                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                 U.S. Bank National Ass’n v. Manzo, 2011 IL App (1st) 103115




Appellate Court            U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Structured
Caption                    Asset Investment Loan Trust 2006-1, Plaintiff-Appellee and
                           Counterdefendant-Appellee, v. EZEQUIEL MANZO anad CECELIA
                           YEPEZ, Defendants-Appellants (Ezequiel Manzo and Cecelia Yepez,
                           Counterplaintiffs-Appellants; BNC Mortgage, Inc., Third-Party
                           Defendant).



District & No.             First District, Fourth Division
                           Docket No. 1-10-3115


Filed                      November 10, 2011


Held                       Defendants’ right to rescind the mortgage issued by plaintiff in the instant
(Note: This syllabus       foreclosure action pursuant to the Truth in Lending Act expired when
constitutes no part of     defendants failed to affirmatively rescind their loan within the three-year
the opinion of the court   statute of repose imposed by section 1635(f), and their rescission claim
but has been prepared      brought in recoupment as a defense to the foreclosure was made too late;
by the Reporter of         however, the cause was remanded for further proceedings on defendants’
Decisions for the          damages claim brought under section 1640 of the Act as a matter of
convenience of the         defense by recoupment, even though the claim was made outside the
reader.)
                           one-year statute of limitations.


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-CH-12995; the
Review                     Hon. Pamela H. Gillespie, Judge, presiding.


Judgment                   Affirmed in part and reversed and remanded in part.
Counsel on                 Lloyd Brooks and Charles M. Howell, both of Brooks Law Firm, of
Appeal                     Homewood, for appellants.

                           Robert J. Emanuel, Joanne A. Sarasin, and Melinda J. Morales, all of
                           Much Shelist Denenberg Ament & Rubenstein, P.C., of Chicago, for
                           appellee.


Panel                      JUSTICE FITZGERALD SMITH delivered the judgment of the court,
                           with opinion.
                           Presiding Justice Lavin and Justice Sterba concurred in the judgment and
                           opinion.



                                             OPINION

¶1          Ezequiel Manzo and Cecelia Yepez (hereinafter the Manzos), defendants and
        counterplaintiffs, appeal the circuit court’s dismissal of their affirmative defense,
        counterclaim and third-party complaint pursuant to section 2-619 of the Illinois Code of Civil
        Procedure (Code of Civil Procedure) (735 ILCS 5/2-619 (West 2008)). The circuit court held
        that the Manzos’ right to rescind a mortgage issued by plaintiff-appellee, U.S. Bank National
        Association, as trustee for the Structured Asset Investment Loan Trust 2006-1 (hereinafter,
        U.S. Bank), expired under the Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq. (2006))
        when they failed to exercise it within three years of receiving the mortgage. The Manzos
        contend that the circuit court’s dismissal was improper because they, in fact, exercised their
        right to rescind prior to the expiration of those three years by notifying the bank of their
        intent to rescind through several documents sent to the bank within that time frame. The
        Manzos further contend that even if they failed to properly notify the bank of their intent to
        rescind prior to the expiration of the three-year time period, their rescission claim should
        nevertheless survive pursuant to the “right of rescission in recoupment under State law”
        exception of TILA (see 15 U.S.C. § 1635(i)(3) (2006)) and section 13-207 of the Illinois
        Code of Civil Procedure (735 ILCS 5/13-207 (West 2008)). In addition, the Manzos contend
        that in dismissing their counterclaim as untimely filed the circuit court should not have also
        dismissed their section 1640 claim for damages (15 U.S.C. § 1640 (2006)) raised together
        with their rescission claim, but to which the three-year time frame articulated in section
        1635(f) (15 U.S.C. § 1635(f) (2006)) did not apply. For the reasons that follow, we affirm
        in part and reverse and remand in part.


¶2                                      I. BACKGROUND
¶3         The record reveals the following undisputed facts and procedural history. On November

                                                 -2-
     18, 2005, the Manzos obtained a loan from BNC Mortgage, Inc. (hereinafter, BNC). As
     security for the loan, the Manzos gave BNC a mortgage on their home located at 5340 South
     Richmond Street in Chicago, Illinois. Less than a year later, on or about August 11, 2006,
     U.S. Bank, filed a foreclosure action against the Manzos, asserting itself as the holder of the
     BNC loan (both the note and the mortgage) and alleging that the Manzos were in default of
     that loan for failing to pay their monthly mortgage payments beginning on May 1, 2006.
¶4       On September 11, 2006, the Manzos filed a pro se answer to U.S. Bank’s complaint. This
     answer was made on a one-page, fill-in-the-blank form provided by the circuit court and
     stated only that the Manzos were “working with the bank to reinstate the mortgage.” On
     February 1, 2007, the Manzos, represented by counsel, filed an answer and affirmative
     defense to U.S. Bank’s complaint, asserting only one affirmative defense, namely, that U.S.
     Bank had no standing as a plaintiff in the matter because no assignment was attached to the
     complaint.1
¶5       Thereafter, the Manzos’ counsel sent a series of letters to U.S. Bank’s counsel attempting
     to negotiate a settlement to the foreclosure action. The first letter, dated April 13, 2007, states
     in pertinent part:
         “Although our clients ideally would like to enter a loan modification, there are several
         affirmative defenses that we could assert on behalf of the Manzos against your client ***
         if we are forced to litigate this matter. These affirmative defenses and/or counterclaims
         arise out of TILA violations.”
     The April 13 letter further alleges that the bank violated TILA when the lender failed to
     provide the Manzos with copies of their notice of the right to rescind and certain finance
     charges and fees were not bona fide reasonable or disclosed. In addition, the letter claims that
     the Manzos understood nothing that happened during the course of the closing because they
     speak only Spanish and a translator was not provided for them. The letter concludes by
     stating that “[i]n addition to the TILA violations outlined above, there are additional
     counterclaims and/or affirmative defenses the Manzos could assert arising out of violations
     of the Real Estate Settlement Procedures Act and from common law violations.”
¶6       The Manzos’ counsel sent a second letter to U.S. Bank on July 31, 2007, noting that the
     circuit court refused to set the case for further status “in the hopes that the parties could come
     to a loan modification agreement.” The letter also states in pertinent part:
             “Given *** that the Manzos are willing to pay $1280 per month, which would still
         allow your client a profit, it makes much more sense for the parties to avoid additional
         time and expense required to litigate this case. However, if we are forced to litigation,
         the Manzos will assert several counterclaims and/or affirmative defenses against your


