RESCISSION: It’s time for another slap on the wrist for state and federal judges.

Posted on February 2, 2017 by Neil Garfield

50 years ago Congress decided to slap punitive measures on lenders who ignore or attempt to go around (table-funded loans) existing laws on required disclosures — instead of creating a super agency that would review every loan closing before it could be consummated. So it made the punishment so severe that only the stupidest lenders would attempt to violate Federal law. That worked for a while — until the era of securitization fail. (Adam Levitin’s term for illusion under the cloak of false securitization).

Draconian consequences happen when the “lender” violates these laws. They lose the loan, the debt (or part of it), their paper is worthless and the disgorgement of all money ever paid by borrower or received by anyone arising out of the origination of the loan.

But Judges have resisted following the law, leaving the “lenders” with the bounty of ill-gotten gains and no punishment because judges refuse to do it —even after they received a slap on their wrists by the unanimous SCOTUS decision in Jesinoski. Now they will be getting another slap — and it might not be just on the wrists, considering the sarcasm with which Scalia penned the Jesinoski opinion.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

TILA rescission is mainly a procedural statute under 15 USC §1635. Like Scalia said in the Jesinoski case it specifically states WHEN things happen. It also makes clear, just as the unanimous court in Jesinoski made clear that no further action was required — especially the incorrect decisions in thousands of cases where the judge said that the rescission under TILA is NOT effective until the borrower files a lawsuit. What is clear from the statute and the regulations and the SCOTUS decision is that rescission is effective on the date of notice, which is the date of mailing if the borrower uses US Mail.

There are several defenses that might seem likely to succeed but those defenses (1) must be filed by a creditor (the note and mortgage are void instruments the moment that rescission notice is sent) (2) hence the grounds for objection are not “defenses” but rather potential grounds to vacate a lawful instrument that has already taken effect. Whether the right to have sent the notice had expired, or whether the right to rescind the putative loan is not well-grounded because of other restrictions (e.g. purchase money mortgage) are all POTENTIAL grounds to vacate the rescission — as long as the suit to vacate the rescission is brought by a party with legal standing.

A party does not have legal standing if their only claim to standing is that they once held a note and mortgage that are now void. {NOTE: No party has ever filed an action to vacate the rescission because (1) they have chosen to ignore the rescission for more than 20 days and thus subject to the defense of statute of limitations to their petition to vacate and (2) they would be required to state the rescission was effective in order to get relief and (3) there is a very high probability that there is no formal creditor that was secured by the mortgage encumbrance of record. The latter point about no formal creditor would also mean that the apparent challenge to the rescission based upon the “purchase money mortgage” “exception” would fail.}

The premise to this discussion is that the so-called originator was not the source of funds. This in my opinion means that there never was consummation — despite all appearances to the contrary.

The borrower was induced to sign a note and mortgage settlement statements and acknowledgement of disclosures and right to rescind under the false premise that the originator was the lender, as stated on the note and mortgage.

The resulting execution of documents thus produced the following results: (1) the putative borrower has signed the “closing documents” and (2) the originator neither signs those documents nor lends any money. This results in an executory contract without consideration which means an unenforceable partially completed documentary trail that creates the illusion of a normal residential loan closing.

TILA Rescission is effective at the time that the borrowers notify any one of the players who represent themselves as being servicer, lender, assignee or holder. The effect of rescission is to cancel the loan contract and that in turn makes the note and mortgage void, not voidable. That the note and mortgage become void is expressly set forth in the authorized regulations (Reg Z) promulgated by the Federal Reserve and now the Consumer Financial Protection Board (CFPB). There is no lawsuit that is required or even possible for the putative borrower to file — i.e., there is no present controversy because the loan “contract” to the extent it exists has already been canceled and the note and mortgage have already been rendered void.

