IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WILLIAM J. PAA TALO, 

Plaintiff, 

vs. 

JPMORGAN CHASE BANK, 

Defendant. 

John A. Cochran 

Pacific Property Law, LLC 

10121 S.E. Sunnyside Road 

Clackamas, OR 97015 

Attorney for plaintiff 

Frederick B. Burnside 

Davis Wright Tremaine, LLP 

1201 Third Avenue, Suite 220 

Seattle, WA 98101 

Kaley L. F endall 

Kevin H. Kono 

Davis Wright Tremaine, LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, OR 97201-5630 

Attorneys for defendant 

PAGE 1 - OPINION AND ORDER 

EUGENE DIVISION 

Case No. 6:15-cv-01420-AA 

OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 1 of 15
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AIKEN, Judge: 

Plaintiff William J. Paatalo seeks a declaratory judgment deeming null and void the 2009 

foreclosure of his home loan and trustee's sale of the property securing the loan. The lender and 

original trustee was Washington Mutual Bank, F .A. ("W aMu"). Defendant JPMorgan Chase was 

the purchaser of the property at the trustee's sale and the assignee of many of WaMu's assets and 

liabilities after WaMu's failure during the financial crisis. 

The parties filed cross-motions for summary judgment. For the reasons set forth below, 

plaintiffs motion is denied, defendant's motion is granted, and this case is dismissed. 

BACKGROUND 

In 2004, plaintiff purchased real property in Yachats, Oregon ("the property") for $449 ,500. 

Compl. ii 1. In 2006, he refinanced the property by obtaining an $880,000 "Option Arm" loan and 

a nearly $110,000 home equity line of credit ("HELOC") from WaMu. Id. ii 2. In 2007, the HELOC 

was increased to $155,000. Id. ii 3. Both loans were secured by deeds of trust on the property. Id. 

ii 2. 

Plaintiff alleges WaMu misapplied payments and reported false derogatory information to 

credit reporting agencies on the HELOC account. Id. ii 5. After disputing those actions with W aMu, 

plaintiff alleges he began to suspect fraud. Id. ii 6. He alleges WaMu inflated the appraised value 

of his property, falsified his income on his loan application without his knowledge or consent, and 

committed numerous violations of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., 

including "fail[ing] to provide proper 'Notices of Rescission' on the 2006 loans[.]" Id. 

Plaintiff further alleges he sent a written "Notice of Rescission" on both loans to WaMu in 

March 2008. Id. He asserts WaMu responded with a letter declining his rescission and attaching 

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Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 2 of 15
a "payoff quote" of just under one million dollars. Id. ~ 7. According to plaintiff, the letter stated 

he could not rescind unless he first paid off the amount of the debt in full - something he was 

unable to do. Id. In July 2008, plaintiff filed suit in this Court against WaMu, alleging violations 

of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Real Estate Settlement Procedures 

Act, 12 U.S.C. § 2601 et seq. See Paatalo v. Wash. Mut. Bank, 2011 U.S. Dist. LEXIS 46350, *l 

(D. Or. Apr. 27, 2011). 

On September 25, 2008, at the "height of the global financial crisis, [WaMu] was seized by 

its regulator ... in what has been described as 'the largest bank failure in U.S. history."' Anchor 

Savs. Bank, FSB v. United States, 121 Fed. Cl. 296, 302 (Fed. Cl. 2015) (quoting Robin Sidel et al., 

WaMu Is Seized, Sold Off to JP. Morgan, In Largest Failure in US. Banking History, Wall Street 

Journal, Sept. 26, 2008, available atwww.wsj.com/articles/SB 122238415586576687). Pursuant to 

a Purchase and Assumption Agreement, the Federal Deposit Insurance Corporation ("FDIC") 

transferred many ofWaMu's assets and liabilities to defendant. Id.; Compl. ~ 28. After WaMu's 

failure, plaintiffs pending claims against WaMu "went to the FDIC," pursuant to the Federal 

Institutions Reform, Recovery, and Enforcement Act ofl 989 ("FIRREA"), 12 U.S. C. § § 1811 et seq. 

Compl. ~ 8. In 2011, plaintiffs suit against WaMu was dismissed due to plaintiffs failure to file 

an administrative claim with the FDIC within the allotted timeframe. Paatalo, 2011 U.S. Dist. 

LEXIS 46350 at *5. 