             1
               The record reveals that on March 14, 2007, the Manzos were granted leave to refile their
     answer and affirmative defense instanter because the court file was missing the original copy and
     the initial answer and affirmative defenses were missing several pages. The Manzos’ refiled answer
     contained no additional affirmative defenses.

                                                -3-
           client ***.
               As we previously described *** in our letter of April 13, 2007, these counterclaims
           and/or affirmative defenses arise out of violations of TILA, giving rise to an extended
           right to rescind the Note and Mortgage which extends to any assignee.”
¶7          On August 30, 2007, the Manzos’ counsel sent a third letter to U.S. Bank. According to
       that letter, “in the interest of settlement” and upon U.S. Bank’s request, the Manzos attached
       a hardship letter and a financial worksheet describing their current financial status. The letter
       further states that it is written “for settlement purposes only” and should not be construed as
       any type of admission by the Manzos. The letter explains that the Manzos fell behind on their
       loan payments because they were scammed by some acquaintances into refinancing their
       home and the refinanced mortgage resulted in payments that were well beyond their means.
       It further states that prior to the refinancing, the Manzos had lived in their home for over 13
       years and they had never missed a monthly payment, which was approximately $1,280 a
       month. The letter concludes:
           “If we are forced to litigate this case on behalf of the Manzos, we will assert several
           counterclaims and/or affirmative defenses on their behalf against the lender, against the
           initial lender, and against the mortgage company. These counterclaims and/or affirmative
           defenses arise out of violations of TILA, giving rise to an extended right to rescind the
           Note and Mortgage which extends to any assignee.”
¶8         On December 14, 2007, the Manzos’ counsel sent yet another, fourth, letter to U.S. Bank,
       attaching to it a copy of the Manzos’ proposed counterclaim and third-party complaint
       (hereinafter counterclaim). The letter stated in full: “Enclosed please find draft Counterclaim
       and Third Party Action. Please call me after you have had an opportunity to review the
       enclosed so we can discuss this matter further.”
¶9         The proposed counterclaim attached to the letter alleged that the “[b]orrowers [were]
       bring[ing] this action against their mortgage lender and its assignee for rescission and
       damages pursuant to TILA for the lender’s failure to clearly and conspicuously disclose the
       borrower’s right to cancel a mortgage loan.” (Emphasis added.) The counterclaim also
       contained the following language: “[t]he Borrowers, by the filing of this action, elect to
       rescind the subject transaction.”
¶ 10       It appears that the mailing of the proposed counterclaim had no impact on the settlement
       negotiations, because on March 11, 2008, the Manzos filed a motion for leave to file their
       counterclaim, to which they attached a copy of the same proposed counterclaim they had sent
       to U.S. Bank in their December 14 letter. The motion for leave to file specifically asserted
       that “[the Manzos] now seek an opportunity to cancel the subject transaction by filing a
       counterclaim and third party action herein, seeking damages and rescission.” The circuit
       court granted the Manzos’ request for leave to file their counterclaim on March 11, 2008.
       The Manzos, however, waited eight months before filing their counterclaim on November
       19, 2008. The counterclaim was filed exactly three years and one day after the Manzos had
       entered into the loan agreement with their original lender, BNC.


                                                 -4-
¶ 11       On March 11, 2009, U.S. Bank moved to dismiss the Manzos’ counterclaim pursuant to
       section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)) on the
       basis of timeliness. Specifically, U.S. Bank argued that because the Manzos did not provide
       notice of rescission within the three-year period defined by section 1635(f) of TILA (15
       U.S.C. § 1635(f) (2006)), their claim for rescission should be barred as untimely. In response,
       the Manzos asserted that their rescission claim was timely filed because the letters they sent
       to U.S. Bank, as well as the motion for leave to file their counterclaim, all made within the
       three-year statutory period, effectively fulfilled the “notice by written communication
       requirement” of TILA. In the alternative, the Manzos contended that even if their rescission
       claim was untimely under section 1635(f) of TILA (15 U.S.C. § 1635(f) (2006)), when
       considered in conjunction with the Illinois savings statute found in section 13-207 of the
       Code of Civil Procedure (735 ILCS 5/13-207 (West 2008)), it should survive as a timely
       filed claim for recoupment.
¶ 12       On October 16, 2009, the circuit court in a written order dismissed the Manzos claims
       in their entirety pursuant to sections 2-619(a)(5) and (a)(9) of the Code of Civil Procedure
       (735 ILCS 5/2-619(a)(5), (a)(9) (West 2008)). The Manzos now appeal contending that
       dismissal was improper because: (1) their election to rescind was made within the three-year
       statutory period; (2) even if it had not been made within that period, it would survive under
       the “right of rescission in recoupment under State law” as permitted pursuant to section
       1635(i)(3) of TILA (see 15 U.S.C. § 1635(i)(3) (2006)) and the “Illinois savings statute” in
       section 13-207 of the Code of Civil Procedure (see 735 ILCS 5/13-207 (West 2008)); and
       (3) in any event, their claim for damages under section 1640 of TILA (15 U.S.C. § 1640
       (2006)) was not untimely and should not have been dismissed together with the rescission
       claim.