Filed under: foreclosure | Tagged: , , , , , , , | 16 Comments »

Rescission Summary As I see It

Posted on April 17, 2015 by Neil Garfield

If you read my blog for the last 3 weeks or so you should get a good idea of where I am coming from on this. If you still have questions or need assistance call me at 954-495-9867 or 520-405-1688. The basic thrust of my argument is that

  1. BOTH Congress and US Supreme Court agree that there is nothing left for the borrower to do other than dropping notice of rescission in the mail. It is EFFECTIVE BY OPERATION OF LAW at the point of mailing. The whole point is that you don’t need to be or have a lawyer in order to cancel the loan contract, the note and the mortgage (deed of trust) with the same force as if a Judge ordered it. No lawsuit, no proof is required from the borrower. No tender is required as it would be in common law rescission. The money for payoff of the old debt is presumed to come from a new lender that approves a 1st Mortgage loan without fear that they will lose their priority position.
  2. Lender(s) must comply within 20 days — return canceled note, satisfy mortgage, and return money to borrower.
  3. Lenders MUST file a lawsuit challenging the rescission within 20 days or their defenses are waived. Any other interpretation would make the rescission contingent, which is the opposite of what TILA and Scalia say is the case.
  4. Therefore a lawsuit by borrower to enforce the rescission need only prove mailing.
  5. Any attempt to bring up statute of limitations or other defenses are barred by 20 day window.
  6. The clear reason for this unusual statutory scheme is to allow borrower to cancel the old transaction and replace with a new loan. This can only happen if the rescission is ABSOLUTE. It can be declared void or irregular or barred or anything else ONLY within the 20 day window. If the 20 day window was not final (like counting the days for filing notice of appeal appeal, motion for re-hearing, etc.) then no new lender or bank would fund a loan that could be later knocked out of first priority position in the chain of title because the rescission was found to be faulty in some way. This is the opposite of what TILA and Scalia say.
  7. The content of the rescission notice should be short — I hereby cancel/rescind the loan referenced above. You merely reference the loan number, recording information etc. at which point the note and mortgage become VOID by operation of law.
  8. BY OPERATION OF LAW means that the only way it can be avoided is by getting a court order.
  9. If any court were to allow “defense” in a rescission enforcement action AFTER the 20 day window the goal of allowing the borrower to get another loan to pay off the old lender(s) would be impossible.
  10. Hence the ONLY possible logical conclusion is that they MUST file the action within 20 days or lose the opportunity to challenge the rescission. And any possible defenses are waived if not filed during that period of time. That action by the “lender” or “creditor” must be an equitable action to set aside the rescission, which is already “effective” by operation of law.

The worst case scenario would be that rescission is the most effective discovery tool available. If the lender(s) file the 20 day action they would need to establish their positions as creditors WITHOUT the note and mortgage (which are ALREADY VOID). This would require proof of payment and proof of economic interest and proof of ownership and balance. Any failure to plead these things would fail to establish standing. The attempt to use the note and mortgage as proof or the basis of pleading should be dismissed easily. The note and mortgage are void by operation of law by the time the bank or servicer files its action.

In all probability the only parties who actually have an interest in the debt are clueless investors who by contract have waived their right to enforce or participate in the collection process. The problem THEY have is they gave their money to a securities broker. They can neither show nor even allege that they know what happened to their money after they gave it to the broker.

The important thing about TILA Rescission is that it is a virtual certainty that the borrower will be required to file an enforcement action. In that action they should not allow themselves to get sucked into an argument over whether the rescission was correct, fair, barred by limitations or anything else, all of which should have been raised within the 20 day window. AND that recognition is the reason why we have been inundated to prepare pre-litigation packages, analysis and reports to assist lawyers in filing actions to enforce rescissions, whether filed today or ten years ago.

Caveat: I have no doubt that attempts will be made to change the law. The Supreme Court has made changing the law impossible by a ruling from the bench, That means state legislatures and Congress are going to be under intense pressure to change this law or the effect of it. But as it stands now, I don’t think any other analysis covers all the bases like the one expressed here.

