Marr v. Bank of America

Richard Marr (plaintiff) refinanced his home with Countrywide Bank, which was later acquired by Bank of America, N.A. (the bank) (defendant). During the final closing process, Marr signed a document stating that he had received two copies of a three-day rescission notice. At the end of the process, the closing agent put all Marr’s document copies in a pocket-style folder. Marr put the folder in a filing cabinet in his house. Marr lived alone, and no one else had access to the folder. Marr occasionally added a document to the folder, but he never took any out. After two years, Marr gave the folder to his attorneys, who noticed that there was only one copy of the three-day rescission notice in the folder. Under the applicable regulations, if Marr had received two copies of this notice, his time to rescind, i.e., cancel, the refinance loan would have expired. However, if Marr had not received two copies, his time would not yet have expired, and he could still rescind his loan. Contending that he had received only one copy of the notice, Marr attempted to rescind his loan and sued the bank to force the rescission. The bank moved for summary judgment. The document Marr had signed acknowledging receipt of two copies of the notice created a presumption that he had actually received two copies. The bank also submitted an affidavit from the closing agent setting out her usual practices and procedures, which included giving a loan recipient two copies of the notice. However, the agent did not remember Marr’s specific transaction, and Marr testified that the agent had not followed several of her typical practices and procedures during his closing. The trial court found that Marr had failed to overcome the presumption that he had received two copies of the notice and granted summary judgment for the bank. Marr appealed.