2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-4-2008

In Re: Sterten

Precedential or Non-Precedential: Precedential

Docket No. 07-2237

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"In Re: Sterten " (2008). 2008 Decisions. Paper 186.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2237

 

IN RE: GAYLE L. STERTEN,

Debtor

GAYLE L. STERTEN;

WILLIAM C. MILLER, ESQ., Trustee

v.

OPTION ONE MORTGAGE CORPORATION;

MAIN LINE CAPITAL, INC.;

VILLAGE LAND TRANSFER, INC.

Gayle L. Sterten,

Appellant

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 06-cv-00651)

District Judge: Honorable Timothy J. Savage

 

Argued September 22, 2008
2

 

Before: BARRY, AMBRO, and GARTH, Circuit Judges

(Opinion filed: November 4, 2008 )

David A. Scholl, Esquire (Argued)

Regional Bankruptcy Center of Southeastern PA

6 St. Albans Avenue

Newtown Square, PA 19073-0000

Counsel for Appellant

Donna M. Doblick, Esquire (Argued)

Reed Smith

435 Sixth Avenue

Pittsburgh, PA 15219-0000

Mark S. Melodia, Esquire

Reed Smith

136 Main Street, Suite 250

Princeton Forrestal Village

Princeton, NJ 08540-0000

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge 
3

The Truth in Lending Act, 15 U.S.C. § 1601, et seq.,

imposes disclosure requirements on creditors, exposing them to

such penalties as money damages, attorney’s fees and recission

for failure to disclose finance charges accurately. See § 1635(a)

& (g); § 1640(a). However, in 1995, in an effort to prevent

creditors from being subject to “extraordinary liability” for

small disclosure discrepancies, Congress amended the Act to

include a “tolerances for accuracy” provision. 141 Cong. Rec.

H9514-01 (daily ed. Sept. 27, 1995) (statement of Rep. Leach).

Under that provision, a creditor is not liable for undisclosed

finance charges if those charges fall within a specified range of

error. 15 U.S.C. § 1605(f). We decide whether a Truth in

Lending Act defendant who does not specifically defend on the

ground that any inaccuracies in its disclosure fell within the

tolerance range waives the protection that provision provides.

In procedural parlance, we decide whether a tolerances for

accuracy defense is affirmative (requiring that it be pled

specifically) or general (thus not requiring that it be pled

specifically).

We hold that the defense is general, and that a defendant

need not specifically raise the Act’s tolerances provision in

order to avoid liability for disclosure errors that fall within its

range. We thus affirm the ruling of the District Court.

I. Facts and Procedural History

In February 2001, Gaye L. Sterten secured a loan in the

amount of $132,000 from Option One Mortgage Corporation.
 In addition to naming Option One, Sterten’s complaint also 1

named Main Line and Village Land Transfer. The claims

against those parties were settled on the day of the trial.

4

The purpose of the loan was to refinance the second mortgage

on her home and to consolidate her medical and credit card bills.

Sterten obtained the loan through a mortgage broker, Main Line

Capital, working with one of Main Line’s owners, Thomas

Girone. Girone was also the President of the title insurance

agency used in the transaction, Village Land Transfer, Inc. The

closing for the loan took place at Sterten’s home with only

Sterten and Girone present. Girone helped Sterten execute an

Adjustable Rate Note in favor of Option One and a mortgage

granting Option One a lien on her real property to secure the

loan. Sterten signed, among other documents, a HUD-1

Settlement Statement, the mortgage, a Truth in Lending

Disclosure Statement, and a mandatory Notice of Right to

Cancel.

