Andrews, Bryan v. Chevy Chase Bank ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1326
B RYAN A NDREWS and S USAN A NDREWS,
Plaintiffs-Appellees,
v.
C HEVY C HASE B ANK,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 454—Lynn Adelman, Judge.
A RGUED S EPTEMBER 26, 2007—D ECIDED S EPTEMBER 24, 2008
Before M ANION, E VANS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. In this interlocutory appeal, we are
called on to answer one question: May a class action be
certified for claims seeking the remedy of rescission under
the Truth in Lending Act (“TILA”), 15 U.S.C. § 1635? The
only two federal appellate courts to have addressed this
question have answered “no,” see McKenna v. First Horizon
Home Loan Corp., 475 F.3d 418 (1st Cir. 2007); James v. Home
2 No. 07-1326
Constr. Co. of Mobile, Inc., 621 F.2d 727 (5th Cir. 1980), and
we agree. TILA’s statutory-damages remedy, § 1640(a)(2),
specifically references class actions (by providing a dam-
ages cap), but TILA’s rescission remedy, § 1635, omits any
reference to class actions. This omission, and the funda-
mental incompatibility between the statutory-rescission
remedy set forth in § 1635 and the class form of action,
persuade us as a matter of law that TILA rescission class
actions may not be maintained.
I. Background
In June 2004 plaintiffs Susan and Bryan Andrews ob-
tained a loan from defendant Chevy Chase Bank, F.S.B., a
federally chartered bank, to refinance their home in
Cedarburg, Wisconsin. Bryan Andrews runs his own
home-remodeling business, and the Andrews are experi-
enced mortgagors, having previously taken out many
original and refinancing mortgage loans for various
residential and investment properties. This time, they
opted for a unique type of loan product offered by Chevy
Chase that allowed them to vary their payment, depending
on their monthly cash flow. This “cashflow payment
option,” as Chevy Chase called it, was more flexible than
a traditional fixed- or adjustable-rate mortgage because it
allowed the debtor to choose between multiple payment
options. It was also more complex, with a potential trap for
the unwary. The debtor could pay a monthly minimum
payment at a low interest rate for an initial term; under this
option, while the interest rate would adjust monthly, the
minimum payments would remain fixed at the low rate
No. 07-1326 3
until the initial term expired or the outstanding balance
exceeded 110 percent of the original loan (through “nega-
tive amortization”), whichever event occurred first. The
debtor could also decide to make payments larger than the
minimum monthly payment, pay interest only based on the
fully indexed rate, pay an amount sufficient to amortize the
loan over 15 years, or pay an amount sufficient to amortize
the loan over 30 years.
Chevy Chase provided preliminary disclosures about the
loan and, at closing, an adjustable-rate note, a truth-in-
lending disclosure statement (“TILDS”), and an adjustable-
rate rider. When the Andrews obtained the loan, they
thought that the monthly payment and the interest rate
were fixed for the initial term of five years and became
variable thereafter. They were correct about the minimum
monthly payment but not about the interest rate. The
loan’s discounted (or “teaser”) interest rate of 1.95 percent
applied only to the first monthly payment. After that, the
interest rate adjusted every month, even though the
minimum monthly payment remained fixed according to
the initial rate. So as the interest rate climbed, an ever-
increasing portion of the minimum monthly payment of
$701.21 was required to cover the interest. Soon, the
minimum monthly payment itself became insufficient to
cover the accrued interest, and the “negative amortization”
feature (adding the unpaid interest to the principal)
kicked in.
In April 2005 the Andrews filed this purported
class-action lawsuit against Chevy Chase claiming viola-
tions of TILA and seeking statutory damages under
4 No. 07-1326
§ 1640(a)(2), rescission under § 1635, and attorneys’ fees
under § 1640(a)(3).1 The complaint alleged that certain of
Chevy Chase’s disclosures were misleading or unclear,
particularly as to whether the initial interest rate was fixed
and whether the payment periods were properly stated.
More specifically, they alleged that Chevy Chase’s pay-
ment schedule was not sufficiently detailed because it
listed only the first and last payment dates; they also
claimed that a computer-generated stamp on the top of one
of Chevy Chase’s disclosure forms made the disclosures
misleading. This stamp, they asserted—which referred to
the note as a “WS Cashflow 5-Year Fixed Note Interest
Rate: 1.950%”—could be understood to identify the note as
a fixed-rate note.
