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In Re: ALGER | MA BK Court Denies Countrywide & BONY’s Motion For Summary Judgment “NOTICE of RIGHT TO CANCEL”

In Re: ALGER | MA BK Court Denies Countrywide & BONY’s Motion For Summary Judgment “NOTICE of RIGHT TO CANCEL”


 In re:






Each acknowledgment form that the Algers signed contained the following language: “The undersigned each acknowledge receipt of two copies of NOTICE of RIGHT TO CANCEL and one copy of the Federal Truth in Lending Disclosure Statement.” It is unclear whether the Algers acknowledged that each of them received two copies for a total of four or whether they each acknowledged receipt of two copies in total. In analyzing the identical acknowledgment language in In re Cromwell, Judge Hillman, too, found the language ambiguous:

The placement of the word “each” before “acknowledge” renders the phrase susceptible to two meanings. First, that the Debtors acknowledged each receiving two copies as the Defendants[] assert, or second, that they each acknowledged receipt of a total of two copies as the Debtors suggest. While I understand that Countrywide intended the former as that is what the law required, the average consumer would not have necessarily known that. 2011 WL 4498875, at *17. The existence of this ambiguity neutralizes any presumption created by the acknowledgment in favor of delivery of the requisite number of Notices. See id. (resolving the ambiguity “against the drafter of the Acknowledgment such that it did not create a presumption of adequate delivery of a total of four copies”).

In the absence of a presumption of adequate delivery, the burden shifts to the defendants to prove that the Algers each received two copies of the Notice for a total of four for the couple. See id. While the defendants rely on the deposition testimony of Ms. Manugian as evidence of her general practice during closings to establish that the Algers received four copies, the Algers have attested through their affidavits that the first time their loan file was opened after the closing it contained a total of three Notices. The question of how many copies of the Notice the Algers received remains a genuine and material fact in dispute. The defendants’ motion for summary judgment is therefore DENIED.


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BALDERAS v. COUNTRYWIDE | CA 9th Cir. Court of Appeals Reverses/ Remands “Truth in Lending Act (TILA), Right To Rescind”

BALDERAS v. COUNTRYWIDE | CA 9th Cir. Court of Appeals Reverses/ Remands “Truth in Lending Act (TILA), Right To Rescind”




National Banking Association;
USA Funding, a California corporation;
LOANS, INC., DBA America’s
Wholesale Lender, a New York
corporation; MOR CAZAKOV, an
individual; GALENA KOROL, an
individual; DOES 1 through 10,
Defendants-Appellees. þ

Appeal from the United States District Court
for the Southern District of California

Michael M. Anello, District Judge, Presiding
Argued and Submitted

June 9, 2011—Pasadena, California

Filed December 29, 2011


KOZINSKI, Chief Judge:

The Balderases allege that they are immigrants who were
rooked by a bank that signed them up for loans it knew they
couldn’t afford, on terms they didn’t agree to. These are the
facts as recited in the complaint: Mor Cazakov, a mortgage
broker, cold-called the Balderases, representing that he could
refinance their home, switch them to a fixed rate mortgage
and let them cash out $50,000, all without a penalty. Subsequently,
Soraya Qassim, a “duly authorized agent” of Countrywide
Bank (Countrywide), filled out a uniform residential
loan application (URLA) for them and showed up unannounced
at their home, urging the Balderases to sign it. But
the form was in English, which they can’t read, and it overestimated
their income by over $40,000 per year. Qassim told
them it was an informal document the bank needed, so the
Balderases signed.

Three days later, on the evening of Monday, September 25,
2006, Cazakov showed up at their home with a notary public
and loan documents also written in English. He told them that
Countrywide “demanded” their signatures “that night” and he
couldn’t and wouldn’t leave without getting them. The
Balderases protested and asked to arrange the loan signing
when their English-literate daughter could attend. But Cazakov
said that Countrywide had instructed him to stay until he
got the signatures, and he “engaged in a series of actions
designed to intimidate, harass, and pressure [the Balderases]
into signing the loan documents.” After six hours of unrelenting
pressure by Cazakov and several unsuccessful attempts to
read the paperwork, the Balderases capitulated and signed the
documents just after midnight. On Wednesday, they called
Cazakov and asked him to rescind the loans. He refused. They
then called Countrywide a day later seeking the same relief.
Countrywide also refused, falsely representing it was too late.
In fact, the three-day statutory rescission period extended
through the next day, Friday, September 29.

The Balderases filed a complaint alleging, among other
things, a violation of the Truth In Lending Act (TILA). See
15 U.S.C. §§ 1601 et seq. Countrywide filed a 12(b)(6)
motion, which the district court granted. This timely appeal

* * *

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In Re: CROMWELL: Mass. BK Court “Consumer Credit Cost Disclosure Act, Notice of Right to Cancel, Truth in Lending Act”

In Re: CROMWELL: Mass. BK Court “Consumer Credit Cost Disclosure Act, Notice of Right to Cancel, Truth in Lending Act”






The matters before the Court are the Second Amended Complaint (the “Complaint”) filed
by Douglas Cromwell, Jr., and Mary Cromwell (collectively, the “Debtors”) against
Countrywide Home Loans, Inc. (“Countrywide”) and Mortgage Electronic Registration Systems,
Inc. (“MERS”) (jointly, the “Defendants”) alleging violations of the Massachusetts Consumer
Credit Cost Disclosure Act1 (the “CCCDA”), as well as the Debtors’ Objection to Proof of Claim
filed by Countrywide Home Loans, Inc. (the “Objection to Claim”) and the Objection to
Confirmation of Second Amended Chapter 13 Plan (the “Objection to Confirmation”) filed by
Countrywide. Through their Complaint, the Debtors seek, inter alia, rescission of a refinancing
transaction and a declaration that the mortgage granted by them to MERS, as nominee for
Countrywide, is void and that they have no tender obligation as a condition to effectuate the
rescission.2 In the Objection to Claim, they, in turn, contend that Countrywide’s claim is now
unsecured in light of the Debtors’ purported rescission. The Defendants dispute the Debtors’
allegations in the Complaint and object to the Debtors’ Chapter 13 plan on the basis that they
propose to treat Countrywide’s claim as unsecured. For the reasons set forth below, I will enter
judgment in favor of the Debtors and order them to file a fee application within thirty days,
sustain the Objection to Claim, and overrule the Objection to Confirmation.3


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Tellado v. INDYMAC MORTGAGE SVS | PA Dist. Court “OneWest Bank shall refund all payments made under the contract, cancel and return any negotiable instrument”

Tellado v. INDYMAC MORTGAGE SVS | PA Dist. Court “OneWest Bank shall refund all payments made under the contract, cancel and return any negotiable instrument”



INDYMAC MORTGAGE SERVICES, a division of OneWest Bank, FSB, Defendant.

Civil Action No. 09-5022.

United States District Court, E.D. Pennsylvania.

August 8, 2011.


PETRESE B. TUCKER, District Judge.

After a bench trial in this matter on November 8, 2010, and pursuant to Fed. R. Civ. P. 52(a), the Court makes the following Findings of Fact:

1. This is an action for damages in connection with the mortgage refinancing services received by Plaintiffs, Jose and Maria Tellado, for their residential real property located at 519 Morris Street, Philadelphia, Pennsylvania (the “Property”).

2. Plaintiffs, who are husband and wife, are also low-income senior citizens who speak primarily Spanish.

3. On or around June 2007, Plaintiff Jose Tellado heard a Spanish-language radio advertisement for mortgage refinance services. Plaintiff Mr. Tellado called the telephone number provided in the advertisement and reached a man named Carlos Enrique, and the two conversed exclusively in Spanish.

4. Mr. Enrique assisted Plaintiff Jose Tellado with the submission of a loan application. Mr. Enrique also arranged for a closing agent to visit the Tellado home with the loan documents.

5. On July 3, 2007, Mr. Philip Bloom, a closing agent and notary, came to the Property with the loan documents. Mr. Bloom acted as a representative of Indymac Bank, F.S.B., and had been provided instructions on how to conduct the loan closing. Plaintiffs received a copy of these instructions.

6. Plaintiffs saw the final loan terms for the first time in their home at closing.

7. The loan transaction, from the initial contact with Mr. Enrique until the loan closing, was conducted in Spanish.

8. The loan documents provided at the loan closing, including the Note, the Mortgage, and the Notice of Right to Cancel, were provided in English.

9. One of the loan documents received by the Plaintiffs was a Notice of Right to Cancel, a model form mandated by the Truth in Lending Regulation Z, referenced in section 226.23 of title 12 of the Code of Federal Regulations, Appendix H.

10. Plaintiffs’ daughter, Marcelina Fuster, was present at the closing, at the suggestion of Mr. Enrique, to act as an interpreter. She assisted in translating the closing agent’s verbal instructions, as well as his explanations of the loan documents, from English to Spanish for the Plaintiffs. Ms. Fuster did not have the opportunity to read, nor to translate the loan documents themselves.

11. Plaintiffs are unable to read English and did not understand the contents of the documents that they were signing at closing. At the time of the closing, Plaintiffs had the intention of entering into a fixed rate mortgage. Plaintiffs were unaware that the first ten years of payments under the loan would not be applied to the principal, that the loan had an adjustable rate, or that the loan documents contained falsified information concerning their monthly income.

12. In connection with the July 3, 2007 transaction, Plaintiffs purchased the mortgage refinancing services for a price in excess of $25. The original lender in this transaction was Indymac Bank, F.S.B.

13. Subsequently, on July 11, 2008, Indymac Bank, F.S.B. went into receivership, and the Federal Deposit Insurance Corporation (FDIC) was appointed its receiver. As a result, certain assets and liabilities of Indymac Bank, F.S.B., including the Plaintiffs’ mortgage loan, were transferred to Indymac Federal Bank, F.S.B., for which the FDIC served as conservator.

14. Under a Master Purchase Agreement (the “MPA”) dated March 18, 2009, Defendant OneWest Bank, FSB (“OneWest Bank”), acquired the Plaintiffs’ loan, formerly held by Indymac Bank, F.S.B., from the FDIC.

15. In the MPA, Defendant agreed to assume certain liabilities associated with loans acquired from the FDIC. In Section 4.02 of the MPA, there are enumerated certain liabilities that the Defendant did not assume, however, such excluded liabilities are unclear, as Schedule 4.02(a) referenced in the MPA detailing excluded liabilities was not provided to the Court.

16. On August 5, 2009, Plaintiffs sent a Notice of Cancellation to Indymac Mortgage Services, a division of Defendant OneWest Bank, alerting the entity of Plaintiffs’ intention to file suit if a favorable response was not received within ten (10) days.

17. OneWest Bank failed to provide any response to the Notice of Cancellation within (10) ten days after receiving such notice. OneWest Bank responded to Plaintiffs in a letter dated October 15, 2009, denying Plaintiffs’ request to rescind the mortgage loan transaction.

18. After commencing this action on August 24, 2009, Plaintiffs began escrowing their monthly payments.

19. Plaintiffs ceased escrowing payments upon receipt from OneWest Bank of a Notice of Intention to Foreclose. Plaintiffs continued to make monthly payments to prevent foreclosure on the Property during the pendency of this action.

20. As of November 8, 2010, the bench trial date in this matter, Plaintiffs were up to date on their payment obligations under the loan at issue.

21. Plaintiffs seek:

a) Determination that the mortgage on their home is void following their submission to OneWest Bank of a notice of cancellation, as required under 73 P.S. § 201-7(g).

b) Determination that, by failing to honor the Notice of Cancellation and inform Plaintiffs of their intent to collect the proceeds of the loan within ten (10) business days as required under 73 P.S. § 201-7 (g), OneWest Bank has forfeited the right to any further payment.

c) If the mortgage is not cancelled, Plaintiffs seek in the alternative triple damages based on the amount of refunded payments they would have received, and the security instrument that would have been terminated if Defendant had taken the appropriate steps to cancel the loan as follows:

i) Triple damages based on the amount of payments made by Plaintiffs to date, at least $30,043.36, for a total of $90,130.08, pursuant to 73 P.S. § 201-9.2(a).

ii) Actual damages in the amount of the security instrument that OneWest failed to terminate, and which OneWest retains as a lien against Plaintiff’s home, in the amount of $115,000.00, pursuant to 73 P.S. § 201-9.2(a).

Conclusions of Law

A. Plaintiffs Asserted a Valid Claim for Damages Arising From OneWest’s Failure to Cancel the Mortgage Transaction

1. A Federal Law Preempts only State Law Directly in Conflict with the Scope of Such Federal Law

a) Generally, the law of preemption, which has its roots in the Supremacy Clause, dictates that federal law preempts state law when Congress has shown intent to create federal regulation in a particular field so pervasive as to leave no room for state supplementation.

b) Pursuant to 12 C.F.R § 545.2, The Office of Thrift Supervision (OTS) has the “plenary and exclusive power . . . to regulate all aspects of the operations of Federal savings associations, as set forth in section 5(a) of the [Home Owners Loan] Act. This exercise of the Office’s authority is preemptive of any state law purporting to address the subject of the operations of a Federal savings association.”

c) The OTS, however, makes an exception for, inter alia, state contract and commercial laws which only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purpose of the regulation. 12 C.F.R. § 560.2(c)(1).

d) While the Third Circuit has not yet ruled on the preemptive relationship between the Home Owners Loan Act (“HOLA”) and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-7 (“UTPCPL”), the Southern District of New York held that the New York Consumer Fraud Statute is not directly aimed at lenders, and has only an incidental impact on lending relationships without creating any conflict with the federal objectives identified in 12 C.F.R. § 560.2. Binetti v. Wash. Mut. Bank, 446 F. Supp. 2d 217 (S.D.N.Y. 2006).

e) In Binetti, the Southern District of New York pointed to a December 24, 1996, OTS opinion which concluded that the New York Consumer Fraud Statute is the type of commercial law designed to “establish the basic norms that undergird commercial transactions” that the OTS has indicated it does not intend to preempt. Id. at 219.

f) A state law that generally dictates the underpinnings of fair trade practices is distinguishable from a state law that is directly aimed at lenders, which courts See have consistently held to be preempted by HOLA and similar federal acts. Binetti v. Wash Mut. Bank at 220 (citing 1999 OTS LEXIS 4).

g) The Court, finding Binetti instructive, holds thatthe Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) governs the customs and practices surrounding commercial transactions generally, and thus is not preempted by HOLA.

h) Similarly, the UTPCPL is not preempted by the Truth in Lending Act.

I) The Truth in Lending Act preempts state law only where the state law is in conflict. Jamal v. WMC Mortg. Corp., 2005 U.S. Dist. LEXIS 5076 (E.D. Pa. Mar. 28, 2005).

j) As noted in Jamal, “the TILA provides in relevant part at 15 U.S.C. § 1610(a)(1),

`Except as provided in subsection (e) of this section [relating credit and charge card application and solicitation disclosures], this part and parts B and C of this subchapter do not annul, alter, or affect the laws of any State relating to the disclosure of information in connection with credit transactions, except to the extent that those laws are inconsistent with the provisions of this subchapter and then only to the extent of the inconsistency. . . .'”

k) The Court in Jamal further notes that, “[s]imilarly, Regulation Z, 12 C.F.R. § 226.28(a) states in pertinent part:

`Inconsistent disclosure requirements. (1) Except as provided in paragraph (d) of this section [relating to special rule for credit and charge cards], state law requirements that are inconsistent with the requirements contained in chapter 1 (General Provisions), chapter 2 (Credit Transactions), or chapter 3 (Credit Advertising) of the act and the implementing provisions of this regulation are preempted to the extent of the inconsistency. . . .'”

l) The Truth in Lending Act, which focuses on consumer credit disclosures, is not preempted by the UTPCPL, a state law only which generally governs commercial transactions, and is not aimed at federal consumer credit practices.

2. Plaintiffs have a valid claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-7 (UTPCPL) against OneWest Bank.

a) The loan transaction which Plaintiffs entered into on July 3, 2007 is governed by the door-to-door sales provisions of the UTPCPL. 73 P.S. § 201-7.

b) Under 73 P.S. § 201-7, the right to cancel is afforded “to any consumer who agrees to purchase goods or services with a value of $25 or more `as a result of or in connection with’ contact between the seller and the consumer at the consumer’s home.” Burke v. Yingling, 446 Pa. Super. 16, 21 (1995).

c) At trial, the Court determined that OneWest Bank qualifies as a seller within e definition of the UTPCPL.

d) In this case, the service provided, mortage refinancing, had a value of well over twenty-five dollars ($25).

e) Additionally, such services were contracted as a result of contacts between the Plaintiffs and One West Banka Plaintiffs’ residence, including a telephone call placed by Mr. Tellado from his joome, and the loan closing which occurred at the residence. Thus, as in Fowler v. Rauso, 425 B.R. 1657 (Bankr. E.D. Pa. 2010), the contacts made at the residence of the consumers result in this transaction falling within the scope of 73 P.S. § 201-7.

e) Under the door-to-door sales provision of the UTPCPL, at the time of the sale or contract the buyer shall be provided with a notice of cancellation written in the same language as that principally used in the oral sales presentation and also in English. 73 P.S. § 201-7(b).

f) The buyer shall also be informed in the notice to cancel that he may avoid the contract or sale by providing the seller with a written notice of cancellation within three business days after the date of the transaction. 73 P.S. § 201-7(b).

