In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1326

BRYAN ANDREWS and SUSAN ANDREWS,

Plaintiffs-Appellees,

v.

CHEVY CHASE BANK,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 C 454—Lynn Adelman, Judge.

ARGUED SEPTEMBER 26, 2007—DECIDED SEPTEMBER 24, 2008

Before MANION, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. In this interlocutory appeal, we are

called on to answer one question: May a class action be

certified for claims seeking the remedy of rescission under

the Truth in Lending Act (“TILA”), 15 U.S.C. § 1635? The

only two federal appellate courts to have addressed this

question have answered “no,” see McKenna v. First Horizon

Home Loan Corp., 475 F.3d 418 (1st Cir. 2007); James v. Home
2 No. 07-1326

Constr. Co. of Mobile, Inc., 621 F.2d 727 (5th Cir. 1980), and

we agree. TILA’s statutory-damages remedy, § 1640(a)(2),

specifically references class actions (by providing a damages cap), but TILA’s rescission remedy, § 1635, omits any

reference to class actions. This omission, and the fundamental incompatibility between the statutory-rescission

remedy set forth in § 1635 and the class form of action,

persuade us as a matter of law that TILA rescission class

actions may not be maintained.

I. Background

In June 2004 plaintiffs Susan and Bryan Andrews obtained a loan from defendant Chevy Chase Bank, F.S.B., a

federally chartered bank, to refinance their home in

Cedarburg, Wisconsin. Bryan Andrews runs his own

home-remodeling business, and the Andrews are experienced mortgagors, having previously taken out many

original and refinancing mortgage loans for various

residential and investment properties. This time, they

opted for a unique type of loan product offered by Chevy

Chase that allowed them to vary their payment, depending

on their monthly cash flow. This “cashflow payment

option,” as Chevy Chase called it, was more flexible than

a traditional fixed- or adjustable-rate mortgage because it

allowed the debtor to choose between multiple payment

options. It was also more complex, with a potential trap for

the unwary. The debtor could pay a monthly minimum

payment at a low interest rate for an initial term; under this

option, while the interest rate would adjust monthly, the

minimum payments would remain fixed at the low rate
No. 07-1326 3

until the initial term expired or the outstanding balance

exceeded 110 percent of the original loan (through “negative amortization”), whichever event occurred first. The

debtor could also decide to make payments larger than the

minimum monthly payment, pay interest only based on the

fully indexed rate, pay an amount sufficient to amortize the

loan over 15 years, or pay an amount sufficient to amortize

the loan over 30 years.

Chevy Chase provided preliminary disclosures about the

loan and, at closing, an adjustable-rate note, a truth-inlending disclosure statement (“TILDS”), and an adjustablerate rider. When the Andrews obtained the loan, they

thought that the monthly payment and the interest rate

were fixed for the initial term of five years and became

variable thereafter. They were correct about the minimum

monthly payment but not about the interest rate. The

loan’s discounted (or “teaser”) interest rate of 1.95 percent

applied only to the first monthly payment. After that, the

interest rate adjusted every month, even though the

minimum monthly payment remained fixed according to

the initial rate. So as the interest rate climbed, an everincreasing portion of the minimum monthly payment of

$701.21 was required to cover the interest. Soon, the

minimum monthly payment itself became insufficient to

cover the accrued interest, and the “negative amortization”

feature (adding the unpaid interest to the principal)

kicked in.

In April 2005 the Andrews filed this purported

class-action lawsuit against Chevy Chase claiming violations of TILA and seeking statutory damages under
4 No. 07-1326

The Andrews did not seek actual damages under § 1640(a)(1). 1

§ 1640(a)(2), rescission under § 1635, and attorneys’ fees

under § 1640(a)(3). The complaint alleged that certain of 1

Chevy Chase’s disclosures were misleading or unclear,

particularly as to whether the initial interest rate was fixed

and whether the payment periods were properly stated.

More specifically, they alleged that Chevy Chase’s payment schedule was not sufficiently detailed because it

listed only the first and last payment dates; they also

claimed that a computer-generated stamp on the top of one

of Chevy Chase’s disclosure forms made the disclosures

misleading. This stamp, they asserted—which referred to

the note as a “WS Cashflow 5-Year Fixed Note Interest

Rate: 1.950%”—could be understood to identify the note as

a fixed-rate note.

