Petition for Writ of Certiorari — Garth Cooper, Petitioner v. Countrywide Home Loans, Inc., et al.

In The

Supreme Court of the United States

GARTH COOPER

Petitioner

V.

COUNTRYWIDE HOME LOANS, INC. ET AL.

Respondent(s)

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

RECEIVED

MAR 162018

OFFICE OF THE CLERK

SUPREME COURT, U.S.

Garth Cooper

3564 Wesley Chapel Rd

Suite E-102

Decatur Georgia 30034

678 973 9888

QUESTIONS PRESENTED

The Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., gives borrowers the right

to rescind certain transactions "by notifying the creditor" 15 U.S.C. 1635(a). TILA

provides, however, that "[a]n obligor's right of rescission shall expire three years after

the date of consummation of the transaction or upon the sale of the property,

whichever occurs first." 15 U.S.C. 1635(f. The question presented is as follows:

Whether the foreclosure defense suit was time barred because it was commenced

more than three years after the relevant closing transaction was consummated, even

though the borrower provided the creditor written notice of their decision to rescind

the transaction within the specified three-year period.

Whether the present property in question consist of a "residential mortgage

transaction" as defined in 15 U.S.C. §1602 (x), despite the borrower's traditional

credit mortgage loan which did not include mortgage refinancing with the original

creditor, money securities, land, and was not an installment contract where the buyer

pays the sales price to the seller in installments over time.

Whether Nondisclosure of appropriate H8 forms under the Truth in Lending

Act is an affirmative defense which allows petitioner to further exercise rescission

right in a foreclosure action pursuant 12 CFR 226.23(h)(1)(ii) Special Rules for

Foreclosures.

LIST OF PARTIES

Garth Cooper, Petitioner, Appellant on appeal

CountryWide Home Loans, Inc. Defendant-Appelle

Bank of America N.A Inc., Defendant-Appelle

Jarrod Sean Mendel, Counsel for Appellees-Appellees

Richard W. Story, District Judge, United States District Court

Northern District of Georgia

Linda T. Walker, Magistrate Judge, United States District Court

Northern District of Georgia

Brady B. Martin, United States Eleventh Circuit Judge

Judge JORDAN, United States Eleventh Circuit Judge

Judge ROSENBAUM, United States Eleventh Circuit Judge

Judge JILL PRYOR, United States Eleventh Circuit Judge

TABLE OF CONTENTS

QUESTIONS PRESENTED...................................................................i

LIST OF PARTIES ............... ................................................................ ii

TABLE OF CONTENTS.......................................................................iii

JURISDICTION..................................................................................iv

CONSTITUTIONAL PROVISIONS, STATUTES AND POLICIES...............v

TABLE OF APPENDICES....................................................................vi

TABLE OF AUTHORITIES..................................................................vii

STATEMENT OF THE CASE ................................................................ 1-4

Facts Giving Rise To This Case ............................................. 12

The District Court Proceedings................................................3

The Appellate Court Proceedings...........................................3-4

REASONS WHY CERTIORARI SHOULD BE GRANTED.........................4-15

CONCLUSION......................................................................................15

JURISDICTION

This case concerns the right to rescind certain transactions under the Truth in

Lending ACT (TILA or the Act), 15 U.S.0 1601 et seq. The jurisdiction of this

Court to review the Judgment of the Eleventh Circuit is invoked under 28 U.S.0

§1254(1) & 28 U.S.C. 2101(a).

iv

CONSTITUTIONAL PROVISIONS, STATUTES AND POLICIES AT ISSUE

SUPREME COURT OF THE UNITED STATES

JESINOSKI ET oX v. COUNTRYWIDE HOME LOANS, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

No. 13-684. Argued November 4, 2014—Decided January 13, 2015

Held-'A borrower exercising his right to rescind under the Act need only

provide written notice to his lender within the 3 -year period, not file suit

within that period. Section 1635(a)'s unequivocal terms—a borrower "shall

have the right to rescind. by notifying the creditor... ofhis intention to do

so" (emphasis added)—leave no doubt that rescission is effected when the

borrower notifies the creditor ofhis intention to rescind This conclusion is

not altered by §16350, which states when the right to rescind must be

exercised, but says nothing about how that right is exercised Nor does

§1635(g)—which states that In addition to rescission the court may a ward

relief. not relating to the right to rescind"—support respondents' view that

rescission is necessarily a consequence ofjudicial action. And the fact that

the Act modified the common-law condition precedent to rescission

.

