Ofor v. Ocwen Loan Servicing, LLC, et al., No. 10-2974 (8th Cir. 2011)
Annotate this CasePlaintiff filed suit against, inter alia, U.S. Bank, N.A. (U.S. Bank) seeking to invalidate the foreclosure and sale of his home. Plaintiff alleged that the mortgage that the lender relied upon in foreclosing on his home was defective and therefore could not provide a valid basis for foreclosure under Minnesota law and that the lender violated the Truth in Lending Act (TILA), 15 U.S.C. 1601, et seq., by failing to provide required notice to plaintiff of his ability to cancel the transaction and by refusing to cancel the mortgage when plaintiff exercised his right to rescind the mortgage on those grounds. The court declined to reach plaintiff's Minnesota Statute 523.23 argument where plaintiff conceded he never cited to this provision to the district court at trial nor in his motion for new trial or amended verdict. The court also held that plaintiff's wife was authorized to receive the Notice of Right to Cancel on plaintiff's behalf; plaintiff cited to no evidence or legal authority that the second Notice of Right to Cancel was required under TILA; plaintiff had no standing to challenge the lender's failure to send the second notice to his former wife; and plaintiff had not overcome the rebuttable presumption of delivery of the required notice to him. Accordingly, the judgment of the district court was affirmed.
Court Description: Civil case - consumer law. Challenge to validity of power of attorney and recording of the document was not raised in the district court and would not be considered on appeal; plaintiff received a timely notice of his right to rescind through his wife who was acting as his attorney-in-fact at the mortgage closing; plaintiff had no standing to challenge mortgage lender's failure to mail a second notice of the right to rescind to his former wife; in any event, the undisputed evidence showed the documents were mailed to plaintiff and that his wife received them.
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