FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOHAMMAD ALI TALAIE, an

individual on behalf of himself and

all others similarly situated; ROSA

W. TALAIE, an individual on behalf

of herself and all others similarly

situated,

Plaintiffs-Appellants,

v.

WELLS FARGO BANK, NA; US BANK

NA, National Association as Trustee,

Defendants-Appellees.

No. 13-56314

D.C. No.

2:12-cv-04959-

DMG-AGR

OPINION

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted

November 2, 2015—Pasadena, California

Filed December 14, 2015

Before: William A. Fletcher and Ronald M. Gould, Circuit

Judges, and Dana L. Christensen,* Chief District Judge.

Opinion by Judge Gould

* The Honorable Dana L. Christensen, Chief District Judge for the U.S.

District Court for the District of Montana, sitting by designation.
2 TALAIE V. WELLS FARGO BANK

SUMMARY**

Truth in Lending Act

The panel affirmed the district court, and held that 15

U.S.C § 1641(g), a 2009 amendment to the 1968 Truth in

Lending Act which requires a creditor who obtains a

mortgage loan by sale or transfer to notify the borrower on

the transfer in writing, does not apply retroactively because

Congress did express a clear intent that it do so.

COUNSEL

Lenore L. Albert (argued), Huntington Beach, California, for

Plaintiffs-Appellants.

Paul W. Sweeney (argued), Kevin S. Asfour, and Nancy C.

Hagan, K&L Gates LLP, Los Angeles, California, for

Defendants-Appellees.

OPINION

GOULD, Circuit Judge:

We consider the retroactivity of 15 U.S.C. § 1641(g), a

2009 amendment to the 1968 Truth in Lending Act (TILA). 

Section 1641(g) requires a creditor who obtains a mortgage

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
TALAIE V. WELLS FARGO BANK 3

loan by sale or transfer to notify the borrower of the transfer

in writing. Although several district courts have issued

decisions on this statute’s retroactive effect, this is an issue of

first impression in our circuit.

Plaintiffs Mohammad and Rosa Talaie brought a putative

class action against Wells Fargo Bank and U.S. Bank,

alleging various federal and state law claims arising out of the

modification of the deed of trust for the Talaies’ home. One

of Plaintiffs’ claims is that Defendants did not comply with

§ 1641(g).1

Judicially noticed securitization contracts

establish that Wells Fargo transferred Plaintiffs’ deed of trust

to U.S. Bank in 2006, three years before Congress enacted

§ 1641(g). The reporting requirement of § 1641(g) would

apply to this loan transfer only if § 1641(g) had retroactive

effect. For the reasons that follow, we hold that 15 U.S.C.

§ 1641(g) does not apply retroactively.

Section 1641(g) requires that “not later than 30 days after

the date on which a mortgage loan is sold or otherwise

transferred or assigned to a third party, the creditor that is the

new owner or assignee of the debt shall notify the borrower

in writing of such transfer,” and must include the date of the

transfer, contact information for the new creditor, and other

relevant information. 15 U.S.C. § 1641(g). If the new

creditor does not comply with this duty, Congress authorized

the borrower to sue the creditor to recover actual damages, a

statutory penalty of up to $4,000 in individual claims or up to

$1 million in a class action, plus costs and attorney’s fees. 

15 U.S.C. § 1640(a).

1 We resolve all other issues and affirm the district court in a

memorandum disposition filed concurrently with this opinion.
4 TALAIE V. WELLS FARGO BANK

In general, retroactive application of statutes is

disfavored. The Supreme Court has held that the presumption

against retroactive legislation is “deeply rooted in our

jurisprudence,” and can only be overcome where Congress

expresses a clear and unambiguous intent to do so. Landgraf

v. USI Film Prods., 511 U.S. 244, 265 (1994). In Landgraf,

the Court considered § 102 of the Civil Rights Act of 1991,

which created a right to recover compensatory and punitive

damages for certain violations of Title VII of the Civil Rights

Act of 1964. Landgraf, 511 U.S. at 247. Section 102

significantly expanded the monetary relief available to

plaintiffs entitled to back pay under prior law, and also gave

monetary relief for “some forms of workplace discrimination

that would not previously have justified any relief under Title

VII.” Id. at 254. The issue was whether § 102 applied to

conduct predating its enactment. The Supreme Court, in

declining to make the statute retroactive, first observed the

principle that “the legal effect of conduct should ordinarily be

assessed under the law that existed when the conduct took

place,” to avoid the “unfairness of imposing new burdens on

persons after the fact.” Id. at 265, 270. If a new statute

would “impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose new

duties with respect to transactions already completed,” then

courts should not give retroactive effect to the statute without

“clear congressional intent favoring such a result.” Id. at 280.

