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72 provided to borrowers 8 —the likely rationale being that one copy could be used for rescission within the three-day period, while the other could be retained for the borrower's own records. Typically, lenders provide the Notices of Right to Cancel and ask borrowers to sign an acknowledgement of receipt. Initially, this extended rescission remedy was open-ended, but due to the resulting problematic clouds on title, Congress limited the right to three years after the consummation of the loan transaction. 9 In fact, Congress very clearly stated once those three years pass, the rescission right "shall expire"10 but failed to state exactly what a borrower must do to effect rescission. Rescission, therefore, presented a unique problem: e ability to rescind depended on a violation of TILA, which the lender could disagree occurred. For example, a lender could receive a notice of rescission and conclude the borrower did not actually possess the extended time to rescind because no TILA violation occurred. THE FEDERAL CIRCUIT SPLIT A split developed among the circuit courts in cases in which a homeowner sent a notice of rescission during the extended rescission period but took no further action . e 3rd, 11 4th, 12 and 11th 13 circuits held that rescission was completed when the notice was sent during the extended rescission period, reasoning that TILA failed to articulate any alternate procedures. 14 Conversely, the 1st, 15 9th, 16 and 10th 17 circuits held that if rescission was attempted during the extended period and the lender did not respond to the request, then the borrower was required to file a lawsuit during the extended period to enforce the rescission, reasoning that allowing mere notice to effectuate rescission would enlarge the time to rescind and would cloud title for an indefinite time period. 18 e sharp divide made the issue ripe for resolution by the Supreme Court. THE JESINOSKI DECISION AND SUGGESTED PRACTICES IN ITS WAKE e circuit split culminated in the United States Supreme Court decision in Jesinoski v. Countrywide Home Loans, Inc. 19 In a concise opinion, the Supreme Court determined borrowers must only send notice of rescission within the three-year mark to exercise rescission. 20 e unanimous Court reasoned that TILA fails to provide for any other interpretation. 21 As a result, sending a notice of rescission is "all that a borrower must do in order to exercise his right to rescind under [TILA]." 22 Under Jesinoski, a lender's TILA mandated actions have become decidedly burdensome. 23 Now, once a lender receives notice of a borrower's intent to rescind within the statutory timeframe, the lender has 20 days to release the mortgage and return all the borrower's funds ("earnest money, downpayment, or otherwise"— and TILA specifically states the borrower is "not liable for any finance or other charge"). 24 TILA additionally states the lender must complete these actions first. 25 Obviously, however, releasing a mortgage and sending along a check for possibly hundreds of thousands of dollars to a borrower upon nothing more than the receipt of the words "I want to rescind" does not make a sound business model. TILA also states once the lender's obligations are complete, the borrower must "tender the property to the creditor." 26 e actual logistics of this are uncertain. Assumedly, in most situations, this would likely mean the borrower would sell the property and return all amounts owed, as the mortgagee's "property" would be the funds advanced, not the real estate itself. However, TILA fails to provide a timeframe for the completion of the borrower's duties. And specific issues about tender—such as what happens if the property sells for less than what is owed, or fails to sell at all—are not discussed. ankfully, there is a saving grace. TILA does state "[t]he procedures prescribed by this subsection shall apply except when otherwise ordered by a court." 27 erefore, upon receipt of a borrower's written intent to rescind a mortgage transaction within the statutory timeframe, it would be highly prudent for a lender to file an action for declaratory judgment or quiet title and quickly move to alter the order and terms of the rescission to avoid the potential absurd result of a defaulting borrower walking away with a windfall—all for the cost of a postage stamp. In fact, the safest route when receiving a notice of rescission would be to file the above mentioned actions and couple them with a request for injunctive relief to prevent the potential violation of not having acted to rescind or secure a court order altering the order for rescission within 20 days. THE NEED FOR CONGRESSIONAL AMENDMENT. While Jesinoski only determined what is needed to effect rescission, it did not address the fact that TILA's Notice of Right to Cancel two- copy requirement is clearly outdated and also in need of amendment. Indeed, the lender's counsel in Jesinoski asserted that the alleged violations of this TILA requirement had resulted in a "mine run of TILA rescission cases." 28 Amending to a single copy requirement would prevent the type of frivolous litigation exampled by Jesinoski without undermining TILA's borrower protections, as today's borrowers, should they fail to receive a second copy of the notice, are not in any way disadvantaged. Modern borrowers, unlike the general population in 1968 when TILA was enacted, have several options should they wish to make a copy of their Notice of Right to Cancel. And Regulation Z already partially acknowledges this technological shift by requiring only one copy of the notice if it is delivered in electronic form. 29 Scanners, phones with scanning technology, fax machines, and copy machines are all prevalent in today's society. In fact, the cost of a copy is even less than the cost of a postage stamp. 1 2015 U.S. LEXIS 607, *2. 2 Id. at *4. 3 Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356, 364 (1973).4 141 Cong. Rec. S14,566, S14,567 (Sept. 28, 1995) (statement of Sen. D'Amato).5 Id.6 15 U.S.C. §1635(a),(e) and §1602(x).7 Rudisell v. Fifth ird Bank, 622 F.2d 243, 251 (6th Cir. 1980).8 12 C.F.R. §1026.23(b)(1). 9 Br. for Appellee at 12, Jesinoski v. Countrywide Home Loans, Inc., 729 F.3d 1092 (8th Cir. 2013), cert. granted, 82 U.S.L.W. 3629 (U.S. April 28, 2014) (No. 13-684) and 12 C.F.R. § 1026.23(a)(3).10 15 U.S.C. §1635(f). 11 Sherzer v. Homestar Mortgage Services, 707 F.3d 255, 258 (3d Cir. 2012). 12 Gilbert v. Residential Funding, LLC, 678 F.3d 271, 278 (4th Cir. 2012). 13 Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1141-42 (11th Cir. 1992). 14 See e.g. Sherzer, 707 F.3d at 258 ("the language of the statute provides that an obligor exercises his right of rescission when he sends notice to the creditor; it says nothing about a court filing.")15 Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 54-55 (1st Cir. 2002).16 McOmie-Gray v. Bank of Am. Home Loans, 667 F.3d 1325, 1328 (9th Cir. 2012). 17 Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1183 (10th Cir. 2012). 18 Id. at 1187. 19 2015 U.S. LEXIS 607 at *4. 20 Id.; It is unclear after Jesinoski if there is any outside limit for rescission once a notice is sent, but in Sherzer, 707 F.3d at 265, the court theorized that analogous state statutes of limitation or the limitations period in section 1640 of TILA would prevent limitless rescission actions after a timely notice is sent. 21 Id.22 Id. at 8. 23 "is is not to deny, however, that permitting obligors to rescind by written notice could potentially impose additional costs on banks, as it costs little for an obligor to send a letter to the lender while, on the other hand, the lender would incur some cost to sue to determine title." Sherzer, 707 F.3d at 267.24 15 U.S.C. §1635(b). 25 See id.26 See id.27 See id.28 Br. for Appellee at 14, Jesinowski v. Countrywide Home Loans, Inc., 729 F.3d 1092 (8th Cir. 2013), cert. granted, 82 U.S.L.W. 3629 (U.S. April 28, 2014) (No. 13-684)29 12 C.F.R. § 1026.23(b)(1). "In a concise opinion, the Supreme Court determined borrowers must only send notice of rescission within the three-year mark to exercise rescission. The unanimous Court reasoned that TILA fails to provide for any other interpretation. As a result, sending a notice of rescission is "all that a borrower must do in order to exercise his right to rescind under [TILA]."

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