FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 14, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13739

Non-Argument Calendar

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D. C. Docket No. 06-00183-CV-T-26EAJ

YOLANDA PARKER, 

Plaintiff-Appellant, 

versus 

NANCY POTTER, individually, 

MONEY CONSULTANTS, INC., 

a Florida corporation, 

DOOLEY & DRAKE, P.A., 

Defendants-Appellees, 

CLERK OF THE COURT FOR THE 6TH JUDICIAL CIRCUIT, 

PINELLAS COUNTY, FLORIDA, 

in its official capacity, 

Defendant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(February 14, 2007)
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Before DUBINA, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Yolanda Parker (“Parker”) filed suit against Nancy Potter (“Potter”), Money

Consultants, Inc. (“Money”), and Dooley & Drake, P.A. (“Dooley”) for rescission

under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1635, and for state law

claims. Parker contends that the district court erred in granting Potter’s motion to

dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Although

we agree with the district court that Parker failed to properly allege that Potter is a

creditor under the TILA, we vacate and remand on other grounds.

BACKGROUND

Unbeknownst to Parker, on May 20, 2003, her husband, Gary K. Parker,

contracted with Money for a promissory note and mortgage in the amount of

$875,000.00, secured by their marital home. Gary K. Parker used $750,000.00 to

pay off the balance of the original mortgage on the marital home and kept the

remaining funds for his personal use. In May, 2003, Money sold the mortgage to

Potter. Dooley, the law firm that closed the loan to Gary K. Parker, handled all the

documents for Potter’s purchase, and received and held Potter’s $875,000.00 for

the purchase of the mortgage. In August 2003, Gary K. Parker defaulted on the

promissory note. Before a foreclosure action commenced, it was discovered that
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the home was marital property, and Parker had not signed the mortgage. Dooley

requested that Parker come in and sign the mortgage, by that time held by Potter. 

Parker signed the mortgage on August 19, 2003, on the same document that Gary

K. Parker had signed on May 20, 2003. The mortgage was re-recorded to add

Parker’s name. Parker was not provided with a notice of her right to rescind as

required by 15 U.S.C. § 1635, or any of the other required disclosures, on that day

or any time thereafter. 

Seven days after Parker signed the mortgage, Potter declared both Gary K.

Parker and Yolanda Parker in default. Foreclosure proceedings ensued on January

20, 2004 (wherein Dooley represented Potter). In January, 2005, the state court

granted final summary judgment of foreclosure to Potter as against Gary K. Parker

and Yolanda Parker. 

On September 29, 2005, Parker, through her attorney, gave notice of

rescission under the TILA to Potter, through which Parker sought to rescind “her

obligation pursuant to that certain mortgage document signed by her in favor of

Money Management or its assigns, to wit: Nancy Potter.” In January 2006, the

state court set a foreclosure date of February 6, 2006 for the home. Parker failed to

obtain a stay of the foreclosure in state court and filed this action on February 1,

2006, initially as a Motion for Temporary and Permanent Restraining Order. The
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district court denied Parker a restraining order and the home was foreclosed upon,

and subsequently purchased in foreclosure by Potter. The district court afforded

Parker the opportunity to amend and this case proceeded as an action for rescission

under the TILA, and for state law claims. The district court granted Potter’s

motion to dismiss under Fed. R. Civ. P. 12(b)(6) and Parker now appeals.

STANDARD OF REVIEW

We review dismissals pursuant to Rule 12(b)(6), de novo, taking all the

material allegations of the complaint as true while liberally construing the

complaint in favor of the plaintiff. Ellis v. General Motors Acceptance Corp., 160

F.3d 703, 706 (11th Cir. 1998). The district court may only grant a Rule 12(b)(6)

motion to dismiss where it is demonstrated "beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief."

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

Although the threshold is "exceedingly low" for a complaint to survive a motion to

dismiss for failure to state a claim, Ancata v. Prison Health Services, Inc., 769

F.2d 700, 703 (11th Cir. 1985), a court nonetheless may dismiss a complaint on a

dispositive issue of law. See Marshall County Bd. of Educ. v. Marshall County Gas

Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

DISCUSSION
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The declared purpose of the TILA, which regulates consumer credit

transactions, is “to assure a meaningful disclosure of credit terms so that the

consumer will be able to compare more readily the various credit terms available to

him and to avoid the uninformed use of credit, and to protect the consumer against

inaccurate and unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a);

see Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 1410-11, 140

L. Ed. 2d 566 (1998). Accordingly, the TILA requires creditors to provide

consumers with “clear and accurate disclosures of terms dealing with things like

finance charges, annual percentage rates of interest, and the borrower’s rights,”

including the right of rescission. Id. at 412, 118 S. Ct. at 1410. Further, the TILA 

provides that when a loan made in a consumer credit transaction is secured by the

consumer’s principal dwelling, the consumer has the right to rescind the

transaction until midnight of the third business day following the consummation of

the transaction or delivery of the material disclosure and rescission forms,

whichever is later. 15 U.S.C. § 1635(a). If the creditor fails to deliver the forms,

or fails to provide the required information, then the consumer’s right of rescission

extends for three years after the date of consummation of the transaction, or until

the property is sold, whichever occurs first. 15 U.S.C. § 1635(f); 12 C.F.R. §

226.23(a)(3).
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A. Creditor Liability

The TILA imposes the duty to disclose upon “creditors” as that term is

defined by 15 U.S.C. § 1602. Section 1602(f) defines “creditor” as follows:

The term “creditor” refers only to a person who both (1) regularly

extends . . . consumer credit which is payable by agreement in more

than fourinstallments or for which the payment of a finance charge is

or may be required, and (2) is the person to whom the debt arising

from the consumer credit transaction is initially payable on the face of

the evidence of indebtedness . . . .