Nearly two years later, Sterten sent a letter to Option One

contending that the closing of the loan had not been done in

accordance with the requirements of the Truth in Lending Act

and requesting a recission of the loan. On March 18, 2003, after

Option One had disputed her right to rescind, Sterten filed a

Chapter 13 bankruptcy petition in the Bankruptcy Court for the

Eastern District of Pennsylvania. Option One then filed a proof

of claim. In response, Sterten filed an adversary proceeding in

her bankruptcy case, seeking recission of the loan along with

various statutory penalties. Sterten alleged two specific Truth 1
 Under the Act’s implementing regulation, Regulation Z, 2

many “[r]eal-estate related fees” are excluded from the finance

charge if they are “bona fide and reasonable in amount.” 12

C.F.R. § 226.4(c)(7). The Bankruptcy Court concluded that all

but the “mark up” of the appraisal fees and the notary charges fit

with the exceptions set out in § 226.4(c)(7).

5

in Lending Act violations: (1) that she was never provided with

either her Truth in Lending disclosure statement or her Notice

of Right to Cancel form; and (2) that the finance charges were

not accurately disclosed. Option One denied both allegations,

maintaining specifically with respect to its disclosure of the

finance charges that it “acted at all times relevant hereto in full

compliance with all applicable laws and/or acts.” Option One’s

Answer ¶ 9.

A trial was held, at which both Sterten and Girone

testified. The Bankruptcy Court found Girone more credible

than Sterten on whether she had received the required forms and

ruled in Option One’s favor on that claim. With respect to the

adequacy of Option One’s disclosure, the parties agreed that ten

specific fees and charges listed on the HUD-1 Settlement

Statement, totaling roughly $2,000, had not been included as

part of the “Finance Charge” disclosed in the Truth in Lending

Disclosure Statement. The Court examined each fee and

concluded that only two of them—a $25 “mark up” in the

appraisal fee and $32 charged for notary services—qualified as

“finance charges” under the Truth in Lending Act. The Court 2

then sua sponte applied the Act’s tolerances for accuracy
 Sterten’s motion raised two additional claims that are not at 3

issue in this appeal. She challenged (1) the Court’s factual

conclusion that the required forms were delivered to her at

closing, and (2) its determination that the Truth in Lending Act

did not require the fees beyond the $57 in appraisal overcharge

and notary fee to be included in the Disclosure Statement.

6

provision, 15 U.S.C. § 1605(f), concluding that, because the $57

in nondisclosed finance charges were within the tolerance range,

the disclosure was “accurate as a matter of law.” It thus entered

judgment in favor of Option One on both the recission and the

damages claims.

Sterten then filed a Motion to Alter or Amend the

Bankruptcy Court’s order. She argued that the Court should not

have applied the Act’s tolerances for accuracy provision because

Option One had failed to raise it as an affirmative defense and

had therefore waived it. On January 4, 2006, the Bankruptcy 3

Court granted Sterten’s motion, concluding that § 1605(f) is an

affirmative defense and that, because “Option One failed to raise

§ 1605(f) in its pleadings, at trial, or at any other point in th[e]

proceeding,” it waived the defense. Sterten v. Option One

Mortgage Corp. (In re Sterten), Bankr. No. 03-14014, 2006

Bankr. LEXIS 4130, at *10–11 (Bankr. E.D. Pa. Jan. 4, 2006).

The Court declared recission and awarded Sterten $2,000 in

statutory damages along with reasonable attorney’s fees. Id. at

*11.
While Option One’s appeal was pending, the Bankruptcy 4

Court held a remedy hearing. Sterten v. Option One Mortgage

Corp. (In re Sterten), 352 B.R. 380 (Bankr. E.D. Pa. 2006). The

Court concluded that Sterten had a repayment obligation of

$118,819.16, payable in 302 monthly installments, and awarded

her $19,500 in attorney’s fees. Id. at 390.

7

Option One then appealed to the District Court. On 4

March 22, 2007, the District Court reversed the Bankruptcy

Court’s amended judgment, holding that “[b]ecause the

‘tolerances for accuracy’ provision is not an affirmative defense,

the Bankruptcy Court’s original verdict in favor of Option One

was correct and should not have been disturbed.” Sterten v.

Option One Mortgage Corp. (In re Sterten), 479 F. Supp. 2d

479, 485 (E.D. Pa. 2007). It therefore ordered the Bankruptcy

Court’s initial judgment restored. Id. Sterten timely appealed.