¶ 13                                      II. ANALYSIS
¶ 14       A motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS
       5/2-619 (West 2008)) admits the legal sufficiency of the complaint (i.e., all facts well
       pleaded), but asserts certain defects, defenses or other affirmative matters that appear on the
       face of the complaint or are established by external submissions that act to defeat the claim.
       Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006); see also
       Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002). Subsection (a)(5) of section 2-619, pursuant
       to which U.S. Bank’s motion was brought, specifically allows dismissal when “the action
       was not commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West 2008).
       Similarly, subsection (a)(9) permits involuntary dismissal when “the claim asserted *** is
       barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735
       ILCS 5/2-619(a)(9) (West 2008). The phrase “affirmative matter” refers to something “in the
       nature of a defense that negates the cause of action completely.” Glisson v. City of Marion,
       188 Ill. 2d 211, 220 (1999).
¶ 15      In ruling on a section 2-619 motion, all pleadings and supporting documents must be
       construed in a light most favorable to the nonmoving party, and the motion should be granted

                                                -5-
       only where no material facts are in dispute and the defendant is entitled to dismissal as a
       matter of law. Mayfield v. ACME Barrel Co., 258 Ill. App. 3d 32, 34 (1994). The relevant
       inquiry on appeal is “whether the existence of a genuine issue of material fact should have
       precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a
       matter of law.” Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17
       (1993). Our review the circuit court’s grant of a motion to dismiss pursuant to section 2-619
       is de novo. Peregrine Financial Group, Inc. v. Futronix Trading, Ltd., 401 Ill. App. 3d 659,
       660 (2010); see also Spillyards v. Abboud, 278 Ill. App. 3d 663, 668 (1996).


¶ 16                              A. Rescission Pursuant to TILA
¶ 17       The first question we must answer is whether the Manzos timely elected to rescind their
       mortgage pursuant to section 1635(f) of TILA (15 U.S.C. § 1635 (2006)). For the reasons
       that follow, we find that they did not.
¶ 18       We begin by noting that Congress enacted TILA to “to assure a meaningful disclosure
       of credit terms so that the consumer will be able to compare more readily the various credit
       terms available to him and avoid the uninformed use of credit, and to protect the consumer
       against inaccurate and unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a)
       (2006); see also Beach v. Ocwen Federal Bank, 523 U.S. 410, 412 (1998). Consequently,
       pursuant to TILA creditors are required to provide borrowers with “clear and accurate
       disclosures of terms dealing with things like finance charges, annual percentage rates of
       interest and the borrower’s rights.” Beach, 523 U.S. at 412 (citing 15 U.S.C. §§ 1631, 1632,
       1635, 1638 (1994)). Failure to satisfy these disclosure requirements subjects a creditor to
       criminal penalties for noncompliance (see 15 U.S.C. § 1611 (2006)), as well as to statutory
       damages traceable to the creditors’ failure to make the requisite disclosures (see 15 U.S.C.
       § 1640 (2006)).
¶ 19       More specifically, section 1635(a) of TILA permits a borrower, whose loan was secured
       by his or her principal dwelling, to rescind the loan in its entirety if the loan agreement failed
       to make the requisite disclosures. See 15 U.S.C. § 1635(a) (2006); see also Beach, 523 U.S.
       at 412. A borrower who exercises this right to rescind “is not liable for any finance or other
       charge, and any security interest given by [him], including any such interest arising by
       operation of law, becomes void upon such a rescission.” 15 U.S.C. § 1635(b) (2006)); see
       also Beach, 523 U.S. at 412. “Within 20 days after receiving notice of rescission, the lender
       must ‘return to the [borrower] any money or property given as earnest money, downpayment,
       or otherwise, and shall take any action necessary or appropriate to reflect the termination of
       any security interest created under the transaction.’ ” Beach, 523 U.S. at 412-13 (quoting 15
       U.S.C. § 1635(b) (1994)).
¶ 20       A borrower’s right to rescission under TILA, however, is not indefinite. Subsection (f)
       of section 1635 titled “Time limit for exercise of right,” specifically provides:
              “An obligor’s right of rescission shall expire three years after the date of
           consummation of the transaction or upon the sale of the property, whichever occurs first,

