In the
United States Court of Appeals
For the Seventh Circuit
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No. 17‐1718
JAMES FENDON,
Plaintiff‐Appellant,
v.
BANK OF AMERICA, N.A.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 3531 — Rebecca R. Pallmeyer, Judge.
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ARGUED DECEMBER 6, 2017 — DECIDED DECEMBER 12, 2017
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Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
EASTERBROOK, Circuit Judge. In 2007 James Fendon bor‐
rowed money from Bank of America; the loan was secured
by a mortgage on his home. A borrower may rescind such a
transaction for any reason within three days and for some
reasons within three years. See 15 U.S.C. §1635 (part of the
Truth in Lending Act); Jesinoski v. Countrywide Home Loans,
2 No. 17‐1718
Inc., 135 S. Ct. 790 (2015). Fendon alleges that he notified the
Bank on August 15, 2008; April 16, 2009; and June 17, 2010,
that he was rescinding the loan, and that the Bank ignored
the first two notices and rejected the third. In 2011 the Bank
filed a foreclosure action in state court, and on March 23,
2016, a state court entered a final judgment confirming the
foreclosure sale. That same day Fendon filed this suit under
the Act seeking rescission and any other available relief.
By the time Fendon began this suit it was too late to un‐
wind the transaction, because the property securing the loan
had been sold. Federal district courts lack authority to revise
the judgments of state courts. See Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983). Fendon asked the district court
to declare that the state court’s decision was erroneous, but
that would have been an advisory opinion—a legal declara‐
tion that could not affect anyone’s rights. Still, there remains
the possibility of relief that takes as a given the judgment in
the state litigation, which would not be problematic under
the Rooker‐Feldman doctrine. It might be problematic as a
matter of issue or claim preclusion, see Exxon Mobil Corp. v.
Saudi Basic Industries Corp., 544 U.S. 280, 293 (2005), but the
Bank has not invoked that affirmative defense.
Instead it relies on a different affirmative defense: the
statute of limitations. The Bank maintains, and the district
judge held, that the suit is untimely under 15 U.S.C. §1640.
See 2017 U.S. Dist. LEXIS 33236 at *11–13 (N.D. Ill. Mar. 8,
2017). Section 1640(a)(1) authorizes awards of damages for
violations of the Act, including §1635. The first sentence of
§1640(e) then sets a one‐year period of limitations for any
claim under §1640 as a whole. The second and later sentenc‐
No. 17‐1718 3
es of §1640(e) provide some exceptions, but none of those
applies.
Fendon insists that no statutory time limit applies to
claims for rescission. He notes, as the Supreme Court held in
Jesinoski, that §1635(f) gives a borrower three years to notify
the creditor of an election to rescind when the creditor failed
to provide information required by the Act. Fendon’s notices
all came within three years of the date he signed the note
and mortgage. Section 1635 does not specify a time limit for
suit if the creditor fails to acknowledge or implement a
proper rescission. This means, Fendon tells us, that there is
no federal statute of limitations for claims based on §1635.
Yet §1640 expressly provides otherwise for damages actions.
Section 1640(a) authorizes money damages for violations of
§1635, and §1640(e) sets a one‐year period of limitations for
suits under §1640(a).
If Fendon had filed suit before 2011, when the foreclosure
action started, he might have had a strong argument that re‐
scission may be enforced at any time, subject only to the doc‐
trine of laches that governs equitable actions in the absence
of a statutory time limit. Tied as it is to §1640(a), the one‐year
limit in §1640(e) would not have applied. But Fendon did
not do this. After the Bank ignored his notices of rescission,
he ignored the Bank—he did not sue, and neither did he pay.
By 2016, when he finally got around to filing suit, the only
possible relief was damages. (When asked at oral argument
what relief other than damages might be permissible, given
the state court’s conclusive judgment of foreclosure, Fen‐
don’s lawyer did not have any suggestions.) And by 2016 it
was far too late to seek damages, given §1640(e). (Because
§1640(e) applies, we need not consider whether 28 U.S.C.
4 No. 17‐1718
§1658(a) would apply when the Truth in Lending Act itself
does not provide a time limit, or whether a state period of
limitations should be borrowed.)
Fendon sent his first notice of rescission on August 15,
2008. A creditor has 20 days to act on such a notice. 15 U.S.C.
§1635(b); 12 C.F.R. §226.23(d). So by September 4, 2008, after
the Bank ignored the notice, Fendon had suffered a legal
wrong (if he was indeed entitled to rescind) and could have
sued. Under federal law a claim accrues as soon as a person
knows that he has been injured and thus possesses a “com‐
plete and present” right of action. Wallace v. Kato, 549 U.S.
384, 388 (2007); United States v. Kubrick, 444 U.S. 111 (1979).
Fendon asserts that the later notices, and sporadic communi‐
cations to and from the Bank, extend the time for suit. Yet
negotiations, requests for reconsideration, and new demands
for action do not affect the time to sue on a claim that has
already accrued. See, e.g., Chardon v. Fumero Soto, 462 U.S.
650 (1983); Delaware State College v. Ricks, 449 U.S. 250 (1980);
Lever v. Northwestern University, 979 F.2d 552 (7th Cir. 1992).
The Bank did not say or do anything during the years after
September 2008 that establishes either equitable tolling or
equitable estoppel. It follows that Fendon’s claim for damag‐
es had expired more than six years before he filed this suit,
which was properly dismissed.
AFFIRMED
James Fendon v. Bank of America, N.A.
Combined Opinion