II. Jurisdiction and Standard of Review

The Bankruptcy Court had jurisdiction over Sterten’s

adversary proceeding under 28 U.S.C. § 157. The District Court

had jurisdiction over the appeal of the Bankruptcy Court’s order

under 28 U.S.C. § 158(a). We have jurisdiction over the District

Court’s reversal of the Bankruptcy Court under 28 U.S.C.

§ 158(d).

In reviewing an appeal to a District Court of a bankruptcy

decision, “we stand in the shoes of the District Court and review

the Bankruptcy Court’s decision.” IRS v. Pransky (In re
8

Pransky), 318 F.3d 536, 542 (3d Cir. 2003) (citation and internal

quotation marks omitted). Accordingly, “[w]e review [the

Bankruptcy Court’s] findings of fact for clear error and its legal

conclusions de novo.” Id. Determining whether the Truth in

Lending Act’s tolerances for accuracy provision is an

affirmative defense is a question of law. See Wolf v. Reliance

Standard Life Ins., 71 F.3d 444, 446 (1st Cir. 1995) (explaining

that whether a defense is “a waivable affirmative defense is a

pure question of law”). Thus, we review the Bankruptcy

Court’s determination on that issue de novo. We review a

court’s decision not to treat a defense as waived for abuse of

discretion. Cetel v. Kirwan Fin. Group, Inc., 460 F.3d 494, 506

(3d Cir. 2006).

III. Analysis

The Truth in Lending Act’s tolerances provision reads in

pertinent part as follows:

(f) Tolerances for accuracy

In connection with credit transactions not under

an open end credit plan that are secured by real

property or a dwelling, the disclosure of the

finance charge and other disclosures affected by

any finance charge—

(1) shall be treated as being

accurate for purposes of [a claim
9

for damages] if the amount

disclosed as the finance charge—

(A) does not vary

from the actual

finance charge by

more than $100;

[and]

. . . .

(2) shall be treated as being

accurate for purposes of [a claim

for recission] if—

(A) . . . the amount

disclosed as the

finance charge does

not vary from the

actual finance charge

by more than an

amount equal to onehalf of one percent of

the total amount of

credit extended . . . .

15 U.S.C. § 1605(f). 

Neither party disputes that the $57 in undisclosed finance
 Because the total loan amount was $132,000, the tolerance 5

range for Sterten’s recission claim is $660. 15 U.S.C.

§ 1605(f)(2)(A).

 Option One contends that it did raise the tolerances

6

provision as an affirmative defense in its answer. See Option

One’s Br. 20. Its argument to that effect is, however,

unconvincing. Its answer included a section labeled

“Affirmative Defenses,” which asserted, among other defenses,

that “Option One Mortgage Corporation acted at all times

relevant hereto in full compliance with all applicable laws and

acts.” Option One’s Answer, Affirmative Defenses ¶ 3. But

simply contending that, as a general matter, the applicable laws

were complied with is not enough to plead a true affirmative

defense adequately. 

10

charges falls within the tolerance range for both Sterten’s

damages claim and her claim for recission. What Sterten 5

disputes is whether Option One was in a position to take

advantage of the protection § 1605(f) provides. Sterten makes

two specific arguments on that point. First, she argues that the

Truth in Lending Act’s tolerances for accuracy provision sets

out an affirmative defense that Option One waived by not

pleading it in the initial stages of the litigation. Second, she 6

argues that, even if Option One was not required to raise the

tolerances provision as an affirmative defense, its failure to raise

the defense in any fashion at any point in the litigation amounted

to a waiver.
 Federal Rule of Civil Procedure 8 was applicable to 7

Sterten’s bankruptcy proceedings under Bankruptcy Rule 7008.

 Following an amendment that became effective December 8

1, 2007, the Rule now states: “In responding to a pleading, a

party must affirmatively state any avoidance or affirmative

11

A. Is the Tolerances for Accuracy Provision an

Affirmative Defense?