                                                  -6-
           notwithstanding the fact that the information and forms required under this section or any
           other disclosures required under this part have not been delivered to the obligor ***.”
           (Emphasis added.) 15 U.S.C. § 1635(f) (2006).
¶ 21        In Beach, the United States Supreme Court interpreted the language of section 1635(f)
       as completely extinguishing the right of rescission at the end of the three-year period, and
       thereby absolutely barring a borrower from asserting the right to rescind as an affirmative
       defense in a foreclosure action if brought more than three years after the consummation of
       the transaction. Beach, 523 U.S. at 412-14. The Supreme Court acknowledged that statutes
       of limitation generally do not prevent parties from asserting defenses that would otherwise
       be time-barred if brought as offensive claims. Beach, 523 U.S. at 415. The Supreme Court,
       however, then found that the three-year deadline in section 1635(f) was not a statute of
       limitations but a statute of repose, “operat[ing], with the lapse of time, to extinguish the right
       which is the foundation for the claim.” (Internal quotation marks omitted.) Beach, 523 U.S.
       at 416. According to Beach, the text of section 1635(f) makes clear that the three-year
       deadline does not pertain to “a suit’s commencement but [to the rescission] right’s duration,
       which [the statute] addresses in terms so straightforward as to render any limitation on the
       time for seeking a remedy superfluous.” Beach, 523 U.S. at 417. Thus, the Supreme Court
       held that “§ 1635(f) completely extinguishes the right of rescission at the end of the [three]-
       year period.” Beach, 523 U.S. at 412. The Supreme Court further reasoned that this
       interpretation “makes perfectly good sense” because absent such a hard-and-fast rule, “a
       statutory right of rescission could cloud a bank’s title on foreclosure.” Beach, 523 U.S. at
       418.
¶ 22       As shall be more fully discussed below, however, in coming to this decision, the Supreme
       Court left unanswered how state recoupment laws might work to extend the three-year period
       when raised as a defensive claim in a foreclosure action. See Beach, 523 U.S. at 418 n.6
       (“Since there is no claim before us that Florida law purports to provide any right to rescind
       defensively on the grounds relevant under the Act, we have no occasion to explore how state
       recoupment law might work when raised in a foreclosure proceeding outside the [three]-year
       period.”).
¶ 23       Turning to the facts of this case, under Beach it is apparent that the Manzos could
       proceed with their TILA rescission claim only if they elected to rescind within the three-year
       federally mandated statute of repose. The Manzos contend that they did in fact elect to
       rescind the loan within those three years. Although the Manzos concede that they did not file
       their counterclaim until one day after the three-year statutory period expired, they
       nevertheless point out that within those three years, they: (1) sent several letters to U.S.
       Bank, including a proposed draft of their counterclaim; and (2) filed a motion for leave to file
       their counterclaim, in which they repeatedly expressed their intent to rescind. The Manzos
       contend that the letters and the motion for leave to file their counterclaim were sufficient
       because they alerted U.S. Bank of their intent to rescind. U.S. Bank, on the other hand,
       contends that nothing less than an unequivocal notice that the Manzos were rescinding could
       have sufficed. For the reasons that follow, we agree with U.S. Bank.


                                                  -7-
¶ 24       We begin by noting that the Beach decision did not discuss the method for exercising the
       right to rescind under TILA. Our state courts have similarly not had an opportunity to address
       this issue. Accordingly, we are faced with a case of first impression in Illinois.2 We therefore
       turn to the statute itself.
¶ 25       TILA provides the following guidelines with respect to the method of rescission. Section
       1635(a) provides that “the obligor shall have the right to rescind *** by notifying the
       creditor, in accordance with regulations of the Board, of his intention to do so.” (Emphasis
       added.) 15 U.S.C § 1635(a) (2006). The Board referenced in the section is the Federal
       Reserve Board, which is vested with the power to promulgate regulations regrading the
       interpretation and implementation of TILA. 15 U.S.C. § 1604(a) (2006); see also 15 U.S.C.
       § 1602(b) (2006). TILA’s implementing regulation, known as “Regulation Z” (12 C.F.R.
       § 226 et seq. (2006)) provides that:
           “[t]o exercise the right to rescind, the consumer shall notify the creditor of the rescission
           by mail, telegram or other means of written communication. Notice is considered given
           when mailed, when filed for telegraphic transmission or, if sent by other means, when
           delivered to the creditor’s designated place of business.” (Emphasis added.) 12 C.F.R.
           § 226.23(a)(2).


               2
                 We note that there appears to be a rising split in authority over whether an order to stop the
       ticking of the three-year clock, the debtor must file a complaint in addition to providing notice of
       rescission to the creditor. See Bradford v. HSBC Mortgage Corp., No. 1:09cv1226, 2011 WL
       3047490, at *6 (E.D.Va. July 22, 2011) (“Indeed, the interpretation of § 1635(f) has led to a three-
       way split of authority. According to the first group of cases *** a complaint seeking rescission is
       time-barred if it is not filed within three years of closing regardless of whether the borrower mailed
       a timely rescission notice to the creditor. [See, e.g., DeCosta v. U.S. Bancorp, No. DKC 10-0301,
       2010 WL 3824224, at *5-7 (D. Md. Sept. 27, 2010); Gilbert v. Deutsche Bank Trust Co. Americas,
       No. 4:09-CV-181-D, 2010 WL 2696763, at *5 (E.D.N.C. July 7, 2010); In re Salazar, No. 10-10165-
       TJC, 2011 WL 1237648, at *3-4 (Bankr. D. Md. Mar. 30, 2011); Rosenfield v. HSBC Bank, USA,
       No. 10-CV-00058-MSK-MEH, 2010 WL 34899216, at *14 (D. Colo. Aug. 31, 2010); Sam v.
       American Home Mortgage Servicing, No. CIV. S-09-2177 LKK/KJM, 2010 WL 761228, at *2-3
       (E.D. Cal. Mar. 3, 2010); Nix v. Option One Mortgage Corp., No. Civ. 05-03685(RBK), 2006 WL
       166451, at *4 (D.N.J. Jan. 19, 2006).] On the other end of this spectrum of authorities, some cases
       have held that a rescission action is timely regardless of when it was filed provided the borrower
       gave the creditor notice of rescission within the three-year period. [See, e.g., Jackson v. CIT
       Group/Consumer Finance, Inc., No. 2:06-cv-543, 2006 WL 3098767, at *7 (W.D. Pa. Oct. 30,
       2006).] Finally, a third group of cases take what might be described as a middle approach,
       concluding that sending the creditor notice of rescission satisfies the three-year deadline, and the
       creditor’s failure to respond to a valid notice of rescission in turn triggers the general one-year
       statute of limitations for TILA violations, 15 U.S.C. § 1640(e). [See, e.g., In re Hunter, 400 B.R.
       651, 662 (Bankr. N.D. Ill. 2009); Johnson v. Long Beach Mortgage Loan Trust 2001-4, 451 F. Supp.
       2d 16, 40 (D.D.C. 2006)].” However, none of these cases appear to dispute that to stop the ticking
       of the three-year clock, notice of rescission to the creditor is mandatary. Moreover, the parties have
       pointed to no case, and our research has revealed none, that squarely addresses what constitutes
       appropriate and sufficient notice of rescission to the creditor.