The district court granted summary judgment for the

Andrews, authorizing rescission and awarding attorneys’

fees, though it denied their claim for statutory damages

because Chevy Chase’s TILA violations were not those

enumerated in § 1640(a), for which statutory damages are

available. See Andrews v. Chevy Chase Bank, FSB, 240 F.R.D.

612 (E.D. Wis. 2007). In the same order, the district court

granted the Andrews’ motion for class certification under

Rule 23(b)(2) of the Federal Rules of Civil Procedure, declaring that all class members would have the right to rescind

their mortgages. The certified class includes anyone who

obtained an adjustable-rate mortgage from Chevy Chase on

a primary residence between April 20, 2004, and January

16, 2007, and who received a TILDS from Chevy Chase
No. 07-1326 5

containing any of the language the court had found

deficient under TILA.

In its decision on class certification, the district court

relied heavily on the Massachusetts district court decision

in McKenna. McKenna v. First Horizon Home Loan Corp., 429

F. Supp. 2d 291, 296 (D. Mass. 2006). But that decision was

reversed by the Court of Appeals for the First Circuit less

than two weeks after the court granted class certification.

McKenna, 475 F.3d at 420. After we granted Chevy Chase’s

petition for leave to appeal pursuant to Rule 23(f), the

district court agreed to stay its proceedings. The court then

issued a memorandum explaining why its class-certification order should stand, despite the reversal of the district

court’s decision in McKenna. Andrews v. Chevy Chase Bank,

FSB, 474 F. Supp. 2d 1006 (E.D. Wis. 2007). Also, recognizing that it had failed to consider TILA provisions that

prohibit certain debtors from rescinding, see § 1635(e), the

court stated that it would likely narrow the definition of

the class, if its class-certification decision survived the

appeal.

II. Discussion

We generally review a grant of class certification for an

abuse of discretion, but “purely legal” determinations

made in support of that decision are reviewed de novo.

Mace v. Van Ru Credit Corp., 109 F.3d 338, 340 (7th Cir.

1997). Whether TILA allows claims for rescission to be

maintained in a class-action format is an issue of first

impression in our circuit, but the First and Fifth Circuits, in

addition to California’s court of appeals, have held as a
6 No. 07-1326

matter of law that rescission class actions are unavailable

under TILA. See McKenna, 475 F.3d at 427; James, 621 F.2d

at 731; see also LaLiberte v. Pac. Mercantile Bank, 53 Cal. Rptr.

3d 745 (Cal. Ct. App. 2007), cert. denied, 128 S. Ct. 393

(2007).

TILA was designed “to assure a meaningful disclosure of

credit terms” to the consumer. § 1601(a). Creditors who

violate the disclosure requirements may be ordered to pay

actual damages or statutory damages, depending upon the

nature of the violation. See § 1640(a)(1) & (a)(2). In certain

loan transactions, TILA also provides debtors with a right

of rescission—a process in which the creditor terminates its

security interest and returns any payments made by the

debtor in exchange for the debtor’s return of all funds or

property received from the creditor (usually, the loan

proceeds). See § 1635. Debtors may rescind under TILA by

midnight of the third business day after the transaction for

any reason whatsoever. See § 1635(a). The three-day

postclosing “cooling off” period is extended if the creditor

does not deliver the required notice of the right to rescind

and all material disclosures; in that instance, the right to

rescind continues until the creditor provides the required

notice and disclosures, or up to three years after consummation of the loan, whichever occurs first. See § 1635(f).

Rescinding a loan transaction under TILA “‘requires

unwinding the transaction in its entirety and thus requires

returning the borrowers to the position they occupied prior

to the loan agreement.’” Handy v. Anchor Mortgage Corp.,

464 F.3d 760, 765 (7th Cir. 2006) (quoting Barrett v. JP

Morgan Chase Bank, N.A., 445 F.3d 874, 877 (6th Cir. 2006)).
No. 07-1326 7

TILA rescission is therefore considered a purely personal

remedy. See, e.g., McKenna, 475 F.3d at 424-25; James, 621

F.2d at 731; LaLiberte, 53 Cal. Rptr. 3d at 750-51. It is

intended to operate privately, at least initially, “with the

creditor and debtor working out the logistics of a given

rescission.” McKenna, 475 F.3d at 421; see also Belini v. Wash.

