Willie J. Causey, Jr. v. U.S. BANK NATIONAL ASSOCIATION, Trustee for Lehman Brothers-Structured Asset…

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE J. CAUSEY, JR.,
Plaintiff - Appellant,
v.
U.S. BANK NATIONAL
ASSOCIATION, Trustee for Lehman
Brothers-Structured Asset Investment
Loan Trust Sail 2006-BNC3,
Defendant - Appellee.
No. 10-56021
D.C. No. 2:08-cv-03460-JHN-CW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted December 7, 2011
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
Willie J. Causey, Jr. appeals the district court’s grant of summary judgment
for defendant U.S. Bank National Association on his Truth in Lending Act claim to
rescind his mortgage refinancing loan with the defendant. Reviewing de novo, we
FILED
DEC 29 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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reverse and remand. See Blue Lake Rancheria v. United States, 653 F.3d 1112,
1115 (9th Cir. 2011).
It is undisputed that the plaintiff effectively invoked his absolute right to
rescind the transaction within three business days of the loan closing. It is also
undisputed that the lender ignored the plaintiff’s rescission notice and proceeded to
fund the loan. The district court erred in ruling that the plaintiff was required to
tender the borrowed funds to the defendant before the defendant was obligated to
release its lien. In an uncontested rescission as here, the default sequence under the
Act requires the creditor to release its lien before the consumer must tender. See
15 U.S.C. § 1635(b); 12 C.F.R. § 226.23(d)(2)–(3).
Although the district court is authorized to modify the default sequence, that
authority ends once rescission is accomplished. 15 U.S.C. § 1635(b); 12 C.F.R.
§ 226.23(d)(4). In a case where the creditor disputes the consumer’s asserted
ground for rescission, rescission is not accomplished until a court determines that
the consumer had the right to rescind. See Yamamoto v. Bank of N.Y., 329 F.3d
1167, 1172 (9th Cir. 2003). But in a case where the creditor acquiesces in the
consumer’s notice of rescission or fails to respond within the 20-day response
period, rescission is accomplished automatically. See id.

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Here, the undisputed facts show that the plaintiff timely mailed his
rescission notice, and the defendant failed to dispute it within 20 days — thus
accomplishing rescission automatically and triggering the default sequence under
the regulations.
On remand, the district court should order that the defendant release its lien
on the plaintiff’s home and determine the amount that the plaintiff must then tender
to the defendant. Also, the plaintiff may present evidence to support his assertion
that he attempted to tender in 2006 but the defendant did not timely take
possession of the tender he offered.
REVERSED AND REMANDED.

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