Federal Rule of Civil Procedure 8(b) allows a party to 7

contest the particulars of a complaint simply by issuing a

general denial in a responsive pleading. See 5 Charles Allen

Wright & Arthur R. Miller, Federal Practice & Procedure

§ 1265 (3d ed. 2004), at 546–47 (“Wright & Miller”) (“No

prescribed set of words need be employed in framing the general

denial; any statement making it clear that the defendant intends

to put in issue all of the averments in the opposing party’s

pleading is sufficient.”). That is what Option One did when it

asserted in its answer that, with respect to its disclosures, it

“acted at all times relevant hereto in full compliance with all

applicable laws and/or acts.” Rule 8(c) governs affirmative

defenses, which are generally waived if not specifically raised

“by responsive pleading or by appropriate motion.” Elliot &

Frantz, Inc. v. Ingersoll-Rand Co., 457 F.3d 312, 321 (3d Cir.

2006). At the time of these proceedings, Rule 8(c) stated in

pertinent part that “[i]n pleading to a preceding pleading, a party

shall set forth affirmatively [several listed defenses] and any

other matter constituting an avoidance or affirmative defense.”8
defense, including: [19 listed defenses].” Fed. R. Civ. P.

8(c)(1). The amendment was not intended to alter the rule

substantively. See 5 Wright & Miller § 1270 (Supp. 2008), at

110 (explaining that the “changes were not intended to have a

substantive effect”).

 We addressed the defining features of an affirmative 9

defense in National Union Fire Insurance Co. v. City Savings,

F.S.B. of Pittsburgh, Pa., 28 F.3d 376 (3d Cir. 1994). We cited

Black’s Law Dictionary’s definition of an “affirmative defense”

as “[a] matter asserted by defendant which, assuming the

complaint to be true, constitutes a defense to it. A response to

a plaintiff’s claim which attacks the plaintiff’s [legal] right to

bring an action, as opposed to attacking the truth of [the] claim.”

Id. at 393 (citing Black’s Law Dictionary 60 (6th ed. 1990))

(emphasis in original) (first alteration in original). However, the

issue in National Union was not, as it is here, whether a

particular defense is deemed affirmative. Rather, it was whether

an affirmative defense counts as a “claim” or “action” for

12

Fed. R. Civ. P. 8(c) (emphasis added). The question we face is

whether the Truth in Lending Act’s tolerance for error is

invoked by a Rule 8(b) general denial, or whether it falls within

Rule 8(c)’s catch-all “any other matter” provision and therefore

requires affirmative pleading.

Rule 8(c) itself provides little guidance for determining

which defenses, other than those specifically set out, fall within

its ambit. Our Court has yet to endorse any particular approach

to making that determination.9
purposes of the application of a particular jurisdictional bar. See

id. at 392–95 (addressing whether the jurisdictional bar of the

Financial Institution Reform, Recovery and Enforcement Act of

1989, 12 U.S.C. § 1821(d)(13)(D), applies to affirmative

defenses). National Union thus does not dictate the course of

our inquiry here.

13

Many courts in addressing this issue have focused on the

relationship between the defense in question and the plaintiff’s

primary case. Thus, for instance, the Court of Appeals for the

Fifth Circuit has stated that “pertinent to the analysis [of

whether a defense is an affirmative defense] is the logical

relationship between the defense and the cause of action asserted

by the plaintiff.” Ingraham v. United States, 808 F.2d 1075,

1079 (5th Cir. 1987). The Ingraham Court also explained that

this “inquiry requires [among other things] a determination . . .

whether the matter at issue fairly may be said to constitute a

necessary or extrinsic element in the plaintiff’s cause of action.”

Id. The Court of Appeals for the First Circuit has held that the

“test for whether a given defense falls within the Rule 8(c)

‘residuary’ clause is whether the defense shares the common

characteristic of a bar to the right of recovery even if the general

complaint were more or less admitted to.” Wolf, 71 F.3d at 449

(citation and internal quotation marks omitted).