Filed under: foreclosure | Tagged: , , , , , | 331 Comments »

Rescission: Window of Opportunity for Borrowers

Posted on April 6, 2015 by Neil Garfield

For further information please call 954-495-9867 or 520-405-1688

We have a pilot program for assistance with rescission — past, present or future. Just call one of the numbers shown above.

NOTE THAT THIS IS FOR GENERAL INFORMATION AND EXPRESSES THE OPINION OF THE WRITER. THIS SHOULD NOT BE USED A SUBSTITUTE FOR ADVICE FROM AN ATTORNEY LICENSED IN THE JURISDICTION IN WHICH YOUR PROPERTY IS LOCATED.

==========================

The basic premise, legally, is that a rescission letter is defined as effective when it is dropped in the mail. Of course if the defense is that there is no loan contract to rescind, then the rescission is ineffective but you get to the same result because they note and mortgage arose out of a nonexistent contract.

The key issue is that under TILA there is a very specific procedure and a small window of opportunity in which a “lender” can challenge the rescission. The Banks and their lawyers are having trouble with this and I expect that there will be changes in the law. But right now, the statute and Scalia’s opinion makes it very clear that TILA rescission is subject to an entirely different set of rules than common law rescission — the key component of which is that the “Borrower has nothing else to do” to make the rescission effective. It is effective the moment it is dropped in the mail.

And the importance of THAT is there is NO permissible “interpretation” nor “discretion” to find or even consider anything else. And THAT means that even if the “lender” or “creditor” has perfectly legitimate defenses to the rescission, the rescission is still nonetheless effective BY OPERATION OF LAW.

That language “by operation of law” is very important because it means the act of the borrower in signing and sending the notice of rescission is the same as a court order canceling the loan.

And therefore the ONLY thing that could set the rescission aside is a court order from a court of competent jurisdiction. But no court has any jurisdiction to consider the question of whether the rescission is effective, UNLESS they file a lawsuit within 20 days of the notice. This is similar to the deadlines for motions for rehearing, deadline for notice of appeal, or deadline for borrowers to challenge Notice of Sale in non judicial sale. If you miss the deadline, you are done — no exceptions.

The reason why Congress wrote the statute that way is to prevent the Banks from using stonewalling as a technique to hold up the effectiveness of the rescission. They do not have that option, they file or they lose the loan. AND after the 20 day period has expired, the ONLY thing that a Judge can consider is the borrower’s petition to ENFORCE THE RESCISSION.

Hence the “Bank” cannot bring up a defense about whether the rescission was effective when the borrower’s enforcement action is filed. Their only defense would be that they are (a) not the lender and never received any money from the borrower or the borrower’s “closing” or (b) that they performed already as required by statute — return of canceled note,filing of satisfaction of mortgage and return of all money paid by borrower and disgorgement of of all fees and costs at closing (including undisclosed compensation).

I therefore conclude that in the current statutory scheme if the Bank does not file the challenge to the rescission within the 20 day window, they can never bring it up again — no matter how patent the “defense” might appear on the documents or the notice of rescission. I am sure that the bank WILL defend by saying that the notice was not filed within the time limits prescribed by law (statute of limitations) or some that the made all required disclosures. But these are affirmative defenses and not jurisdictional issues that are obvious on the face of the applicable documents. Hence such Bank or Servicer defenses to the borrower’s enforcement action are barred  because they missed their window of opportunity to bring them up within the 20 day period in which they could challenge the rescission.

In addition, no claim can be made by anyone for money to pay the balance of the debt (which becomes unsecured the moment the notice of rescission is mailed) unless compliance is complete — return of note, filing satisfaction mortgage and return of money to the borrower.

I therefore conclude that there is nothing illegal about sending a notice of rescission on any existing loan (i.e., existing legally, having not been previously canceled by a notice of rescission). And since both the statute and the US Supreme Court both say that the sending of the notice of rescission or cancellation is effective by operation of law upon dropping a letter into a mailbox, then any loan could be subject to a notice of rescission (although I expect that some changes are being sought by banks to prevent the “abuse” of the TILA rescission).