The district court granted summary judgment for the
Andrews, authorizing rescission and awarding attorneys’
fees, though it denied their claim for statutory damages
because Chevy Chase’s TILA violations were not those
enumerated in § 1640(a), for which statutory damages are
available. See Andrews v. Chevy Chase Bank, FSB, 240 F.R.D.
612 (E.D. Wis. 2007). In the same order, the district court
granted the Andrews’ motion for class certification under
Rule 23(b)(2) of the Federal Rules of Civil Procedure, declar-
ing that all class members would have the right to rescind
their mortgages. The certified class includes anyone who
obtained an adjustable-rate mortgage from Chevy Chase on
a primary residence between April 20, 2004, and January
16, 2007, and who received a TILDS from Chevy Chase
1
The Andrews did not seek actual damages under § 1640(a)(1).
No. 07-1326 5
containing any of the language the court had found
deficient under TILA.
In its decision on class certification, the district court
relied heavily on the Massachusetts district court decision
in McKenna. McKenna v. First Horizon Home Loan Corp., 429
F. Supp. 2d 291, 296 (D. Mass. 2006). But that decision was
reversed by the Court of Appeals for the First Circuit less
than two weeks after the court granted class certification.
McKenna, 475 F.3d at 420. After we granted Chevy Chase’s
petition for leave to appeal pursuant to Rule 23(f), the
district court agreed to stay its proceedings. The court then
issued a memorandum explaining why its class-certifica-
tion order should stand, despite the reversal of the district
court’s decision in McKenna. Andrews v. Chevy Chase Bank,
FSB, 474 F. Supp. 2d 1006 (E.D. Wis. 2007). Also, recogniz-
ing that it had failed to consider TILA provisions that
prohibit certain debtors from rescinding, see § 1635(e), the
court stated that it would likely narrow the definition of
the class, if its class-certification decision survived the
appeal.
II. Discussion
We generally review a grant of class certification for an
abuse of discretion, but “purely legal” determinations
made in support of that decision are reviewed de novo.
Mace v. Van Ru Credit Corp., 109 F.3d 338, 340 (7th Cir.
1997). Whether TILA allows claims for rescission to be
maintained in a class-action format is an issue of first
impression in our circuit, but the First and Fifth Circuits, in
addition to California’s court of appeals, have held as a
6 No. 07-1326
matter of law that rescission class actions are unavailable
under TILA. See McKenna, 475 F.3d at 427; James, 621 F.2d
at 731; see also LaLiberte v. Pac. Mercantile Bank, 53 Cal. Rptr.
3d 745 (Cal. Ct. App. 2007), cert. denied, 128 S. Ct. 393
(2007).
TILA was designed “to assure a meaningful disclosure of
credit terms” to the consumer. § 1601(a). Creditors who
violate the disclosure requirements may be ordered to pay
actual damages or statutory damages, depending upon the
nature of the violation. See § 1640(a)(1) & (a)(2). In certain
loan transactions, TILA also provides debtors with a right
of rescission—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 the creditor (usually, the loan
proceeds). See § 1635. Debtors may rescind under TILA by
midnight of the third business day after the transaction for
any reason whatsoever. See § 1635(a). The three-day
postclosing “cooling off” period is extended if the creditor
does not deliver the required notice of the right to rescind
and all material disclosures; in that instance, the right to
rescind continues until the creditor provides the required
notice and disclosures, or up to three years after consum-
mation of the loan, whichever occurs first. See § 1635(f).
Rescinding a loan transaction under TILA “‘requires
unwinding the transaction in its entirety and thus requires
returning the borrowers to the position they occupied prior
to the loan agreement.’” Handy v. Anchor Mortgage Corp.,
464 F.3d 760, 765 (7th Cir. 2006) (quoting Barrett v. JP
Morgan Chase Bank, N.A., 445 F.3d 874, 877 (6th Cir. 2006)).
No. 07-1326 7
TILA rescission is therefore considered a purely personal
remedy. See, e.g., McKenna, 475 F.3d at 424-25; James, 621
F.2d at 731; LaLiberte, 53 Cal. Rptr. 3d at 750-51. It is
intended to operate privately, at least initially, “with the
creditor and debtor working out the logistics of a given
rescission.” McKenna, 475 F.3d at 421; see also Belini v. Wash.