As a theoretical matter, this focus on whether a defense

raises factual or legal issues other than those put in play by the

plaintiff’s cause of action nicely tracks the distinction between

a general denial and an affirmative defense. When we are
14

asking whether a particular defense is an affirmative defense,

what we are really asking is whether that defense is adequately

asserted merely by denying the allegations made in the

complaint, or whether more is required. To answer that

question, we need to determine whether the defense notes issues

not raised, even by implication, in the complaint.

In practice, however, focusing solely on the relationship

between the defense and the plaintiff’s cause of action is of

limited use where, as here, what is at issue is precisely the

nature of that relationship. See 5 Wright & Miller § 1271 (3d

ed. 2004), at 601 (noting that “this mode of analysis has a

certain tautological quality to it because all it suggests is that

matters that are not part of the plaintiff’s substantive case are to

be pleaded affirmatively—but, in a sense, determining what

matters are part of the plaintiff’s case is the very thing to be

ascertained by deciding whether a certain issue is or is not an

affirmative defense”). Option One’s argument is that the

tolerances provision defines what counts, for legal purposes, as

an accurate Truth in Lending Act disclosure, and thus Sterten

invoked the provision when she alleged that Option One’s

disclosures were inaccurate. See Option One’s Br. 13 (“[T]he

debtor’s claim fails once the court applies the very statutory

scheme that creates the claim in the first place, not because the

lender has introduced any extrinsic facts or countervailing

principles of law.”) (emphasis in original). Sterten’s argument,

on the other hand, is that the tolerances provision sets out a

statutory exception to liability that a defendant must

demonstrate applies to the undisclosed finance charges. See
15

Sterten’s Reply Br. 2 (“[I]t is not true . . . that a borrower cannot

prevail if the finance charge under-disclosure is less than onehalf of one percent of the finance charge. The lender is obliged

to show ‘something more,’ i.e., that the tolerance applies to the

charges at issue.”).

It is helpful to look instead at what Rule 8(c) is intended

to avoid. As we have explained in a different context, “[t]he

purpose of requiring the defendant to plead available affirmative

defenses in his answer is to avoid surprise and undue prejudice

by providing the plaintiff with notice and the opportunity to

demonstrate why the affirmative defense should not succeed.”

Robinson v. Johnson, 313 F.3d 128, 134–35 (3d Cir. 2002); see

also Ingraham, 808 F.2d at 1079 (“Central to requiring the

pleading of affirmative defenses is the prevention of unfair

surprise. A defendant should not be permitted to ‘lie behind a

log’ and ambush a plaintiff with an unexpected defense.”). As

a practical matter, that is the proper focus of our

inquiry—whether, given what Sterten was already required to

show, Option One’s failure to raise the tolerance issue

specifically deprived her of an opportunity to rebut that defense

or to alter her litigation strategy accordingly.

We see no reason to think that Sterten suffered any

“unfair surprise” as a consequence of Option One’s failure to

plead specifically the tolerances for accuracy defense. The

analysis a plaintiff must undertake to show any undisclosed

finance charges under the Truth in Lending Act—that there were

discrepancies between what was charged and what was
16

disclosed in the Truth in Lending Disclosure Statement, and that

those undisclosed fees fall within the Act’s definition of a

“finance charge”—is the same analysis required to show that the

undisclosed charges exceeded § 1605(f)’s range of error. As the

District Court aptly noted, “In her complaint, Sterten alleged all

disclosure violations she believed were attributable to Option

One . . . . Sterten does not, and cannot, argue that had she been

aware earlier that § 1605(f) was implicated, she would have

alleged more substantial violations . . . .” Sterten, 479 F. Supp.

2d at 483. Thus it is hard to see how Option One’s failure to

invoke the tolerances provision disadvantaged Sterten in any

way.

Sterten nonetheless contends that there was unfair

surprise in her case, arguing that “the ‘tolerance’ defense is not

a mechanical process which would be applied and churn out a

result in exactly the same manner whether it were raised by a

party defendant prior to trial or not raised until after trial.”

Sterten’s Br. 18. She makes two specific arguments in support

of this claim, neither of which persuades us.