Accordingly in my opinion, anyone who has an arguable problem with their loan origination should be able to send a notice of rescission and simply wait for 20 days, or perhaps a few more for mailing, to see if anyone sues them challenging the rescission. If they don’t sue, then there is nothing to prevent the borrower from seeking to enforce the rescission which was effective when they dropped it in the mail.

And I think that anyone who has a copy of such a rescission notice but doesn’t have either a return receipt or a response from the “lender” showing that it was received can nonetheless seek enforcement of that rescission, which was effective whenever they say it was mailed, whether dated or not. Testimony from the borrower that it was sent on, for example, October 1, 2009 is sufficient.

If the defense is that the notice of rescission or notice cancellation (SAME THING) was never received, the Bank is going to be required to prove that it was not received because of the presumption of notice upon mailing. Given the horrible record-keeping and fabrication of records that the Banks have established, the credibility of the Banks is not likely to carry the day.

In summary I think that any claim that any rescission notice is invalid can ONLY be brought in the 20 window. Any other interpretation would violate the expressed opinion by the US Supreme Court and TILA and Reg Z that “nothing further is required” from the borrower. The notice is simply effective when sent. If anyone wants to contest that, they have a short window in which to do it. I have no doubt that the Banks will defend TILA rescission enforcement actions with defenses that essentially say that the notice of void on its face for one reason or another. My point is that whatever is their point of defense is barred if they did not file the required challenge during heir window of opportunity.

Remember that issue as to the date of consummation, the statutes of limitations, the disclosures that were made are all issues predicated upon real facts and legal interpretation. TILA rescission was written so that a borrower could cancel a loan without a lawyer. That much is true. But it is obvious that the banks are not going to comply with TILA rescission requirements and that enforcement actions will be required on behalf of borrowers. Judges tend to hate TILA and they hate TILA rescission even more. But there really is no discretion and no jurisdiction here unless some Judge thinks he or she can overrule the US Supreme Court. Based upon the US Constitution, that could only work in some other country with a different law of the land.

My best guess is that the right to rescind is going to get more narrow as time goes by rather than broadening. I don’t think we will see the door open this wide ever again.

Filed under: foreclosure | Tagged: , , , , , | 52 Comments »

Two Different Worlds — Note and Mortgage

Posted on February 19, 2015 by Neil Garfield

Further information please call 954-495-9867 or 520-405-1688

No radio show tonight because of birthday celebration — I’m 68 and still doing this

==============================

The enforcement of promissory notes lies within the context of the marketplace for currency and currency equivalents. The enforcement of mortgages on real property lies within the the context of the marketplace for real estate transactions. While certainty is the aim of public policy in those two markets, the rules are different and should not be ignored.

==============================

see http://www.uniformlaws.org/Shared/Committees_Materials/PEBUCC/PEB_Report_111411.pdf

This article is not a substitute for getting advice from an attorney licensed to practice in the jurisdiction in which your property is or was located.

Back in 2008 I had some correspondence and telephone conversations with an attorney in Chicago, Robert Wutscher when I was writing about the reality of the way in which banks were doing  what they called “securitization of mortgages.” Of course then they were denying that there were any trusts, denying that any transfers occurred and were suing in the name of the originator or MERS or anyone but the party who actually had their money used in loan transactions.  It wasn’t done the right way because the obvious intent was to play a shell game in which the banks would emerge as the apparent principal party in interest under the illusion created by certain presumptions attendant to being the “holder” of a note. For each question I asked him he replied that Aurora in that case was the “holder.” No matter what the question was, he replied “we’re the holder.” I still have the letter he sent which also ignored the rescission from the homeowner whose case I was inquiring about for this blog.

He was right that the banks would be able to bend the law on rescission at the level of the trial courts because Judges just didn’t like TILA rescission. I knew that in the end he would lose on that proposition eventually and he did when Justice Scalia, in a terse opinion, simply told us that Judges and Justices were wrong in all those trial court decisions and even appellate court decisions that applied common law theories to modify the language of the Federal Law (TILA) on rescission. And now bank lawyers are facing the potential consequences of receiving notices of TILA rescission where the bank simply ignored them instead of preserving the rights of the “lender” by filing a declaratory action within 20 days of the rescission. By operation of law, the note and mortgage were nullified, ab initio. Which means that any further activity based upon the note and mortgage was void. And THAT means that the foreclosures were void.

