Brian Timm v. Wells Fargo Bank NA

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: RESTREPO, SCIRICA and FISHER, Circuit Judges. Total Pages: 7.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3950
___________
BRIAN TIMM,
Appellant
v.
WELLS FARGO BANK, N.A.; DOES 1-100
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-15-cv-08363)
District Judge: Honorable Michael A. Shipp
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 14, 2017
Before: RESTREPO, SCIRICA and FISHER, Circuit Judges
(Opinion filed: June 22, 2017)
___________
OPINION*
___________
PER CURIAM
Brian Timm appeals from the order of the District Court dismissing his complaint.
We will affirm.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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I.
This matter arises from a $400,000 loan that Timm obtained from Wells Fargo
Bank, N.A. (“Wells Fargo), although, as explained below, Timm disputes the actual
source of the funds. The loan is evidenced by a note and secured by a mortgage on
Timm’s residence in Belmar, New Jersey. The transaction closed on March 14, 2008. In
2012, Wells Fargo filed a mortgage foreclosure action against Timm in New Jersey state
court. The state court dismissed that action in 2015.
Several months later, Timm filed pro se the complaint at issue here. He asserted
six claims under the Truth in Lending Act (“TILA”), but they are based on two principal
allegations. First, although both the note and the mortgage identify Wells Fargo as the
lender (ECF Nos. 1-1 at 1; 1-2 at 1), Timm alleged that Wells Fargo was not the true
lender because a different entity (which he does not identify) actually funded the loan.
Timm further alleged that Wells Fargo’s failure to disclose the true lender’s identity
violated the disclosure requirements of 15 U.S.C. § 1638(a). Second, Timm alleged that
he exercised his right to rescind the loan on that ground under 15 U.S.C. § 1635(a) and 12
C.F.R. § 226.23 by sending Wells Fargo a notice of rescission on March 10, 2015. Timm
further alleged that Wells Fargo failed to respond to that notice and to comply with the
obligations that it triggered.
On the basis of these allegations, Timm requested numerous forms of relief,
including damages, enforcement of Wells Fargo’s rescission obligations (including an

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order that it return approximately $90,000 that he has paid under the note), and an order
directing Wells Fargo to file a satisfaction of mortgage. Timm also sought penalties
under 15 U.S.C. § 1611, which imposes criminal liability for certain TILA violations.
Wells Fargo moved to dismiss under Fed. R. Civ. P. 12(b)(6). It argued, among
other things, that: (1) Timm’s claims for damages were barred by the one-year statute of
limitations contained in 15 U.S.C. § 1640(e); (2) Timm’s claims premised on rescission
were barred by the three-year limitations period contained in 15 U.S.C. § 1635(f); and (3)
Timm could not assert a private cause of action under TILA’s criminal provision. The
District Court agreed and dismissed Timm’s complaint with prejudice after concluding
that amendment would be futile. Timm appeals.1
II.
Timm raises numerous arguments on appeal, but they turn largely on a single
issue. TILA’s one-year period for seeking damages and its three-year period for
rescinding both run from the date that the transaction was consummated—i.e., the date on
which the parties formed a contract. See In re Cmty. Bank of N. Va., 622 F.3d 275, 303
(3d Cir. 2010) (addressing 15 U.S.C. § 1640(e) and damages); Bartholomew v.
Northampton Nat’l Bank of Easton, 584 F.2d 1288, 1296 (3d Cir. 1978) (same); Smith v.
Fid. Consumer Disc. Co., 898 F.2d 896, 902-03 (3d Cir. 1990) (addressing 15 U.S.C. §

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We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
dismissal of a complaint under Rule 12(b)(6). See Great W. Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010). We review the denial of leave to
amend a complaint for abuse of discretion. See id.
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1635(f) and rescission). That issue is governed by state law. See Jackson v. Grant, 890
F.2d 118, 120 (9th Cir. 1989).
Timm argues that his claims are not untimely because his transaction with Wells
Fargo was never consummated and these time periods thus never began to run.
According to Timm, the transaction was never consummated because Wells Fargo did
not disclose the true source of the funds.2 This “true lender” theory of consummation has
been “overwhelmingly rejected by [district] courts” in TILA cases, Fannon v. U.S. Bank,
N.A., No. 16-cv-141-JD, 2016 WL 5108036, at *4 (D.N.H. Sept. 20, 2016), and the
District Court properly rejected it in this case as well.
As an initial matter, if the parties never formed a contract as Timm claims, then
there would be nothing to rescind. But leaving that point aside, it is clear that the parties
formed a contract and thus consummated their transaction for TILA purposes. Under
New Jersey law, a loan secured by a mortgage becomes effective at closing. See Zaman
v. Felton, 98 A.3d 503, 507-08, 518 (N.J. 2014). According to Timm’s allegations and
the documents attached to his complaint, the parties executed the note and mortgage on
March 14, 2008. There is no dispute that the transaction closed at that time, that Timm
received the funds, or that he made payments under the terms of the note.3 Instead,

