Johnson v. Mortgage Electronic Registration Systems, Inc. , 252 F. App'x 293 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 24, 2007
No. 07-11843 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00333-CV-CAM-1
PATRICIA C. JOHNSON,
Plaintiff-Appellant,
versus
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
a Virginia corporation,
HOUSEHOLD MORTGAGE SERVICES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 24, 2007)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Patricia C. Johnson appeals pro se the district court’s grant of summary
judgment for Mortgage Electronic Registration Systems, Inc. (“MERS”) and
Household Mortgage Services (“Household”). Johnson alleged that Household
and MERS had failed to make certain disclosures required by the Truth in Lending
Act (“TILA”) and sought rescission of her loan and other remedies. 15 U.S.C.
§ 1601, et seq; 12 C.F.R. § 226.1, et seq. On appeal, Johnson argues that the
district court erred in granting summary judgment to MERS on her rescission and
fraud claims.
I.
We review a grant of summary judgment de novo, applying the same
standard as the district court and viewing all evidence in the light most favorable to
the non-moving party. Burton v. Tampa Housing Authority, 271 F.3d 1274, 1276-
77 (11th Cir. 2001). Summary judgment is appropriate if the record on file shows
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
TILA gives a borrower a number of private rights of action, including
rescission. 15 U.S.C. §§ 1607, 1635. A borrower can trigger rescission “solely by
notifying the creditor within set time limits of [her] intent to rescind.” Williams v.
Homestake Mortg. Co., 968 F.2d 1137, 1139 (11th Cir. 1992). Under TILA, this
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right of rescission expires “three years after the date of consummation of the
transaction or upon the sale of the property, whichever occurs first.” 15 U.S.C.
§ 1635(f). TILA also provides an additional specific right to rescission in the face
of a judicial or non-judicial foreclosure. 15 U.S.C. § 1635(i)(1). However, this
right is subject to the same three-year time limit in § 1635(f). 15 U.S.C.
§ 1635(i)(1).
II.
On March 17, 2001, Johnson received a loan from Homegold Financial, Inc.,
secured by her residence. This loan was transferred to Household, and MERS
holds the security deed as “nominee” for Household. Johnson’s complaint alleged
a right to rescind her mortgage loan agreement and claimed that Household and
MERS committed a fraud against her by sending to her an unsigned, unstamped
“filed” copy of “Complaint to Foreclose Mortgage.”
Johnson sent Household and MERS a letter asserting her right to rescission
on September 17, 2004, exactly three years and six months after the closing on her
loan. Because this falls outside the three-year time limit, her claim is barred. She
also failed to establish the requisite elements to show fraud. Accordingly, the
district court did not err by granting summary judgment.
AFFIRMED.
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