                                                    -8-
¶ 26       Appendix H of Regulation Z, titled “H-8: Rescission Model Form (General),” instructs
       the consumer by example on how to elect to rescind. Form H-8 provides in pertinent part:
           “How to Cancel
           If you decide to cancel this transaction, you may do so by notifying us in writing, at
           (creditor’s name and business address).
           You may use any written statement that is signed and dated by you and states your
           intention to cancel, or you may use this notice by dating and signing below. ***
           If you cancel by mail or telegram, you must send the notice no later than midnight of
           (date) ***. If you send or deliver your written notice to cancel some other way, it must
           be delivered to the above address no later than that time.
           I WISH TO CANCEL
           ________________________________                      _____________________
           Consumer’s Signature                                  Date”
¶ 27       Regulation Z and the official staff commentary are generally dispositive unless contrary
       to the express language of TILA or otherwise irrational. Household Credit Services, Inc. v.
       Pfenning, 541 U.S. 232 (2004); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565
       (1980) (“deference is especially appropriate in the process of interpreting [TILA] and
       Regulation Z”; “[u]nless demonstrably irrational, *** Board staff opinions construing the
       Act or Regulation should be dispositive”); see also Hamm v. Ameriquest Mortgage Co., 506
       F.3d 525, 528 (7th Cir. 2007) (“[c]ourts pay particular heed to the [Board] Staff Commentary
       to TILA’s regulations when evaluating an alleged TILA violation”).
¶ 28       Reading Regulation Z with section 1635(a), we conclude that the letters sent by the
       Manzos to U.S. Bank as well as the motion for leave to file their counterclaim did not
       constitute sufficient notification. Both section 1635(a) and Regulation Z explicitly require
       the borrower to notify the creditor of the rescission itself. See 15 U.S.C § 1635(a) (2006)
       (“the obligor shall have the right to rescind *** by notifying the creditor, in accordance with
       regulations of the Board, of his intention to do so” (emphasis added)); 12 C.F.R.
       § 226.23(a)(2) (2006) (“[t]o exercise the right to rescind, the consumer shall notify the
       creditor of the rescission by mail, telegram or other means of written communication”
       (emphasis added)); see also 12 C.F.R. § 226 app. H (2008) (Model form H-8 instructs a
       borrower to rescind by signing a form that unequivocally states “I wish to cancel.”).
       Although Regulation Z is flexible with respect to the type of written communication that may
       be used by a borrower to give notice of rescission to the creditor,3 it requires that the written
       communication clearly state that the borrower is rescinding the mortgage in the present; it
       nowhere speaks of merely notifying the creditor of an intention to rescind at some


               3
                 Form H-8 permits a borrower to rescind by mailing to the creditor a signed form that merely
       states “I wish to rescind.”

                                                   -9-
       unspecified point in the future. See 12 C.F.R. § 226.23(a)(2) (2006); see also Golliday v.
       First Direct Mortgage Co., No. 1:09-CV-526, 2009 WL 5216141, at *2 (W.D. Mich. Dec.
       29, 2009) (“Although a notice of rescission does not need to follow any particular form or
       include any particular language, it must give clear notice of the consumer’s intention to
       rescind. ‘The clear intention of the statue and regulations are to make sure that the creditor
       gets notice of plaintiffs’ consumer intention to rescind.’ [Citation.]”). Nothing but confusion
       could result if rescission were exercised by a borrower stating a mere intention to rescind in
       the future. This is particularly true where the statute requires that once the borrower notifies
       the creditor of rescission, the creditor has 20 days to return to the borrower any money or
       property taken as a down payment. See 15 U.S.C. § 1635(b) (2006) (“Within 20 days after
       receipt of a notice of rescission, the creditor shall return to the [obligor] any money or
       property given as earnest money, downpayment, or otherwise, and shall take any action
       necessary or appropriate to reflect the termination of any security interest created under the
       transaction.”); see also 12 C.F.R. § 226.23(d)(2) (2006) (“Within 20 calendar days after
       receipt of a notice of rescission, the creditor shall return any money or property that has been
       given to anyone in connection with the transaction and shall take any action necessary to
       reflect the termination of the security interest.”).
¶ 29       Moreover, Regulation Z also provides that rescission is automatic upon the consumer’s
       notice. 12 C.F.R. § 226.23(d)(1) (2006) (“When a consumer rescinds a transaction, the
       security interest giving rise to the right of rescission becomes void and the consumer shall
       not be liable for any amount, including any finance charge.”). It follows that since rescission
       is automatic upon notification, notification must be clear and cannot be conditional or
       qualified. See Golliday, 2009 WL 5216141, at *2 (citing Williams v. Homestake Mortgage
       Co., 968 F.2d 1137, 1142 (11th Cir. 1992)).
¶ 30        In the present case, a review of the record reveals that neither the letters nor the motion
       for leave to file the counterclaim affirmatively and clearly stated the Manzos’ unqualified and
       present intent to rescind the loan.
¶ 31       The letters sent by the Manzos’ counsel to U.S. Bank were sent for purposes of
       settlement negotiations, in an attempt to use the possibility of a TILA rescission claim as
       leverage in convincing U.S. Bank to modify the loan agreement. Three of those letters
       specifically use conditional language and state that if a loan modification agreement could
       not be reached and the Manzos were forced to litigate, they “could assert” several
       counterclaims and affirmative defenses “arising out of violations of TILA,” including their
       right to rescind the loan. Even when construing these letters in the light most favorable to the
       Manzos, their repeated use of the conditional language establishes that they were referring
       merely to the possibility of rescission, and that they were postponing their exercise of their
       right to rescind in the hopes of reaching a loan modification agreement.
¶ 32       The fourth and last letter and the motion for leave to file the counterclaim similarly do
       not constitute sufficient written communication of rescission. The fourth letter contained a
       copy of the “draft” of the Manzos’ counterclaim seeking rescission and merely asked that
       U.S. Bank’s counsel contact the Manzos’ attorney after reviewing the counterclaim. The