Plaintiff alleges that W aMu recorded a "Notice of Default and Election to Sell" in connection 

with the property on April 2, 2009. Compl. ~ 10. A set of additional documents were recorded in 

connection with the property on July 31, 2009. Id. ~ 11. Those documents included a Notice of 

Foreclosure, Trustee's Notice of Sale, and affidavits claiming WaMu was the beneficiary of 

PAGE 3 - OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 3 of 15
plaintiffs' deeds of trust. Id. At the trustee's sale, defendant purchased the property for $410,000 

cash, and on August 18, 2009, a Trustee's Deed was issued to defendant for the property. Id.~ 13. 

In October 2010, defendant filed an ejectment action against plaintiff in Lincoln County 

Circuit Court. Id.~ 14; Fendall Deel.~ 2 & Ex. A May 11, 2016. Plaintiff filed an answer and 

asserted a host of counter-claims, including claims for declaratory relief, illegal foreclosure, and 

fraud. Fendall Deel.~ 3 & Ex. B May 11, 2016. On June 2, 2011, the court granted defendant's 

motion to dismiss plaintiffs counterclaims, granted defendant's motion to voluntarily dismiss the 

ejectment complaint, and dismissed the case. Id.~~ 4, 5 & Exs. C, D. Defendant filed an appeal. 

Id.~ 6 & Ex. E. On July 12, 2011, while the appeal was pending, defendant sold the property to a 

third-party purchaser. Compl. ~ 16. 

In November 2012, the parties signed a settlement agreement ("the settlement agreement"). 1 

F endall Deel. ~ 7 & Ex. F May 11, 2016. Pursuant to the agreement, plaintiff voluntarily dismissed 

his appeal in state court. The agreement also contained a mutual release of claims, the terms of 

which are discussed in more detail later in this Opinion. 

Plaintiff filed this lawsuit after the Supreme Court decided Jesinoski v. Countrywide Home 

Loans, 135 S. Ct. 790 (2015). Before Jesinoski, the federal courts were split in their interpretation 

of the provisions of TILA governing a borrower's right to rescind a loan. Some courts, including 

the Ninth Circuit, had held that when a lender denied a request to rescind, the borrower was required 

to file a lawsuit to enforce his or her rescission rights, and that such a suit must be filed within three 

years of closing. See Yamamoto v. BankofN Y, 329 F.3d 1167, 1172 (9th Cir. 2003) (holding that 

1 By its terms, the agreement is confidential. A copy was filed under seal in this case. 

Details of the agreement will be discussed in this opinion only as necessary to resolve the parties' 

motions. 

PAGE 4 - OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 4 of 15
when a lender contests a borrower's right to rescind, "it cannot be that the security interest vanishes 

immediately upon the giving of notice"). Other courts disagreed, holding that a notice of rescission 

automatically voids the lender's security interest. See Sherzer v. Homestar Mtg. Servs., 707 F.3d 

255, 258 (3d Cir. 2013) (rejecting the argument "that an obligor must both send written notice and 

file suit within three years of the closing date"). In Jesinoski, a unanimous Supreme Court held 

"rescission is effected" at the time the borrower gives notice of intent to rescind, so long as the notice 

is given within the statutory time period. Jesinoski, 135 S. Ct. at 792. Plaintiff argued Jesinoski 

made clear the loan was rescinded in 2008, when he sent the letter to WaMu; WaMu's security 

interest in the property was voided at that time; and, as a result, defendant never obtained a valid 

interest in the property through the trustee's sale. Plaintiff asked this Court to declare ( 1) plaintiff 

is the sole owner of the property; (2) the foreclosure of the Deeds of Trust was null and void; and 

(3) all documents recorded on or against title to the subject property after the March 29, 2008 notices 

of rescission are null and void. Com pl. at 9. 

Defendant moved to dismiss for failure to state a claim. On November 12, 2015, this Court 

issued an opinion and order denying defendant's motion to dismiss ("November 2015 Opinion") 

because "if- as plaintiff alleges -WaMu failed to provide the required disclosures and plaintiff 

delivered written notice of rescission in March 2008, the rescission was effected and the security 

interest in plaintiffs property voided at that time." Paatalo v. JP Morgan Chase Bank, 146 F. Supp. 

3d 1239, 1244 (D. Or. 2015). 

