The borrowers failed to overcome the presumption that they received two copies of the notice of the right to cancel under TILA

At trial the borrowers contended that the evidence presented proved that neither of them received two copies of the Notice of Right to Cancel required under TILA. 15 U.S.C. § 1635(a 12 C.F.R. § 226.23(b)(1). The district court found for the lender that it was more likely than not that they were provided with the requisite number of Notices. In an unpublished opinion, the Tenth Circuit did not disturb that finding. The borrowers’ sole evidence that they did not receive the requisite four copies was the wife’s trial testimony, which consisted in its entirety of the following statement: [D]id Tom and I receive four copies of Notices of Right to Cancel in a form that the consumer can keep. The answer is no…. [D]id Tom and I mail Notice of Rescission within three years of closing. The answer is yes. But on cross-examination, she admitted that she did not know how many copies of the Notice her husband received. The originator, on the other hand, entered into evidence several copies of the Notice which it retained, provided a copy of the instructions from the closing which stated that each borrower was to receive two copies of the Notice, and presented testimony from an employee who authenticated the instructions. The employee also testified that more than four copies of the Notice were provided to the closing agent. She also testified that under their firm’s procedures, issuance of a loan was conditioned on receipt of a document executed by the closing agent stating that the agent had followed these instructions, and that the subject loan file contained such an executed copy. The district court also made an explicit factual finding that Mrs. Smith’s testimony was not credible based in part upon her evasive and defensive demeanor and concluded that the preponderance of the evidence weighed in favor of the lender. The case is Smith v. Argent Mortg. Co., Nos. 07-1409, 07-1525, 08-1199 (10th Cir., May 18, 2009).

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