Fourth Circuit Suggests Borrower Must Plead Tender In TILA Rescission Case

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On December 10, the U.S. Court of Appeals for the Fourth Circuit affirmed in an unpublished per curiam opinion the dismissal of a TILA rescission claim because of the borrower’s failure to allege tender of the net loan proceeds. Miranda v. Wells Fargo Bank, N.A., No. 12-1054, 2012 WL 6098229 (4th Cir. December 10, 2012). BuckleySandler filed an amicus brief on behalf of three industry trade groups in Miranda. Although unpublished, the decision marks the first time that the Fourth Circuit has suggested that tender must be plead in a complaint seeking TILA-based rescission. In addition, the decision conflicts with a recent decision from the Tenth Circuit holding that borrowers need not plead ability to tender the loan proceeds.  See, Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1144-45 (10th Cir. 2012).