Here, § 1641(g) was introduced by Senator Boxer on May

1, 2009 as an amendment to Senate Bill 896. 155 Cong. Rec.

S5027-03 (2009). Senator Boxer stated that while existing

law required that borrowers be informed of a change in

servicer of their mortgage loan, there was no such notice

requirement for a change in loan owner. 155 Cong. Rec.

S5098–99 (2009). The amendment was meant to provide
TALAIE V. WELLS FARGO BANK 5

“borrowers with the basic right to know who owns their loan

by requiring that any time a mortgage loan is sold or

transferred, the new note owner shall notify the borrower

within 30 days . . . .” Id. Senator Boxer noted that “[t]his is

a very narrowly targeted amendment with little cost to the

industry.” Id.

Retroactive application of § 1641(g) would implicate the

concerns highlighted in Landgraf, 511 U.S. at 280. First,

retroactive application would impair rights Defendants

possessed when they acted, because, consistent with the loan

documents and the law at the time they were signed,

Defendants had a right to sell or transfer the loan without

notice to the borrower. Second, retroactive application of the

statute would increase Defendants’ “liability for past

conduct,” because the 2009 TILA amendments provide new

private rights of action including damages, attorney’s fees,

and statutory penalties, for failure to give notice of a loan

transfer. Id.; see 15 U.S.C. § 1640(a). Third, retroactive

application would impose “new duties” on transactions

already completed; the very purpose of the statute was to

require a loan transferee to give notice where none was

previously required. See 16 U.S.C. § 1641(g); 155 Cong.

Rec. S5098–99. Given that all three of the retroactivity

concerns in Landgraf are present, we next determine whether

Congress expressed a clear and unambiguous intent that

§ 1641(g) apply retroactively. Landgraf, 511 U.S. at 280.

There is no clear indication, in § 1641(g)’s text or in its

legislative history, that Congress intended for it to apply to

loans that had been transferred before its enactment. The

statute requires notice within 30 days of loan transfer and

authorizes damages and statutory penalties for failure to

comply. 15 U.S.C. §§ 1641(g)(1), 1640(a). If the statute
6 TALAIE V. WELLS FARGO BANK

were given retroactive effect, this 30-day reporting period

would have already lapsed for all loan transfers that occurred

more than a month before enactment, and it would have been

impossible for those creditors to comply with the reporting

requirement. It is unlikely that Congress would have broadly

subjected creditors to civil liability and statutory penalties

without at least giving them a way to comply with § 1641(g)

for loan transfers that predated its enactment. We conclude

that Congress did not make any such intention clear or

unambiguous. See Landgraf, 511 U.S. at 268.

Congress has demonstrated, moreover, that it knows how

to specify the effective date of statutory provisions. First,

another provision of TILA, 15 U.S.C. § 1641(f), states that

“[t]his subsection shall apply to all consumer credit

transactions in existence or consummated on or after

September 30, 1995.” This effective date for a parallel

statutory provision strongly suggests that § 1641(g), which

does not specify an express date, applies prospectively but

does not extend to loan transfers predating its enactment. 

Second, Public Law 111-22, which implemented § 1641(g)

along with several other TILA amendments, provided a

“retroactive effective date” for a different component of the

same bill. Section 105, which addressed the distribution of

funds under the Neighborhood Stabilization Program,

includes a “retroactive effective date” stating that the

amendment “shall take effect as if enacted on the date of

enactment of the Foreclosure Prevention Act of 2008 (Public

Law 110-289).” P.L. 111-22, 123 Stat. 1632, 1638 (2009).

We hold that § 1641(g) does not apply retroactively

because Congress did not express a clear intent that it do so. 

Landgraf, 511 U.S. at 280. Our holding is consistent with

numerous district court decisions interpreting § 1641(g). See,
TALAIE V. WELLS FARGO BANK 7

e.g., Bradford v. HSBC Mortg. Corp., 829 F. Supp. 2d 340,

353 (E.D. Va. 2011); Diunugala v. JP Morgan Chase Bank,

N.A., No. 12-2106, 2015 WL 3966119, at *4 (S.D. Cal. Jun.

30, 2015); Zinzuwadia v. Mortg. Elec. Registr., Inc., No. 12-

2281, 2013 WL 6782856, at *11–12 (E.D. Cal. Dec. 19,

2013).

AFFIRMED.