Just a short notice to everyone who has been following my blog. I may have over-emphasized Rescission as a strategy to the point where people are getting the impression that they don’t need to raise traditional defenses of standing, ownership, rights to enforce, authority, balance compliance with the contract in issuing notice of default etc.
Rescission is only one of the strategies to be employed in the right circumstances. We analyze the entire case and search for discrepancies, inconsistencies, lack of standing and many other defenses that have been successfully employed by us and others in foreclosure defense work.
The reason I am writing this is that in the last couple of weeks people have been calling saying that they have gotten nowhere with the traditional defenses and now want to try rescission. The problem is that most of those are coming after a final judgment of foreclosure and even after sale — at which point there is no loan contract to cancel and no note to render void.
The other problem that I have tried to emphasize is that rescission, especially if it is recorded, WILL result in further litigation that in most cases will require an appeal to have a likelihood of success. As simple as it is in the statute and in what the Supreme Court said, the banks are trying every angle to escape from it except compliance with 15 USC §1635.
So whether you are coming to us or going to any other law firm or forensic people, you need a thorough analysis of everything that happened with your alleged loan and a careful examination of the pleadings if you are already in court. We readily understand the reluctance to spend more money on what has been a frustrating experience, but the ONLY way you can select a strategy that will or might get traction is by having an experienced eye do a thorough review and report.
There is no magic bullet here. The attitude of the courts are changing but the deck is still stacked against the borrowers. The borrowers who are winning their cases are doing so because their attorney has carefully analyzed every piece of paper and selected not a shotgun but a rifle with a handful of bullets on which he or she will seek to focus the court’s attention.
Since 2006 I have maintained that TILA Rescission is the great leveler. But it means nothing if courts won’t apply it. The trial courts are clearly dodging and weaving around rescission. So if you are using this strategy, you can expect litigation on alternative theories in many cases, to wit: either the loan contract was never consummated or it was canceled by rescission. Either way the mortgage is gone — but not until you can get a judge to say that. Relying solely upon rescission without aggressively defending the foreclosure is fighting with one arm tied around your back.
Get an analysis from someone who understands what they are looking at. And if your lawyer chooses not to use rescission he or she is only looking out for your best interests since the litigation over TILA rescission can be expensive and lengthy. It doesn’t matter if I am right about it. What matters is what can work.
As I said yesterday despite a clear announcement from the Supreme Court bank lawyers and trial judges are nevertheless litigating the same issues as though the statute, the regulations and the Supreme Court are irrelevant.
We have seen hundreds of thousands of rescissions over the years and most of them did in fact cancel the loan contract and void the note and mortgage, as a matter of law.
Thousands of judges on the trial bench and the appellate bench got it totally wrong. Apparently they are still rebelling and seeking to get it wrong again. In effect these courts are over-ruling the Supreme Court of the United States which is impossible under our constitution. Right or wrong, that means that extra effort must be put into more traditional defenses, which are in fact getting increasing traction.
Filed under: foreclosure