.

.

.

V

TABLE OF APPENDICES

App. 1

• Appendix A 07/15/2016 Recommendations of Magistrate Court

Dismissal of TILA claims Case 115-CV-03322

• Appendix B 08/25/2016 Order of District Court Dismissal of TILA claims

App.10

Case 115CV03322

• Appendix C 02/06/2018 Order Granting Motion to Dismiss

Eleventh Circuit Appeals Court Case 16-16173

App.11

• Appendix D 07/06/2015 Evidence of foreclosure/Respondents nonjudicial

App. 18

foreclosure Letter

App. 19

Vi

TABLE OF AUTHORITIES

CASES

Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356 (1973) ..........................9,13

Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998)...........................................4,7

Velardo v. Fremont Inv. & Loan, 298 F. App'x 890, 892 (11th Cir. 2008)...........3

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980).............................. 12

Palmer v. Champion Mortg., 465 F.3d 24 (1st Cur. 2006)................................ 7

Family Fin. Servs., Inc. v. Spencer, 677 A.2d 479, 482, 487

(Conn. App. Ct. 1996)..............................................................................8

Nat'] Bank v. Gendron, 780 F. Supp. 52, 56 (D. Me. 1991)..............................7

Sherzer v. HomestarMortg. Servs., 707 F.3d 255, 264265 (3d Cir. 2013).........8

Barrett v. JPMorgan Chase Bank, 445 F.3d 874, 881-882 (6th Cir. 2006).........9

Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219-223 (1981).......................9

GoodyearAtomic Corp. V. Miller, 486 U.S. 174, 184185 (1988).......................10

JESINOSKI ET (IX v. COUNTRYWIDE HOME LOANS, INC., ET AL

January 13th, 2015...................................................................................14

STATUTES & REGULATIONS

Dodd-Frank Wall Street Reform and Consumer Protection Act,

Pub. L. No. 111-203, 124 Stat. 1376:

§1061(b)(1), 124 Stat. 2036.........................................................................1

§1100A(2), 124 Stat. 2107.............................................................................1

§1100H, 124 Stat. 2113.................................................................................1

Act of Oct. 28th, 1974, Pub. L. No. 93-495, §405, 88 Stat. 1517..........................1

Truth in Lending Act, 15 U.S.C. 1601 et seq..................................................1

U.S.C. 1601.......................................................................................5,9,14

15 U.S.C. 1601(a).......................................................................................5

15 U.S.C. 1602(x).................................................................................. 3,11

15 U.S.C. 1603..........................................................................................5

15 U.S.C. 1604(a)....................................................................................5,6

15 U.S.C. 1635(a).......................................................................3,5,6,9,10,14

15 U.S.C. 1635(b)...................................................................6,7,8,9,10,13,14

15 U.S.C. 1635(c)....................................................................................... 7

15 U.S.C. 1635(d)..................................................................................... 5,6

15 U.S.C. 1635U ...........................................................................3,4,5,6,7,10,13

15 U.S.C. 1635(h)...................................................................................6,14

15 U.S.C. 1635(1) ...................................................................................... 6,8

15 U.S.C. 1640(a).................................................................................6,7,13

15 U.S.C. 1640(a)(3)....................................................................................7

15 U.S.C. 1640(c).........................................................................................7

15 U.S.C. 1640(e)........................................................................................3,7

15 U.S.C. 1640(g).........................................................................................7

VII

28 U.S.C. 2201 ....................................................................................... 7

12 C.F.R. Pt 226:

Section226.17(d)................................................................................1,10

Section 226.23(a)(2) ........................................................................... 1,7,8, 10

Section 226.23(a)(3).................................................................................7

Section 226.23(d)(1)(2) ........................................................................6,14

Section 226.23(h)(1)(ii)........................................................................14,15

12 C.F.R. Pt 1026

Section 1026.23(a)(2)......................................................................1,7,8,14

Section 1026.23(a)(3)................................................................................1

App. H-8.................................................................................1,6,10,14,15

App. H9 ............................................................................................ 1,6,10

MISCELLANEOUS:

Black's Law Dictionary (rev. 4th ed. 1968)...................................................5

Webster's New Twentieth Century Dictionary (2d ed. 1969)..........................5

VII

STATEMENT OF THE CASE

1. In a 2010 enactment, Congress transferred to the Bureau the authority to

implement and promulgate rules under TILA. See Dodd-Frank Wall Street

Reform and Consumer Protection Act, Pub. L. No. 111203, §§ 1061(b)(1),

1100A(2), 110011, 124 Stat. 2036, 2107, 2113; Designated Transfer Date, 75

Fed. Reg. 57,252 (Sept. 20, 2010) (designating transfer date of July 21, 2011).

