Botelho

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

Defendant U.S. Bank, N.A., as Trustee for the LXS 2007-4N Trust (“U.S.Bank”), seeks dismissal under Federal Rule of Civil Procedure 12(b)(6) of a complaint filed by plaintiff homeowner Henry Botelho. Specifically, U.S. Bank claims that Botelho cannot state a claim for rescission of his mortgage loan under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., unless he alleges a present ability to tender the loan proceeds. As discussed in further detail below, such an allegation is not necessary for Botelho’s case to survive the pleading stage. Accordingly, U.S. Bank’s motion is denied.

I. FACTUAL AND PROCEDURAL HISTORY

According to the averments of the Second Amended Complaint (“SAC”), Botelho purchased a home in 2006 located at 1710 Stanton Avenue, San Pablo, California. To finance the purchase, he entered into a residential loan transaction with MortgagelT, Inc. (“MortgagelT”). At escrow on October 11, 2006, Botelho claims to have received pre-printed, unsigned copies of documents associated with his loan. Among these, he alleges, were two copies of a form entitled “Notice of Right to Cancel,” both dated September 28, 2006. According…