FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOHAMMAD ALI TALAIE, an No. 13-56314
individual on behalf of himself and
all others similarly situated; ROSA D.C. No.
W. TALAIE, an individual on behalf 2:12-cv-04959-
of herself and all others similarly DMG-AGR
situated,
Plaintiffs-Appellants,
OPINION
v.
WELLS FARGO BANK, NA; US BANK
NA, National Association as Trustee,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted
November 2, 2015—Pasadena, California
Filed December 14, 2015
Before: William A. Fletcher and Ronald M. Gould, Circuit
Judges, and Dana L. Christensen,* Chief District Judge.
Opinion by Judge Gould
*
The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
2 TALAIE V. WELLS FARGO BANK
SUMMARY**
Truth in Lending Act
The panel affirmed the district court, and held that
15 U.S.C § 1641(g), a 2009 amendment to the 1968 Truth in
Lending Act which requires a creditor who obtains a
mortgage loan by sale or transfer to notify the borrower on
the transfer in writing, does not apply retroactively because
Congress did not express a clear intent that it do so.
COUNSEL
Lenore L. Albert (argued), Huntington Beach, California, for
Plaintiffs-Appellants.
Paul W. Sweeney (argued), Kevin S. Asfour, and Nancy C.
Hagan, K&L Gates LLP, Los Angeles, California, for
Defendants-Appellees.
OPINION
GOULD, Circuit Judge:
We consider the retroactivity of 15 U.S.C. § 1641(g), a
2009 amendment to the 1968 Truth in Lending Act (TILA).
Section 1641(g) requires a creditor who obtains a mortgage
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TALAIE V. WELLS FARGO BANK 3
loan by sale or transfer to notify the borrower of the transfer
in writing. Although several district courts have issued
decisions on this statute’s retroactive effect, this is an issue of
first impression in our circuit.
Plaintiffs Mohammad and Rosa Talaie brought a putative
class action against Wells Fargo Bank and U.S. Bank,
alleging various federal and state law claims arising out of the
modification of the deed of trust for the Talaies’ home. One
of Plaintiffs’ claims is that Defendants did not comply with
§ 1641(g).1 Judicially noticed securitization contracts
establish that Wells Fargo transferred Plaintiffs’ deed of trust
to U.S. Bank in 2006, three years before Congress enacted
§ 1641(g). The reporting requirement of § 1641(g) would
apply to this loan transfer only if § 1641(g) had retroactive
effect. For the reasons that follow, we hold that 15 U.S.C.
§ 1641(g) does not apply retroactively.
Section 1641(g) requires that “not later than 30 days after
the date on which a mortgage loan is sold or otherwise
transferred or assigned to a third party, the creditor that is the
new owner or assignee of the debt shall notify the borrower
in writing of such transfer,” and must include the date of the
transfer, contact information for the new creditor, and other
relevant information. 15 U.S.C. § 1641(g). If the new
creditor does not comply with this duty, Congress authorized
the borrower to sue the creditor to recover actual damages, a
statutory penalty of up to $4,000 in individual claims or up to
$1 million in a class action, plus costs and attorney’s fees.
15 U.S.C. § 1640(a).
1
We resolve all other issues and affirm the district court in a
memorandum disposition filed concurrently with this opinion.
4 TALAIE V. WELLS FARGO BANK
In general, retroactive application of statutes is
disfavored. The Supreme Court has held that the presumption
against retroactive legislation is “deeply rooted in our
jurisprudence,” and can only be overcome where Congress
expresses a clear and unambiguous intent to do so. Landgraf
v. USI Film Prods., 511 U.S. 244, 265 (1994). In Landgraf,
the Court considered § 102 of the Civil Rights Act of 1991,
which created a right to recover compensatory and punitive
damages for certain violations of Title VII of the Civil Rights
Act of 1964. Landgraf, 511 U.S. at 247. Section 102
significantly expanded the monetary relief available to
plaintiffs entitled to back pay under prior law, and also gave
monetary relief for “some forms of workplace discrimination
that would not previously have justified any relief under Title
VII.” Id. at 254. The issue was whether § 102 applied to
conduct predating its enactment. The Supreme Court, in
declining to make the statute retroactive, first observed the
principle that “the legal effect of conduct should ordinarily be
assessed under the law that existed when the conduct took
place,” to avoid the “unfairness of imposing new burdens on
persons after the fact.” Id. at 265, 270. If a new statute
would “impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed,” then
courts should not give retroactive effect to the statute without
“clear congressional intent favoring such a result.” Id. at 280.