Mut. Bank, FA, 412 F.3d 17, 25 (1st Cir. 2005). Section 1635
sets forth certain deadlines and duties that apply to the
creditor upon receipt of a notice of rescission from the
debtor (e.g., return of earnest money, down payment, or
other payments, and initiating the termination of the
security interest); the statute, in turn, specifies the duties
that apply to the debtor (e.g., tendering return of the
property or its reasonable value). See § 1635(b). These
procedures apply “except when otherwise ordered by a
court,” id., making it clear that when disagreements
over the particulars of a given rescission arise, the
court may tailor the remedy to the circumstances.
We note initially that the rescission remedy described in
§ 1635 appears to contemplate only individual proceedings;
the personal character of the remedy makes it procedurally
and substantively unsuited to deployment in a class action.
See also R ICHARD A. L ORD , 28 W ILLISTON ON C ONTRACTS
§ 70:235 (4th ed. 2003) (noting that many consumer-credit
statutes require the individual borrower to make the
demand for rescission). Rescission is a highly individual-
ized remedy as a general matter, and rescission under
TILA is no exception. The variations in the transactional
“unwinding” process that may arise from one rescission to
the next make it an extremely poor fit for the class-action
mechanism.
8 No. 07-1326
A court’s certification of a class of persons entitled to
seek rescission would be just the beginning. Each class
member individually would have the option of exercising
his or her right to rescind, and not all class members will
want to do so because it requires returning the loan
principle in exchange for the release of the lien and any
interest or other payments. Individual controversies would
erupt and likely continue because “the equitable nature of
rescission generally entitles the affected creditor to judicial
consideration of the individual circumstances of the
particular transaction.” McKenna, 475 F.3d at 427 n.6.
Accordingly, a host of individual proceedings would
almost certainly follow in the wake of the certification of a
class whose loan transactions are referable to rescission. As
we have noted, § 1635(b) provides that “[t]he procedures
prescribed by this subsection shall apply except when
otherwise ordered by a court,” suggesting that the remedy
must proceed on a case-by-case basis. In short, the rescis-
sion remedy prescribed by TILA is procedurally and
substantively incompatible with the class-action device.
It is true, as the Andrews point out, that TILA does not
explicitly prohibit the use of a class action for rescission.
The Supreme Court has said that “[i]n the absence of a
direct expression by Congress of its intent to depart from
the usual course of trying ‘all suits of a civil nature’ under
the Rules established for that purpose, class relief is
appropriate in civil actions brought in federal court.”
Califano v. Yamasaki, 442 U.S. 682, 700 (1979) (quoting FED.
R. C IV. P. 1). Some district courts have ended their inquiry
there and certified rescission classes under TILA. See, e.g.,
In re Ameriquest Mortgage Co. Mortgage Lending Practices
No. 07-1326 9
Litig., No. 05-CV-7097, 2007 WL 1202544 (N.D. Ill. Apr. 23,
2007); Latham v. Residential Loan Ctrs. of Am., Inc., No. 03 C
7094, 2004 WL 1093315 (N.D. Ill. May 6, 2004); Hickey v.
Great W. Mortgage Corp., 158 F.R.D. 603 (N.D. Ill. 1994); see
also McKenna, 475 F.3d at 423 (listing cases). But TILA is
entirely different from the jurisdictional statute at issue in
Yamasaki.
Yamasaki concerned a statute setting forth the procedure
by which judicial review of an administrative decision
could be obtained. 442 U.S. at 698. The Court rejected the
argument that the statute’s language authorizing a suit for
judicial review by “any individual” meant that individual
suits only—not class actions—could be brought. Id. at 698-
99. The Court held that this “any individual” language,
without more, did not preclude the use of class actions in
this category of suit. Id. at 700. While an express exception
might be expected in the context of a jurisdictional statute
specifying the rules by which judicial review may be
sought, we think § 1635 is quite different. TILA’s rescission
remedy “is written with the goal of making the rescission
process a private one, worked out between creditor and
debtor without the intervention of the courts.” Belini, 412
F.3d at 25. The lack of an explicit prohibition against class
actions in § 1635 is not dispositive. See McKenna, 475 F.3d
at 425-26.
Class actions are specifically mentioned in the
TILA provision addressing claims for damages. See
§ 1640(a)(2)(B). There, Congress established a cap of the
lesser of $500,000 or 1 percent of the creditor’s net worth on
the total recovery of damages in class actions. Because vast
10 No. 07-1326
recoveries are also possible for rescission claims (here, the
Andrews estimate that Chevy Chase’s liability could
amount to “perhaps $210 million”), the absence of a similar
cap in § 1635 strongly suggests that class actions are not
available for rescission. See Bates v. United States, 522 U.S.