Defendant then filed an answer, asserting various affirmative defenses, including defenses 

of release and waiver stemming from the 2012 Settlement Agreement. Am. Answer i-!i-1 44, 45. 

Plaintiff moved to strike defendant's affirmative defenses and for judgment on the pleadings. On 

PAGE 5 - OPINION AND ORDER 

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February 24, 2016, this Court struck defendant's preclusion and estoppel defenses but otherwise 

denied plaintiffsmotion("February2016 Opinion"). Paatalo v. JPMorgan Chase Bank, 2016 U.S. 

Dist. LEXIS 44093, *6 (D. Or. Feb. 24, 2016). With respect to the defenses ofrelease and waiver, 

the February 2016 Opinion explained that"[ e ]ven assuming the questions of fact related to rescission 

are resolved in plaintiffs favor, [the settlement agreement] might bar plaintiff from asserting his 

claims in this action." Id. 

Before the Court now are the parties' cross-motions for summary judgment. 

STANDARD 

Summary judgment is appropriate if"there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). The moving party has 

the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of 

material fact, the nonmoving party must go beyond the pleadings and identify facts which show a 

genuine issue for trial. Celotex Corp., 477 U.S. at 324. "Summary judgment is inappropriate if 

reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in 

the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521F.3d1201, 1207 (9th Cir. 

2008). 

DISCUSSION 

I. Conferral Pursuant to Local Rule 7-1 

As a preliminary matter, I must address plaintiffs counsel's conferral obligations. 

Defendant's counsel states that plaintiffs counsel "conferred" on plaintiffs summary judgment 

motion via a short email stating, in its entirety, "Just wanted to confer with you that my Client and 

PAGE 6 - OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 6 of 15
I will be filing a motion for summary judgment in the next 10 to 14 days. I assume you will oppose 

but just wanted to confer so I can file when we have it prepared. Thanks!" Fendall Deel.~ 2 & Ex. 

1 Apr. 18, 2016. Defendant's counsel wrote back that a more substantive conversation would be 

necessary to meet the parties' conferral obligations. Id ~ 3 & Ex. 2. Plaintiffs counsel never 

responded to that message, and he filed the motion without further conferral. Id. ~ 4. Plaintiffs 

counsel has not addressed conferral in his filings. 

"When conferring about a dispositive motion, the parties must discuss each claim, defense, 

or issue that is the subject of the proposed motion." L.R. 7-l(a)(2). This is not a meaningless 

procedural requirement; it exists "to encourage parties to confer and resolve disputes amicably 

whenever possible, thus preserving judicial resources for only those disputes that truly require court 

intervention." Kazemyv.BMW ofN Am., LLC, 2014 WL 3667217, *2 (D. Or. Jul. 17, 2014). Here, 

conferral could have streamlined plaintiffs motion, most notably by bringing to light that the parties 

planned to introduce different versions of the notices to rescind from WaMu's files. 

Plaintiffs counsel's three-sentence email did not even come close to meeting the standard 

imposed by the local rule. Plaintiffs counsel is admonished in the future to comply with the local 

rules, and reminded that the Court has discretion to deny any motion on the basis of failure to meet 

conferral obligations. L.R. 7-l(a)(3). 

II. Questions of Material Fact Regarding Rescission of the Loan 

To prevail on his claims, plaintiff must show that he had a conditional right to rescind the 

loan and that he exercised that right within the relevant timeframe. Paatalo, 146 F. Supp. 3d at 

1245-46. Plaintiff contends he has met this burden. To the contrary, I conclude substantial questions 

PAGE 7 - OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 7 of 15
of material fact remain as to both issues, and that plaintiffs motion for summary judgment must be 

denied. 

Congress enacted TILA "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 avoid 

the uniformed use of credit, and to protect the consumer against inaccurate and unfair credit billing 

and credit card practices." Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1118 (9th Cir. 

