Hat tip to Ken McLeod and to Ron Ryan who argued endlessly that the former ruling was wrong in Arizona. Ron Ryan is a good lawyer and Ken McLeod is a good investigator. Both have years of experience investigating, analyzing and fighting illegal foreclosures.
Courts are catching on and as I have predicted, the ultimate determination of the merits of foreclosure cases are largely going to turn on the application of the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). Previously this same court held that tender of the money was required to rescind a transaction — the exact opposite of what the Federal statutes and regulations required. Now, correcting its prior error, the court says that a cause of action and defense exists by pleading rescission. Any document indicating the intent to rescind is sufficient.
The purpose of the TILA provision was to put the burden on the lender to prove that they had complied with all aspects of TILA in providing adequate disclosure and otherwise performing those acts required for a valid closing. If the defense is that the loan contract was not completed because of lack of consideration or other violations of TILA or RESPA, then the appropriate action is to send a rescission letter. It then falls on the “lender” to file an action within 20 days to object to the rescission or return all money paid by the borrower and to file a satisfaction of mortgage along with returning the canceled note. And since the allegation of no consideration leaves nothing to be tendered “back”, there is no impediment to going forward with discovery.
This forces “lenders” to essentially file a judicial foreclosure suit and prove they made the loan, they have the right paperwork and made the right disclosures. Table funded loans are going to give them a problem since Reg Z says that any pattern of conduct with table-funded loans is “predatory per se,” it is hard to imagine that this decision won’t stop the “lenders” dead in their tracks.
The requirement of tender assumed that the “lender” had actually made the loan and was the source of funds. Now the Courts are starting to realize that there was a switch at closing with the borrower and very likely a switch at closing with the real lenders — the investors who thought they were buying valuable mortgage bonds. With the borrowers the closing agent took money from an undisclosed party and then had the borrower sign documents in favor of another party. With the investors, the investment bank took money from the investors and instead of funding the trust, used the money and the documents from closing as though it were their own.
Hence the need to fabricate endorsements, assignments etc. If the “securitization” of the loan had taken place there would be a chain of monetary transactions leading up to the ultimate transfer to the trust who would have issued payment for the loan. There would have been no need to fabricate, forge, or robosign documents and certainly no loss of loans due to destruction or misplacement, because the documents would have been forwarded to the named Depository.
The result was that the burden was placed on borrowers with the least access to the real information on the loan and an easy path of defense to the party with the most access to the real facts of the loans and alleged transfers of the loan. TILA was meant to level the playing field. If the borrower invoked rescission without right, then there were consequences. This law was passed to prevent predatory lenders escaping the consequences of illegal actions simply because they had greater resources, sophistication and factual knowledge.
Be careful here. There are several types of rescission — 3 Day, 3 Year and common law. Consult with an attorney who is licensed to practice in the jurisdiction in which your property is located.
For more information call 954-495-9867 or 520-405-1688
Merritt v. Countrywide Financial Corp.
9th circuit opinion Issued July 16, 2014
Summary: Plaintiffs filed suit against Countrywide and others involved in their residential mortgage, alleging violations of numerous federal statutes. The district court dismissed the claims with prejudice and plaintiffs appealed. The court held that plaintiffs can state a claim for rescission under the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., without pleading that they have tendered, or that they have the ability to tender, the value of their loan; only at the summary judgment stage may a court order the statutory sequence altered and require tender before rescission – and then only on a case-by-case basis; and, therefore, the court reversed the district court’s dismissal of plaintiffs’ rescission claim and remanded for further proceedings. The court held that, although the limitations period in the Real Estate Settlement Practices Act (RESPA), 12 U.S.C. 2614, ordinarily runs from the date of the alleged RESPA violation, the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the violation; just as for TILA claims, district courts may evaluate RESPA claims case-by-case; and, therefore, in this case, the court vacated the dismissal of plaintiffs’ Section 8 of RESPA claims on limitations grounds and remanded for reconsideration.
Filed under: AMGAR, CASES, CORRUPTION, discovery, evidence, foreclosure, foreclosure defenses, GTC | Honor, investment banking, MBS TRUSTEE, MODIFICATION, Mortgage, originator, Pleading, Servicer, STATUTES, Title, TRUST BENEFICIARIES, trustee | Tagged: BURDEN OF PROOF, home mortgages, Merritt v Countrywide, rescission, table funded loans, tender | 53 Comments »