Not legal advice, for informational purposes only.
TILA rescission is effective by optional law, the moment it is sent to the lender.
So, what does all this really mean for mortgage loan contracts?
Once a letter to rescind and cancel a mortgage loan contract is sent, an event has occurred that can’t be easily undone. So to undo the event requires an Judgment against the event that occurred.
Usually, the mortgage lender will just send a letter to the homeowner, stating that the TILA rescission is rejected as untimely and denied.
However, the Supreme Court of the Untied States ruled that TILA rescission is a nonjudicial remedy by operational law in Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015).
So just because the lender rejects and denies a TILA rescission, it does not make it so…. When the Supreme Court of the Untied States ruled that TILA rescission is a nonjudicial remedy by operational law.
This is why TILA is referred to as operational law.
What is a TILA??
The Truth in Lending Act (TILA) is a federal law passed in 1968 to ensure that consumers are treated fairly by businesses in the lending marketplace and are informed about the true cost of credit. … It does require lenders to disclose information about all charges and fees associated with a loan.
In Mortgage Cancellation Secrets Forms, it’s detailed how-to identify fraud disclosures that occurred to rescind and cancel a mortgage loan contract.
To challenge a TILA rescission will also require that a mortgage lender must have standing.
Fraud is a deliberate misstatement of a material fact. Misrepresentation is a bonafide representation of misstatement believing it to be true which turns out to be untrue.
Loans sold on Wall Street (which are most mortgages) are in violations of TILA at loan origination and most homeowners don’t know this…The original mortgage lender proclaims to be the creditor funding the mortgage loan contract.
There is a specific TILA violation that asserts that a Promissory Note can’t extend beyond nine months period. So when a mortgage loan is 30 years (like 99% of most mortgages) this is deliberate misstatement of a material fact for who is actually funding the mortgage loan. An act of fraud where the original lender can’t be the true creditor funding the mortgage loan contract…because the mortgage loan contract is extending beyond nine months. That’s considered a deliberate misstatement of a material fact!
So it’s essentially a bait and switch when an Assignment Transfer comes into play. Such as a bonafide representation of misstatement believing it to be true which turns out to be untrue. A misrepresentation that one party was the true creditor and lender that was not.
This is the primary reason why lenders will never challenge TILA rescission in court. The lender would need to have standing as the Plaintiff to challenge the TILA rescission.
Upon receiving a TILA rescission the lender has only 20 days to act. The options are to comply by cancelling the security instrument (voiding it entirely, no debt owed) and returning all payment made including down payment. To oppose TILA rescission the lender has exactly 20 days to seek declarative relief against the operational law.
How can the lender oppose TILA rescission if there is no standing to do so?
To oppose TILA rescission the lender must have standing….That would mean that the lender is the Real Party In Interest….Lenders never ever really appear in court regarding foreclosure or TILA rescission issues. Lenders generally send an Robo Plaintiff, their attorney as their fact witness. Which is not possible but most homeowners and even foreclosure defense lawyers don’t know to raise this issue…Where the lender is not actually appearing but sending a Robo Plaintiff (their attorney and law firm) representing them.
The lender must be the true beneficiary, like say a true holder in due course. This would require not using a Robo Beneficiary also. Which is typically what most lenders will do….To have standing to oppose TILA rescission will require that the lender as the Plaintiff is a true injured party.
How could the lender be the true injured party from the TILA rescission, when the loan documents were in TILA violations where the promissory note extended beyond nine months??
This would mean that all the loan closing documents must contain a legitimate transaction….
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