2009) (quoting 15 U.S.C. § 1601) (quotation marks omitted). TILA provides special rescission 

rights for loans secured by a borrower's principal dwelling. 15 U.S.C. § 1635(a); Semar v. Platte 

Valley Fed. Sav. & Loan Ass 'n, 791 F.2d 699, 701 (9th Cir. 1986). TILA's "buyer's remorse" 

provision, Se mar, 791 F .2d at 701, grants buyers the right to rescind within three days of either "the 

consummation of the transaction or the delivery of the information and rescission forms required 

under this section together with a statement containing the material disclosures required under this 

subchapter, whichever is later[.]" 15 U.S.C. § 1635(a). This provision creates two separate 

rescission rights. The first is an "unconditional" right to rescind, good for three business days after 

the transaction. Jesinoski, 135 S. Ct. at 792. The second is a "conditional" right, and exists only if 

the lender has failed to provide the required information, forms, and disclosures or if those materials 

are deficient. Id.; 12 C.F.R. § 226.23(a)(3). The conditional right expires after three years or upon 

sale of the property "[e]ven if a lender never makes the required disclosures." Jesinoski, 135 S. Ct. 

at 792 (emphasis in original). 

A. Plaintiff's Conditional Right to Rescind 

Plaintiff argues he never received written notice of his write to rescind. In support of this 

argument, he introduced copies of two documents, each titled Notice of Right to Cancel, which he 

PAGE 8 - OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 8 of 15
obtained from defendant through discovery. The notices include plaintiffs name and address, but 

they are unsigned and undated. Paatalo Aff. Ex. BB at 1, 3 Mar. 25, 2016 (doc. 22-5). In an 

affidavit accompanying his Motion for Summary Judgment, plaintiff states WaMu never provided 

the unsigned notices to him. Paatalo Aff. at 4 Mar. 25, 2016 (doc. 22-3). In response, defendant 

produced two different documents, also titled Notice of Right to Cancel. The forms are similar but 

not identical to the unsigned documents introduced by the plaintiff. These documents, however, bear 

plaintiffs signature or initials and contain dates corresponding to plaintiffs August 2006 refinance 

and September 2007 increase in the HELOC. Dunn Deel. Exs. 1-3. Plaintiff, for his part, states he 

has "no recollection of ever seeing or signing" those documents. Paatalo Aff. at 2 Apr. 21, 2016 

(doc. 27-1 ). Accordingly, there remain questions of material fact as to whether W aMu gave plaintiff 

written notice of his right to rescind. 

In the alternative, plaintiff argues the notices are deficient under TILA and its accompanying 

regulations. Specifically, he argues that the notices fall short of 12 C.F.R. § 226.23(b)(l)(iv)'s 

requirement to disclose the effects ofrescission because they do not state that rescission of the loan 

extinguishes the lender's security interest, as set forth in 12 C.F.R. § 226.23(d)(l). But the notices 

plainly contain such a statement. The signed notices introduced by defendant each explain, under 

the heading "Your Right to Cancel," that canceling the transaction also cancels the security interest 

in the home. Dunn Deel. Exs. 1-3. The unsigned notices introduced by plaintiff contain similar 

statements. Paatalo Aff. Ex. BB Mar. 25, 2016. The notices do not track the exact language of 

section 226.23(d)(l), but neither does the model form contained in Appendix H to the TILA 

regulations. Compare 12 C.F.R. 226.23(d)(l) (security interest becomes "void" upon rescission) 

with 12 C.F.R. § 1026 Appx. H ("Rescission Model Form (General)" stating that "[i]fyou cancel 

PAGE 9 - OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 9 of 15
the transation, the (mortgage/lien/security interest) is also cancelled"). With respect to explaining 

what happens to the security interest after rescission, each notice in the record is either identical to 

or substantially similar to this model form. That is precisely what the regulations require. 12 C.F .R. 

§ 226.23(b)(2). Plaintiff has not shown that any of the notices in the record, signed or unsigned, are 

deficient under the regulations. 

B. Plaintiff's Exercise of the Right to Rescind 

Plaintiff alleges he sent a handwritten letter on or about March 29, 2008, notifying WaMu 

he intended to exercise his right to rescind. Paatalo Aff. at 2 Mar. 25, 2016. He attached a copy of 

a handwritten letter to his Motion for Summary Judgment. Id Ex. BB. The letter states "[b ]ecause 

I'm in within 3-years of the loan closings, I hereby rescind and demand a full return of all money I 

have paid to date, and a cancellation of the contracts." Id (capitalization normalized and emphasis 

omitted). Plaintiff contends introduction of this letter irrefutably proves he exercised his right to 

rescind in 2008. 

