In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1424
R ICHARD G. M ARR,
Plaintiff-Appellant,
v.
B ANK OF A MERICA, N.A.,
Defendant, Third-Party Plaintiff-Appellee,
v.
S UMMIT T ITLE S ERVICES, LLC,
Third-Party Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-CV-228—J.P. Stadtmueller, Judge.
A RGUED S EPTEMBER 14, 2011—D ECIDED D ECEMBER 6, 2011
Before W OOD , T INDER, and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. In the world of the Truth-in-
Lending Act (TILA), 15 U.S.C. §§ 1601 et seq., it often
2 No. 11-1424
seems that no detail is too insignificant to matter. We
have called TILA “hypertechnical” in the past, see, e.g.,
Brown v. Payday Check Advance, Inc., 202 F.3d 987, 989
(7th Cir. 2000), and this case provides yet another oppor-
tunity to see this level of precision in operation. The
case before us involves a borrower who alleges that he
did not receive all of the documents to which he was
entitled when he refinanced his mortgage. If he is cor-
rect, then he had not a measly three days, but a more
generous three years in which to rescind the transaction.
The district court ruled for the bank, but we conclude
that the borrower presented enough evidence to defeat
summary judgment, and so we reverse and remand
for further proceedings.
I
One provision of TILA requires the creditor to provide
the consumer with “clear[] and conspicuous[]” notice
of his right to rescind this type of loan within three busi-
ness days following the transaction. 15 U.S.C. § 1635(a);
12 C.F.R. § 226.23(b)(1). Regulation Z, issued by the
Federal Reserve Board to implement TILA, elaborates on
this rule by requiring the lender to give the consumer
two copies of the notice of his three-day right to cancel
at closing. (The parties refer to this document as the
NORTC, but in the interest of keeping the English
language alive, we refer to it here as simply the Notice;
no other notice is at issue in Marr’s case.) 12 C.F.R.
§ 226.23(b)(1). If the lender fails to comply with this rule,
as we have said, the time to rescind is extended from
No. 11-1424 3
three days to three years. 12 C.F.R. § 226.23(a)(3). This
case turns on whether the plaintiff, Richard G. Marr,
received the obligatory two copies of his Notice, or if he
received just one; the answer to that question dictates
whether his effort to rescind a loan was timely.
In 2007, Marr decided to refinance his mortgage with
Countrywide Bank, the predecessor in interest to defen-
dant Bank of America, N.A. (For simplicity, we refer to
the bank by the name it had at the time of Marr’s trans-
action.) Marr’s story is depressingly familiar in the wake
of the 2007 financial crisis. Marr, now a retired auto
mechanic, purchased a home in Wauwatosa, Wisconsin,
in 1973, using funds secured by a mortgage. He has
refinanced that loan several times since then to help
pay the bills. In early 2007, a mortgage broker called
Alpine Financial contacted Marr about refinancing his
mortgage. Marr decided that this was a good idea, and
so he applied in February 2007 for a new loan to help
with his credit card bills. Countrywide accepted Marr’s
application. Summit Title, the title insurance company
that provided closing services for Countrywide, closed
the loan with Marr on February 23, 2007.
The focus of this litigation is on what exactly happened
at that closing. Marr testified that the closing agent put
a duplicate of every document he signed in a pile next
to him, but he did not have time to review them. One
of those documents, which Marr signed, was an acknowl-
edgment that he had been given the required two copies
of the Notice. At the end of the closing, Summit’s agent
gave Marr a folder in which to put the documents. The
4 No. 11-1424
agent stuffed everything into the folder, and then Marr
left. When he returned home, Marr put the folder in a
filing cabinet in his dining room where he keeps all of
his important documents. As he put it, “I live by myself,
so there’s [sic] no children or anything there that
would mess with [the filing cabinet] . . . and that’s
where it stayed.” He maintained that he did not disturb
the folder until two years later when his attorney
inspected it in connection with an unrelated lawsuit.
Only then, Marr testified, did they “discover[] that there
was only one copy of that right to cancel in there.” During
the deposition, Marr admitted that there were a few
documents inside his loan folder that post-dated the
February 23 closing. When asked why his loan folder
had been disturbed, Marr stated, “I don’t know. That
may have been when I refinanced again and I dropped
those in the envelope thinking that that was the
envelope for . . . the August [refinancing].” He was
certain, however, that none of the February 23 loan docu-
ments had been removed, even if other documents
were later added.
Debora Ann Smith, a Summit closing agent, submitted
an affidavit stating that she was Marr’s closing agent.