On December 22, 2011, the Bureau repromulgated Regulation Z pursuant to

that transferred authority, making no relevant substantive changes to the text

of the provisions that address the right of rescission. Truth in Lending

(Regulation Z), 76 Fed. Reg. 79,768; see 12 C.F.R. Pt. 1026.

Regulation Z provides that, "Wo exercise the right to rescind, the consumer

shall notify the creditor of the rescission by mail, telegram or other means of

written communication. Notice is considered given when mailed, when filed

for telegraphic transmission or, if sent by other means, when delivered to the

creditor's designated place of business." 12 C.F.R. 226.23(a)(2); see 12 C.F.R.

Pt. 226, Apps. H-8, 11-9 (model forms for exercising rescission right); 12 C.F.R.

1026.23(a)(2). Regulation Z further provides that, if a creditor fails to deliver

the required disclosures, "the right to rescind shall expire 3 years after

consummation, upon transfer of all of the consumer's interest in the property,

or upon sale of the property, whichever occurs first." 12 C.F.R. 226.23(a)(3);

see 12 C.F.R. 1026.23(a)(3).

1

On July 14th, 2003, Petitioner entered into a consumer credit transaction for

the purchase of a home in Ellenwood Georgia, obtaining a Loan for a

mortgage. The Lender Sun America Mortgage Corporation, later sold the

mortgage to CountryWide Home Loans. Both creditors however, failed to

provide petitioner with the required number of copies of the Notice of right of

rescission and the appendix H8 loan disclosure forms.

On May 19th, 2006, roughly within three years after the transaction was

consummated, Petitioner sent a written notice of rescission to all parties

which included Sun America Mortgage, CountryWide Home Loans & Bank of

America, N.A. by USPS mail.

On July 6th, 2015 Defendants CountryWide Home Loans/Bank of America

N.A., sent a notice of commencement for a nonjudicial foreclosure on the

home.

On September 22nd 2015, petitioner filed a foreclosure defense action in

District Court, asserting nondisclosure claims under TILA. Petitioner

requested that the court "declare the mortgage transaction rescinded," and

sought restitution damages for the "failure" to honor the rescission notice.

Shortly after responding to the complaint with a motion, respondents moved

for dismissal on the pleadings. Respondents contended that petitioner could

not pursue any claim premised on a right of rescission because Petitioner had

filed the complaint more than three years after the loan consummation took

2

place. Further, respondents content that the petitioner had a "residential

mortgage transaction" according to 1602(x) which is exempt from rescission.

The District court granted the motion. The court "assumed without

deciding" that petitioner had pled a plausible claim they he did not receive the

required documents at the closing. The court concluded, however, that

petitioner's suite was "time barred" because the complaint was not filed within

one year of July 14th, 2003, the date the petitioner had "closed on the loan."

The court described Section 1635(f) as a "three year statue of repose on claims

for rescission."

The court explained the sole issue is whether mailing a notice of rescission

within three years of consummating a loan is sufficient to 'exercise' the right

to rescind a loan transaction pursuant to 15 U.S.C. §1635(a) or whether a party

seeking to rescind the transaction is required to file a lawsuit within one year

statutory period. Magistrate Linda T. Walter concluded petitioner must file

suit within one year pursuant 15 U.S.C. § 1640(e) and stating "When the

violation of the Act is nondisclosure, the violation occurs when the transaction

is consummated. In re Smith, 737 F.2d 1549, 1552 (11th Cir. 1984); Velardo v.

Fremont Inv. & Loan, 298 F. App'x 890, 892 (11th Cir. 2008) (citing 15 U.S.C.

§ 1640(e))."