23, 29-30 (1997) (“Where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.”) (internal quotation marks omit-
ted); see also Duncan v. Walker, 533 U.S. 167, 173 (2001)
(where Congress distinguished between “state” and
“federal” review in related subsections, that statutory
context suggests that Congress would have explicitly
mentioned “federal” review if it intended to include it).
This direct contrast between the text of TILA’s damages
and rescission provisions cannot be ignored. See McKenna,
475 F.3d at 424.
It is of course possible (as our dissenting colleague
suggests) that this difference in TILA’s remedial provisions
could be understood to mean that TILA’s rescission remedy
may be pursued on a class basis, without any liability limit.
But we agree with the First Circuit that “[t]he notion that
Congress would limit liability to $500,000 with respect to
one remedy while allowing the sky to be the limit with
respect to another for the same violation strains credulity.”
Id. We think the presence of a cap on class-action recovery
in TILA’s damages provision, the absence of any reference
at all to class recovery in its rescission provision, and the
mechanics of the rescission process spelled out in § 1635,
all point more plausibly to the opposite interpretation: that
No. 07-1326 11
TILA’s rescission remedy—by its terms an individualized,
restorative rather than compensatory remedy—is just that,
a purely individual remedy that may not be pursued on
behalf of a class.
The 1995 amendments to TILA confirm this interpreta-
tion, as the First Circuit’s well-reasoned opinion in
McKenna noted. In that year, Congress limited the potential
for expansive TILA liability by temporarily suspending
class actions for relatively minor violations (including
some involving rescission rights) and then by increasing
the tolerance levels for honest, minor mistakes in carrying
out disclosure obligations. See Truth in Lending Class
Actions Relief Act of 1995, Pub. L. No. 104-12, § 2, 109 Stat.
161, 161-62; Truth in Lending Act Amendments of 1995,
Pub. L. No. 104-29, § 3, 109 Stat. 271, 272-73. These actions
were taken in response to the Eleventh Circuit’s decision in
Rodash v. AIB Mortgage Co., 16 F.3d 1142 (11th Cir. 1994),
which had held that a creditor’s minor TILA violations
triggered a debtor’s right to rescind. See R ALPH J. R OHNER
& FRED H. M ILLER, T RUTH IN L ENDING ¶6.01[2] (Robert A.
Cook et al. eds., 2000). “In taking this step, Congress made
manifest that although it had designed the TILA to protect
consumers, it had not intended that lenders would be
made to face overwhelming liability for relatively minor
violations.” McKenna, 475 F.3d at 424.
The Andrews also make an argument flowing from the
language of the “additional relief” subsection of § 1635,
and the attorney’s fees subsection of TILA’s damages
provision, § 1640. Section 1635(g) provides that “[i]n any
action in which it is determined that a creditor has violated
12 No. 07-1326
this section, in addition to rescission the court may award
relief under section 1640,” that is, damages. § 1635(g).
Section 1640(a)(3), in turn, provides that attorney’s fees are
recoverable in a successful action to enforce § 1640 liability
(i.e., liability for damages) “or in any action in which a
person is determined to have a right of rescission under
section 1635.” § 1640(a)(3). The Andrews contend that this
parallel use of the phrase “in any action” in § 1635(g) and
§ 1640(a)(3) means that rescission is available “in any
action,” including class actions.
There is no support for this novel argument, which rests
on a faulty reading of § 1635(g) and § 1640(a)(3), treating
§ 1635(g) as the center of all remedial relief available under
TILA. Section 1635(g) is a simple remedial cross-reference;
it provides that rescission plaintiffs may also seek damages
under § 1640. It does no more. Section 1640(a)(3) simply
provides that attorney’s fees are recoverable in a successful
action for damages or a successful action for rescission. It
does no more. The use of the phrase “in any action” in
these provisions carries no meaning for the question of
whether TILA permits rescission class actions.
Finally, we note that creating a circuit split generally
requires quite solid justification; we do not lightly conclude
that our sister circuits are wrong. Here, the Andrews have
not persuaded us that the First and Fifth Circuits have
misinterpreted the operative provisions of TILA. We now
join those circuits in concluding that TILA’s rescission
remedy, § 1635, may not be pursued on a class basis.
McKenna, 475 F.3d at 427; James, 621 F.3d at 731.
