Seventh Circuit Rejects Class Action for TILA Violation Right of Rescission
October 21, 2008
John R. Mussman- Chicago
On September 24, 2008, the Seventh Circuit followed the First and Fifth Circuits in holding that class-action certification was not appropriate for a Truth in Lending Act (TILA) right of rescission claim and struck down a class certification ordered earlier by the district court.
The right of rescission is a remedy afforded borrowers for certain TILA violations in non-purchase money residential mortgage transactions. Generally, the rescission period ends three days after the closing of the transaction, but this three-day period is extended for three years if the creditor fails to give the borrower proper TILA disclosures or to provide a notice of the borrower’s right of rescission.
In a rescission, the borrower and the lender are returned to the position they were in before the transaction was closed: the lender releases the mortgage and returns all interest and other fees it has collected, and the borrower returns all loan proceeds. In Andrews, Chevy Chase allegedly gave the Andrews a deficient TILA payment schedule and included a computer-generated stamp on the top of one of the disclosure forms that the lower court found misleading. The loan contained a unique variable rate, containing a discounted, “teaser” rate applicable to the initial month’s payment.
TILA provides statutory damages for certain TILA violations, none of which were implicated in the Andrews’ claims; for such statutory violations, TILA provides class damages. The Seventh Circuit observed that TILA’s rescission provisions did not contain any provision for class action. In addition, the court noted that rescission is a “highly individualized remedy” and that “[t]he variations in the transactional ‘unwinding’ process that may arise from one rescission to the next make it an extremely poor fit for the class-action mechanism.”
The court also rejected any class-action remedy under Rule 23 of the Federal Rules of Civil Procedure. For instance, under Rule 23(b)(3), “common facts and law must predominate over questions affecting individual matters” and a class action “must be superior to other methods of adjudicating the controversy.” Here the Seventh Circuit found that the Andrews’ contention that they had met the “predomination and superiority requirements” were strained.
What’s the Point?
The Seventh Circuit’s holding means that class-actions for TILA rescission claims will not be certified in the Seventh Circuit and that such expansive remedies will not be available at the very time that the mortgage industry is reeling from the credit crunch. However, the severity of the rescission remedy highlights the importance of getting TILA disclosures right, particularly in loans, such as the one in Andrews, containing a variable or teaser interest rate.
For more information, contact:
John Mussman
312.578.6660
john.mussman@hklaw.com
toll free: 1.888.688.8500