Gaydos v. Ocwen ( 2017 )


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  •                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
    PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    SHAWN MICHAEL GAYDOS, Plaintiff/Appellant,
    v.
    OCWEN LOAN SERVICING, LLC, Defendant/Appellee.
    No. 1 CA-CV 16-0072
    FILED 3-23-2017
    Appeal from the Superior Court in Maricopa County
    No. CV2015-009162
    The Honorable Joshua D. Rogers, Judge
    AFFIRMED
    COUNSEL
    Shawn Michael Gaydos, Phoenix
    Plaintiff/Appellant
    McCarthy Holthus & Levine PC, Scottsdale
    By Paul M. Levine
    Counsel for Defendant/Appellee
    GAYDOS v. OCWEN
    Decision of the Court
    MEMORANDUM DECISION
    Judge Patricia K. Norris delivered the decision of the Court, in which
    Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.
    N O R R I S, Judge:
    ¶1           Shawn Michael Gaydos appeals the superior court’s
    judgment dismissing his claims for rescission and quiet title against Ocwen
    Loan Servicing, LLC. Because Gaydos grounded both claims on an
    argument that he had rescinded a loan modification agreement under the
    federal Truth in Lending Act—when he had not—we affirm the superior
    court’s judgment in Ocwen’s favor.
    FACTS AND PROCEDURAL BACKGROUND1
    ¶2           In 2005, Gaydos obtained a loan from Downey Savings and
    Loan Association, F.A. The loan was evidenced by a promissory note
    secured by a deed of trust encumbering real property in Phoenix, Arizona.
    ¶3              In 2012, Gaydos entered into a Loan Modification Agreement
    with Ocwen, the servicer of the loan. In 2015, Gaydos notified Ocwen of his
    “official election to rescind” the Loan Modification Agreement pursuant to
    the Truth in Lending Act (“TILA”). See 15 U.S.C.A. § 1635(a) (West 2011).
    Despite his election to rescind, Ocwen neither returned to Gaydos any
    “money or property” it had received from him nor terminated its security
    interest in the property.2 See 15 U.S.C.A. § 1635(b).
    ¶4            Subsequently, Gaydos sued Ocwen, alleging claims for
    rescission and quiet title. Both claims rested on Gaydos’s allegation that he
    1We assume the truth of, and indulge all reasonable inferences
    from, the well-pled factual allegations. Cullen v. Auto-Owners Ins. Co., 
    218 Ariz. 417
    , 419, ¶ 7, 
    189 P.3d 344
    , 347 (2008) (citation omitted).
    2“[R]escissiontriggers an unwinding process.” Paatalo v.
    JPMorgan Chase Bank, 
    146 F. Supp. 3d 1239
    , 1243 (D. Or. 2015) (discussing
    15 U.S.C.A. § 1635(b)).
    2
    GAYDOS v. OCWEN
    Decision of the Court
    had rescinded the Loan Modification Agreement under the TILA. Ocwen
    moved to dismiss Gaydos’s complaint, and argued Gaydos had no right to
    rescind under the TILA. The superior court granted Ocwen’s motion.
    DISCUSSION
    I.     TILA Rescission—General Principles
    ¶5            The broad purpose of the TILA is to promote “the informed
    use of credit by assuring meaningful disclosure of credit terms to
    consumers.”3 Ford Motor Credit Co. v. Milhollin, 
    444 U.S. 555
    , 559, 
    100 S. Ct. 790
    , 794, 
    63 L. Ed. 2d 22
    (1980) (quotations and citations omitted); see also
    Household Credit Servs., Inc. v. Pfennig, 
    541 U.S. 232
    , 235, 
    124 S. Ct. 1741
    , 1744,
    
    158 L. Ed. 2d 1741
    (2004). “TILA . . . does not substantively regulate
    consumer credit but rather requires disclosure of certain terms and
    conditions of credit before consummation of a consumer credit
    transaction.”4 Hauk v. JPMorgan Chase Bank USA, 
    552 F.3d 1114
    , 1120 (9th
    Cir. 2009) (quotations and citations omitted).
    ¶6            A borrower may rescind a transaction under the TILA
    unconditionally within three business days “following the consummation
    of the transaction or the delivery of the information and rescission forms
    required under this section together with a statement containing the
    material disclosures required under this subchapter, whichever is later [.]”5
    15 U.S.C.A. § 1635(a); see also Jesinoski v. Countrywide Home Loans, Inc., __
    3The adjective “consumer” characterizes a credit transaction
    “as one in which the party to whom credit is offered or extended is a natural
    person, and the money, property, or services which are the subject of the
    transaction are primarily for personal, family, or household purposes.” 15
    U.S.C.A. § 1602(i) (West 2010); see also 12 C.F.R. § 226.2(a)(12) (West 2011).
    4TILA  requires a lender to provide a borrower “with clear and
    accurate disclosures of terms dealing with things like finance charges,
    annual percentage rates of interest, and the borrower’s rights.” Beach v.
    Ocwen Fed. Bank, 
    523 U.S. 410
    , 412, 
    118 S. Ct. 1408
    , 1410, 
    140 L. Ed. 2d 566
    (1998); see also 12 C.F.R. § 226.23(a)(3) n. 48 (West 2009) (defining “material
    disclosures”).
