United States Court of Appeals

For the Eighth Circuit

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No. 12-2202

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Larry D. Jesinoski and Cheryle Jesinoski, individuals

lllllllllllllllllllll Plaintiffs - Appellants

v.

Countrywide Home Loans, Inc., 

subsidiary of Bank of America N.A., 

doing business as America's Wholesale

Lender; BAC Home Loans Servicing, LP, 

a subsidiary of Bank of America, N.A., 

a Texas Limited Partnership, formerly

known as Countrywide Home Loans

Servicing, L.P.; Mortgage Electronic 

Registration Systems, Inc., a Delaware 

Corporation; and John and Jane Does 1–10

lllllllllllllllllllll Defendants - Appellees

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 Appeal from United States District Court 

for the District of Minnesota – Minneapolis

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 Submitted: December 11, 2012

 Filed: September 10, 2013

[Published]

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Before LOKEN, MELLOY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Mortgagors Larry and Cheryle Jesinoski appeal the district court's grant of

judgment on the pleadings to their lenders in a dispute regarding a $611,000 home

loan. Three years to the day after consummating the loan, the Jesinoskis mailed

notices to the lenders seeking to rescind the loan due to alleged violations of the

Truth in Lending Act (TILA); the lenders denied the Jesinoskis' requests to rescind. 

One year and one day after mailing the letters—now more than four years after

consummating the loan—the Jesinoskis sued the lenders to rescind the loan. The

sole issue on appeal is whether mailing a notice of rescission within three years of

consummating a loan is sufficient to "exercise" the right to rescind a loan transaction

pursuant to 15 U.S.C. § 1635(a) or, alternatively, whether a party seeking to rescind

the transaction is required to file a lawsuit within the three-year statutory period. 

This Court recently weighed in on the circuit split regarding this precise issue

and held that a party seeking to rescind a loan transaction must file suit within three

years of consummating the loan. Keiran v. Home Capital, Inc., 720 F.3d 721, 726–29

(8thCir. 2013) (adopting the TenthCircuit's view inRosenfield v. HSBC Bank, USA,

681 F.3d 1172 (10th Cir. 2012)); see Hartman v. Smith, __ F.3d __, No. 12-1947,

2013 WL 4407058 at *7–8 (8th Cir. Aug. 19, 2013) (following Keiran). "It is a

cardinal rule in our circuit that one panel is bound by the decision of a prior panel."

Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002). Accordingly, we affirm the

district court's judgment on the pleadings in favor of the lenders.

MELLOY, Circuit Judge, concurring in the judgment.

I concur in the judgment insofar as this Court is bound by decisions of prior

panels. See Owsley, 281 F.3d at 690. Were we writing on a clean slate, however, I

would hold for the reasons stated in my separate concurrence in Hartman, 2013 WL

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4407058 at *10–12, that sending notice within three years of consummating a loan

is sufficient to "exercise" the right to rescind. See 12 C.F.R. § 1026.23(a)(2).

COLLOTON, Circuit Judge, concurring.

I concur in the per curiam opinion based on circuit precedent, but I believe that

Keiran v. Home Capital, Inc., 720 F.3d 721 (8th Cir. 2013), was wrongly decided, see

id. at 731 (Murphy, J., dissenting); Scherzer v. Homestar Mortg. Servs., 707 F.3d 255

(3d Cir. 2013), and I would reverse the judgment of the district court if the question

presented were open in this circuit.

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