7. On September 28th, 2016 and in and around December 14th 2016 Petitioner

filed a motion for leave to proceed on appeal in forma pauperis to challenge

the District Court's dismissal of the TILA criminal complaint for failure to

state a claim. Petitioner's pauperis motion was denied by Richard W. Story,

District Judge and by Brady B. Martin 11th Circuit Judge denying petitioner

to file on appeal in forma pauperis stating T.I.L.A was time barred.

8. On February 6th 2018. Court of Appeals for the Eleventh Circuit Judges

agreed with the recommendations of the District court's decision and granted

motion to dismiss.

REASONS WHY CERTIORARI SHOULD BE GRANTED

A. The review is warranted Because the opinion by the magistrate and Eleventh

Circuit conflicts with an opinion of the Supreme Court of the United States. An

Obligor Exercises The Right Of Rescission By Sending A Notice via Mail And Is

Not Required Under Section 1635(f) To File Suit Within The Three-Year Period

Specified By That Provision

1. a. Respondents do not dispute that, within the initial three-year period after

petitioner's transaction occurred, a written notice to exercise the obligor's right

to rescind was mailed.

Under TILA, "[a]n obligor's right of rescission shall expire three years after the

date of consummation of the transaction or upon the sale of the property,

whichever occurs first, notwithstanding the fact that the information and forms

required under this section or any other disclosures required under this part

have not been delivered to the obligor." 15 U.S.C. 1635(f). That provision "says

nothing in terms of bringing an action" or "a suit's commencement"; rather, it

4

speaks to the "duration" of the rescission right. Beach v. Ocwen Fed. Bank, 523

U.S. 410, 417 (1998). An obligor who exercises his "right of rescission" before it

expires has satisfied the time limit set forth in Section 1635(f).

Section 1635(a), in turn, unambiguously describes how an obligor may

exercise the rescission right. That subsection states that "the obligor shall have

the right to rescind the transaction by notifying the creditor, in accordance with

regulations" of the relevant agency, "of his intention to do so." 15 U.S.C. 1635(a).

Section 1635(a) also mandates that the creditor "provide appropriate forms for

the obligor to exercise his right to rescind any transaction subject to this

section."

Section 1635(a) thus makes clear that, if a creditor fails to make the

disclosures that TILA requires, an obligor who sends a notice of rescission within

Section 1635(f)'s three- year period has exercised the "right of rescission" before

its expiry, regardless of whether he asserts a claim in court within the same

period. The obligor's responsibility in exercising the right is to "notifyEi" the

creditor—that is, "No give notice to; to inform by words or writing, in person or

by message, or by any signs which are understood; to make known." Black's Law

Dictionary 1211 (rev. 4th ed. 1968); see also, e.g., Webster's New Twentieth

Century Dictionary 1225 (2d ed. 1969). An obligor can make his exercise of the

rescission right "known" to the creditor using any writing, without invoking the

authority of a court to do so. Indeed, Section 1635(a) expressly contemplates

that the obligor can deliver the requisite notification by filling out a pre-printed

5

form--hardly an indication that the filing of a full fledged complaint is required.

See 15 U.S.C. 1635(a).

Section 1635(a) also states that an obligor who wishes to "notifyl the creditor"

must do so "in accordance with regulations." 15 U.S.C. 1635(a). Regulation Z

confirms that, "[t]o exercise the right to rescind, the consumer shall notify the

creditor of the rescission by mail, telegram or other means of written

communication." 12 C.F.R. 226.23(a)(2); see 12 C.F.R. Pt. 226, Apps. H-8, H-9

(model rescission forms, provision of which limits rescission rights under 15

U.S.C. 1635(h)). And, like Section 1635, the regulation does not require the

commencement of a lawsuit or refer to any means of exercising the right other

than sending a written notice.

b. Other TILA provisions bolster the conclusion that sending a notice is

sufficient to exercise the "right of rescission" within the time specified by Section

1635(f). Section 1635(b) states that, "[w]hen an obligor exercises his right to

rescind under subsection (a)," he "is not liable for any finance or other charge,

and any security interest becomes void upon such a rescission." 15 U.S.C.

1635(b). Accordingly, "Within 20 days after receipt of a notice of rescission, the

creditor shall return to the obligor" certain money or property, "and shall take

any action necessary or appropriate to reflect the termination of any security

interest created under the transaction." (stating that these "procedures shall

apply except when otherwise ordered by a court"); see also 12 C.F.R.

