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Bonte v. U.S. Bank

October 19, 2010


Appeal from the United States District Court for the Western District of Wisconsin. No. 3:08-cv-00696-Stephen L. Crocker, Magistrate Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge


Before POSNER, ROVNER, and SYKES, Circuit Judges.

Travis and Jolene Bonte sued U.S. Bank, N.A. under the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1640, et seq., seeking mortgage rescission. Their complaint alleges that U.S. Bank succeeded a mortgage lender that violated TILA by misstating certain charges related to the Bontes' mortgage. The district court granted U.S. Bank's motion to dismiss, Fed. R. Civ. P. 12(b)(6), after concluding that the Bontes failed to respond to U.S. Bank's contention that none of the mis-statements identified in the complaint were "material," as required by TILA for mortgage rescission. The Bontes appeal, but again fail to provide any meaningful response to U.S. Bank's claim that none of the allegedly misstated disclosures entitle them to rescission. We thus affirm the dismissal of their complaint.


According to the facts in the complaint, which we accept as true at this stage, the Bontes own their home in Woodville, Wisconsin. In December 2005, they took out a third mortgage on the home through FMF Capital, LLC for approximately $315,000, payable over a 30-year period. The proceeds of the mortgage were used, in part, as payment on the Bontes' first mortgage with Chase Bank and their second mortgage with Bremer Bank. Subsequently, the loan was transferred to U.S. Bank, which initiated foreclosure proceedings against the Bontes. The foreclosure action was dismissed in April 2007.

The Bontes later filed suit in federal district court seeking rescission of the third mortgage based on "inaccurate and inconsistent disclosures" in their HUD-1 settlement statement and required TILA statement and dis-closures. U.S. Bank moved to dismiss the Bontes' complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that none of the alleged errors in the disclosure statements related to a "material" disclosure, as required for rescission more than three days after the mortgage. In response, the Bontes reiterated the allegations in their complaint and argued generally that TILA should be liberally construed in favor of consumers.

The district court granted U.S. Bank's motion to dismiss, concluding that the Bontes had failed to demonstrate that the facts laid out in their complaint entitled them to rescission. In response to U.S. Bank's assertion in its motion to dismiss that none of the ten allegedly misstated charges identified in the Bontes' complaint were "material," the Bontes had simply restated the facts set forth in their complaint and described the general legal standards applicable in TILA cases. Concluding that this failure to respond amounted to waiver, the district court dismissed their complaint for failure to state a claim. Waiver aside, the district court further concluded that U.S. Bank's arguments were substantively correct, entitling it to dismissal on the merits.


We review de novo the district court's grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6). E.g., Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). We accept all facts in the complaint as true, view them in the light most favorable to the Bontes, and draw all reasonable inferences in their favor. Id. Although the bar to survive a motion to dismiss is not high, the complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Because the Bontes seek rescission of their loan well outside the ordinary three-day period allowed under TILA, see 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23(a)(3), they must demonstrate that the lender failed to make a required "material" disclosure, see 15 U.S.C. § 1635(f) (extending right of rescission to earlier of three years or until the sale of the property); 12 C.F.R. § 226.23(a)(3); see also R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 187 (1st Cir. 2006) (noting that TILA allows rescission for up to three years when lender omits certain material disclosures). The Bontes' complaint identifies ten separate charges that differed on their TILA statement and disclosures and the accompanying HUD-1 settlement statement for the mortgage. The Bontes allege that taken together, the discrepancies between the two documents (both attached to the complaint) misstated the "APR, the amount financed, and finance charge associated with this transaction."

The disclosure requirements under TILA may be found in the statute itself, 15 U.S.C. §§ 1601 et seq., the implementing regulation ("Regulation Z," promulgated by the Federal Reserve Board), 12 C.F.R. §§ 226.1-226.59, and the Federal Reserve Board's binding Staff Commentary, 12 C.F.R. pt. 226, Supp. I; see also 15 U.S.C. § 1604(a) (directing the Board to prescribe regulations implementing TILA) amended by PL 111-203, July 21, 2010, 124 Stat 1376. Ordinarily, we defer to the Commentary when interpreting TILA and its disclosure requirements. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565 (1980) ("[D]eference [to the Federal Reserve Board] is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z."); Hamm v. Ameriquest Mortg. Co., 506 F.3d 525, 528 (7th Cir. 2007) ("Courts pay particular heed to the FRB Staff Commentary to TILA's regulations when evaluating an alleged TILA violation."). Section 226.18 of Regulation Z identifies eighteen pieces of information to be disclosed to borrowers in credit transactions such as the Bontes' mortgage. See 12 C.F.R. § 226.18(a)-(r).

Of these eighteen disclosures, the following five qualify as "material" so as to support rescission for up to three years: (1) the annual percentage rate ("APR"); (2) the finance charge; (3) the amount financed; (4) the total of payments; and (5) the payment schedule. See 12 C.F.R. § 226.23(a)(3). As stated above, the Bontes' complaint alleges that the charges listed on their TILA disclosure statement (which conformed to the model Truth-in-Lending Disclosure Statement in Appendix H-2 of Regulation Z) misstated the finance charge, the APR, and the amount financed. But the Bontes never explain how the ten allegedly misstated charges are related to the finance charge, the APR, and the amount financed.

The finance charge includes any fee or charge representing the cost of credit, from interest (ordinarily the largest component of the finance charge) to any transaction fees "imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit." 12 C.F.R. § 226.4(a). The APR and the amount financed are derived from the finance charge and the amount of the note. See 12 C.F.R. § 226.22(a)(1) ("The annual percentage rate is a measure of the cost of credit, expressed as a yearly rate[.]"). The amount financed is the total loan amount after subtracting out any pre-paid finance charges. See 12 C.F.R. § 226.18(b) (amount financed is net amount of credit extended for the consumer's use). Thus, the APR and the amount financedare derived from the finance charge. The three together essentially represent the cost of credit. Cf. Fed. Deposit Ins. Corp., FDIC Law, Regulations, Related Acts, Part ...

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