Is discussing the issue of the “holder” with lawyers and even doing a tour of seminars I found that the confusion that was apparent for lay people was also apparent in lawyers. They looked at the transaction and the rights to enforce as one single instrument that everyone called “the mortgage.” They looked at me like I had three heads when I said, no, there are three parts to every one of these illusory transactions and the banks fail outright on two of them.

The three parts are the debt, the note and the mortgage. The debt arises when the borrower receives money. The presumption is that it is a loan and that the borrower owes the money back. it isn’t a gift. There should be no “free house” discussion here because we are talking about money, not what was done with the money. Only a purchase money mortgage loan involves the house and TILA recognizes that. Some of the rules are different for those loans. But most of the loans were not purchase money mortgages in that they were either refinancing, or combined loans of 1st mortgage plus HELOC. In fact it appears that ultimately nearly all the outstanding loans fall into the category of refinancing or the combined loan and HELOC (Home Equity Line of Credit that exactly matches the total loan requirements of the transaction (including the purchase of the home).

The debt arises by operation of law in favor of the party who loaned the money. The banks diverged from the obvious and well-established practice of the lender being the same party as the party named on the note as payee and on the mortgage as mortgagee (or beneficiary under a Deed of Trust). The banks did this through a process known as “Table Funded Loans” in which the real lender is concealed from the borrower. And they did this through agreements frequently called “Assignment and Assumption” Agreements, which by contract called for both parties (the originator and the aggregator to violate the laws governing disclosure (TILA and frequently state law) which means by definition that the contract called for an illegal act that is by definition a contract in contravention of public policy.

A loan contract is created by operation of law in which the borrower is obligated to pay back the loan to the source of the funds with or without a written instrument. If the loan contract (comprised of offer, acceptance and consideration) does not exist, then there is nothing to enforce at law although it is possible to still force the borrower to repay the money to the actual source of funds through a suit in equity — mainly unjust enrichment. The banks, through their lawyers, argue that the Federal disclosure requirements should be ignored. I think it is pretty clear that Justice Scalia and a unanimous United States Supreme Court think that argument stinks. It is the bank’s argument that should be ignored, not the law.

Congress passed TILA specifically to protect consumers of financial products (loans) from the overly burdensome and overly complex nature of loan documents. This argument about what is important and what isn’t has already been addressed in Congress and signed into law against the banks’ position that it doesn’t matter whether they really follow the law and disclose all the parties involved in the transaction, the true identity of the lender, the compensation of all the parties that made money as a result of the origination of the loan transaction. Regulation Z states that a pattern of behavior (more than 5) in which loans are table funded (disclosure of real lender withheld from borrower) is PREDATORY PER SE.

If it is predatory per se then there are remedies available to the borrower which potentially include treble damages, attorneys fees etc. Equally important if not more so is that a transaction, whether illusory or real, that is predatory per se, is therefore against public policy and the party seeking to enforce an otherwise enforceable document cannot do so because of the doctrine of unclean hands. In fact, if the transaction is predatory per se, it is dirty hands per se. And this is where Judges get stuck and so do many lawyers. The outcome of that unavoidable analysis is, they say, a free house. And their remedy is to give the party with unclean hands a free house (because they paid nothing for the origination or acquisition of the loan). I think the Supreme Court will not look kindly upon this “legislating from the bench.” And I think the Court has already signaled its intent to hold everyone to the strict construction of TILA and Regulation Z.

So there are two reason the debt can’t be enforced the way the banks want. (1) There is no loan contract because the source of the money and the borrower never agreed to anything and neither one knew about the other. (2) the mortgage cannot be enforced because it is an action in equity and the shell game of parties tossing the paperwork around all have unclean hands. And there is a third reason as well — while the note might be enforceable based merely on an endorsement, the mortgage is not enforceable unless the enforcer paid for it (Article 9, UCC).