We note for completeness that the fundamental incom-
patibility between the rescission remedy under TILA and
No. 07-1326 13
the class-action device raises serious questions as to
whether a TILA rescission class could ever be properly
certified under Federal Rule of Civil Procedure 23(b).2 A
Rule 23(b)(2) class may be maintained when “final injunc-
tive relief or corresponding declaratory relief is appropri-
ate respecting the class as a whole.” FED. R. C IV. P. 23(b)(2)
(emphasis added); see Jefferson v. Ingersoll Int’l, Inc., 195 F.3d
894, 897-98 (7th Cir. 1999) (noting Rule 23(b)(2)’s require-
ment of “final relief”). As we have explained, a declaration
of a “rescission class” would only initiate a process of
individual rescission actions. Significant individual aspects
of the remedy, varying with each consumer’s loan transac-
2
The Andrews suggest that our review is limited to the
question of whether TILA permits the certification of a class of
rescission plaintiffs, arguing that we may not consider on this
interlocutory appeal whether a rescission class could satisfy the
requirements of Rule 23. To the contrary, under Rule 23(f),
appellate courts may grant a discretionary interlocutory appeal
and may consider those issues related to a district court’s
certification decision. See C HARLES A LAN W RIGHT & A RTHUR R.
M ILLER , F EDERAL P RACTICE & P ROCEDURE § 1802.2 (3d ed. 2005);
see also In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98,
106 (D.C. Cir. 2002) (holding that “review is limited to issues
that relate to class certification”). Accordingly, the issue of
whether a rescission class meets the requirements of Rule 23 is
precisely within our purview. In re Lorazepam, 289 F.3d at 106-07.
The same is not true, however, of the Andrews’ request that we
review the district court’s failure to certify a class for statutory
damages. The district court denied statutory damages and
therefore never reached the issue of class certification for
statutory damages.
14 No. 07-1326
tion, would remain to be worked out before each of the
transactions could be unwound. Rather than settling the
legal relations at issue, a judicial declaration in this situa-
tion would be essentially advisory. See Gibbons v. Interbank
Funding Group, 208 F.R.D. 278, 285 (N.D. Cal. 2002) (“With-
out any rescission requests, nor subsequent denials by
defendants, it is not at all clear that a justiciable contro-
versy exists between the class and defendants.”). The
rescission remedy is so inherently personal that a court
cannot venture further while addressing the plaintiffs as
a class; it can do no more than simply declare that a certain
group of plaintiffs have the right to initiate rescission,
and that is not a form of “final” declaratory relief under
Rule 23(b)(2).
Likewise, to certify a class under Rule 23(b)(3), common
questions of law and fact must predominate over questions
affecting individual members, and the class-action device
must be superior to other methods of adjudicating the
controversy. The Andrews strain to meet the predomina-
tion and superiority requirements here. See, e.g., In re Mex.
Money Transfer Litig., 267 F.3d 743, 746 (7th Cir. 2001). If the
class certification only serves to give rise to hundreds or
thousands of individual proceedings requiring individu-
ally tailored remedies, it is hard to see how common issues
predominate or how a class action would be the superior
means to adjudicate the claims. The Andrews acknowledge
that the district court will be called upon, if the class
certification is upheld, to establish individual rescission
procedures that will both meet the needs of each class
member and assist Chevy Chase in recovering the loan
principal on each transaction without risking the immedi-
No. 07-1326 15
ate loss of its security interest. Under these circumstances,
proceeding as a class to “unwind” hundreds or thousands
of individual credit transactions would not promote the
primary purposes of the class-action mechanism: judicial
economy and efficiency. See McKenna, 475 F.3d at 427; see
also 1 A LBA C ONTE & H ERBERT B. N EWBERG , N EWBERG ON
C LASS A CTIONS § 1:1, at 3 (4th ed. 2002) (“A class action is
a procedural device . . . that can accomplish significant
judicial economies.”). Using a class action to resolve a
multitude of individual, varied rescission claims is neither
“economical” nor “efficient” in any sense of those terms.
The Andrews argue that a class action is superior
because it is the only realistic means for recovery. But they
do not dispute that under TILA a prevailing debtor with a
typical loan can expect to receive over $50,000, plus attor-
ney’s fees and costs, in a rescission action and that
many debtors do in fact bring rescission claims. Simply
put, TILA rescission is not the sort of remedy that
would not otherwise be sought unless the class-action
mechanism were available.