Mut. Bank, FA, 412 F.3d 17, 25 (1st Cir. 2005). Section 1635

sets forth certain deadlines and duties that apply to the

creditor upon receipt of a notice of rescission from the

debtor (e.g., return of earnest money, down payment, or

other payments, and initiating the termination of the

security interest); the statute, in turn, specifies the duties

that apply to the debtor (e.g., tendering return of the

property or its reasonable value). See § 1635(b). These

procedures apply “except when otherwise ordered by a

court,” id., making it clear that when disagreements

over the particulars of a given rescission arise, the

court may tailor the remedy to the circumstances. 

We note initially that the rescission remedy described in

§ 1635 appears to contemplate only individual proceedings;

the personal character of the remedy makes it procedurally

and substantively unsuited to deployment in a class action.

See also RICHARD A. LORD, 28 WILLISTON ON CONTRACTS

§ 70:235 (4th ed. 2003) (noting that many consumer-credit

statutes require the individual borrower to make the

demand for rescission). Rescission is a highly individualized remedy as a general matter, and rescission under

TILA is no exception. The variations in the transactional

“unwinding” process that may arise from one rescission to

the next make it an extremely poor fit for the class-action

mechanism.
8 No. 07-1326

A court’s certification of a class of persons entitled to

seek rescission would be just the beginning. Each class

member individually would have the option of exercising

his or her right to rescind, and not all class members will

want to do so because it requires returning the loan

principle in exchange for the release of the lien and any

interest or other payments. Individual controversies would

erupt and likely continue because “the equitable nature of

rescission generally entitles the affected creditor to judicial

consideration of the individual circumstances of the

particular transaction.” McKenna, 475 F.3d at 427 n.6.

Accordingly, a host of individual proceedings would

almost certainly follow in the wake of the certification of a

class whose loan transactions are referable to rescission. As

we have noted, § 1635(b) provides that “[t]he procedures

prescribed by this subsection shall apply except when

otherwise ordered by a court,” suggesting that the remedy

must proceed on a case-by-case basis. In short, the rescission remedy prescribed by TILA is procedurally and

substantively incompatible with the class-action device. 

It is true, as the Andrews point out, that TILA does not

explicitly prohibit the use of a class action for rescission.

The Supreme Court has said that “[i]n the absence of a

direct expression by Congress of its intent to depart from

the usual course of trying ‘all suits of a civil nature’ under

the Rules established for that purpose, class relief is

appropriate in civil actions brought in federal court.”

Califano v. Yamasaki, 442 U.S. 682, 700 (1979) (quoting FED.

R. CIV. P. 1). Some district courts have ended their inquiry

there and certified rescission classes under TILA. See, e.g.,

In re Ameriquest Mortgage Co. Mortgage Lending Practices
No. 07-1326 9

Litig., No. 05-CV-7097, 2007 WL 1202544 (N.D. Ill. Apr. 23,

2007); Latham v. Residential Loan Ctrs. of Am., Inc., No. 03 C

7094, 2004 WL 1093315 (N.D. Ill. May 6, 2004); Hickey v.

Great W. Mortgage Corp., 158 F.R.D. 603 (N.D. Ill. 1994); see

also McKenna, 475 F.3d at 423 (listing cases). But TILA is

entirely different from the jurisdictional statute at issue in

Yamasaki.

Yamasaki concerned a statute setting forth the procedure

by which judicial review of an administrative decision

could be obtained. 442 U.S. at 698. The Court rejected the

argument that the statute’s language authorizing a suit for

judicial review by “any individual” meant that individual

suits only—not class actions—could be brought. Id. at 698-

99. The Court held that this “any individual” language,

without more, did not preclude the use of class actions in

this category of suit. Id. at 700. While an express exception

might be expected in the context of a jurisdictional statute

specifying the rules by which judicial review may be

sought, we think § 1635 is quite different. TILA’s rescission

remedy “is written with the goal of making the rescission

process a private one, worked out between creditor and

debtor without the intervention of the courts.” Belini, 412

F.3d at 25. The lack of an explicit prohibition against class

actions in § 1635 is not dispositive. See McKenna, 475 F.3d

at 425-26.

Class actions are specifically mentioned in the

TILA provision addressing claims for damages. See

§ 1640(a)(2)(B). There, Congress established a cap of the

lesser of $500,000 or 1 percent of the creditor’s net worth on

the total recovery of damages in class actions. Because vast
10 No. 07-1326

recoveries are also possible for rescission claims (here, the

Andrews estimate that Chevy Chase’s liability could

amount to “perhaps $210 million”), the absence of a similar

cap in § 1635 strongly suggests that class actions are not

available for rescission. See Bates v. United States, 522 U.S.

23, 29-30 (1997) (“Where Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.”) (internal quotation marks omitted); see also Duncan v. Walker, 533 U.S. 167, 173 (2001)

(where Congress distinguished between “state” and

“federal” review in related subsections, that statutory

context suggests that Congress would have explicitly

mentioned “federal” review if it intended to include it).

This direct contrast between the text of TILA’s damages

and rescission provisions cannot be ignored. See McKenna,

475 F.3d at 424.

It is of course possible (as our dissenting colleague

suggests) that this difference in TILA’s remedial provisions

could be understood to mean that TILA’s rescission remedy

may be pursued on a class basis, without any liability limit.

But we agree with the First Circuit that “[t]he notion that

Congress would limit liability to $500,000 with respect to

one remedy while allowing the sky to be the limit with

respect to another for the same violation strains credulity.”

Id. We think the presence of a cap on class-action recovery

in TILA’s damages provision, the absence of any reference

at all to class recovery in its rescission provision, and the

mechanics of the rescission process spelled out in § 1635,

all point more plausibly to the opposite interpretation: that
No. 07-1326 11

TILA’s rescission remedy—by its terms an individualized,

restorative rather than compensatory remedy—is just that,

a purely individual remedy that may not be pursued on

behalf of a class. 

The 1995 amendments to TILA confirm this interpretation, as the First Circuit’s well-reasoned opinion in

McKenna noted. In that year, Congress limited the potential

for expansive TILA liability by temporarily suspending

class actions for relatively minor violations (including

some involving rescission rights) and then by increasing

the tolerance levels for honest, minor mistakes in carrying

out disclosure obligations. See Truth in Lending Class

Actions Relief Act of 1995, Pub. L. No. 104-12, § 2, 109 Stat.

161, 161-62; Truth in Lending Act Amendments of 1995,

Pub. L. No. 104-29, § 3, 109 Stat. 271, 272-73. These actions

were taken in response to the Eleventh Circuit’s decision in

Rodash v. AIB Mortgage Co., 16 F.3d 1142 (11th Cir. 1994),

which had held that a creditor’s minor TILA violations

triggered a debtor’s right to rescind. See RALPH J. ROHNER

& FRED H. MILLER, TRUTH IN LENDING ¶6.01[2] (Robert A.

Cook et al. eds., 2000). “In taking this step, Congress made

manifest that although it had designed the TILA to protect

consumers, it had not intended that lenders would be

made to face overwhelming liability for relatively minor

violations.” McKenna, 475 F.3d at 424.

The Andrews also make an argument flowing from the

language of the “additional relief” subsection of § 1635,

and the attorney’s fees subsection of TILA’s damages

provision, § 1640. Section 1635(g) provides that “[i]n any

action in which it is determined that a creditor has violated
12 No. 07-1326

this section, in addition to rescission the court may award

relief under section 1640,” that is, damages. § 1635(g).

Section 1640(a)(3), in turn, provides that attorney’s fees are

recoverable in a successful action to enforce § 1640 liability

(i.e., liability for damages) “or in any action in which a

person is determined to have a right of rescission under

section 1635.” § 1640(a)(3). The Andrews contend that this

parallel use of the phrase “in any action” in § 1635(g) and

§ 1640(a)(3) means that rescission is available “in any

action,” including class actions.

There is no support for this novel argument, which rests

on a faulty reading of § 1635(g) and § 1640(a)(3), treating

§ 1635(g) as the center of all remedial relief available under

TILA. Section 1635(g) is a simple remedial cross-reference;

it provides that rescission plaintiffs may also seek damages

under § 1640. It does no more. Section 1640(a)(3) simply

provides that attorney’s fees are recoverable in a successful

action for damages or a successful action for rescission. It

does no more. The use of the phrase “in any action” in

these provisions carries no meaning for the question of

whether TILA permits rescission class actions. 

Finally, we note that creating a circuit split generally

requires quite solid justification; we do not lightly conclude

that our sister circuits are wrong. Here, the Andrews have

not persuaded us that the First and Fifth Circuits have

misinterpreted the operative provisions of TILA. We now

join those circuits in concluding that TILA’s rescission

remedy, § 1635, may not be pursued on a class basis.

McKenna, 475 F.3d at 427; James, 621 F.3d at 731. 

We note for completeness that the fundamental incompatibility between the rescission remedy under TILA and
No. 07-1326 13

The Andrews suggest that our review is limited to the 2

question of whether TILA permits the certification of a class of

rescission plaintiffs, arguing that we may not consider on this

interlocutory appeal whether a rescission class could satisfy the

requirements of Rule 23. To the contrary, under Rule 23(f),

appellate courts may grant a discretionary interlocutory appeal

and may consider those issues related to a district court’s

certification decision. See CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE & PROCEDURE § 1802.2 (3d ed. 2005);

see also In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98,

106 (D.C. Cir. 2002) (holding that “review is limited to issues

that relate to class certification”). Accordingly, the issue of

whether a rescission class meets the requirements of Rule 23 is

precisely within our purview. In re Lorazepam, 289 F.3d at 106-07.

The same is not true, however, of the Andrews’ request that we

review the district court’s failure to certify a class for statutory

damages. The district court denied statutory damages and

therefore never reached the issue of class certification for

statutory damages.

the class-action device raises serious questions as to

whether a TILA rescission class could ever be properly

certified under Federal Rule of Civil Procedure 23(b). A2

Rule 23(b)(2) class may be maintained when “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2)

(emphasis added); see Jefferson v. Ingersoll Int’l, Inc., 195 F.3d

894, 897-98 (7th Cir. 1999) (noting Rule 23(b)(2)’s requirement of “final relief”). As we have explained, a declaration

of a “rescission class” would only initiate a process of

individual rescission actions. Significant individual aspects

of the remedy, varying with each consumer’s loan transac-
14 No. 07-1326

tion, would remain to be worked out before each of the

transactions could be unwound. Rather than settling the

legal relations at issue, a judicial declaration in this situation would be essentially advisory. See Gibbons v. Interbank

Funding Group, 208 F.R.D. 278, 285 (N.D. Cal. 2002) (“Without any rescission requests, nor subsequent denials by

defendants, it is not at all clear that a justiciable controversy exists between the class and defendants.”). The

rescission remedy is so inherently personal that a court

cannot venture further while addressing the plaintiffs as

a class; it can do no more than simply declare that a certain

group of plaintiffs have the right to initiate rescission,

and that is not a form of “final” declaratory relief under

Rule 23(b)(2).

Likewise, to certify a class under Rule 23(b)(3), common

questions of law and fact must predominate over questions

affecting individual members, and the class-action device

must be superior to other methods of adjudicating the

controversy. The Andrews strain to meet the predomination and superiority requirements here. See, e.g., In re Mex.

Money Transfer Litig., 267 F.3d 743, 746 (7th Cir. 2001). If the

class certification only serves to give rise to hundreds or

thousands of individual proceedings requiring individually tailored remedies, it is hard to see how common issues

predominate or how a class action would be the superior

means to adjudicate the claims. The Andrews acknowledge

that the district court will be called upon, if the class

certification is upheld, to establish individual rescission

procedures that will both meet the needs of each class

member and assist Chevy Chase in recovering the loan

principal on each transaction without risking the immedi-
No. 07-1326 15

ate loss of its security interest. Under these circumstances,

proceeding as a class to “unwind” hundreds or thousands

of individual credit transactions would not promote the

primary purposes of the class-action mechanism: judicial

economy and efficiency. See McKenna, 475 F.3d at 427; see

also 1 ALBA CONTE & HERBERT B. NEWBERG, NEWBERG ON

CLASS ACTIONS § 1:1, at 3 (4th ed. 2002) (“A class action is

a procedural device . . . that can accomplish significant

judicial economies.”). Using a class action to resolve a

multitude of individual, varied rescission claims is neither

“economical” nor “efficient” in any sense of those terms.

The Andrews argue that a class action is superior

because it is the only realistic means for recovery. But they

do not dispute that under TILA a prevailing debtor with a

typical loan can expect to receive over $50,000, plus attorney’s fees and costs, in a rescission action and that

many debtors do in fact bring rescission claims. Simply

put, TILA rescission is not the sort of remedy that

would not otherwise be sought unless the class-action

mechanism were available.

