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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
Hat tip to Eric Mains
In this case the Illinois Court comes to several conclusions about which I have been writing for years:
- A reverse mortgage may be rescinded
- A TILA rescission may not be ignored by parties claiming a right to collect or enforce the note and mortgage.
- No court except the U.S. Supreme Court can overrule a SCOTUS decision
- No court may legislate. It is clear to this court that “lower courts” (i.e., any court other than the Supreme Court of the Untied States) are prohibited from changing a SCOTUS decision and prohibited from changing legislation.
- The right to rescind extends to anyone who signed the mortgage regardless of whether they signed the promissory note or otherwise agreed to pay the loan. And it might extend further.
- The change in Reg Z transferring rule making authority from the Federal Reserve to the Consumer Financial Protection Board creates no gaps, to wit: whatever the rules were under the Federal Reserve tenure are the same under the CFPB tenure, unless changed by the CFPB.
The court found that Congress agreed with TILA’s expanded definition, because it had been in existence since 1968, and Congress had never amended it, even when it recently “moved authority from the *** Board to the Consumer Finance Protection Bureau to oversee TILA.” Id. ¶¶
” Thus, “[b]ased on Regulation Z and the commentary,” the supreme court held that “the right to rescind extends to each consumer whose ownership interest is or will be subject to the security interest or is subject to the risk of loss.” (Internal quotation marks omitted.) Id. ¶ 30
But in interpreting federal law, we are bound by the decisions of our supreme court and the United States Supreme Court, not lower federal courts. See Bowman v. American River Transportation Co., 217 Ill. 2d 75, 91-92 (2005) (decisions of lower federal courts are persuasive, but not binding, when Illinois court is interpreting federal law);
People v. Fountain, 2012 IL App (3d) 090558, ¶ 23 (this court is bound by our supreme court’s interpretation of federal law “unless and until that conclusion is revisited by our supreme court or overruled by the United States Supreme Court”
Filed under: foreclosure |