She did not discuss the specific events that took place
at Marr’s closing, but she provided information on Sum-
mit’s closing practices and procedures. Summit required
its closing agents to review closing instructions and
checklists with the borrower; to discuss all closing docu-
ments with the borrower to confirm the borrower’s un-
derstanding of them; to present and review the Notice
with the borrower at the end of the closing to ensure the
No. 11-1424 5
borrower’s understanding of his rights; and to put at
least two copies of the Notice in the borrower’s docu-
ment pile. Smith was confident that she must have
given Marr two copies of the Notice, because she could
not recall a time when she did not follow these practices.
Marr submitted an affidavit in response to Smith’s
statement. He asserted that his closing did not follow
the standard practices and procedures outlined by
Smith in her affidavit. Instead, he said, “the closing agent
did not review anything at the end of the closing.” She
“did not look through my documents, her documents, or
anything else between the time when I finished signing
the closing documents and when I left Summit Title’s
office.” He also stated that Smith did not present the
Notice at the end of the closing; rather, she presented
it “somewhere near the beginning or in the middle of
the closing.”
Based on this record, the district court concluded that
Countryside and Summit were entitled to summary
judgment. Marr’s signed acknowledgment that he had
received two copies of the Notice created a rebuttable
presumption that this was true. See 15 U.S.C. § 1635(c).
The court believed that Marr’s testimony that he
received only one copy, which he placed in the envelope
furnished by Summit, and that he never withdrew any-
thing from that envelope (even if he might have added
an item or two) was not enough to rebut that presump-
tion. Marr challenges those conclusions on appeal.
6 No. 11-1424
II
The standard of review from a grant of summary judg-
ment is well known, but it is worth emphasizing that
the non-moving party does not bear the burden of
proving his case; the opponent of summary judgment
need only point to evidence that can be put in an admis-
sible form at trial, and that, if believed by the fact-finder,
could support judgment in his favor. Our role, applying
what is usually called de novo review, is to see if the
opponent has identified such evidence in the record; in
so doing, we draw all reasonable inferences and view
all facts in favor of the non-moving party. Sutherland v.
Wal-Mart Stores, Inc., 632 F.3d 990, 993 (7th Cir. 2011). The
question in this case is whether Marr’s testimony
and affidavit is sufficient to allow a reasonable jury to
find that Marr received only one copy of the Notice.
TILA was intended to ensure that consumers are given
“meaningful disclosure of credit terms” and to protect
consumers from unfair credit practices. 15 U.S.C. § 1601(a).
Regulation Z enforces these goals in a variety of ways,
notably for this case by requiring lenders to give con-
sumers two copies of the Notice at closing. 12 C.F.R.
§ 226.23(b)(1). If Marr can show that he did not receive
two copies, his effort to rescind the loan has been
brought in time, and he may be entitled to that relief.
Rescission is far from a cure-all in most mortgage
refinance situations: it is “a process in which the
creditor terminates its security interest and returns any
payments made by the debtor in exchange for the
debtor’s return of all funds or property received from
No. 11-1424 7
the creditor.” Andrews v. Chevy Chase Bank, 545 F.3d 570,
573 (7th Cir. 2008); see also 15 U.S.C. § 1635(b). The re-
scinding borrower must return the loan principal; this
requirement often has the practical effect of ruling out
rescission, if the borrower has already used the money
to cover urgent financial obligations. Marr, however,
appears to be an exception. His attorney represented at
oral argument that Marr has paid off the loan in full and
is presently seeking reimbursement of his interest pay-
ments, statutory damages for failure to rescind, and
attorney’s fees. The bank informed us that the interest
payments amount to approximately $17,000.
To succeed in this case, Marr must overcome the fact
that he signed a form at closing acknowledging that he
received two copies of the Notice. (No one has argued
that the remedy for receiving only one copy is different
from the remedy for failing to give any copies of the
Notice, and so we do not need to consider that possi-
bility.) As we consider this issue, it is helpful to recall
the precise weight that the statute gives to the written
acknowledgment:
Notwithstanding any rule of evidence, written ac-
knowledgment of receipt of any disclosures required
under this subchapter by a person to whom infor-
mation, forms, and a statement is required to be
given pursuant to this section does no more than
create a rebuttable presumption of delivery thereof.
15 U.S.C. § 1635(c). This phrasing strongly suggests that
Congress was warning courts not to overrate the impor-
tance of the acknowledgment; that is why it cautions
8 No. 11-1424
that the statement “does no more than” create the
rebuttable presumption of delivery.
Although both parties have spent a great deal of time
in their briefs talking about “bursting bubble” presump-
tions, the legislative history of Federal Rule of Evidence
301, and the debate between Thayer and Morgan about
what is left of a presumption after the bubble bursts, we
do not need to take those detours. Although TILA and
Regulation Z do not specify the quality or quantity
of evidence needed to overcome the presumption,
Rule 301 provides the default rule, and it states:
In a civil case, unless a federal statute or these
rules provide otherwise, the party against whom a
presumption is directed has the burden of producing
evidence to rebut the presumption. But this rule
does not shift the burden of persuasion, which
remains on the party who had it originally.