226.23(d)(1)-(2). Section 1635(b) confirms that sending the written notice

6

described in Section 1635(a) is not simply a preliminary step on the way to

exercising the "right of rescission." Rather, provision of the notice constitutes

the exercise of the right, with the operative legal consequences that timely

rescission entails.

2. TILA adverts to the possibility that a court may become involved, at the

behest of either the obligor or the creditor, after the obligor sends the rescission

notice. See 15 U.S.C. 1635(b), (c) and (g); 15 U.S.C. 1640(a)(3), (c) and (g). Inter

alia, the Act creates a cause of action for damages in 15 U.S.C. 1640, which

imposes monetary liability on "any creditor who fails to comply with any

requirement under section 1635" and specifies where and when such an action

may be brought. 15 U.S.C. 1640(a) and (e); see Beach, 523 U.S. at 417-418. The

relevant provisions do not suggest, however, that an obligor must file suit within

three years after the relevant transaction in order to prevent expiration of the

rescission right under Section 1635(f).

a. In a variety of contexts, courts may be called on to determine the validity

and legal effect of a borrower's notice of rescission. A creditor in receipt of a

notice of rescission may seek a declaration that the notice was untimely, or that

the Section 1635(b) procedures should be altered in light of the circumstances

presented. See 15 U.S.C. 1635(b) 28 U.S.C. 2201;. Nat'l Bank v. Gendron, 780

F. Supp. 52, 56 (D. Me. 1991). An obligor may sue for damages under Section

1640 for a creditor's failure to follow the unwinding procedures of Section

1635(b), and may seek a declaration that the notice of rescission is valid and that

7

the creditor is bound to comply with those procedures. See, e.g., Palmer v.

Champion Mortg., 465 F.3d 24, 26-27 (1st Cir. 2006); see also 28 U.S.C. 2201.

The obligor also may exercise the right of rescission through notice given to the

creditor in the context of an ongoing bankruptcy or judicial foreclosure case, see,

e.g., 15 U.S.C. 1635(i), or may invoke a notice already sent as part of a defense

raised in such an action, see, e.g., Family Fin. Servs., Inc. v. Spencer, 677 A.2d

479, 482, 487 (Conn. App. Ct. 1996).

If an obligor who has sent a rescission notice is involved in a suit against a

creditor that has ignored or declined to recognize the validity of the notice, the

court must determine whether the notice was valid and enforceable when it was

sent. If the court concludes that the notice was timely and otherwise valid, it

will hold that the "right of rescission" was exercised as of the notice date, and the

court can consider whether there is some special reason why the Section 1635(b)

procedures should not "apply." 15 U.S.C. 1635(b); see, e.g., Sherzer v. Homestar

Mortg. Servs., 707 F.3d 255, 264-265 (3d Cir. 2013) (explaining that obligor who

has sent a timely notice of rescission retains "the right to the return of his

property and to clear title—the rights flowing from rescission"). If the court

finds that the notice was untimely or otherwise invalid, it will hold that the

rescission right was never validly exercised, and that the creditor remains

entitled to enforce the terms of the underlying transaction. The court's role thus

is not to rescind or decline to rescind the transaction; it is to determine whether

the borrower has already rescinded the transaction through the (extra-judicial)

means specified in the statute.

3. TILA's history and purposes confirm that an obligor who sends a written

rescission notice has exercised the "right of rescission" under Section 1635(f) and

need not file a lawsuit within the specified three year period. See, e.g., Anderson

Bros. Ford v. Valencia, 452 U.S. 205, 219-223 (1981) (examining "the underlying

purpose of the TILA").

The statute is intended "to assure a meaningful disclosure of credit terms,"

and to ensure that borrowers who might otherwise be confused or misled have a

fair understanding of the transaction and of their rights. 15 U.S.C. 1601.

Congress enacted TILA's rescission provisions in response to fraudulent home

improvement schemes in which "homeowners, particularly the poor," were

"trickEedi into signing contracts at exorbitant rates, which turn[ed] out to be

liens on the family residences." 114 Cong. Rec. 14,388 (1968) (statement of Rep.

Sullivan); see id. at 14,384 (statement of Rep. Patman); see also Mourning v.

