Opinion
Civil Action No. 03-6247.
July 7, 2004
MEMORANDUM AND ORDER
In Count I of his Amended Complaint against Defendant American General Finance, Inc. ("American General"), Plaintiff Joseph Siner ("Plaintiff") seeks rescission of the loan in question as well as $2,000.00 in statutory damages and an award of attorney's fees and costs for American General's refusal to respond to Plaintiff's notice of rescission. American General now moves to dismiss Plaintiff's claim for statutory damages and attorney's fees and costs (Dkt. No. 9).
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a claim.See Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). In considering a motion to dismiss, the court must accept as true all factual allegations of the complaint and draw all reasonable inferences in the light most favorable to the plaintiff. Board of Trs. of Bricklayers and Allied Craftsmen Local 6 of N.J. v. Wettlin Assoc., Inc., 237 F.3d 270, 272 (3d Cir. 2001). A court therefore "may dismiss a [claim] only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations." Ramadan v. Chase Manhattan Corp., 229 F.3d 194, 195-96 (3d Cir. 2000) (citingAlexander v. Whitman, 114 F.3d 1392, 1398 (3d Cir. 1997)).
Plaintiff alleges the following facts: On December 6, 2000, Classic Exteriors by Alan Cherry, Inc. ("Classic Exteriors") had Plaintiff and his mother, Virginia Siner, sign a $17,082.00 Home Improvement Retail Installment Contract and a mortgage in the same amount. See Compl., Ex. 2. Classic Exteriors assigned the mortgage to Community Home Mortgage Corp., which, in turn, assigned the mortgage to American General. Id. ¶¶ 12, 13. After Plaintiff defaulted on the loan, American Mortgage notified him that it was initiating foreclosure proceedings. Id., Ex. 3. By letter dated September 22, 2003, Plaintiff sought to rescind the loan. Id., Ex. 6. To date, American General has not responded to Plaintiff's request for rescission.
Although Plaintiff may assert a valid claim for rescission against American General if he can prove a material violation of the Truth in Lending Act's (the "TILA"), 15 U.S.C. §§ 1635 et seq., requirements by the original lender, "the language of the statute does not permit an award of statutory damages or attorney's fees against an assignee for failure to respond to a valid rescission notice." Kane v. Equity One, Inc., Civ. A. No. 03-3931, 2003 WL 22939377, at *6 (E.D. Pa. Nov. 21, 2003) (citingBrodo v. Bankers Trust Co., 847 F. Supp. 353, 356 (E.D. Pa. 1994) ("`Congress did not wish to impose liability for damages and attorney's fees on an assignee who was not responsible for and who had not notice of TILA disclosure violations at the time of an assignment.'")). The TILA's civil liability provision only permits "creditor[s]" to be held liable for a monetary penalty or award of attorney's fees for a violation of the Act. See 15 U.S.C. § 1640(a); see also Kane, 2003 WL 22939377, at *6;Brodo, 847 F. Supp. at 359. It does not "provide for a statutory penalty or award of attorney's fees against an assignee for failure to respond to a valid rescission notice." Kane, 2003 WL 22939377, at *6 (citing Brodo, 847 F. Supp. at 359). Therefore, the Court must dismiss Plaintiff's claim against American General for statutory damages and attorney's fees.
ACCORDINGLY, this day of July, 2004, upon consideration of Defendant's Motion to Dismiss Plaintiff's claim for statutory damages and attorney's fees and costs (Dkt. No. 9), and Plaintiff's response thereto, IT IS HEREBY ORDERED that said Motion is GRANTED.