    5“Consummation   means the time that a consumer becomes
    contractually obligated on a credit transaction.” 12 C.F.R. § 226.2(a)(13).
    3
    GAYDOS v. OCWEN
    Decision of the Court
    U.S. __, 
    135 S. Ct. 790
    , 792, 
    190 L. Ed. 2d 650
    (2015); Paatalo v. JPMorgan Chase
    Bank, 
    146 F. Supp. 3d 1239
    , 1243 (D. Or. 2015). This right to rescind,
    however, does not last indefinitely. Even if a lender never makes the
    required disclosures, the “right of rescission shall expire three years after
    the date of consummation of the transaction or upon the sale of the
    property, whichever [occurs] first.” Jesinoski __ at __, 135 S. Ct. at 792 (citing
    15 U.S.C.A. § 1635(f)); see also 
    Paatalo, 146 F. Supp. 3d at 1243
    ; Kelley v.
    Mortg. Elec. Registration Sys., Inc., 
    642 F. Supp. 2d 1048
    , 1059 (N.D. Cal. 2009)
    (citing 12 C.F.R. § 226.23(a)(3)).
    ¶7             A right of rescission does not extend, however, to, as relevant
    here, (i) “a residential mortgage transaction,”6 or (ii) “a transaction which
    constitutes a refinancing or consolidation (with no new advances) of the
    principal balance then due and any accrued and unpaid finance charges of
    an existing extension of credit by the same creditor secured by an interest
    in the same property.” 15 U.S.C.A. § 1635(e)(1), (2).
    II.    Gaydos’s Rescission Claim
    ¶8             Although Gaydos conceded in the superior court that he
    could not have rescinded the 2005 loan transaction because it constituted a
    residential mortgage transaction, see 15 U.S.C.A. § 1635(e)(1), he argues on
    appeal, as he did in the superior court, that he had a right to rescind the
    Loan Modification Agreement under the TILA. Because his argument rests
    on applying the TILA as a matter of law, we exercise de novo review.
    Coleman v. City of Mesa, 
    230 Ariz. 352
    , 355, ¶ 7, 
    284 P.3d 863
    , 866 (2012). We
    reject this argument.
    ¶9             Although a loan refinancing of a residential mortgage by a
    different creditor, rather than the original creditor, can create new
    disclosure requirements and a right of rescission, see 15 U.S.C.A. §
    1635(e)(2), the new obligation must also completely satisfy and replace the
    old obligation. See 12 C.F.R. § 226.20(a) (West 2013); 12 C.F.R. § 226.20(a)
    Supp I (West 2011). “Thus, mere changes to the terms of an existing
    obligation do not give rise to a right of rescission unless accomplished by
    the cancellation of that obligation and the substitution of a new obligation.”
    6A    residential mortgage transaction is “a transaction in which
    a . . . deed of trust . . . is created or retained against the consumer’s dwelling
    to finance the acquisition or initial construction of such dwelling.” 15
    U.S.C.A. § 1602(x) (West 2010).
    4
    GAYDOS v. OCWEN
    Decision of the Court
    Castrillo v. Am. Home Mortg. Servicing, Inc., 
    670 F. Supp. 2d 516
    , 527 (E.D. La.
    2009) (quotation and citation omitted); see also In re Sheppard v. GMAC
    Mortg. Corp., 
    299 B.R. 753
    , 763-64 (Bankr. E.D. Pa. 2003) (citing cases).
    ¶10            By its terms, the Loan Modification Agreement did not
    satisfy the 2005 loan or replace it with a new obligation; it merely modified
    an existing obligation and amended certain payment terms.7 Therefore, the
    Loan Modification Agreement did not give rise to disclosure requirements
    or rescission rights under U.S.C.A. § 1635(a). Accordingly, the superior
    court properly dismissed Gaydos’s rescission and his quiet title claims as
    both claims were predicated on his argument he had rescinded the Loan
    Modification Agreement.8
    7The   Modification Agreement provided:
    [I agree that] all terms and provisions of the
    Loan Documents, except as expressly modified
    by this Agreement, remain in full force and
    effect; nothing in this Agreement shall be
    understood or construed to be a satisfaction or
    release in whole or in part of the obligations
    contained in the Loan Documents; and that
    except as otherwise specifically provided in,
    and as expressly modified by, this Agreement,
    the Servicer and I will be bound by, and will
    comply with, all of the terms and conditions of
    the Loan Documents.
    8Although     the superior court did not dismiss Gaydos’s
    complaint for this reason, we may affirm the superior court’s dismissal of
    Gaydos’s complaint because 12 C.F.R. § 226.20(a) is dispositive. See Evenstad
    v. State, 
    178 Ariz. 578
    , 582, 
    875 P.2d 811
    , 815 (App. 1993).
    5
    GAYDOS v. OCWEN
    Decision of the Court
    CONCLUSION
    ¶11           For the foregoing reasons, we affirm. In our discretion, we
    deny Ocwen’s request for attorneys’ fees pursuant to A.R.S. § 12-341.01
    (2016). As the prevailing party on appeal, however, we award Ocwen its
    costs on appeal contingent upon its compliance with Arizona Rule of Civil
    Appellate Procedure 21.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6