TILA rescission claim dismissed because the notice of right to cancel, while incorrect, was sufficient as a matter of law to advise borrower of his right to rescind

The borrower, in Dahn v. Fifth Third Bank, NO. 3:09-CV-184-JPG-PMF) (S.D.Ill., August 2009) argued that the notice of right to cancel was inaccurate because it deviated from the model form contained in Appendix H of 12 C.F.R. Pt. 226. He argued that the notice was unclear because the section where the borrower could sign to verify his receipt of the notice was dated with a date other than the date he actually received the notice and that this inaccuracy voids the notice. He also claimed that when he was first presented with the documents, the blanks had not been filled in. The court agreed with the lender that the notice was adequate. It found that the notice contained the entire substance of model form H-8 which, according to the statute, contains all the necessary disclosures. The court also rejected the argument that the form was confusing to the ordinary consumer because it says too much such. The borrower pointed specifically to the existence of the verification section that contained the unsigned statement to acknowledge receipt of the notice on the transaction date. But in the complaint he says he did not receive it on that day. The Court found that this error did not render the form defective or unclear to the ordinary consumer. The mere existence of a verification section does not create confusion. The verification section itself is simple and does not conflict with any other part of the notice. Furthermore, this type of verification is contemplated by TILA as an acceptable means of creating a presumption that the consumer received a disclosure. See 15 U.S.C. § 1635(c). The court found it was not necessary when the plaintiff admitted he received the notice. Furthermore, any error in the date printed in the verification did not cause any inaccuracies in the disclosure form. The borrower did not sign the verification acknowledging the lender provided it to him on the correct date, so the inaccurate date was of no consequence. It is as if there was no verification section at all or as if borrower refused to sign it because the date was wrong.

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