The existence of only one copy of the Notice of the Right to Cancel in borrower’s file was not a plausible reason to believe that two copies were not delivered where he signed an acknowledgement of that fact

The Plaintiff in Burgueno v. GMAC Bank, NO. CV-08-1642-PHX-ROS (D.Ariz., July 23, 2009) alleged that he did not receive a proper Notice of Right to Rescind. As is customary at closing the Plaintiff signed an acknowledgment that he had received two copies of the notice. However, he also asserted there was only one copy of the notice in the documents he retained, and thus his acknowledgment of receiving two copies was patently false. Plaintiff asserted that because that acknowledgment was false, the lender could not adequately demonstrate it delivered two copies of the notice to Plaintiff. The court held that because the courts have recognized that one copy of the Notice of Right to Rescind is intended to be retained by the creditor coupled with the presumption created by the signed acknowledgment, the presence of only one copy of the notice in the records retained by the Plaintiff was not by itself provide a plausible reason to believe that two copies were not delivered to the Plaintiff at closing. From this the court found that the Plaintiff’s alleged facts stopped short of establishing the plausibility of the allegation of improper notice of his right to rescind the transaction.

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