Borrower’s self serving statement not enough to rebut the presumption of delivery of the Notices of the Right to Cancel

The Third Circuit has weighed in on the quantum of proof necessary to carry a TILA claim centering on a creditor’s failure to provide two copies of the notice of the right to cancel. In Jobe v. Argent Mortg. Co., LLC, 09-3677, 2010 WL 1255683 (3d Cir. Apr. 2, 2010) the Third Circuit found for the creditor based on the consumers’ failure to offer sufficient to rebut the presumption of delivery. The consumers argued that despite signing a written acknowledgement that they received two copies there was a question of fact precluding summary judgment. See, 15 U.S.C. § 1635(c) (written acknowledgment of receipt of any disclosures under [TILA] * * * create(s) a rebuttable presumption of delivery thereof). The district court found otherwise and was affirmed by the Third Circuit. Applying the de novo standard of review, the reviewing court was not persuaded by their testimony that they did not receive the requisite number of copies. This was rebutted by their signed acknowledgement and the closing agent’s testimony that he always followed all applicable procedures and provided the relevant number of copies to borrowers at closings. At their depositions, plaintiffs testified that they could not remember what was given to them at the closing. Per the court the standard is: Where a borrower’s testimony is self-serving and unreliable, such testimony has been found insufficient to rebut a presumption of delivery.

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