Family Publ'ns Serv., Inc., 411 U.S. 356, 363 (1973) (citing H.R. Rep. No. 1040,

90th Cong., 1st Sess. 13 (1967)). The right of rescission, which is broad and

generally unwaivable where it applies, is a "vitally important" part of Congress's

effort to combat such practices. 114 Cong. Rec. at 14,388 (statement of Rep.

Sullivan); see Barrett v. JP Morgan Chase Bank, 445 F.3d 874, 881-882 (6th Cir.

2006).

In keeping with Congress's overarching purpose to make things clearer and

simpler for borrowers, the exercise of the rescission right is intended to be

9

straightforward. See 15 U.S.C. 1635(a) and (b); see also 114 Cong. Rec. at 14,390

(statement of Rep. Sullivan) (explaining that conferees rejected a proposal to

require rescission notices to be sent by registered mail because they wanted to

"keepEl a strong, workable provision"). Indeed, Congress has repeatedly

amended TILA's rescission provisions against the backdrop of an agency

regulation stating that the right of rescission can be exercised by providing

notice via "mail, telegram or other means of written communication," 12 C.F.R.

226.23(a)(2). Cf., e.g., Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184185

(1988). No provision of the statute or the regulations, and no portion of the

model rescission forms that many creditors supply to obligors, suggests that the

commencement of a lawsuit is a prerequisite to the valid and timely exercise of

the rescission right. See 15 U.S.C. 1635(h); 12 C.F.R. Pt. 226, Apps. H-8, H9.

To be sure, Section 1635(f), which was enacted several years after Section

1635(a) and (b), has a narrower purpose than those provisions. Congress

enacted Section 1635(f) to address concerns that, if a particular obligor did not

receive the disclosures mandated by Section 1635(a), his right to rescind the

transaction would never expire. See Board of Governors of the Federal Reserve

System, Annual Report to Congress on Truth in Lending for the Year 1972, as

reprinted in 119 Cong. Rec. 4595, 4597 (1973) ("[T]he titles to many residential

real estate properties may become clouded by uncertainty regarding unexpired

rights of rescission. The Board recommends that Congress amend [TILAI to

provide a limitation on the time the right of rescission may run."); Board of

10

Governors of the Federal Reserve System, Annual Report to Congress on Truth

in Lending for the Year 1971, as reprinted in 118 Cong. Rec. 816, 818 (1972); see

H.R. Conf. Rep. No. 1429, 93d Cong., 2d Sess. 37 (1974) (indicating that Section

1635(f) was part of "a series of basically technical amendments designed to

improve the administration of [TILAI"); S. Rep. No. 750, 92d Cong., 2d Sess. 1

(1972).

By enacting Section 1635(f), Congress imposed an outer limit on when the

rescission right may be exercised. Nothing in Section 1635(f) suggests, however,

that Congress intended to change the existing rules regarding how specified

transactions may be rescinded. Nor was such a change necessary to accomplish

the purposes that Section 1635(f) was intended to serve. Requiring an obligor to

provide notice to a creditor within three years of a transaction reduces

uncertainty and places a meaningful limit on a previously unlimited right.

Within a few days after the end of that three-year period, the creditor will know

conclusively whether the obligor's right has been exercised—and if the obligor

does not send notice in time, his right will be lost forever.

B. Respondent's assertion that Petitioner had a "residential mortgage

transaction" pursuant 15 USC §1602(x) was in error.

1.

a. That contention lacks any grounding in the text of the relevant

provisions and should be rejected. Neither TILA nor its implementing

regulations draw the distinction that respondents have posited.

11

a 'residential mortgage transaction' as defined in 15 U.S.C. §1602 (x)

as 'money securities and installment sales contract' creates additional

anomalies in this respondent's foreclosure action against petitioner.

Respondent's attempted to foreclose on petitioner's home. A 'residential

mortgage transaction' which comprises of money securities and an

installment sales contract does not fall under mortgage law. Foreclosures fall

under and are subject to mortgage law which originate from a consumer

credit transaction traditional mortgage financing.

A 'residential mortgage transaction' however, is an installment contract

that is an alternative to traditional mortgage financing where the buyer pays

the sales price to the seller in installments over time. An installment

contract may be terminated in a variety of ways. Despite the similarities,

courts generally do not view installment contracts as functionally equivalent

to mortgages, and therefore installment contracts are usually not subject to

mortgage laws.