Here, § 1641(g) was introduced by Senator Boxer on May
1, 2009 as an amendment to Senate Bill 896. 155 Cong. Rec.
S5027-03 (2009). Senator Boxer stated that while existing
law required that borrowers be informed of a change in
servicer of their mortgage loan, there was no such notice
requirement for a change in loan owner. 155 Cong. Rec.
S5098–99 (2009). The amendment was meant to provide
TALAIE V. WELLS FARGO BANK 5
“borrowers with the basic right to know who owns their loan
by requiring that any time a mortgage loan is sold or
transferred, the new note owner shall notify the borrower
within 30 days . . . .” Id. Senator Boxer noted that “[t]his is
a very narrowly targeted amendment with little cost to the
industry.” Id.
Retroactive application of § 1641(g) would implicate the
concerns highlighted in Landgraf, 511 U.S. at 280. First,
retroactive application would impair rights Defendants
possessed when they acted, because, consistent with the loan
documents and the law at the time they were signed,
Defendants had a right to sell or transfer the loan without
notice to the borrower. Second, retroactive application of the
statute would increase Defendants’ “liability for past
conduct,” because the 2009 TILA amendments provide new
private rights of action including damages, attorney’s fees,
and statutory penalties, for failure to give notice of a loan
transfer. Id.; see 15 U.S.C. § 1640(a). Third, retroactive
application would impose “new duties” on transactions
already completed; the very purpose of the statute was to
require a loan transferee to give notice where none was
previously required. See 16 U.S.C. § 1641(g); 155 Cong.
Rec. S5098–99. Given that all three of the retroactivity
concerns in Landgraf are present, we next determine whether
Congress expressed a clear and unambiguous intent that
§ 1641(g) apply retroactively. Landgraf, 511 U.S. at 280.
There is no clear indication, in § 1641(g)’s text or in its
legislative history, that Congress intended for it to apply to
loans that had been transferred before its enactment. The
statute requires notice within 30 days of loan transfer and
authorizes damages and statutory penalties for failure to
comply. 15 U.S.C. §§ 1641(g)(1), 1640(a). If the statute
6 TALAIE V. WELLS FARGO BANK
were given retroactive effect, this 30-day reporting period
would have already lapsed for all loan transfers that occurred
more than a month before enactment, and it would have been
impossible for those creditors to comply with the reporting
requirement. It is unlikely that Congress would have broadly
subjected creditors to civil liability and statutory penalties
without at least giving them a way to comply with § 1641(g)
for loan transfers that predated its enactment. We conclude
that Congress did not make any such intention clear or
unambiguous. See Landgraf, 511 U.S. at 268.
Congress has demonstrated, moreover, that it knows how
to specify the effective date of statutory provisions. First,
another provision of TILA, 15 U.S.C. § 1641(f), states that
“[t]his subsection shall apply to all consumer credit
transactions in existence or consummated on or after
September 30, 1995.” This effective date for a parallel
statutory provision strongly suggests that § 1641(g), which
does not specify an express date, applies prospectively but
does not extend to loan transfers predating its enactment.
Second, Public Law 111-22, which implemented § 1641(g)
along with several other TILA amendments, provided a
“retroactive effective date” for a different component of the
same bill. Section 105, which addressed the distribution of
funds under the Neighborhood Stabilization Program,
includes a “retroactive effective date” stating that the
amendment “shall take effect as if enacted on the date of
enactment of the Foreclosure Prevention Act of 2008 (Public
Law 110-289).” P.L. 111-22, 123 Stat. 1632, 1638 (2009).
We hold that § 1641(g) does not apply retroactively
because Congress did not express a clear intent that it do so.
Landgraf, 511 U.S. at 280. Our holding is consistent with
numerous district court decisions interpreting § 1641(g). See,
TALAIE V. WELLS FARGO BANK 7
e.g., Bradford v. HSBC Mortg. Corp., 829 F. Supp. 2d 340,
353 (E.D. Va. 2011); Diunugala v. JP Morgan Chase Bank,
N.A., No. 12-2106, 2015 WL 3966119, at *4 (S.D. Cal. Jun.
30, 2015); Zinzuwadia v. Mortg. Elec. Registr., Inc., No. 12-
2281, 2013 WL 6782856, at *11–12 (E.D. Cal. Dec. 19,
2013).
AFFIRMED.