Rescission enforcement actions are the next really big thing

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Rescission enforcement actions are the next really big thing. Its effect is to immediately unencumber the property from any claims of lien or mortgage and any claim on the note which is void and must be returned marked “cancelled”. If the parties collecting or enforcing the loans really have a right to do so they may demonstrate that in court by filing a lawsuit to set aside the rescission based upon any factual grounds they wish to raise, applying the rules of the TILA statutory scheme for rescission. But if they don’t do that within 20 days they waive their defenses. AND if they don’t comply with TILA by returning the canceled note, filing a satisfaction of mortgage and returning all money paid by borrower, then they are barred from making even an unsecured claim for “damages.”
The action to enforce rescission would essentially consist of an allegation that the notice was sent, it has been more than 20 days since the notice was sent, and therefore the parties claiming to be creditors owe (1) return of canceled note, (2) filing a satisfaction of mortgage and (3) return of all money paid by borrower since the inception of the alleged loan contract. We will refuse to get into an argument about whether the rescission should have been sent. THAT is something that the parties would have had to allege in a lawsuit against the borrower(s) to set the rescission aside.

According to TILA, Reg Z and the US Supreme Court (Jesinowski decision) the rescission IS effective (by operation of law) the moment it is put in US Mail. The borrower does not have to be right to send it. THAT issue is left to the banks and servicers to allege in a lawsuit to vacate the rescission. And they must do so within 20 days. All issues that are confusing everyone — statute of limitations, purchase money first mortgage, etc. are questions of fact that need to be raised by the other side. They cannot do so after 20 days. We would move to strike those defenses when raised in our lawsuit to enforce rescission.

There are dozens of lawyers across the country that agree with my interpretation of the TILA rescission statutes and who are filing these rescission enforcement actions. In some cases, Ocwen has agreed that the rescission is effective and even agreed that the original payee was not the lender. That is an interesting juxtaposition of theories. Because if there was no funding by the payee on the note (“lender”) then there is no loan contract. If there is no loan contract, there is nothing to rescind. But the rescission under TILA might still apply as to the note and mortgage and the right to obtain disgorgement of money paid by borrower might be partially blocked by the standard statute of limitations governing contract disputes or the statute regarding tort actions.

It sounds weird, I know. But the fact is that Congress specifically decided that the act of the borrower in sending a notice of rescission cancels the loan and Reg Z (Federal Reserve) says that by operation of law that means the note and mortgage become void as of the date of mailing of the notice of rescission. Void means void, not voidable. It means that the the note and mortgage no longer exist and that is final. So even if the “lender” tries to bring a lawsuit to set aside the rescission they would need to establish standing presumably without the note and mortgage which can no longer be used because they are void. Standing could only be established by alleging that the pleading party is suffering actual damages — which is not really possible if they never paid anything for the loan and even if they did, is also not possible since they still could bring a claim against the borrower (unsecured) for the money that is due as the balance of the loan.

Congress specifically provided this method so that the old “lender” could not block the ability of the borrower to get another loan from a different (and presumably real) lender which would have first priority and would enable the borrower to either pay the old lender or not (if the old lender had not complied with TILA as to its duties in the event of rescission).

It was the specific intent to prevent the old “lender” from stonewalling and thus trap the borrower into a deal he or she didn’t want. And THAT is why the rule is that the note and mortgage are VOID by operation of law regardless of whether or not the “lender” returns the cancels note, satisfies the mortgage or pays the money to disgorge all funds paid by borrower starting with the origination fees, cost of closing and all interest and principal paid up to the date of the rescission.

NOTE: THE RESCISSION IS PROBABLY VOID IF THERE IS NO LOAN CONTRACT LEFT IN EXISTENCE WHEN THE NOTICE IS SENT. IF THERE IS NO CONTRACT THEN THERE IS NOTHING TO RESCIND. THUS I CONCLUDE THAT IF THE SALE HAS OCCURRED, THE NOTE AND MORTGAGE DON’T EXIST ANYMORE AND RESCISSION MIGHT NOT BE POSSIBLE. IF JUDGMENT HAS BEEN ENTERED, THE ISSUE IS LESS CLEAR BECAUSE THE RIGHT TO REDEEM STILL EXISTS.

NOTE: THIS IS NOT A LEGAL OPINION ON ANY SPECIFIC CASE. READERS SHOULD CONSULT WITH A QUALIFIED ATTORNEY WHO IS LICENSED IN THEIR JURISDICTION.

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