18-786 Ryder v. J.P. Morgan Chase Bank 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PE RMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Co urthouse, 40 Foley Square, in the City of New York, on the 9 th day of April, two thousand nineteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges.

_____________________________________ Gary Ryder, Plaintiff-Counter-DefendantCounter-Claimant-Appellant,

v. 18-786 J.P. Morgan Chase Bank, DBA Chase Home Finance, AKA Chase Home Mortgage, Defendant-Counter-Claimant- Counter-Defendant-Appellee, Jamie Dimon, Daniel Johnstone, Safeguard Properties Inc., Defendants, Tuthill Finance LP, SFK Trust Ltd, Round Hill Realty Trust, LLC, Esq. J. Eric Anderson, Steven Scheno, Comoros Crocodile Farm, A.G., SFSK Dependant Trust, Counter-Defendants.

_____________________________________2 FOR PLAINTIFF-APPELLANT: Gary Ryder, pro se, Greenwich, CT. FOR DEFENDANTS-APPELLEES: Brian D. Rich, Esq., Daniel J. Krisch, Esq., Halloran & Sage, LLP, Hartford, CT. Appeal from a judgment of the United States Di strict Court for the Di strict of Connecticut (Covello, J .).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Gary Ryder, counseled in the dist rict court, sued J.P. Morgan Chase Bank for violating the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., and its implementing regulations, Regulation Z, 12 C.F. R. § 226.1 et seq. The district court dismissed Ryder’s claim alleging that J.P. Morgan was required to provi de him with supplemental disclosures under TILA in conjunction with Ryder’s 2011 loan modification ag reement but ruled that Ryder’s claim alleging a right to rescind the loan modification would have to be decided on summary judgment. The district court subsequently granted J.P. Morgan ’s motion for summary judgment, ruling that Ryder did not have the right to resci nd under TILA. Ryder, pro se, appeals from both orders. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6) . Forest Park
Pictures v. Universa l Television Network , 683 F.3d 424, 429 (2d Cir. 2012). We review a grant of summary judgment de novo , “resolv[ing] all ambiguities and dr aw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t , 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only wh en, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any ma terial fact and the movant is3 entitled to judgment as a matter of law.’” Doninger v. Niehoff , 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). TILA, which governs the issues in this lawsuit, was enacted to “prot ect consumers against inaccurate and unfair credit billing an d credit card practices and prom ote the informed use of credit by assuring a meaningful disclosure of credit terms.” Strubel v. Comenity Bank , 842 F.3d 181, 186 (2d Cir. 2016) (internal quotation marks omitted) . Lenders must “provide borrowers with clear and accurate disclosures of terms dealing with things like fi nance charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank , 523 U.S. 410, 412 (1998). The “regulatory interpretations of and addenda to the TILA ar e collectively known as Regulation
Z.” Strubel , 842 F.3d at 187. Only a new credit transaction “trigger[s ] TILA’s disclosure requirements[.]” Begala v. PNC Bank , 163 F.3d 948, 951 (6th Cir. 1998). Events occu rring subsequent to such a transaction do not usually trigger di sclosure obligations, see id ., except in narrow circumstances such as a refinancing in which the new amount financed exceeds the prior debt. See 12 C.F.R. § 226.20(a) (“A refinancing is a new transaction requi ring new disclosures to the consumer.”). TILA also gives consumers who are borrowing money for their “principal dwelling” the right to rescind the lo an within three days of the transaction or within three days of delivery of the “information and rescission forms required under th is section.” 15 U.S.C. § 1635(a). If the forms are never provided, the borrower’s right to rescission survives until three years after the consummation date of the transaction or sale of the property, whichever occurs first. 15 U.S.C. § 1635(f). In a transaction “subject to rescission,” a lender must “de liver two copies of the notice of the right to rescind to each consumer entitled to rescind[.]” 12 C.F.R. § 226.23(b)(1). The relevant regulation covering resci ssion provides an exemption for cer tain transacti ons. 12 C.F.R. § 226.23(f)(2). Under that regulation, [t]he right to rescind does not ap ply to . . . [a] refinancing or4 consolidation by the same creditor of an extensi on of credit already secured by the consumer’s principal dwelling.” Id. The regulation also creates an excep tion to that exemp tion, stating that “[t]he right of rescission shall apply . . . to th e extent the new amount financed exceeds the unpaid principal balance, any earned unpaid finance ch arge on the existing debt, and amounts attributed solely to the costs of the re financing or consolidation.” Id. The district court did not err in dismissing Ryder’s TILA claim despite his argument that the Loan Modification Agreement was a refinanci ng and therefore J.P. Morgan was required to provide supplemental disclosures following execu tion of the 2011 loan modification agreement. The court reviewed the plain meaning of the language used in the contract and found that it was, unambiguously, a loan modificatio n. The document, entitled “L oan Modification Agreement,” retained the original mortgage loan number and r eaffirmed the validity of the existing mortgage. It stated that “all terms and pr ovisions of the [original] Loan Documents, except as expressly modified by this Agreement, remain in full for ce and effect; nothing in this Agreement shall be understood or construed to be a sa tisfaction or release in whole or in part of all the obligations contained in the Loan Documents[.]” A “refinancing occurs when an existing obligation . . . is satisfied and replaced by a new obligation undert aken by the same consumer.” 