Where The Demand For Rescission Was Made Within Three Years But Suit For Rescission Was Not Brought Within Three Years, The Court Was Without Jurisdiction To Consider Claim

In Ramos v. Citimortgage, Inc., CIV. 08-02250 (E.D.Cal. Jan. 8, 2009), the consumer sent a letter to the assignee of the mortgage holder (assignee) demanding rescission of the loan which was made on September 25, 2005. The demand was based on the originator’s failure to supply the notice of the right to cancel required by TILA. The notice was sent to the assignee on August 11, 2005 and suit for rescission and money damages for not honoring the rescission was filed on September 24, 2005. The defendant moved to dismiss the complaint for failure to state a claim. As to damage claim for failure to rescind, brought under Section 16 the court ruled that that claim was timely because it was brought within one year of the demand. As for the rescission claim, the court ruled that irrespective of the assignee’s timely receipt of the notice of rescission, the fact that the plaintiff did not file the complaint within three years from the date on which he consummated his loan, meant that the court was without jurisdiction to consider the claim, _citing Miguel v. Country Funding Corp._, 309 F.3d 1161, 1165 (9th Cir. 2002).

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