Georgia Lawyer’s Strategy on “Bond” Requirement Has Merit

I am a lawyer in Georgia and it has been my experience in Georgia the lender will move the court to modify the rescission procedure by having you tender the money into the court registry (15 USC 1635(b)) within a specified amount of time., usually 6 months. The mortgage will only be removed after this has occurred. I have never seen this request denied in Georgia. Therefore I usually recommend to my clients that they tender the property instead of the monies. This means, if successful, you will get all your money back you have paid toward the loan including closing costs. Now as I stated I practice in Georgia and we have controlling case law that our courts here are bound by, this may or may not be the case in California. Good luck with your fight and remember to never give up! A successful TILA lawsuit can give your family the money for a new start while putting the foreclosure behind you.

David C. Ates Esq.

4 Responses

  1. I am trying to rescind a loan that I took out through a federally charted credit union. I have contacted the NCUA who regulates the federal credit unions, but they are refusing to to respond due to a civil case we have against the credit union for a breech of contract, but our lawsuit has nothing about TILA and rescission violations. The credit union will not rescind a consumer loan on a spec home that my personal residence was used a collateral to secure the full loan amount, and my 3 day right to cancel was never given to me. I also never filled out the loan application nor did my husband or I sign it. The loan officer filled it out and falsified much of the information. I am at a loss as to what to do next. The NCUA and the credit union will not rescind my loan, but they do not deny there was a rescission violation. I know my loan should have been given the 3 day right to cancel, but how do I make them rescind the loan or at least explain to me why my loan did not apply to the right of resicission?

  2. This is the bond requirement in Florida.

    57.011 Costs; security by nonresidents.–When a nonresident plaintiff begins an action or when a plaintiff after beginning an action removes himself or herself or his or her effects from the state, he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.

  3. “Now as I stated I practice in Georgia and we have controlling case law that our courts here are bound by…”

    Do you have a case cite? Is that in the 11th circuit or a state court ruling?

    Sounds like a great read it’d be great if you could post the case in the comments.

  4. My husband and I live in Georgia and have defaulted on our mortgage with WAMU. We bought our home back in 1997 and the note has been sold several times to several predatory lenders including Fairbanks Capital and Litton Loan Company to name a couple. Because of these predatory lenders, we were forced to file bankruptcy. After 3 successful years in bankruptcy, we refied out of the bankruptcy with New Century Mortgage, who at some point sold our loan to WAMU.

    We are currently in default. I recently noticed while reviewing our refi docs that we signed a waiver to judicial trial in case of default. In light of the same, what recourses do we have to fight since we are not even entitled to a judicial hearing? And by the way, it has been 3 and a half years since we refied, which puts us out of the arena to consider TILA violations right?

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