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LA Lawyer Patricia Rodriguez (TILA Rescission is boiling over the top. And there are differences between non-judicial states and judicial states. The main problem though is that desperate homeowners are hearing something different than the real message: rescission is as close to a magic bullet as we have seen but it is still susceptible to multiple issues in litigation. Rescission is certainly effective upon mailing and that appears to be true even if the notice is wrongfully sent. The burden of vacating the rescission is on the so-called lender. But there are still circumstances where the notice of rescission itself may well render it void even if mailed. Admitting that the transaction was consummated on a specific date where the rescission letter itself has both the consummation date and the date of mailing might encourage judges to strike down the rescission or vacate it because it is void on its face if the notice was sent after the three year period. It is true that the statute of limitations is an affirmative defense and that the ability to raise an affirmative defense depends upon your standing to raise the issue. Patricia Rodriguez agrees that the argument could still be made that the rescission is effective but the more information on the rescission, the more likely the Judge will find the rescission void on its face even if mailed.
Filed under: foreclosure |