                                                -10-
       attached proposed counterclaim nowhere states that the Manzos had previously elected to
       rescind through their letters, nor did it indicate that the Manzos were electing to rescind in
       the present. Instead the proposed counterclaim alleges violations of TILA and then explicitly
       states “[t]he Borrowers, by filing of this action, elect to rescind the subject transaction.”
       (Emphasis added.) This restrictive language reveals that the Manzos intended to rescind the
       loan by filing, and only by filing, their counterclaim.
¶ 33       The counterclaim attached to the Manzos’ motion for leave to file contains the exact
       same qualifying language. Accordingly, since the Manzos did not file their counterclaim
       immediately upon the granting of their motion for leave to file, but waited eight months,
       missing the three-year period by one day, they cannot now in good faith contend that they
       intended to rescind the loan when they sent the fourth letter to U.S. Bank or when they
       sought leave to file their counterclaim.
¶ 34      The circuit court below recognized the unfortunate choice of language in the Manzos’
       counterclaim:
               “The language used in the letters, motion and counterclaim was chosen by the
          Manzos. They inserted the qualifying language–it was not imposed upon them. If that
          language had not been included, the Court would likely come to a different conclusion;
          however; the [Manzos] chose to predicate the exercise of their right to rescind on the
          filing of the counterclaim and then failed to file it before the three year limitation period
          expired. There is nothing inappropriate with that litigation tactic. However, if a party
          chooses to engage that strategy, they must keep close tabs on the days and years as they
          pass so that their right to rescind does not expire before it is actually exercised.”
¶ 35       We agree with this reasoning of the circuit court and find that the Manzos failed to
       affirmatively rescind their loan within the three-year statute of repose imposed by section
       1635(f) of TILA (15 U.S.C. § 1635(f) (2006)). Accordingly, their rescission claim was
       properly dismissed.


¶ 36                              B. Rescission in Recoupment
¶ 37       The Manzos nevertheless contend that even if their election to rescind was not made
       within TILA’s requisite three-year period, their rescission claim should nevertheless survive
       because it was brought as a claim for recoupment under Illinois law in defense of the
       foreclosure action. Specifically, the Manzos point out that section 1635(i)(3) of TILA permits
       them to proceed with their claim outside of the three-year statutory period if that claim is
       brought as a “defense in recoupment” under Illinois law. See 15 U.S.C. § 1635(i)(3) (2006)
       (“Nothing in this subsection affects a consumer’s right of rescission in recoupment under
       State law.”). Because there is no Illinois statute that speaks specifically of TILA rescission
       in recoupment claims, the Manzos rely on section 13-207 of our Code of Civil Procedure
       (735 ILCS 5/13-207 (West 2008)) as statutory authorization for filing a rescission in
       recoupment claim after the three-year deadline has expired. That section states in pertinent
       part:

                                                -11-
          “A defendant may plead a set-off or counterclaim barred by the statute of limitation,
          while held and owned by him or her, to any action, the cause of which was owned by the
          plaintiff or person under whom he or she claims, before such set-off or counterclaim was
          so barred, and not otherwise.” (Emphasis added.) 735 ILCS 5/13-207 (West 2008).
¶ 38       In Wells Fargo Bank, N.A. v. Terry, 401 Ill. App. 3d 18 (2010), appeal denied, 237 Ill.
       2d 592 (2010), our appellate court recently had the opportunity to interpret section 13-207
       and address the same issue raised here by the Manzos on appeal. The court in Terry found
       that Illinois law, and more specifically section 13-207, does not authorize an action in
       recoupment in defense of foreclosure actions brought outside of the three-year requisite TILA
       period.
¶ 39        In that case, Terry had a refinance mortgage with Wells Fargo Bank that she alleged
       violated certain TILA disclosure requirements. Terry, 401 Ill. App. 3d at 19. When Terry
       failed to make payments on her note, Wells Fargo filed an action to foreclose on Terry’s
       property. Terry, 401 Ill. App. 3d at 19. In response, Terry filed an affirmative defense, a
       counterclaim and a third-party complaint seeking rescission under TILA. Terry, 401 Ill. App.
       3d at 19. Wells Fargo then filed a motion to dismiss on the basis of timeliness, which was
       granted by the circuit court. Terry, 401 Ill. App. 3d at 19. On appeal, Terry conceded that
       more than three years had elapsed between the closing of her refinance mortgage and the
       filing of her claim for rescission under TILA, which suggested that her claim was time-
       barred. Terry, 401 Ill. App. 3d at 20. However, Terry argued that she brought the claim for
       recoupment in defense to Wells Fargo’s foreclosure action and therefore the three-year
       expiration date did not preclude her TILA rescission claim, so long as it was permitted under
       Illinois law. Terry, 401 Ill. App. 3d at 20. In support of her position that Illinois law
       permitted recoupment claims, Terry, just as the Manzos here, cited to section 13-207 of the
       Illinois Code of Civil Procedure (735 ILCS 5/13-207 (West 2008)). Terry, 401 Ill. App. 3d
       at 21.
¶ 40        The appellate court in Terry disagreed and found that nothing in Illinois law preserved
       Terry’s right of rescission in recoupment analogous to a right of rescission under TILA that
       would provide an exception to the three-year TILA rescission period. Terry, 401 Ill. App. 3d
       at 21-23. The Terry court first explained that in Illinois recoupment is “a cross-action in
       which a defendant alleges that it has been injured by a breach by plaintiff of another part of
       the contract on which the action is founded.” (Internal quotation marks omitted.) Terry, 401
       Ill. App. 3d at 21 (quoting Cox v. Doctor’s Associates, Inc., 245 Ill. App. 3d 186, 199 (1993),
       citing 735 ILCS 5/2-608 (West 2008)). The Terry court then noted that Illinois law would
       permit Terry’s claim to survive the expiration of the thee-year period as a defensive claim
       against the lender’s action only if section 1635(f) of TILA (15 U.S.C. § 1635(f) (2006)) were
       a statute of limitations. Terry, 401 Ill. App. 3d at 21 (citing Barragan v. Casco Design Corp.,
       216 Ill. 2d 435, 437 (2005) (counterclaim otherwise barred by statute of limitations permitted
       to proceed where plaintiffs’ underlying claim was timely)). In doing so, the court in Terry
       specifically cited to the language of section 13-207 of the Code of Civil Procedure, noting
       that it permits a defendant only to plead a setoff or a counterclaim if “barred by [a] statute
       of limitations.” Terry, 401 Ill. App. 3d at 21 (citing 735 ILCS 5/13-207 (West 2008)).