And THAT is where the confusion really starts — which bank lawyers depend on every time they go to court. Bank lawyers add to the confusion by using the tired phrase of “the note follows the mortgage and the mortgage follows the note.” At one time this was a completely true presumption backed up by real facts. But now the banks are asking the courts to apply the presumption even when the courts actually know that the facts presumed by the legal presumption are untrue.

Notes and mortgages exist in two different marketplaces or different worlds, if you like. Public policy insists that notes that are intended to be negotiable remain negotiable and raise certain presumptions. The holder of a note might very well be able to sue and win a judgment ON THE NOTE. And the judgment holder might be able to record a judgment lien and foreclose on it subject to homestead exemptions.

But it isn’t as simple as the banks make it out to be.

If someone pays for the note in good faith and without knowledge of the borrower’s defenses when the note is not in default, THAT holder can enforce the note against the signor or maker of the note regardless of lack of consideration or anything else unless there is a provable defense of fraud and perhaps conspiracy. But any other holder steps into the shoes of the original lender. And if there was no consummated loan contract between the payee on the note and the borrower because the payee never loaned any money to the borrower, then the holder might have standing to sue but they don’t have the evidence to win the suit. The borrower still owes the money to whoever was the source, but the “holder” of the note doesn’t get a judgment. There is a difference between standing to sue and a prima facie case needed to win. Otherwise everyone would get one of those mechanical forging machines and sign the name of someone with money and sue them on a note they never signed. Or they would promise to loan money, get the signed note and then not complete the loan contract by making the loan.

So public policy demands that there be reasonable certainty in the negotiation of unqualified promises to pay. BUT public policy expressed in the UCC Article 9 says that if you want to enforce a mortgage you must not only have some indication that it was transferred to you, you must also have paid valuable consideration for the mortgage.

Without proof of payment, there is no prima facie case for enforcement of the mortgage, but it does curiously remain on the chain of title of the property (public records) unless nullified by the fact that the mortgage was executed as collateral for the note which was NOT a true representation of the loan contract based upon the real debt that arose by operation of law. The public policy is preserve the integrity of public records in the real estate marketplace. That is the only way to have reasonable certainty of title and encumbrances.

Forfeiture, an equitable remedy, must be done with clean hands based upon a real interest in the alleged default — not just a pile of paper that grows each year as banks try to convert an assignment of mortgage into a substitute for consideration.

Hence being the “holder” might mean you have the right to sue on the note but without being a holder in due course or otherwise paying fro the mortgage, there is no automatic basis for enforcing the mortgage in favor of a party with no economic interest in the mortgage.

see also http://knowltonlaw.com/james-knowlton-blog/ucc-article-3-and-mortgage-backed-securities.html

Filed under: foreclosure | Tagged: , , , , , , , , , , , , , | 107 Comments »

UNANIMOUS SCOTUS: TILA Rescission Effective on Notice: No Borrower Lawsuit Required

Posted on January 14, 2015 by Neil Garfield

For further information please call 954-495-9867 or 520-405-1688

=============================

TENDER IS NOT REQUIRED FOR RESCISSION TO BE EFFECTIVE

SCOTUS DECISION CONVERTS RESCINDED SECURED DEBT TO UNSECURED

EFFECT ON OLD BANKRUPTCY CASES UNKNOWN

see TILA Rescission

The decision is merely a statement of the obvious. Scalia, writing for a UNANIMOUS court said that the statute means what it says. All the decisions in all the states requiring the borrower to file suit to enforce rescission are wrong. The court says the rescission is effected upon notice to the “lender.” What that means to me is that the subsequent foreclosure, non-judicial or judicial is void because there is no mortgage. TILA says that unless the “lender” files suit within a specified period of time the rescission is effective as of the date of notice. It goes on to say that the “lender” just send back all payments and a satisfaction of mortgage and canceled note.

