     13-1507-cv
     Nunes v. Wells Fargo Bank, N.A.

                                       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 PERMITTED 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
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   12th day of March, two thousand fourteen.
 4
 5   PRESENT:            BARRINGTON D. PARKER,
 6                       GERARD E. LYNCH,
 7                       CHRISTOPHER F. DRONEY,
 8
 9                                             Circuit Judges.
10
11   ————————————————————————
12
13   Panchita J. Nunes,
14
15                                             Plaintiff-Appellant,
16
17                                 v.                                            No. 13-1507-cv
18
19   Wells Fargo Bank, N.A.,
20                                             Defendant-Appellee.
21
22
23   ————————————————————————
24
25   APPEARING FOR APPELLANT:                                 RANDALL S. NEWMAN, Randall S.
26                                                            Newman, P.C., New York, New York.
27
28   APPEARING FOR APPELLEE:                                  ELIZABETH B. PRELOGAR, Hogan
29                                                            Lovells US LLP, Washington, DC (Chava
30                                                            Brandriss, Hogan Lovells US LLP,
31                                                            Washington, DC, Lisa J. Fried, Hogan
32                                                            Lovells US LLP, New York, NY, on the
33                                                            brief).
34
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 1          Appeal from the United States District Court for the Eastern District of New York (Dora

 2   L. Irizarry, Judge).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the matter is REMANDED to the district court for further proceedings.

 5          Plaintiff-appellant Panchita J. Nunes appeals from a judgment of the United States

 6   District Court for the Eastern District of New York (Dora L. Irizarry, Judge) granting summary

 7   judgment to defendant-appellee Wells Fargo Bank, N.A. (“the Bank”), on her complaint under

 8   the Truth in Lending Act (“the Act”), 82 Stat. 146, 15 U.S.C. § 1601 et seq.

 9          In her briefing to this Court, Nunes argued that the district court erred in denying her

10   rescission of a mortgage loan extended to her by the Bank’s predecessor in interest, on which she

11   had ceased making payments, because of alleged violations of the Act. At oral argument,

12   however, counsel for Nunes disclosed for the first time that he had recently learned from counsel

13   for the Bank that shortly before Nunes’s reply brief had been filed, Nunes (without telling

14   counsel) had sold the property and paid off the mortgage in full, such that the mortgage Nunes

15   sought to rescind, and the lien she sought to have lifted, no longer exist. Counsel represented

16   that he had since confirmed that development with his client, and had seen documents reflecting

17   the transaction. Counsel for the Bank agreed that the mortgage had been paid, and stated that

18   she too had seen documents reflecting the transaction. Evidently, neither party saw fit to advise

19   the Court of this development, to provide the Court with the relevant transaction documents, or

20   to brief the effect of the payment of the mortgage on the viability of the case.

21          As counsel for the Bank pointed out, all of these events long post-date the decision of the

22   district court, and can have no bearing on whether the decision of the district court to grant


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 1   summary judgment on the record before it was correct. However, the payment of the mortgage

 2   raises a serious question as to whether the case is moot, insofar as Nunes seeks to rescind an

 3   agreement that has now been fully performed on both sides. Since mootness is a matter that goes

 4   to the subject matter jurisdiction of the federal courts in light of the limitation of our jurisdiction

 5   to actual cases and controversies, see Burke v. Barnes, 479 U.S. 361, 363 (1987) (“Article III of

 6   the Constitution requires that there be a live case or controversy at the time that a federal court

 7   decides the case; it is not enough that there may have been a live case or controversy when the

 8   case was decided by the court whose judgment we are reviewing.”), the matter must be

 9   addressed, notwithstanding that neither party has argued that the case is moot.

10           We, however, lack an adequate evidentiary basis to address the mootness issue. The

11   alleged payment of the mortgage is not reflected in the record before us. We have only the

12   representations of counsel at oral argument as a basis for knowing whether that event occurred at

13   all. Moreover, to take only one example of a fact that may bear on the question, we have no way

14   of knowing whether the transaction documents contained either a release of the instant claim, or

15   a reservation of rights to pursue it.

16           Under the circumstances, we think the question of mootness is best addressed in the first

17   instance by the district court, which has the capacity to find the relevant facts. Accordingly, the

18   case is REMANDED to the district court pursuant to United States v. Jacobson, 15 F.3d 19 (2d

19   Cir. 1994), with instructions to consider the effect, if any, of the alleged payment of the

20   mortgage on the case, including but not limited to whether the dispute is now moot. Upon

21   resolution of the issue by the district court, either party may restore the matter to the active




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1   docket of this Court by letter, without filing a new notice of appeal. In the event either party

2   does seek further action from this Court, the matter will be referred to this panel.



                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




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