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STATE OF MINNESOTA IN COURT OF APPEALS
A14-0304 A14-0620

The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for The Certificateholders of CWABS Inc., Asset-backed Certificates, Series 2007-6, Respondent,

vs.

Alan G. Keiran, et al., Appellants, Provincial Bank, et al., Defendants.

Filed April 6, 2015 Reversed and remanded Schellhas, Judge Dakota County District Court File No. 19HA-CV-11-6412

 . . .

Meanwhile, Keirans ceased making payments on the mortgage loan and, on October 8, 2009, sent Home Capital and BAC letters, purporting to rescind the mortgage loan on the bases that they were not provided “[s]ufficient correct copies of a Truth in Lending Disclosure Statement . . . in a manner [they] could retain” and that “[they] did not receive the correct Truth in Lending Disclosure Statements.” Keirans alleged that “failure to provide effective notice of these mandatory disclosures effectively extend[ed their] rescission rights.” On January 7, 2010, BAC sent Keirans a letter, enclosing copies

2 of various documents and informing Keirans that their “request to rescind the mortgage loan transaction [wa]s denied.”
 . . .

In October 2010, Keirans sued Home Capital, BAC, and BNY Mellon in federal district court, alleging violations of the Truth in Lending Act and seeking a declaration that their rescission is valid, termination of any security interest in the property, an injunction against non-judicial foreclosure proceedings, and monetary damages. The defendants moved for summary judgment, and on November 30, 2011, the federal district court granted the defendants’ motion on the basis that Keirans failed to commence their lawsuit prior to the end of the three-year period of repose under 15 U.S.C. § 1635(f). Keirans appealed the summary judgment to the United States Court of Appeals for the Eighth Circuit.
. . .

On July 12, 2013, the Eighth Circuit affirmed the federal district court’s grant of summary judgment; subsequently, BNY Mellon again moved for summary judgment in state district court. At a hearing on October 14, Keirans requested a continuance, advising the court that they intended to petition for certiorari review by the United States Supreme Court and had obtained an extension to file their petition.
. . .

……

On January 20, 2015, the United States Supreme Court granted certiorari review of the Eighth Circuit’s opinion 
affirming summary judgment, vacated judgment, and remanded to “the Eighth Circuit for further consideration in 
light of Jesinoski v. Countrywide Home Loans, 574 U.S. ___,

, 190 L.E.2d 650 (2015).” Keiran v. Home Capital, Inc.,

135 S. Ct. 1152135 S. Ct. 790

, 1152 (Jan. 20, 2015). In Jesinoski, the Supreme Court determined “that rescission is effected when the borrower 
notifies the creditor of his intention to rescind. It follows that, so long as the borrower notifies within three 
years after the transaction is consummated, his rescission is timely. The statute does not also require him to sue 
within three years.”

, 792. . . .

We conclude that the district court erred by granting summary judgment upon Keirans’

failure to satisfy the conditions of the bond without first determining that no genuine

issue of material fact exists.
. . .

DECISION

The district court properly exercised jurisdiction in this case but erred by granting

summary judgment in favor of BNY Mellon without first determining that no genuine

issue of material fact exists. We therefore reverse and remand for further proceedings

consistent with this opinion.

Reversed and remanded.

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