12 C.F.R. § 226.20(a). Ryder, who was in default at that time , had not satisfied his existing obligation under the original loan documents, a nd because the Loan Modification Agreement did not replace that obligation with a new obligation, but only modified so me of its terms, it was not a refinancing. As a result, TILA and Regulation Z di d not require J.P. Morgan to provide Ryder with supplemental disclosures following execu tion of the Loan Modification Agreement. Although Ryder argues on appeal th at the district court “cherry -picked” language from the Loan Modification Agreement to support its conclu sion that the agreement was a loan modification, he does not describe what langua ge was “cherry picked ” or how other language in the agreement5 might have undercut the district court’s conclusion. In a similar vein, Ryder’s argument that the agreement was an accord and satisfaction, and ther efore a refinancing, is meritless. “An accord is a contract under which an oblig ee [J.P. Morgan] promises to acc ept a stated performance in satisfaction of the obligor’s [Ryde r’s] existing duty. . . . Upon acceptance of the offer of accord, the creditor’s receipt of the promised payment di scharges the underlying debt and bars any further claim relating thereto, if the contr act is supported by consideration.” Ass’n Res., Inc. v. Wall , 2 A.3d 873, 900 (Conn. 2010); see also Tolland Enters. v. Scan-Code , Inc ., 239 Conn. 326, 333 n.9 (1996) (“the obligor’s original duty is not satis fied until the accord is performed.” (emphasis omitted)). The Loan Modification expressly provi ded that it was not to be considered as a satisfaction or release of the obligations cont ained in the loan docum ents. Moreover, any accord—such as Ryder’s modified payment sche dule set forth in the Loan Modification Agreement—would not have been satisfied beca use Ryder did not pay the underlying debt. The district court also did not err in holding that Ryder did not raise a genuine question of material fact relating to the right to rescind. Pursuant to 12 C.F. R. § 226.23(f)(2), this right applies where a new amount financed exce eds the unpaid principal balance, unpaid finance charge, and amounts attributed to the cost of the refinancing. See 12 C.F.R. § 226.23(f)(2). J.P. Morgan provided evidence that the amount Ry der owed on his mortgage at the time of the loan modification was $3,479,928.43 (the $2,378,314.96 balance of the origin al loan plus $819,767.48 in delinquent interest, and $281,845.99 in escrow advances). The new amount financed by the modification
reduced the amount to $2.9 million, $579,928.43 less than R yder’s pre-modification debt. As a result, the exception allowing rescission in § 226.23( f)(2) does not apply here, and Ryder had no right to rescind under TILA. Ryder argues on appeal, as he did before the dist rict court, that genuine issues of material fact concerning J.P. Morgan’s escrow advance figure and the proper inte rest rate should have6 precluded summary judgment with respect to his rescission claim. He asserts that the escrow figure cited by J.P. Morgan differed by abou t $100,000 from the amount shown on his December
2011 “Annual Escrow Account Statement.” The distri ct court properly rejected this argument, holding that even if it we re to accept Ryder’s lower escrow figur e, the difference would not increase the new amount financed by the modification to a sum larger than his pre-modification unpaid balance of $3.47 million, thereby fitting within th e § 226.23(f)(2) exception. As to the interest rate, Ryder cites a document provided by J.P. Morgan in September 2011 which, among other things, showed the current rate of interest on his adjustable rate note at 4.177%, which was being modified to 1%. He argues that that rate could not have been correct because the index used to calculate the adjust able rate was so low that the intere st rate could not have reached 4.177%. However, this is speculation and argument; as the district court found, Ryder never provided evidence that the interest calculation at the time of the loan modification was in error. And, in the final analysis, the district cour t properly relied on Ryder’s ad mission that, at the time the Loan Modification Agreement was executed, the amount he owed pursuant to that agreement was less than what he owed on his original mortgage and th erefore TILA and Regulation Z did not apply. We have considered Ryder’s re maining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court