For the foregoing reasons, we hold as a matter of law that

a class action for the rescission remedy under TILA may

not be maintained. The judgment of the district court is

therefore REVERSED, and the case is REMANDED with

instructions to vacate the class-certification order.
16 No. 07-1326

EVANS, Circuit Judge, dissenting. The majority acknowledges that the Andrews/Chevy Chase mortgage loan

agreement was “complex, with a potential trap for the

unwary.” With that statement, I certainly agree. The loan’s

seductive Siren call of a 1.95 percent interest rate with a

five-year fixed monthly payment of $701.21—the real

implications of which were not fully explained as required

by the Truth in Lending Act (TILA)—was a booby trap

waiting to explode. And explode it did. So the Andrews

filed this suit on behalf of themselves and others who

answered the Siren call. The district court certified the case

as a class action seeking rescission, but its order was stayed

pending the outcome of this interlocutory appeal. Today,

the majority holds that the case may not continue against

the mortgagee bank as a class action for rescission. With

that conclusion, I cannot agree.

At this point in time, our case presents two questions:

(1) What did Congress intend?; and (2) if its intent cannot

be ascertained with certainty, who should pay the price of

an ambiguous statute? As I see it, the answers to both

questions favor affirming the district court’s decision.

Assuming it can be fairly identified, congressional intent

is the touchstone. As the majority recognizes, we must first

start with the statutory language itself. If the statute is

unambiguous, it controls, and a court has no business

substituting its view of good policy for that of Congress.

Indeed, unambiguous language must be given effect unless

it produces results that are “absurd.” See Evans ex rel. Evans

v. Lederle Laboratories, 167 F.3d 1106, 1111 (7th Cir. 1999);

United States v. Thomas, 77 F.3d 989, 992 (7th Cir. 1996). The
No. 07-1326 17

majority found the language of 15 U.S.C. § 1635 ambiguous, and so it looked to evidence beyond the statutory text

to determine congressional intent. That is not necessary.

TILA does distinguish between claims for damages and

claims for rescission, but the distinction does not support

the majority’s conclusion. The fact that there is a cap on

damages in class actions may, in the abstract, suggest

Congress sought to shield lenders from massive liability.

But we don’t address the matter in the abstract. Congress

wrote a statute, and if it sought to further such a policy in

the rescission context, we should assume it would have

said so. The majority shrugs off too lightly the Supreme

Court’s command—“[i]n the absence of a direct expression

by Congress of its intent to depart from the usual course of

trying ‘all suits of a civil nature’ under the Rules established for that purpose, class relief is appropriate in civil

actions brought in federal court.” Califano v. Yamasaki, 442

U.S. 682, 700 (1979) (quoting Fed. R. Civ. P. 1). And this

result can be squared with the idea that TILA rescission is

a personal remedy. Affirming the district court would not

mean automatic rescission of each class member’s loan. The

district court only held that “each class member may

rescind if he or she wishes to do so.” Andrews v. Chevy

Chase Bank, FSB, 240 F.R.D. 612, 622 (E.D. Wis. 2007). What

rescission would look like for each individual class member—the “unwinding” process the majority describes—may well prove too complicated to satisfy the

Rule 23 dictates in a given case. But that does not mean a

TILA rescission class action may not be maintained as a

matter of law.
18 No. 07-1326

If we suppose that the statute is ambiguous—it may or

may not authorize class actions for rescission—the majority’s conclusion is still in doubt. Although the majority

thinks it clear that rescission class actions are not authorized, that construction takes more than a little massaging.

If the statute is unclear, the question becomes: Who should

pay the price of Congress’s sloppy drafting? The majority’s

decision places the burden on the victims of a TILA

violation, not on the perpetrator of the violation. True,

withholding the class action mechanism is not the same as

precluding relief altogether, but it still stands as a procedural obstacle. If Congress intended to preclude rescission

class actions, it should amend the statute and correct the

error itself. When a court cleans up Congress’s mess, it

only encourages poor drafting. And if the court gets it

wrong—a hazard of judicial guesswork—then all suffer.

Rather than forcing a statute to further a policy vision that

may or may not be shared by Congress, it is better to

acknowledge ambiguity and construe the statute in the

way most supported by the statute’s language and in a

fashion that protects the innocent, not the guilty.

For these reasons, I dissent from the majority opinion.

9-24-08