TILA Rescission Update

On balance I would continue to include it in pleadings and correspondence.

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On TILA rescission I am ambivalent: The statute says one thing and the Courts are doing another thing entirely — still choosing to ignore it despite a very short definite opinion in the Jesinoski case.

  1. In favor of adding it: It’s certainly worthy of mention and I maintain a very strong belief that ultimately the courts will be forced by the US Supreme Court to stop playing games, to wit: the statute is procedural and there are plenty of judicial remedies available to vacate a “bad rescission” — if that is the case — but ignoring it is not one of the options.
  2. Against adding it: Judges hate TILA and they dislike TILA rescission even more than other provisions of TILA. There is always a tension between state judges and Federal law and that seems to extend to Federal Judges when it comes to TILA rescission so any emphasis on rescission might be counter-productive and feeding into the judicial myth that the problem is with homeowners who want to get out of a legitimate loan liability on a “technicality.”
  3. BUT failing to mention it every step of the way would be inviting opposition to argue you have waived it. somewhere along the line.
  4. AND remember that the banks have a choice of accepting it. Silly as that seems, it would mean that they would fulfill the three duties imposed TILA rescission followed by demanding payment on the debt. If unpaid they could get a judgment that in many cases would become a judgment lien against the home that could then be foreclosed up to the state homestead exemption. But none of that is possible if their claim was fraudulent.

In the end my opinion stands firm as stated repeatedly over 10 years, to wit: rescission is effective on the date of mailing regardless of any defective reasoning or absence of rights to rescind. That is what the statute says and it is what the Supreme Court said. The discussion should be over and would be over but for the inclination of judges to rebel against the statute and the Supreme Court. The whole purpose of writing the statute the way it was written was to eliminate the need for borrowers to go to court or get a lawyer. The entire burden was intentionally placed upon whoever purported to be the lender or creditor.

The job of Judges is to enforce the law not write it. The law of TILA rescission has already been written by Congress and interpreted by the highest court in the land.

If the banks were acting in good faith they would do the following:

  1. Respond to a TILA rescission notice with either acceptance and then acting in accordance with statute or a warning that they will file suit to vacate the rescission and that they will seek damages, attorneys fees and costs.
  2. File suit to vacate the rescission seeking injunctive and supplemental relief.

The whole reason the banks have never done that is that by filing suit they would need to establish legal standing — without the note or mortgage, both of which are void when the TILA rescission notice becomes effective. Standing could only be alleged by stating that the Plaintiff has been injured by the wrongful TILA rescission notice.

So we are back at the beginning — in the end there is no standing in nearly all cases because the entire infrastructure is based upon fraud. This applies in foreclosure cases where courts have manufactured standing using presumptions of nonexistent facts. And it applies in what could be TILA rescission cases where the courts are assiduously avoiding any order vacating the Notice to Rescind.

5 Responses

  1. The eighth circuit has done it again! Previously,their decision in keiran vs Homecapital propelled Jesinoski to the supremes over the three year statute of repose. Now,the second time around,they have created new law ,in an insurmountable rebuttable presumption,where by the circuits own precedence,they decide that it has to be something extraordinary,as opposed to affidavits and evidence that disclosures were not delivered. Further ,they decide that the 20 days does not apply to banks, setting up a formula for stall tactics. Third,the panel ignores the text in regulation z on how to determine actual finance charges,which is the foundation of Tila ,itself. This circuit has a nasty precedence regarding the award of Tila rescission,as evidenced by Keiran vs Home capital,Jesinoski vs Countrywide, Peterson vs Bac, Sobieniak vs countrywide , etc…. this case is now in the en banc petition decision by the circuit,and could have devastating effects nationally,as well as in the circuit,because Jesinoski vs countrywide is stage directly behind Keiran,after being screened for Oral Argument with the exact same issues. See Keiran vs Homecapital , 15-3437, 8th cir. Petition ripping the panel to come

  2. My lawyer said the bank lost $30k in this Forclosere deal! What this has to do with me that modification deal was done in bad faith lost the house going thru pain and suffering

  3. Wish my situation just bad dream from all the bad faith I’ve been treated by Wells Fargo

  4. Servicers have 20 days to respond and file a lawsuit against the homeowner.

  5. Reblogged this on California freelance paralegal.

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