The three year statute of limitations applies to notice — not a lawsuit filed by borrower. The burden is on the lender to contest the rescission and failing to do so within the 20 days (the time varies depending upon when you sent your notice of rescission) the deal is over.

What you have left is an unsecured debt that can be discharged in bankruptcy because TILA says the mortgage is gone. What effect this will have on the thousands of cases in which borrowers sent notices of rescission and were foreclosed remains to be seen, but it sure will be interesting to see what the courts do.

http://www.supremecourt.gov/opinions/14pdf/13-684_ba7d.pdf

“Held: A borrower exercising his right to rescind under the Act need only provide written notice to his lender within the 3-year period, not file suit within that period. Section 1635(a)’s unequivocal terms—a borrower “shall have the right to rescind . . . by notifying the creditor . . . of his intention to do so” (emphasis added)—leave no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. This conclusion is not altered by §1635(f), which states when the right to rescind must be exercised, but says nothing about how that right is exercised. Nor does §1635(g)—which states that “in addition to rescission the court may award relief . . . not relating to the right to rescind”—support respondents’ view that rescission is necessarily a consequence of judicial action. And the fact that the Act modified the common-law condition precedent to rescission at law, see §1635(b), hardly implies that the Act thereby codified rescission in equity. Pp. 2–5.”

729 F. 3d 1092, reversed and remanded.

SCALIA, J., delivered the opinion for a unanimous Court.

While there are certain parts of this statute that are not completely clear, I have always felt that this law would eventually be the downfall of the entire foreclosure mess.

As for the statute of limitations it is not yet determined when the “transaction” has been “Consummated.” But one thing is clear — the three year period and the more narrow three day period for rescission is not “fixed.” The framers of this law understood that there might be defective disclosures that would and should defeat the claim of the “lender” that the transaction was consummated on the date that the documents were signed. If the disclosures were incomplete or just plain wrong, it appears that the framers did not want the time limit running on borrowers until the disclosures were correct and proper.

If the disclosures had the wrong numbers (more than $35 deviation from true numbers) then delivery of the disclosures has not yet occurred. And the statute is very specific in stating that the “closing” is not complete until those disclosures have been made to the borrower and accepted by the borrower.

There remains many questions that will need to be answered in the Courts. Probably the biggest one is what happens in cases where the borrower properly gave notice of rescission, and where some entity initiated foreclosure after the notice of rescission. Since TILA says that the mortgage no longer exists, the foreclosure would logically be void. Any sales of the property pursuant to the foreclosure of a nonexistent mortgage would also be void.

And any claim for quiet title directed against the parties who claim interests in the recorded mortgage would appear to be a slam dunk in cases where the notice of rescission is effective. The right to receive a satisfaction of mortgage, which TILA calls for, means that the mortgage should not be in the chain of title of the owner of the property.

But that doesn’t clear up the question of what to do about events that have long since passed. There is no statute of limitations (except perhaps adverse possession) on title defects. If the title defect exists, it is there, by law, for all time. People who have purchased property that was involved in foreclosure and where the former owner canceled the mortgage by giving notice of rescission have a built in title defect. None of the sales of such property either through forced sale in foreclosure or third party sales would be anything more than a wild deed.

For more free information about TILA Rescission use the search engine on this blog going back to 2007-2008. The Supreme Court has unanimously confirmed what I wrote back when I was the sole voice in the wilderness. Opinions ranging from scathing orders from trial judges to lofty opinions from appellate courts in the state court and federal system unanimously stated that I was wrong. Now the U.S. Supreme Court — the final stop in any dispute — has also been unanimous, stating that all those orders, opinions and judgments were wrong on this issue. As a result millions of homes were subject to foreclosure actions on mortgages that no longer existed. And millions more, hearing advice from attorneys, failed to send the notice of rescission to take advantage of this important remedy.

Filed under: foreclosure | Tagged: , , , , , , , , , | 19 Comments »

%d bloggers like this: