## Facts

- The Truth in Lending Act (TILA) and Regulation Z require a creditor in a covered mortgage transaction to provide each borrower with a notice of the right to cancel and, for a transaction with two borrowers, to provide the required number of copies to both borrowers.
- Larry and Cheryle Jesinoski refinanced their home with a mortgage loan originated by Countrywide Home Loans, Inc.
- At closing, the Jesinoskis signed an acknowledgment stating they received the required TILA disclosures, including the notice of right to cancel.
- Later, the Jesinoskis could not recall how many copies of the notice they received at closing.
- More than two years after closing, the Jesinoskis took a file of their loan documents to a mortgage specialist, Mark Heinzman, who told them the file contained only two copies of the right-to-cancel notice.
- The Jesinoskis attempted to rescind the loan within TILA’s three-year period, asserting the rescission period was extended because Countrywide allegedly failed to provide the required number of notice copies.
- In earlier proceedings, the Eighth Circuit had held their rescission claim untimely, but the Supreme Court reversed and held that rescission is exercised by sending written notice within three years, not by filing suit within three years.
- On remand, the district court granted summary judgment for Countrywide and related defendants, ruling that the signed acknowledgment created a rebuttable presumption of delivery and that the Jesinoskis’ evidence did not create a genuine dispute of fact.
- The Jesinoskis appealed the post-remand summary judgment.

## Issues

1. Whether the borrowers’ signed TILA acknowledgment at closing created a rebuttable presumption that Countrywide delivered the required number of copies of the right-to-cancel notice.
2. Whether the borrowers produced admissible evidence sufficient to rebut that presumption and create a genuine dispute of material fact precluding summary judgment.

## Decision

- The Eighth Circuit affirmed the district court’s grant of summary judgment for the defendants.
- The court held that the signed acknowledgment of receipt triggered TILA’s rebuttable presumption that the required disclosures (including the required notice copies) were delivered.
- The court held the Jesinoskis failed to rebut that presumption with evidence sufficient to permit a reasonable factfinder to conclude the required copies were not provided.
- The court concluded that the borrowers’ lack of memory about how many copies they received, combined with evidence that their retained file later contained only two copies, was not enough to overcome the presumption created by their signed acknowledgment.
- The court treated the Supreme Court’s earlier decision as resolving only the timing/method question (notice within three years), leaving the delivery-of-notices dispute to be resolved on remand.

## Legal Principles

- A borrower’s written acknowledgment of receipt of TILA disclosures creates a rebuttable presumption that the disclosures were delivered. (15 U.S.C. § 1635(c))
- To defeat summary judgment, the nonmoving party must present evidence that would be admissible (or shown capable of being presented in admissible form at trial) and that creates a genuine dispute of material fact.
- A borrower’s inability to remember whether disclosures were provided generally does not rebut the statutory presumption created by a signed acknowledgment.
- Evidence that a borrower’s later-retained document file contains fewer copies than required, without more, may be insufficient to show what was actually delivered at closing when weighed against a signed acknowledgment.
- The Supreme Court’s holding that rescission is exercised by notice within three years does not resolve whether the statutory conditions for an extended rescission period are met in a given case.

## Conclusion

The Eighth Circuit affirmed summary judgment for Countrywide because the Jesinoskis’ signed acknowledgment created a rebuttable presumption that they received the required number of right-to-cancel notices, and their contrary proof—lack of recollection and a later file review indicating only two copies—did not create a triable fact issue that Countrywide failed to deliver the required copies at closing.


Jesinoski v. Countrywide Home Loans, 883 F.3d 1010 (2018)