F ED. R. E VID. 301. Here, to overcome the presumption
created by his written acknowledgment and thus to raise
a genuine fact that would make summary judgment
inappropriate, Marr needed to produce enough evi-
dence to permit a reasonable jury to find that he did
not receive two copies. The Third Circuit recently ad-
dressed this very situation, speaking of notices of right
to rescind loans. In Cappuccio v. Prime Capital Funding
LLC, 649 F.3d 180, 189 (3d Cir. 2011), it described the
borrower’s burden as “minimal, given that the presump-
tion’s only effect is to require the party contesting it to
produce enough evidence substantiating the presumed
fact’s absence to withstand a motion for summary judg-
No. 11-1424 9
ment or judgment as a matter of law on the issue.” (Inter-
nal quotations omitted.)
The district court focused on two pieces of evidence
provided by Marr: (1) his testimony that his attorney
found only one copy of the Notice in the folder in
which the closing agent put Marr’s copies of the
closing documents, and (2) his allegation that the
contents of the folder remained undisturbed—at least
in the sense that nothing was removed—since the
February 23 closing. The court did not incorporate in
its analysis Marr’s affidavit statement that his closing
experience deviated from Summit’s standard practices.
The court gave several reasons for its conclusion that
Marr’s showing fell short of what was needed:
Even when viewed in a light most favorable to plain-
tiff, plaintiff’s testimony as a whole actually suggests
that he is unable to identify with any certainty
which documents and how many of those docu-
ments he received at closing, rather than that he
received only one notice.
The court was concerned that Marr did not note, read,
or review the number of copies he was given during the
closing. It deemed it “immaterial whether Marr was
rushed through the closing” and thus unable to deter-
mine the number of copies he received. The court was
also unpersuaded by Marr’s argument that the full set
of documents he had received from Summit had been
preserved in the Redweld folder. It called this the “enve-
lope theory” and rejected it, largely because several
documents that post-dated the closing were found in
10 No. 11-1424
the folder. It regarded this as evidence of tampering
and thus inconsistent with Marr’s testimony that the
closing documents had remained undisturbed. It con-
cluded that “[a]t best, this contradictory testimony, as
well as the fact that the folder did not remain untouched,
suggests that Marr cannot state with any certainty
whether or not he removed any documents from the
folder during the two years before the closing and the
meeting with his attorney.”
Both the court and the bank were understandably
worried about the possibility that the presumption of
delivery could be rebutted by nothing more than the
borrower’s say-so; if rebuttal were that easy, they say,
section 1635(c) might as well not be in the statute. We
need not take a position on that extreme case, although
we note again that TILA is a remedial statute and it
appears that the Third Circuit has decided that it
indeed goes that far. Cappuccio, 649 F.3d at 190 (“[W]e
hold that the testimony of a borrower alone is sufficient
to overcome TILA’s presumption of receipt.”). As we
have held in other contexts, “uncorroborated, self-serving
testimony, if based on personal knowledge or firsthand
experience, may prevent summary judgment against
the non-moving party, as such testimony can be evi-
dence of disputed material facts.” Montgomery v.
American Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010)
(internal quotation marks omitted). We also do not need
to determine whether Marr’s evidence that the envelope
remained undisturbed (the so-called envelope theory)
standing alone is sufficient, because Marr presented
more than that. Marr stated in his affidavit that his ex-
No. 11-1424 11
perience at the February 23 closing deviated from the
standard practices and procedures that Smith described
in her affidavit. Taken as a whole, Marr’s evidence
is enough to permit a reasonable jury to find in his favor.
Marr left the closing agent’s office on February 23
with the loan documents in the folder that the title com-
pany had given him. He put that folder into his filing
cabinet. He added additional loan documents to the
folder later on, but he never removed anything from
the folder. When he took the folder to his attorney’s
office, he and the attorney discovered that there was
only one copy of the Notice. If believed, this evidence
is enough to rebut the presumption created by Marr’s
acknowledgment that he received two copies of the
Notice. We note, finally, that although the difference
between one and two copies may seem to be an empty
formality, Regulation Z demands two copies. This is not
a situation in which there is any room for some kind
of substantial compliance rule. Two copies means two
copies, not one. See 12 C.F.R. § 226.23(b)(1). Marr is
entitled to the opportunity to convince the trier of fact
that he did not receive all that the Regulation promised
him, and thus that he may proceed with his suit to
rescind the loan. We R EVERSE and R EMAND for further
proceedings consistent with this opinion.
12-6-11