Moller v. OneWest Bank, FSB et al

Filing 52

ORDER granting 37 Defendant's Motion to Dismiss Plaintiff's First Amended Complaint. Denying as moot 3 Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction. This case is dismissed. Judgment shall enter in favor of defendant and against plaintiff, by Judge Philip A. Brimmer on 12/1/10.(ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action No. 10-cv-01945-PAB-MEH LORRAINE M. MOLLER, Plaintiff, v. ONEWEST BANK, FSB, Defendant. _____________________________________________________________________ ORDER _____________________________________________________________________ On November 30, 2010, the Court reconvened the hearing on plaintiff's motion for preliminary injunction [Docket No. 3]. The Court also heard arguments on the defendant's motion to dismiss [Docket No. 37]. At the conclusion of the evidentiary portion of the hearing, the Court addressed the motion to dismiss. The Court found it was undisputed that plaintiff received two Notices of Right to Cancel at her two closings, the first on August 7, 2007 and the second on August 14, 2007. See First Am. Complt., ¶¶ 9-11. The Court applied the standard from Melfi v. WMC Mortgage Corp., 568 F.3d 309, 312 (1st Cir. 2009), for determining the adequacy of disclosure under the Truth in Lending Act and found that, based on the notices of right to cancel given to plaintiff at the closings, a reasonable person would have understood the deadline for his or her right of rescission. See id. Therefore, given that the disclosures did not violate TILA or its implementing regulations, plaintiff's right to rescind was not extended from three days to three years. See 12 C.F.R. §

226.23(a)(3). The Court found it was undisputed that plaintiff did not give notice of her rescission within the required three day period. See First Am. Complt., ¶ 13. As a result, the Court granted defendant's motion to dismiss and denied plaintiff's motion for a preliminary injunction as moot. Accordingly, it is ORDERED that defendant's Motion to Dismiss Plaintiff's First Amended Complaint [Docket No. 37] is GRANTED. Furthermore it is ORDERED that plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 3] is DENIED as moot. Furthermore it is ORDERED that this case is DISMISSED. Judgment shall enter in favor of defendant and against plaintiff.

DATED December 1, 2010. BY THE COURT: s/ Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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