued.” Lampf, Pleva, Lipkind,
22Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 360 & n.6 (1991) (quoting 15 U.S.C.
§ 78i(e)) (emphasis added). The General Aviation Revitalization Act of 1994 similarly
provides an “eighteen-year statute of repose” that forbids “civil action[s] for damages
* * * after the applicable limitation period[.]” Blazevska v. Raytheon Aircraft Co., 522
F.3d 948, 950-51 (9th Cir. 2008) (quoting Pub. L. No. 103-298, 108 Stat. 1552, § 2(a))
(emphasis added). Likewise, “[s]ection 413 of ERISA is a statute of repose” providing
that “[n]o action may be commenced” six years from the date of an alleged breach of fidu-
ciary duty. Radford v. Gen. Dynamics Corp., 151 F.3d 396, 399-400 (5th Cir. 1998) (quot-
ing 29 U.S.C. § 1113) (emphasis added). The lack of comparable language in § 1635(f)
is further evidence that this section should not be interpreted to require the filing of a
lawsuit. See Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404, 129 S. Ct. 2561, 2570
(2009); Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 106 (1987).
The understanding that a statute of repose may be satisfied through notification
rather than litigation does not introduce “a lacuna between the expiration of the right
to rescind and the time in which the lender might learn of a purportedly timely Rescis-
sion that it does not recall receiving.” Order at 9. Nor does it leave the lender’s securi-
ty interest subject to stale attacks. Id.; see also HSBC Br. at 17-18; 21. TILA provides
repose by requiring the consumer to notify the lender of her rescission within the
specified time period. See 15 U.S.C. § 1635(a). By definition, the lender is on notice of
the consumer’s rescission. If the lender contests the rescission, litigation will ensue:
Either the lender will refuse to unwind the transaction (and the consumer will sue), or
23the consumer will stop paying (and the bank will sue or attempt to foreclose). Chal-
lenges to the validity of the rescission will be litigated at that time. 4
Indeed, a similar sequence of events was alleged to have unfolded in the pro-
ceedings below. In September 2008, Rosenfield sent a notice of rescission to HSBC,
which failed to respond. Order at 2. HSBC initiated foreclosure proceedings, and
Rosenfield filed suit in the district court to require HSBC to recognize the rescission.
Rosenfield Br. at 5-6; HSBC Br. at 2-3. That proceeding provides a forum to litigate
the validity of Rosenfield’s rescission before any foreclosure sale of the home to a
third party.
*
*
*
In sum, § 1635 is a straightforward provision that permits consumers who do
not receive the necessary disclosures to rescind qualifying mortgage loans by notifying
their lender within three years of obtaining the loan. This Court should reject a con-
4
The fact that § 1635 does not expressly limit the time period for litigation does not
mean no limit exists. Some courts have concluded that TILA’s general one-year stat-
ute of limitations, 15 U.S.C. § 1640, permits consumers to bring suit to compel com-
pliance with their rescission within one year of the lender’s refusal to unwind the
transaction after receiving the notice of rescission. See, e.g., In re Hunter, 400 B.R. at
660-61 (N.D. Ill. 2009); Barnes, 2011 WL 4950111. There is some support for this ap-
proach in the legislative history. See S. R EP . N O . 96-368, at 32 (1979), reprinted in 1980
U.S.C.C.A.N. 236, 268. Other courts have criticized application of § 1640 to rescission
under § 1635. See, e.g., McOmie, 667 F.3d at 1327-28; Bradford, 799 F. Supp. 2d at 632-
33. If § 1640 does not apply, courts may apply well-established borrowing doctrines to
find an analogous statute of limitations. See, e.g., Graham Cnty. Soil & Water Conservation
Dist. v. United States ex rel. Wilson, 545 U.S. 409, 414-15 (2005); Bowdry v. United Air
Lines, 956 F.2d 999, 1004-05 (10th Cir. 1992).
24struction of § 1635 that also would require consumers to file suit against their lenders
within the same three-year timeframe: It is contrary to the plain language of the provi-
sion and contravenes the purpose of the statutory scheme to provide consumers a
private, non-judicial mechanism to rescind mortgage loans.
CONCLUSION
The decision below holding that consumers must both notify their lender of
their decision to rescind and sue their lender to resolve any disputes arising from the
rescission within the three-year period set forth in § 1635(f) should be reversed.
Respectfully submitted.
s/ David M. Gossett
L EONARD J. K ENNEDY
General Counsel
T O -Q UYEN T RUONG
Deputy General Counsel
D AVID M. G OSSETT
Assistant General Counsel
R ACHEL R ODMAN
Senior Counsel
P ETER G. W ILSON
K RISTIN B ATEMAN
Attorneys
C ONSUMER F INANCIAL P ROTECTION B UREAU
1700 G Street, NW
Washington, D.C. 20552
(202) 435-7237
David.Gossett@cfpb.gov
March 26, 2012
Counsel for Amicus Curiae
25CERTIFICATE OF COMPLIANCE WITH RULE 32(A)(7)
I certify that this brief complies with the type-volume limitation set forth in
FRAP 32(a)(7)(B). My word processing program, Microsoft Word, counted 6,751
words in the foregoing brief, exclusive of the portions excluded by Rule
32(a)(7)(B)(iii).
March 26, 2012
s/ David M. Gossett
David M. Gossett
Attorney for Amicus Curiae
Consumer Financial Protection Bureau
1700 G Street, NW
Washington, D.C. 20552
David.Gossett@cfpb.gov
(202) 435-7237
26CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing:
(1) all required privacy redactions have been made per 10th Cir. R. 25.5;
(2) if required to file additional hard copies, that the ECF submission is an ex-
act copy of those documents;
(3) the digital submissions have been scanned for viruses with the most recent
version of a commercial virus scanning program, McAfee version 8.7.0i (last
updated March 25, 2012), and according to the program are free of viruses.
March 26, 2012
s/ David M. Gossett
David M. Gossett
Attorney for Amicus Curiae
Consumer Financial Protection Bureau
1700 G Street, NW
Washington, D.C. 20552
David.Gossett@cfpb.gov
(202) 435-7237
27CERTIFICATE OF SERVICE
I hereby certify that on March 26, 2012, I electronically filed the foregoing us-
ing the court’s CM/ECF system, which will send notification of such filing to the fol-
lowing:
John G. Nelson
Law Office of John G. Nelson
1624 Market Street
Suite 202
Denver, CO 80202
nelsonlawoffice@aol.com
Counsel for plaintiff-appellant
Mark C. Willis
Kelly Sue Kilgore
Kutak Rock LLP
1801 California Street
Suite 3100
Denver, CO 80202
kelly.kilgore@kutakrock.com
Counsel for defendants-appellees HSBC Bank, USA et al.
Patrick A. Wheeler
Office of the Denver City Attorney
Municipal Operations Section
201 West Colfax Avenue
Department 1207
Denver, CO 80202
patrick.wheeler@denvergov.org
Counsel for defendant-appellee Stephanie Y. O’Malley
March 26, 2012
s/ David M. Gossett
David M. Gossett
Attorney for Amicus Curiae
Consumer Financial Protection Bureau
1700 G Street, NW
Washington, D.C. 20552
David.Gossett@cfpb.gov
(202) 435-7237
28