                                                -12-
¶ 41        The Terry court explained that the United States Supreme Court in Beach made clear that
       section 1635(f) of TILA (15 U.S.C. § 1635(f) (2006)) is a statute of repose and not a statute
       of limitation, because it speaks “ ‘not of a suit’s commencement but of a right’s duration.’ ”
       Terry, 401 Ill. App. 3d at 21 (quoting Beach, 523 U.S. at 417); see also In re Hunter, 400
       B.R. 651, 660 (Bankr. N.D. Ill. 2009) (“[s]ection 1635(f) is a statute of repose, not a statute
       of limitations”). The Terry court then noted that Illinois law observes the same distinction
       between a statute of limitations and a statute of repose, noting that “ ‘a statute of limitations
       governs the time within which lawsuits may be commenced after a cause of action has
       accrued, while a statute of repose extinguishes the action itself after a fixed period of time,
       regardless of when the action accrued.’ ” Terry, 401 Ill. App. 3d at 21 (quoting DeLuna v.
       Burciaga, 223 Ill. 2d 49, 61 (2006)). Accordingly, the court in Terry concluded that Terry
       had no right to bring her rescission claim in recoupment under Illinois law outside of the
       three-year statute of repose imposed by TILA.
¶ 42        The Manzos acknowledge the decision in Terry but ask that we reject it and instead rely
       on Limer v. Lyman, 241 Ill. App. 3d 125, 128 (1993), and Jain v. Johnson, 398 Ill. App. 3d
       135, 143 (2010), two decisions wherein the courts permitted claims to proceed even though
       they had expired under statutes of repose. Unlike Terry, however, neither of these decisions
       deals directly with section 13-207 of the Code of Civil Procedure (735 ILCS 5/13-207 (West
       2008)), or with TILA rescission claims brought outside of the three-year statute of repose
       imposed by TILA. See Limer, 241 Ill. App. 3d at 127 (interpreting section 13-209 of the
       Code of Civil Procedure (Ill. Rev. Stat. 1985, ch.110, ¶ 13-209), which permits survival of
       causes of action where a party entitled to bring an action dies, as not prohibiting the refiling
       of an action by the four-year statute of repose applicable to medical malpractice actions);
       Jain, 398 Ill. App. 3d at 139 (interpreting section 13-217 (735 ILCS 5/13-217 (West 2008))
       of the Code of Civil Procedure, which permits an action to be refiled “within one year or
       within the remaining period of limitation” after being dismissed for want of prosecution, as
       having provided an exception to a six-year statute of repose for legal malpractice actions,
       permitting a client whose malpractice action was dismissed for want of prosecution after
       expiration of the statute of repose to refile the action; noting that the term “period of
       limitation” was ambiguous as to whether it applied to a statute of repose). Section 13-207
       is the only Illinois statute pursuant to which the Manzos sought, and for that matter, could
       seek, to proceed with a rescission claim in recoupment, and the plain language of that section
       explicitly permits a counterclaim to be filed only if barred by a “statute of limitations.”4
       Accordingly, we agree with the rationale of Terry and decline the Manzos’ invitation to
       reevaluate its holding.
¶ 43       Applying Terry we are compelled to conclude that since the Manzos filed their claim one
       year and one day after the date of the consummation of the mortgage, even their rescission
       claim brought in recoupment as a defense to the foreclosure action was made too late.



               4
                 Although the Illinois legislature could allow a rescission in recoupment claim to be filed
       after the three-year TILA limit has run, it has so far not chosen to do so.