First, Sterten notes that, while the tolerance range when

a creditor seeks recission is normally one-half of one percent of

the total amount of credit extended, 15 U.S.C. § 1605(f)(2)(A),

it shrinks to $35 when foreclosure proceedings have been filed,

§ 1635(i)(2). Therefore, she contends, the application of the

tolerance defense depends on facts outside the debtor’s primary

case—namely, whether foreclosure has begun. Sterten’s Br. 19.

While this claim is undeniably true, it is hard to see how it
17

presents an unfair surprise problem. Whether foreclosure

proceedings have, in fact, begun is something a Truth in

Lending Act plaintiff is in a position to know. There is thus no

reason why a plaintiff under the Act would be surprised or

burdened by the application of one range of tolerance rather than

another. That the amount of error tolerated varies if foreclosure

proceedings have begun is not, then, enough to place the

pleading burden on the defendant. See Gomez v. Toledo, 446

U.S. 635, 640–41 (1980) (explaining that placing the pleading

burden on the defendant is appropriate where a defense hinges

on “facts peculiarly within the knowledge and control of the

defendant”).

Second, Sterten argues that, had she “known that

‘tolerance’ of the finance charges was at issue, she may have

well undertaken to prove or argue that these charges were

institutional rather than attributable to mere mathematical error.”

Sterten’s Br. 20 (emphasis in original). But there is nothing to

suggest that applying the tolerances provision turns on the

motives of the creditor. The sole support Sterten provides for

that proposition is one reference in case law to a statement by

then-Senator Paul Sarbanes offered in support of adding the

tolerances provision to the Act. Id. (citing Inge v. Rock Fin.

Corp., 281 F.3d 613, 622 (6th Cir. 2002)). Inge quotes Senator

Sarbenes as saying that “[t]his increased tolerance for errors is

intended to protect lenders from . . . small errors of judgment .

. . . It is obviously not intended to give lenders the right to pad

fees up to the tolerance limit . . . .” 281 F.3d at 622 (quoting

141 Cong. Rec. S 14567 (daily ed. Sept. 28, 1995) (statement of
18

Senator Sarbanes)). But there is nothing in the actual text of

§ 1605(f) to indicate that courts have authority to condition

application of the provision on the reason for a particular

disclosure error. On the contrary, the provision clearly states

that “the disclosure of the finance charge . . . shall be treated as

being accurate for purposes of this subchapter if the amount

disclosed as the finance charge—[falls within the specified

tolerances].” 15 U.S.C. § 1605(f) (emphasis added). Thus, as

Option One’s motives do not appear relevant to the analysis,

Sterten was not prejudiced by losing the opportunity to bring

those motives into question.

Given, then, what is needed to establish a Truth in

Lending Act disclosure violation, we cannot say that the failure

to plead the tolerance issue specifically threatens a Truth in

Lending Act plaintiff with unfair surprise. We therefore

conclude that § 1605(f) is not an affirmative defense.

Sterten argues that this conclusion is inconsistent with

Inge, which is the case the Bankruptcy Court primarily relied on

in concluding that § 1605(f) does amount to an affirmative

defense. See Sterten, 2006 Bankr. LEXIS 4130, at *6–10. But

Inge dealt with a separate matter. It concerned whether a

plaintiff must allege in his or her complaint that “the difference

between Defendant’s initially disclosed finance charge and the

actual finance charge exceeded” the tolerance range or else be

subject to dismissal for failure to state a claim. Inge, 281 F.3d

at 616. The Inge Court sided with the plaintiff, holding that the

Truth in Lending Act does not require that a complaint
19

specifically contend that the claimed disclosure errors exceeded

the § 1605(f) threshold in order to state a recognized claim. Id.

at 621. We do not dispute that conclusion here. We only stress

that there is nothing inconsistent about holding, as the Inge

Court did, that § 1605(f) “does not impose an independent

pleading hurdle for [Truth in Lending Act] plaintiffs,” id., and

concluding, as we do here, that § 1605(f) is not an affirmative

defense that must be pled specifically by a defendant. Under

notice pleading standards, it is sufficient for a plaintiff to plead

an error in the disclosed finance charges to bring the statutory

definition of error into play. See Bell Atl. Corp. v. Twombly, __

U.S. __,127 S. Ct. 1955, 1964 (2007) (describing the notice

pleading standard). For that same reason, it is sufficient for a

defendant to deny that it made any disclosure errors in order to

invoke § 1605(f) as well.

