Getting around that tricky problem of proving that borrowers received two copies of the notice of the right to rescind required under TILA made a bit easier

Two recent district court cases are noteworthy for their treatment of the proof required to defend a TILA claim seeking rescission for failure to provide the required number of copies of the right to cancel; one disposing of the claim on summary judgment and the other on a motion to dismiss. In the first case, Parker v. Long Beach Mortg. Co. Slip Copy, Civil Action No. 06-2002 (E.D.Pa., January 02, 2008), the District Court for the Eastern District of Pennsylvania held that the borrower’s testimony that disclosures were not provided, without more, was insufficient to rebut the presumption that disclosure occurred where there is written acknowledgment of receipt. Relying on _McCarthy v. Option One Mortgage Corp._, 362 F.3d 1008, 1011 (7th Cir.2004) (finding mere assertion of non-receipt insufficient to rebut written evidence that disclosures were provided) and _Gaona v. Town & Country Credit_, 324 F.3d 10 1054 (8th Cir.2003) (finding allegations that disclosures were not provided insufficient to rebut presumption) the court found the borrowers claims that they do not remember receiving the required notices as insufficient to overcome the presumption that they received the required number of copies of the Truth-in-Lending notices.

In Reck v. Town & Country Credit Corp. Civil No. 07-3756 ADM/JSM (D.Minn., January 03 2008) a Minnesota District Court held that the borrowers could not even state a claim under TILA without first alleging facts to overcome the presumption of delivery. The court held that the borrower’s signed acknowledgment created a presumption of receipt and that the plaintiff _has not alleged_ any basis to overcome that presumption. Presumably the forms were attached to the complaint which entitled the creditor to argue persuasively that it had evidence the borrower received and signed the notice of the right to cancel.

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