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Timm argues that the District Court misapplied the Rule 12(b)(6) standard by failing to
accept as true his allegations in this regard. Timm’s allegation that the parties never
formed a contract, however, is a legal conclusion that is not accepted as true for Rule
12(b)(6) purposes. See Great W. Mining & Mineral Co., 615 F.3d at 177.
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Timm alleges that Wells Fargo itself did not provide the $400,000 loan, but he does not
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Timm alleges only that the funds did not really come from Wells Fargo. He argues that
the parties’ agreement was not supported by consideration for that reason. Even
accepting as true Timm’s conclusory assertion that Wells Fargo did not really provide the
funds, however, Wells Fargo incurred, at the very least, the obligation to ensure that he
received them. That obligation was sufficient consideration for Timm’s obligations
under the note and mortgage. See Continental Bank of Pa. v. Barclay Riding Acad., Inc.,
459 A.2d 1163, 1171-72 (N.J. 1983).4
In sum, the transaction between Timm and Wells Fargo was consummated on
March 14, 2008. Under TILA, Timm had one year after that to file suit for damages, see
15 U.S.C. § 1640(e), and three years after that to serve Wells Fargo with a notice of
rescission, see 15 U.S.C. § 1635(f); see also Jesinoski v. Countrywide Home Loans, Inc.,
135 S. Ct. 790, 792-93 (2015) (holding that a borrower must serve notice of rescission,

allege that he never received it. The only reasonable inference from his complaint is that
he did. Timm’s allegations and the documents attached to his complaint reveal that he
made payments under the note totaling more than $90,000 over a period of several years.
Given the nature of the transaction, it is not plausible that Timm would have done so if he
never received the loan.
Timm relies on the Ninth Circuit’s decision in Jackson for the proposition that a
transaction is not consummated for TILA purposes if the parties’ agreement does not
disclose the true identity of the lender. Jackson is inapposite. The documents at issue in
that case did not identify any lender or guarantee any loan. See Jackson, 890 F.2d at 119,
121. The lender was identified and the loan was guaranteed only later, and the court held
that the transaction was not consummated until then. See id. at 121. In this case, by
contrast, both the note and the mortgage identified Wells Fargo as the lender, and the
note both guaranteed and fixed the terms of the loan. In making this observation, we
express no opinion on whether Wells Fargo’s designation as the lender obligated it to
make the loan by forwarding its own funds.
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but need not file suit, within § 1635(f)’s three-year period). Timm took neither action
until 2015. Thus, his claims for damages and rescission are long untimely.
Timm raises five other arguments that we will briefly address. First, he argues
that his claim for damages is not untimely because he sought damages in part for Wells
Fargo’s failure to respond to the notice of rescission that he sent in 2015. We agree that
Timm’s claim for damages is not untimely to that extent, but it lacks merit. TILA
requires creditors to take certain steps when “an obligor exercises his right to rescind
under [15 U.S.C. § 1635(a)].” 15 U.S.C. § 1635(b). Under the limitations period of §
1635(f), Timm had three years to rescind as explained above. Section 1635(f) is a statute
of repose that extinguishes not only the ability to seek rescission but the right of
rescission itself. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 417 (1998); In re Cmty.
Bank of N. Va., 622 F.3d at 301 n.18. Thus, when Timm served his notice, he no longer
had a right of rescission. For that reason, his notice was not the exercise of a “right to
rescind” under § 1635(a) that triggered any obligation on Wells Fargo.
Second, Timm argues that Wells Fargo waived its right to assert affirmative
defenses by failing to respond to his notice. Wells Fargo had no obligation to respond to
the notice as just discussed. And even if it did, Timm cites no authority for the
proposition that failure to respond to a TILA notice of rescission constitutes a waiver of
affirmative defenses in a subsequent court proceeding. We are aware of none.
Third, Timm argues that the District Court erred in applying TILA’s statutes of

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limitations and repose at the Rule 12(b)(6) stage. A complaint may be dismissed for
untimeliness under Rule 12(b)(6) when its untimeliness is apparent on its face. See
Stephens v. Clash, 796 F.3d 281, 288 (3d Cir. 2015). The untimeliness of Timm’s claims
is apparent on the face of his complaint as explained above. We further note that the
limitations period for rescinding is not subject to tolling. See In re Cmty. Bank of N. Va.,
622 F.3d at 301 n.18. The limitations period for damages is, see Ramadan v. Chase
Manhattan Corp., 156 F.3d 499, 505 (3d Cir. 1998), but Timm raised no potential ground
for tolling in the District Court and has raised none even on appeal.
Fourth, Timm argues that the District Court should have permitted him to
“prosecute” Wells Fargo by seeking criminal penalties under 15 U.S.C. § 1611. As the
District Court explained, however, that provision imposes criminal liability and does not
create a private cause of action. See Vallies v. Sky Bank, 591 F.3d 152, 156 (3d Cir.
2009) (distinguishing between TILA provisions imposing criminal liability and those
creating a private cause of action).
Finally, Timm argues that the District Court abused its discretion in dismissing his
complaint without leave to amend. The District Court concluded that amendment would
be futile, and we agree that amendment could not cure the defects discussed above. See
Great W. Mining & Mineral Co., 615 F.3d at 175. Indeed, Timm has not specified any
way in which he could amend his complaint if given the chance.
III.
For these reasons, we will affirm the judgment of the District Court.
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