It is true that the Inge Court went on to suggest that

“Congress’ remedial purpose for [the Truth in Lending Act] is

best effectuated by construing the § 1605(f) tolerances provision

as a potential affirmative defense, rather than as an essential

element of a finance charge disclosure claim.” 281 F.3d at 621.

But that dictum is not required by Inge’s holding, and, for the

reasons set forth above, we choose not to adopt that suggestion

here.

In sum, because the Truth in Lending Act’s tolerances for

accuracy defense is not affirmative, but can be put in play by a

general denial, Option One did not forfeit the chance to benefit

from the provision by failing to raise the tolerance issue
20

specifically in answer to Sterten’s complaint.

B. Did Option One Waive the Protection of § 1605(f) by

not Raising It at Any Point in the Litigation?

Sterten argues that even if Option One were not required

to raise the tolerance issue at the pleading stage, its “complete

failure . . . to raise the issue of the ‘tolerance’ defense in any

way, shape, or form to the [Bankruptcy Court] must generally be

viewed as a waiver of that defense.” Sterten’s Br. 21. More

specifically, Sterten maintains that the Bankruptcy Court’s

“raising of the ‘tolerance’ defense issue sua sponte deprived

[Sterten] of the ability to argue that the ‘tolerance’ should not

apply due to the presence of foreclosure proceedings or because

the specific overcharges were . . . not the subject of an innocent

miscalculation.” Id. at 22–23.

This argument fails for the same reason the previous

argument did—Sterten cannot establish that she suffered any

prejudice as a result of Option One’s failure to raise the issue.

Cf. Cetel, 460 F.3d at 506 (holding that, even in the case of an

affirmative defense, there is no waiver if there is “no

prejudice”). First, in her Motion to Alter or Amend the

Bankruptcy Court’s initial order, Sterten conceded that

foreclosure proceedings had not been filed in her case, noting

instead that “if at any time [Option One] attempts to commence

a foreclosure action against the Debtor, the ‘tolerance’ will be

reduced to $35.” Sterten’s Mot. to Alter or Amend Court’s

Order ¶ 7 (emphasis added). Clearly, Sterten could not have
21

been prejudiced by being deprived of an opportunity to present

an argument—that her case falls under the lower tolerance range

that applies after foreclosure proceedings begin—that the facts

made unavailable to her. Second, as discussed above, the Truth

in Lending Act’s various scenarios for tolerating minor

inaccuracies do not hinge on the reasons behind the disclosure

errors. Yet again, Sterten suffered no prejudice by being denied

the opportunity to make an argument not relevant to whether she

prevails.

We do not dispute that the most prudent course for

Option One was to argue—in its answer or otherwise—that, if

it made any disclosure errors, those errors fell within the

tolerance range rather than relying on the Bankruptcy Court’s

sua sponte application of § 1605(f). Still, Option One’s general

denial that it committed any disclosure violations was sufficient

to preserve the tolerance issue. Given that denial, and given the

absence of any real prejudice suffered by Sterten, the

Bankruptcy Court’s sua sponte application of § 1605(f) was not

improper.

IV. Conclusion

Option One did not forfeit the defense afforded by the

Truth in Lending Act’s tolerances for accuracy provision by

failing to raise it specifically before the Bankruptcy Court. The

defense was general. That it was directly raised sua sponte by

the Bankruptcy Court is thus permitted. That Court’s initial

judgment was therefore correct—Option One’s disclosures were
22

“accurate as a matter of law” because the amount of undisclosed

finance charges was within the statutory margin of error.

Accordingly, we affirm the District Court’s order directing the

Bankruptcy Court to restore its initial judgment in favor of

Option One.