g) IndyMac Bank, F.S.B., the original mortgagee, did not provide any documents in Spanish, the language of the sales presentation, nor did IndyMac Bank, F.S.B. provide additional notifications of the right to cancel within three business days near the signature line of the Note or Mortgage, as required by the UTPCPL. 73 P.S. § 201-7(b).

h) Thus, IndyMac Bank F.S.B., a division of OneWest Bank, failed to provide proper notice of Plaintiffs’ right to cancel the transaction under the UTPCPL.

i) Further, the door-to-door sales notice to cancel requirements of the UTPCPL are not preempted by HOLA because they only incidentally affect the lending operations of OneWest and are consistent with the purpose of the HOLA.

j) The Court finds that “[t]he UTPCPL is a law of general applicability, and not targeted directly at banking or lending.” Poskin v. TD Banknorth, N.A., 687 F. Supp. 2d 530 (W.D. Pa. 2009).

k) While the Third Circuit has not issued a ruling directly addressing the issue at hand, courts within the Ninth Circuit have provided some guidance.

l) In Reyes v. Premier Home Funding, Inc., 640 F. Supp. 2d. 1147 (N.D.Cal. 2009), the Court considered HOLA’s preemption of the California Translation Law (CTA), which requires that a translation of a contract or agreement be provided in the language in which the contract or agreement was negotiated. The Court held that the CTA was not preempted by HOLA because it did not require any specific statements, information or other content to be disclosed and because it only affects lending incidentally. Id. at 1155 (emphasis added).

m) Reyes, as well as the case at issue, is distinguishable from several other Ninth Circuit cases which called for federal preemption of state regulations.

n) Where the state regulation in question regards specific processing, servicing, or disclosure policies or concerns the substantive financial terms of the loan, preemption has been deemed necessary. See Parcray v. Shea Mortg., Inc., 2010 WL 1659369 (E.D. Cal. Apr. 23, 2010)(concluding that HOLA preempts Cal. Civ. Code § 2923.5 because it “concerns the processing and servicing of [the plaintiff]’s mortgage”); Odinma v. Aurora Loan Servs., 2010 WL 1199886 (N.D. Cal. Mar. 23, 2010); Murillo v. Aurora Loan Servs., LLC, 2009 WL 2160579 (N.D. Cal. July 17, 2009); Silvas v. E*Trade Mortg. Corp., 421 F. Supp. 2d 1315 (S.D. Cal., 2006) (concluding that where federal law preempts an “entire field,” a state’s provision of remedies for a violation of federal law amounts to a form of state regulation of the affected area and is thus preempted).

o) As in Reyes, the Court finds that notice of right to cancel in this matter was incidental to the larger mortgage refinancing transaction, and thus is not preempted by HOLA or TILA, as discussed above.

B. Plaintiffs Fulfilled their Burden of Proof and are Entitled to Damages under the PA UPTCPL

1. The cancellation period provided for in 73 P.S. § 201-7(e) shall not begin to run until buyer has been informed of his right to cancel and has been provided with the required copies of the “Notice of Cancellation.”

2. Because Plaintiffs never received the proper notification of their right to cancel under the UTPCPL, the cancellation period provided for in 73 P.S. § 201-7(e) had not begun to run at the time Plaintiffs sent a Notice of Cancellation to Defendant on August 5, 2009.

3. Because no valid notice of cancellation was issued to Plaintiffs, Plaintiffs’ Notice of Cancellation was sent within the required time constraints pursuant to 73 P.S. § Plaintiffs are not required to show actual losses for remedies to be triggered under 73 P.S. § 201-7(g).

4. Relief granted to Plaintiffs shall be as follows:

a) Defendant OneWest Bank shall refund all payments made under the contract, cancel and return any negotiable instrument executed by the Plaintiffs in connection with the mortgage refinancing, and take any action necessary or appropriate to terminate promptly any security interest created in the mortgage refinancing transaction. 73 P.S. § 201-7(g).

b) Under 73 P.S. 201-9.2(a), the Court may, in its discretion, award up to three times the actual damages sustained [due to “deceptive practices”, as statutorily defined], but not less than one hundred dollars ($100). The Court may provide such additional relief as it deems necessary or proper.

c) Because the acts in question do not rise to the level of unlawful deceptive practices required under 73 P.S. § 201-9.2(a), the Court declines to award damages permissible under this section.

An appropriate order follows.

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