                                                  -13-
¶ 44                                         C. Damages
¶ 45       The Manzos finally contend that even if their claim for rescission was properly dismissed
       as untimely, the circuit court should not have dismissed their claim for damages, which was
       plainly stated in their counterclaim, and which was timely brought pursuant to section
       1640(e) of TILA (15 U.S.C. § 1640(e) (2006)).
¶ 46       U.S. Bank does not dispute that the damage claim should have been separately evaluated
       by the circuit court. Nevertheless it initially contends that this issue is waived for purposes
       of appeal because it was not properly argued before the circuit court. See Eagan v. Chicago
       Transit Authority, 158 Ill. 2d 527, 534 (1994) (“issues not raised in the trial court may not
       be raised for the first time on appeal”). We disagree.
¶ 47      The record reveals that the Manzos complaint sought both rescission and damages. The
       counterclaim specifically stated:
           “Borrowers bring this action against their mortgage lender and its assignee for rescission
           and damages pursuant to TILA for the lender’s failure to clearly and conspicuously
           disclose the borrower’s right to cancel a mortgage loan.” (Emphasis added.)
       When U.S. Bank filed its motion to dismiss the counterclaim on timeliness grounds, it only
       argued the untimeliness of the rescission claim pursuant to section 1635(f), and nowhere
       argued the untimeliness of the damages claim under section 1640(e). The circuit court,
       however, dismissed the Manzos’ counterclaim as untimely in its entirety, without providing
       an explanation as to why, in addition to the rescission claim, it also found the damages claim
       time-barred. We must therefore consider whether the dismissal of this portion of the
       counterclaim was made in error.5
¶ 48       Section 1640 of TILA authorizes civil liability in the form of actual damages, statutory
       damages, costs and attorney fees for lenders who violate the disclosure requirements of the
       Act. See 15 U.S.C. § 1640(a) (2006). Section 1640(e), however, specifies a one-year statute
       of limitations for any such civil liability claims under TILA. 15 U.S.C. § 1640(e) (2006).
       That section states in pertinent part:
               “Any action under this section may be brought *** within one year from the date of
           the occurrence of the violation ***. This subsection does not bar a person from asserting
           a violation of this subchapter in an action to collect the debt which was brought more


               5
                 In that respect, we note that the waiver rule “is a limitation on the parties and not the
       jurisdiction of the courts” and we could choose to address it on the merits. Committee for
       Educational Rights v. Edgar, 174 Ill. 2d 1, 11 (1996); see also Michigan Avenue National Bank v.
       County of Cook, 191 Ill. 2d 493, 518-19 (2000) (same) (citing Chicago Patrolmen’s Ass’n v.
       Department of Revenue, 171 Ill. 2d 263, 278 (1996); Wagner v. City of Chicago, 166 Ill. 2d 144, 148
       (1995); Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 251 (1994); Hux v. Raben,
       38 Ill. 2d 223, 225 (1967)); see also People v. Hoskins, 101 Ill. 2d 209, 219 (1984).

                                                  -14-
          than one year from the date of the occurrence of the violation as a matter of defense by
          recoupment or set-off in such action, except as otherwise provided by State law.” 15
          U.S.C. § 1640(e) (2006).
¶ 49       In the present case, the Manzos concede they did not raise their damages claim within
       one year of the alleged occurrence of the violation. They contend, however, that pursuant to
       section 13-207 of the Code of Civil Procedure (735 ILCS 5/13-207 (West 2008)), they may
       proceed with their claim even outside of the one-year statute of limitations period since their
       damage claim is being brought as a matter of defense by recoupment. For the reasons that
       follow, we agree.
¶ 50       Federal courts that have consistently interpreted the language of section 1640(e) (15
       U.S.C. § 1640(e) (2006)) as creating a statute of limitations and not a statute repose, like the
       one found in section 1635(f) (15 U.S.C. § 1635(f) (2006)). See, e.g., Beach, 523 U.S. at 418
       (noting the disparate treatment by Congress of sections 1635(f) and 1640(e) and confirming
       that state law recoupment of damage claims survive TILA’s one-year statute of limitations).
       These courts have repeatedly found that section 1640(e) permits the application of state
       recoupment statutes and allows for the filing of a damages claim after the one-year
       limitations period has expired. See, e.g., In re Coxson, 43 F.3d 189, 193-94 (5th Cir. 1995);
       In re Wentz, 393 B.R. 545, 555-57 (Bankr. S.D. Ohio 2008); In re Norris, 138 B.R. 467
       (Bankr. E.D. Pa. 1992); In re Woolaghan, 140 B.R. 377 (Bankr. W.D. Pa. 1992).
¶ 51       Illinois courts have followed suit, and similarly allowed § 1640(e) TILA damage claims
       to be brought in recoupment pursuant to section 13-207 of the Code of Civil Procedure (735
       ILCS 5/13-207 (West 2008)) long after the one-year time limit has expired. See Mt. Vernon
       Memorial Estates, Inc. v. Wood, 88 Ill. App. 3d 666 (1980) (holding that counterclaim
       alleging damages for violations of TILA could be maintained, even though it was filed more
       than one year after alleged violations as required under section 1640(e), where it was brought
       pursuant to section 13-207 of the Code of Civil Procedure); see also National Boulevard
       Bank of Chicago v. Thompson, 85 Ill. App. 3d 1145, 1146 (1980) (same).
¶ 52       As we have already discussed the language of section13-207 above in detail noting that
       it specifically permits claims for setoffs or counterclaims to be brought if they have been
       barred by a “statute of limitations,” we see no reason why the Manzos should have been
       prohibited in continuing with their section 1640 damages claim under Illinois law.
¶ 53       Since the circuit court provided no explanation as to its dismissal of the Manzos’
       damages claim, and we find no reason why that claim should be time-barred, we remand for
       further proceedings on this issue.


¶ 54                                    III. CONCLUSION
¶ 55      For the foregoing reasons, we affirm the judgment of the circuit court with respect to the
       TILA rescission claim (15 U.S.C. § 1635 (2006)), but remand for further proceedings on the
       damages claim (15 U.S.C. § 1640 (2006)).


                                                -15-
¶ 56   Affirmed in part and reversed and remanded in part.




                                         -16-