15 U.S.C. § 1602. The parallel provision in Regulation Z provides: 

Creditor means: (i) A person (A) who regularly extends consumer

credit that is subject to a finance charge or is payable by written

agreement in more than 4 installments (not including a

downpayment), and (B) to whom the obligation is initially payable,

either on the face of the note or contract, or by agreement when there

is no note or contract. 

12 C.F.R. § 226.2(a)(17). Section 1640 provides that creditors who fail to comply

with the TILA’s disclosure requirements are subject to civil liability. 15 U.S.C. §

1640(a) (“[A]ny creditor who fails to comply with any requirement imposed under

this part, including any requirement under section 1635 of this title . . . with respect

to any person is liable to such person . . . .”). 

Parker’s Second Amended Complaint makes the general allegation that

Potter is a “creditor” as defined by the TILA, “since this mortgage was obtained

through a mortgage broker, to wit, MONEY and/or DOOLEY.” Pl.’s Second Am.
Although Parker failed to attach the Mortgage Note or the First Mortgage to her Second 1

Amended Complaint, we may consider the documents “without converting the motion into one

for summary judgment only if the attached document[s are]: (1) central to the plaintiff's claim;

and (2) undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). In this case, the

documents, attached to Potter’s Motion to Dismiss and part of the record on appeal, serve as the

memorialization of the very transaction that Parker seeks to rescind. Further, the parties do not

dispute the authenticity of the documents. 

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Pet. and Compl. ¶ 17. Potter argues that Parker’s complaint is insufficient to state

a cause of action because Parker’s complaint does not include the allegation of any

specific facts indicating that Potter either (1) regularly extends credit, or (2) is the

person to whom the debt is owed on the face of the mortgage note, the definition

spelled out in § 1602(f) of the TILA. 

In order for a person to be considered a creditor under the TILA, she must

fall under both prongs of § 1602(f). Parker’s complaint fails to properly allege that

Potter falls under the second prong of the definition—that is, she has failed to

allege facts sufficient to show that Potter is the person to whom the obligation is

initially payable on the face of the note. Both the Mortgage Note and First

Mortgage designate Money as the payee of the obligation created by the mortgage 1

transaction. Potter’s name appears nowhere on the face of the Mortgage Note or

First Mortgage. The clear language of the TILA requires that only the person to

whom the debt is owed on the face of the mortgage is a creditor. In spite of the

fact that Potter held the mortgage at the time that Parker signed it, Potter does not

fall under the plain language of the definition of “creditor” under the TILA. 
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Therefore, even if we liberally construe the complaint, Parker has not alleged facts

that support the legal conclusion that Potter is a creditor under the act. The district

court properly held that Parker’s complaint does not state a cause of action against

Potter as a creditor for a violation of the TILA as a creditor.

B. Assignee Liability for Rescission

The district court also considered the possibility that Potter is an assignee

under the TILA. While Parker’s complaint does not specifically allege that Potter

is an assignee of the obligation, the district court reviewed the applicability of

assignee liability under the TILA. The district court correctly noted that the TILA

does not impose a duty upon assignees to determine whether appropriate

disclosures were made, other than those apparent on the face of the document. The

statute provides for civil liability against assignees only where a violation is

apparent on the face of the disclosure statement. 15 U.S.C. § 1641(a).

However, the district court overlooks the fact that Parker’s claim is not a

civil action under § 1640(a) or § 1641(a) for violation of the disclosure regulations. 

Rather, Parker’s complaint seeks rescission of the transaction under § 1635. See

Pl.’s Second Am. Pet. and Compl. ¶ 58. An action for rescission under § 1635 is a

distinct cause of action from a civil action for a violation of the TILA’s disclosure

requirements, and assignees are liable for rescission even if a disclosure violation
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is not “apparent on the face.” See Rowland v. Novus Fin. Corp., 949 F. Supp.

1447, 1458 (D. Haw. 1996). Consumers are not limited in seeking rescission from

creditors. The TILA clearly states that if a consumer is eligible for rescission

under § 1635, she may seek rescission of the transaction as against the creditor or

“as against any assignee of the obligation.” 15 U.S.C. § 1641(c) (emphasis added). 

Thus, if Parker is eligible to seek rescission under § 1635, she may do so as against

the creditor, or as against any assignee of the mortgage obligation, regardless of

whether the assignee had notice of disclosure violations. 

Because Parker’s claim is for rescission, the district should have considered

§ 1641(c) in reviewing the possibility of assignee liability. Therefore, we remand

the case to the district court to consider whether the facts alleged are sufficient to

state a claim for rescission in light of § 1641(c).

CONCLUSION

Although we agree with the district court that Parker’s complaint does not

sufficiently allege that Potter is subject to liability as a “creditor” under the TILA,

we remand for consideration of whether Parker’s complaint nonetheless alleges

facts sufficient to support a claim for rescission under 15 U.S.C. § 1641(c). 

VACATED and REMANDED.