Defendant does not concede that plaintiff sent a rescission letter to WaMu in 2008. Rather, 

defendant points out that plaintiff has introduced no proof of mailing despite asserting he sent the 

letter by certified mail. Defendant further asserts the files it inherited from W aMu contained neither 

a copy of the letter nor WaMu's purported response with the payoff quote. The only evidence 

plaintiff sentthe letter to WaMu or that WaMu received it is plaintiffs own testimony. Accordingly, 

there remains a material question of fact regarding whether plaintiff notified W aMu within years of 

his intent to rescind the loan. Plaintiffs motion for summary judgment must be denied. 

PAGE 10 - OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 10 of 15
II. Release of Claims in the Agreement 

Defendant contends it is entitled to summary judgment because the release of claims in the 

settlement agreement bars plaintiff from bringing the claims asserted in this lawsuit. I agree. 

The settlement agreement provides it will be interpreted according to Oregon law. See 

Fendall Deel. Ex.Fat 7-8 May 11, 2016. Under Oregon law, "[a] release is a contract in which one 

or more parties agrees to abandon a claim or right." Lindgren v. Berg, 772 P.2d 1336, 1339 (Or. 

1989). Releases are favored in Oregon because "[ c ]ertainty and judicial economy are served when 

parties can negotiate settlement of their disputes with confidence that their settlement agreements 

will be upheld and enforced by the courts." Id.; accord Graves v. Tulleners, 134 P.3d 990, 997 (Or. 

Ct. App. 2006). Although interpretation of the terms of a release sometimes is a question of fact for 

the jury, "[i]f the terms of a release agreement are unambiguous, the construction of the contract is 

a question for the court and is treated as a matter of law." Pioneer Res., LLC v. D.R. Johnson 

Lumber Co., 68 P.3d 233, 245 (Or. Ct. App. 2003) (quotation marks omitted). 

The settlement agreement states that "except as more specifically stated herein, the Parties 

wish to finally and forever resolve all claims, disputes, and differences between them regarding ... 

the Account ... and the Property." Fendall Deel. May 11, 2016 Ex.Fat 4 (emphasis added). The 

settlement agreement defines "the Account" as the deed of trust dated August 10, 2006 and the 

promissory notes associated with that deed of trust. Id. It also specifies that "the Property" is the 

same Yachats property at issue in the instant lawsuit. Id. The settlement agreement further provides 

that "it is the desire and intention of each of the Parties to effect a final and complete resolution of 

all claims and causes of action" they "ha[ ve] or may have] against one another" related to "the 

PAGE 11 - OPINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 11 of 15
Account" or "the Property." Id at 4-5 (emphasis added). Accordingly, the parties agreed to 

"forever" release one another 

from all claims, counter-claims, third-party claims, demands, obligations,judgments, 

actions, causes of action, appeals, liens and liabilities for injuries, losses, and 

damages, whether personal, property, economic, non-economic, exemplary or 

punitive, whether now known or unknown, foreseen or unforeseen, liquidated or 

unliquidated, that in any way relate to, arose or arise out of the Account or the 

Property that in any way relate to, arose or arise out of any occurrence, act, or 

omission that could have been alleged in the Action brought by or on behalf of Chase 

against Defendant ... or by or on behalf of Defendant against Chase .... relating to 

the Account or the Property. 

Id at 5-6. 

Plaintiff first argues that his current claims are not covered by the release because he could 

not have asserted them until the Supreme Court decided Jesinoski. In the November 2015 Opinion, 

this Court acknowledged that "had [plaintiff] made the arguments he now makes [regarding 

Jesinoski] at the time of the trustee's sale, they would have been foreclosed by Ninth Circuit 

precedent." Paatalo, 146 F. Supp. 3d at 1247. Nonetheless, plaintiffs claims fall within the scope 

of the release. The phrase "could have been alleged" in the release modifies the words "occurrence," 

"act," and "omission"; it does not modify "claim," "demand," or any other similar term. The release 

is clearly intended to sweep broadly to include any and all claims arising out of the factual dispute 

at issue in the 2010 state-court lawsuit. Moreover, the release specifically states that it covers claims 

that are "unknown" or "unforeseen." The inclusion of both terms suggest coverage of claims 

currently available but not known to the parties and coverage of claims that have not yet arisen and 

are not predicted to arise by the parties. Finally, terms such as "forever," and "complete" drive home 

the parties' intent to fully resolve their differences related to the property, deed of trust, and notes. 

PAGE 12-0PINION AND ORDER 

Case 6:15-cv-01420-AA Document 46 Filed 09/07/16 Page 12 of 15
Plaintiffs current claims are covered by the release because they arise out of occurrences, acts, and 

omissions he could have alleged in the 2010 state court action. 