Respondent's stated in their motion to dismiss that Petitioner did in fact

have a mortgage which included exhibit-A Warranty Deed and exhibit-B

Security Deed, which evidences a consumer credit transaction traditional

mortgage, and NOT a 'residential mortgage transaction'. Instead of a deed

and mortgage, a 'residential mortgage transaction' consist of the buyer and

seller entering into a long-term installment contract, also referred to as

articles of agreement, contract for deed, land contract, conditional sales

12

contract or an agreement for deed. No such contract exist by Petitioner.

Petitioner's T.I.L.A rescission timely notice to respondents was based on a

consumer credit transaction which is a traditional mortgage financing. For

only traditional mortgage financing are conveyed or sold from lender to

lender, bank to bank or between mortgage companies as service providers.

d. Petitioner initially had a consumer credit transaction with SunAmerica

Mortgage, which was then sold to CountryWide Home Loans which was later

acquired by Bank of America, N.A. When there's a change of servicers at

closing, the lender must inform the borrower of any plans to turn over the

rights to administer your loan to a mortgage servicer, as often happens when

a mortgage is sold. The new servicer could be another lender, a bank, an

investor or a third-party processing company that specializes in servicing

mortgages. Rules of servicer changes.

i

You must be notified in writing of the changes by your original

servicer and the new one, noting the date of transfer and contact

information of the new servicer.

ii

The new servicer must honor the terms and conditions of your

original mortgage agreement, with the exception of those directly

related to servicing the loan.

Respondents Bank of America failed to honor the rescission notice given to

CountryWide Home Loans, thus commencing a foreclosure action for alleged

failure of payments. Other TILA provisions bolster the conclusion that

13

sending a notice is sufficient to exercise the "right of rescission" within the

time specified by Section 1635(f). Section 1635(b) states that, "[w]hen an

obligor exercises his right to rescind under subsection (a)," he "is not liable for

any finance or other charge, and any security interest becomes void upon

such a rescission." 15 U.S.C. 1635(b). Accordingly. "Ewlithin 20 days after

receipt of a notice of rescission, the creditor shall return to the obligor"

certain money or property, "and shall take any action necessary or

appropriate to reflect the termination of any security interest created under

the transaction." see also 12 C.F.R. 226.23(d)(1)-(2).

C. The review is warranted Because the opinion by the magistrate and

Eleventh Circuit conflicts with an opinion of the Supreme Court of the United

States. Nondisclosure of appropriate H8 forms under the Truth in Lending Act is

an affirmative defense in a foreclosure attempt by respondents.

1.

a. Lower Court grossly erred as Petitioner DID NOT file suit a decade later to

occupy the courts time as mentioned in the Walker report. Pursuant to T.I.L.A and

Supreme Court ruling decided January 13, 2015 in JESINOSKIET UX V

COUNTRYWIDE HOMELOANS. INC.. ETAL. a borrower raising inadequate

disclosure is an AFFIRMATIVE DEFENSE in a lenders foreclosure action.

Respondents, who were the same defendants in the above mentioned Supreme

Court case are attempting a foreclosure and taking of property, thus a defensive

suit became paramount. See.. 12 CFR 226.23(h)(1)(ii) Special Rules for foreclosures.

b. Pursuant to 15 U.S.C. §1635(a) under T.I.L.A. states the creditor shall also

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provide, in accordance with regulations of the Bureau, appropriate forms to the

obligor to exercise his right to rescind any transaction subject to this section.

Model form in Appendix H such form Respondents failed to disclose nor provide at

closing or any point thereafter as required by operation of law. See 12 CFR 226.23

(h)(1)(ii) Special Rules for foreclosures.

(h) Special rules for foreclosures—(1) Right to rescind. After the initiation of

foreclosure on the consumer's principal dwelling that secures the credit obligation,

the consumer shall have the right to rescind the transaction if.

(ii) The creditor did not provide the properly completed appropriate model

form in appendix H8 of this part, or a substantially similar notice of rescission.

CONCLUSION

Based on the foregoing, Petitioner respectfully submits that this Petition

for Writ of Certiorari be granted, The Judgment of the lower court be reversed and

case remanded for further mediation proceedings.

Respectfully Submitted,

Dated February 26th, 2018.

Is/ Garth Cooper

Garth Cooper

3564 Wesley Chapel RD, Suite E- 102

Decatur Georgia 30034

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