In finding that the Gilbert plaintiffs’ claim for rescission was timely, the court made clear that the relevant act for determining timeliness of exercising a right of rescission is sending notification to the creditor, not the filing of a lawsuit: In other words, the three-year limitation in 15 U.S.C. § 1635 concerns the extinguishment of the right of rescission and

In addition, when a borrower, as here, exercises a valid right to rescission, the creditor must take action within 20 days after receipt of the notice of rescission, returning the borrower’s money and terminating its security interest. 15 U.S.C. § 1635(b). Failure on the part of the creditor to so respond to a valid notice of rescission constitutes a separate violation of TILA, actionable under 15 U.S.C. § 1640(a)(2)(A)(iv), for statutory damages.

McOmie-Gray v. Bank of America, 667 F.3d 1325 (9th Cir. 2012)(court concluded that the right to rescind expires as a matter of law unless a lawsuit for rescission is filed before the expiration of three years after the 2 In Beach v. Ocwen Federal Bank, 523 U.S. 410, 118 S. Ct. 1408 (1998), the Supreme Court noted that Section 1635(f) apparently reflected a Congressional intent to “circumscribe” the risk of rescission by enacting Section 1635(f) that “permits no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run.” Id. at 419.

See Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 792-93 (2015) (discussing notice of rescission within three years of loan consummation and holding borrowers are not required to sue within three Case 3:16-cv-01343-JCS Document 6 Filed 04/14/16 Page 22 of 26 16 DEFENDANTS’ MOTION TO DISMISS COMPLAINT Case No. 3:16-cv-01343-JCS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 years). Regardless of whether the proper statute of limitations for bringing a TILA rescission claim is three years after the date the loan was consummated pursuant to 15 U.S.C. § 1635(f), or three years after any refusal to rescind, Plaintiffs’ TILA rescission claim is years late. a. Jesinoski Does Not Support Plaintiffs’ TILA Claim Plaintiffs’ Complaint relies heavily on the U.S. Supreme Court’s recent decision Jesinoski, stating: “a borrower need only provide written notice to a lender in order to exercise his right to rescind” and is not required “to sue within three years.”

If the creditor fails to respond, the one-year period begins 20 days after the request for rescission, when the response from the creditor was due. 15 U.S.C. § 1635(f); see also Gilbert, 678 F.3d at 278–79. Here, while Defendants fully dispute receipt of the unsigned February 17, 2010 correspondence attached as Exhibit C to Plaintiff’s Complaint, even assuming arguendo that it was received and Defendants failed to respond, Plaintiffs still cannot succeed on their claim.

Insofar as the claim is one for rescission under TILA, Plaintiffs were required to bring such a claim within three years after the consummation of the Loan. See 15 U.S.C. § 1635(f). Here, the Loan was consummated in 2004.

Claims for damages under TILA are subject to a one year statute of limitations, also running from the date of the violation. 15 U.S.C. §§ 1635(f); 1640(e); see also Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir. 2002), cert. denied, 539 U.S. 927, 123 S. Ct. 2577 (2003).

Therefore, Plaintiff had three years to rescind the Wells Fargo Loan. 6 15 U.S.C. § 1635(f) states in relevant part that a borrower’s “right of rescission shall expire three years after the date of consummation of the transaction...” Case 3:15-cv-00089-SRU Document 48 Filed 11/20/15 Page 17 of 25 18 On October 21, 2014, Plaintiff notified Wells Fargo that she elected to rescind the Wells Fargo Loan. (SAC ¶ 47 and Ex.

See Palmer v. Champion Mortgage, 465 F.3d 24, 27 (1st Cir. 2006) (“If a creditor does not respond to a rescission request within twenty days, the debtor may file suit in federal court to enforce the rescission right.”) Whether the proper statute of limitations for bringing a TILA rescission claim is three years after the date of the loan consummation pursuant to 15 U.S.C. § 1635(f), one year after the creditor has improperly denied or refused to respond to a borrower’s notice of rescission pursuant to 15 U.S.C. § 1640(e), or even three years after an allegedly wrongful refusal to Case 6:15-cv-01420-AA Document 6 Filed 09/15/15 Page 17 of 18 DWT 27761308v3 0036234-000408 Page 18 - MOTION TO DISMISS PLAINTIFF’S COMPLAINT DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main  (503) 778-5299 fax rescind, Plaintiff has far surpassed any potentially applicable limitations period for filing a claim for rescission under TILA. Because Plaintiff’s Complaint was filed almost nine years after the consummation of the loans at issue, and approximately seven years after WaMu denied Plaintiff’s request for rescission, any claim brought by Plaintiff relating to his right of rescission under TILA is time-barred.

Finally, as a matter of law, the right to rescission under TILA “does not apply to a residential mortgage transaction as defined in section 1602(w).” 15 U.S.C. § 1635(e)(1) (emph. added).