Next, plaintiff contends his request for declaratory relief in this action is not covered by the 

release because rescission under TILA is remedy, not a "claim" or a "cause of action." This semantic 

argument is an attempt to escape the clear intent of the release. The most straightforward 

interpretation of the release is as a promise not to sue each other in the future over the property or 

deed of trust. Plaintiff then filed this lawsuit against defendant, asking the Court to declare that the 

property is his and the trustee's sale is void. This is plainly a claim, cause of action, or demand 

covered by the release. 

Plaintiff also avers that the release should be invalidated on the ground of mutual mistake. 

His theory is that Jesinoski revealed both parties entered into the settlement agreement under the 

misconception that defendant had rights to the property it never possessed. Accepting for the sake 

of argument that the parties' failure to anticipate a change in the law2 may correctly be termed a 

"mistake of fact," the argument is unavailing here. In Oregon, "mutual mistake is not a basis on 

which to void a release agreement." Raymondv. Feldmann, 853 P.2d 297, 299 (Or. Ct. App. 1993); 

Graves, 134 P.3d at 997. Rather, releases in settlement agreements may be invalidated only on 

grounds of misrepresentation or unconscionable conduct. Graves, 134 P.3d at 997. In Wheeler v. 

White Rock Bottling Co., 366 P .2d 527, 530 (Or. 1961 ), a personal injury case, the Oregon Supreme 

2 Chase argues that Jesinoski did not change in the law, citing Rivers v. Roadway Express, 

Inc., 511 U.S. 298, 312-13 & n.12 (1994) for the proposition that when the United States 

Supreme Court interprets a statute, "it is explaining its understanding" of what the statute "has 

always meant." It is true that Jesinoski did not change the law in the sense that it did not change 

the meaning ofTILA. However, Jesinoski indisputably changed the governing case law in the 

Ninth Circuit, which had previously interpreted TILA incorrectly. 

PAGE 13 - OPINION AND ORDER 

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Court acknowledged the "attractive policy reasons for adopting a rule that would permit perfectly 

honorable releases to be repudiated in the event of aggravation of an injury or the discovery of 

undiagnosed injuries." However, the court ultimately determined those policy concerns were 

outweighed by the "less compassionate but equally sound policy reasons for requiring persons of 

legal age and capacity to stand by their covenants, including bargains containing an element of 

chance." Id. Plaintiff signed a broad release of claims and received valuable consideration in return. 

The bargain he struck included an element of chance. He is now bound to the terms of that 

agreement, even though an "undiagnosed injury" in the form of a forfeited Jesinoski argument has 

materialized. 

Finally, plaintiff asserts defendant is not entitled to summary judgment because it has not 

counterclaimed to vacate the rescission. This argument ignores the fact that defendant is not seeking 

any relief from this Court. Plaintiff is seeking a declaration he is the owner of the property. The 

release bars him from seeking that relief in an action against defendant. Defendant is under no 

obligation to make a counterclaim to succeed in its motion for summary judgment. 

The unambiguous terms of the release in the settlement agreement bar this lawsuit. 

Defendant is entitled to summary judgment on its affirmative defense of release. 

Defendant also is entitled to summary judgment on its affirmative defense of waiver. Waiver 

is the intentional relinquishment of a known right. Oracle Am., Inc. v. or. Health Ins. Exch. Corp., 

145 F. Supp. 3d 1018, 1043 (D. Or. 2015). Through the release, plaintiff knowingly and 

intentionally waived his right to take any future legal action against defendant with respect to the 

property and the deed of trust. The change in the law effected by Jesinoski does not invalidate this 

waiver. Cf United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005) (refusing to invalidate 

PAGE 14-0PINION AND ORDER 

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defendant's appeal waiver even though the Supreme Court's intervening decision in United States 

v. Booker, 543 U.S. 220 (2005) substantially changed federal sentencing law). 

CONCLUSION 

Plaintiffs Motion for Summary Judgment (doc. 22) is DENIED. Defendant's Motion for 

Summary Judgment (docs. 37 & 39) is GRANTED and this case is DISMISSED. Defendant's 

request for oral argument is DENIED as unnecessary. 

IT IS SO ORDERED. 

Dated this t~f;;u,,Y 

Ann Aiken 

United States District Judge 

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