IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10906

Summary Calendar

ETTA LOWERY,

Plaintiff-Appellant

v.

C A PITA L O N E M OR TGAGE ; DOV E NM U E H LE M OR TGAGE,

INCORPORATED; JOHN DOES 1-10,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:09-CV-737

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Etta Lowery obtained a home equity loan from Willow Bend Mortgage

Company (WBMC) on December 18, 2003. Lowery believed that she had entered

into a fixed interest rate mortgage. In February of 2009, Lowery received a bill

showing an increase in her loan payment. She called Capital One Mortgage

(Capital One) and was informed that her mortgage had an adjustable interest

rate. On December 7, 2009, Lowery filed a suit in Texas state court against

United States Court of Appeals

Fifth Circuit

F I L E D

June 20, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-10906

Capital One and Dovenmuehle Mortgage, Inc. (DMI). DMI removed the case to

federal court because it contained federal questions.

Lowery sought to invalidate the mortgage under the Texas Constitution.

She sought rescission of the mortgage and statutory damages under the Truth

in Lending Act (TILA), 15 U.S.C. § 1601 et seq. Capital One and DMI moved to

have Lowery’s suit dismissed under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim. The district court considered the pleadings and

attachments and entered an order granting the motions to dismiss under Rule

12(b)(6). Among other things, the district court found that the documents

submitted by Lowery showed that she was given notice of the three-day right to

rescind the mortgage as provided by the Texas Constitution and that the right

to rescind under the TILA, see 15 U.S.C. § 1635(f), expired three years after the

date of the consummation of the transaction in 2003.

Lowery has moved for leave to file a corrected reply brief. The motion is

granted.

This court reviews a district court’s dismissal for failure to state a claim

pursuant to FED. R. CIV. P. 12(b)(6) de novo. General Elec. Capital Corp. v.

Posey, 415 F.3d 391, 395 (5th Cir. 2005). In reviewing a FED. R. CIV. P. 12(b)(6)

motion, the “court accepts all well-pleaded facts as true, viewing them in the

light most favorable to the plaintiff.” In re Katrina Canal Breaches Litigation,

495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and citation

omitted). Lowery’s pro se brief has been afforded liberal construction. Haines

v. Kerner, 404 U.S. 519, 520 (1972).

In the second amended complaint, Lowery asserted that she was not

provided with a “Texas Home Equity Notice of Right to Rescind.” The district

court rejected the claim noting that the loan documents introduced by Lowery

contained references to the right to rescind in two places. Lowery does not

dispute this finding and has not raised a challenge to it on appeal. See

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No. 10-10906

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987).

Lowery argues that the TILA specifies the form of the notice of the right

to rescind and that the federal TILA preempts state law. The substance of this

argument is that she was not given the correct notice of rescission under the

TILA. With respect to the three-year limit on rescissions found in 15 U.S.C.

§ 1635(f), Lowery does not dispute the district court’s finding that more than

three years had passed since the consummation of the mortgage. She argues

that the three-year period is subject to equitable tolling. This argument fails in

light of Beach v. Ocwen Federal Bank, 523 U.S. 410, 419 (1998), where the

Supreme Court concluded that § 1635(f) does not contain a statute of limitations

for bringing a claim, but rather provides that the right to rescission under the

TILA expires after three years. Id. Because there is no right to rescind after

three years, the district court did not err in finding that Lowery had failed to

state a claim in seeking rescission under the TILA beyond the three year period.

AFFIRMED; MOTION GRANTED.

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