For the foregoing reasons, we hold as a matter of law that
a class action for the rescission remedy under TILA may
not be maintained. The judgment of the district court is
therefore R EVERSED, and the case is R EMANDED with
instructions to vacate the class-certification order.
16 No. 07-1326
E VANS, Circuit Judge, dissenting. The majority acknowl-
edges that the Andrews/Chevy Chase mortgage loan
agreement was “complex, with a potential trap for the
unwary.” With that statement, I certainly agree. The loan’s
seductive Siren call of a 1.95 percent interest rate with a
five-year fixed monthly payment of $701.21—the real
implications of which were not fully explained as required
by the Truth in Lending Act (TILA)—was a booby trap
waiting to explode. And explode it did. So the Andrews
filed this suit on behalf of themselves and others who
answered the Siren call. The district court certified the case
as a class action seeking rescission, but its order was stayed
pending the outcome of this interlocutory appeal. Today,
the majority holds that the case may not continue against
the mortgagee bank as a class action for rescission. With
that conclusion, I cannot agree.
At this point in time, our case presents two questions:
(1) What did Congress intend?; and (2) if its intent cannot
be ascertained with certainty, who should pay the price of
an ambiguous statute? As I see it, the answers to both
questions favor affirming the district court’s decision.
Assuming it can be fairly identified, congressional intent
is the touchstone. As the majority recognizes, we must first
start with the statutory language itself. If the statute is
unambiguous, it controls, and a court has no business
substituting its view of good policy for that of Congress.
Indeed, unambiguous language must be given effect unless
it produces results that are “absurd.” See Evans ex rel. Evans
v. Lederle Laboratories, 167 F.3d 1106, 1111 (7th Cir. 1999);
United States v. Thomas, 77 F.3d 989, 992 (7th Cir. 1996). The
No. 07-1326 17
majority found the language of 15 U.S.C. § 1635 ambigu-
ous, and so it looked to evidence beyond the statutory text
to determine congressional intent. That is not necessary.
TILA does distinguish between claims for damages and
claims for rescission, but the distinction does not support
the majority’s conclusion. The fact that there is a cap on
damages in class actions may, in the abstract, suggest
Congress sought to shield lenders from massive liability.
But we don’t address the matter in the abstract. Congress
wrote a statute, and if it sought to further such a policy in
the rescission context, we should assume it would have
said so. The majority shrugs off too lightly the Supreme
Court’s command—“[i]n the absence of a direct expression
by Congress of its intent to depart from the usual course of
trying ‘all suits of a civil nature’ under the Rules estab-
lished for that purpose, class relief is appropriate in civil
actions brought in federal court.” Califano v. Yamasaki, 442
U.S. 682, 700 (1979) (quoting Fed. R. Civ. P. 1). And this
result can be squared with the idea that TILA rescission is
a personal remedy. Affirming the district court would not
mean automatic rescission of each class member’s loan. The
district court only held that “each class member may
rescind if he or she wishes to do so.” Andrews v. Chevy
Chase Bank, FSB, 240 F.R.D. 612, 622 (E.D. Wis. 2007). What
rescission would look like for each individual class mem-
ber—the “unwinding” process the majority de-
scribes—may well prove too complicated to satisfy the
Rule 23 dictates in a given case. But that does not mean a
TILA rescission class action may not be maintained as a
matter of law.
18 No. 07-1326
If we suppose that the statute is ambiguous—it may or
may not authorize class actions for rescission—the major-
ity’s conclusion is still in doubt. Although the majority
thinks it clear that rescission class actions are not autho-
rized, that construction takes more than a little massaging.
If the statute is unclear, the question becomes: Who should
pay the price of Congress’s sloppy drafting? The majority’s
decision places the burden on the victims of a TILA
violation, not on the perpetrator of the violation. True,
withholding the class action mechanism is not the same as
precluding relief altogether, but it still stands as a proce-
dural obstacle. If Congress intended to preclude rescission
class actions, it should amend the statute and correct the
error itself. When a court cleans up Congress’s mess, it
only encourages poor drafting. And if the court gets it
wrong—a hazard of judicial guesswork—then all suffer.
Rather than forcing a statute to further a policy vision that
may or may not be shared by Congress, it is better to
acknowledge ambiguity and construe the statute in the
way most supported by the statute’s language and in a
fashion that protects the innocent, not the guilty.
For these reasons, I dissent from the majority opinion.
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