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Illinois Trial Court Overruled: Rescission IS Effective

Posted by Neil Garfield | October 2, 2017

As usual, the trial judge wanted no part of TILA Rescission. In December, 2016 the appellate court said the failure of Beneficial to respond to TILA Rescission notice within 20 days made the rescission final and irrevocable — something I have been saying to nay-sayers for 10 years.

See TILA‐ Beneficial Illinois Inc. v. Parker, 2016 IL App (1st)160186

Defendant-appellant, Randall Parker (Randall), refinanced his home loan mortgage with plaintiff‐appellee, Beneficial Illinois Inc., d/b/a Beneficial Mortgage Company of Illinois (Beneficial), in July 2007. In October 2008, he stopped making the required payments and Beneficial instituted a foreclosure proceeding in October 2009. In June 2010, Randall attempted to rescind the mortgage by mailing a letter to Beneficial. Beneficial never
responded and proceeded with the foreclosure litigation.

It specifically says the response from Beneficial had to be made within 20 days of the notice of rescission.

It specifically states that no lawsuit is required to effectuate rescission, thus strengthening the argument that the rescission was effective when mailed and could have been vacated by legal action but no legal action was taken.

And it shows what happens when neither party files a lawsuit to enforce or vacate the rescission within one year — the actions are time‐barred after one year. So you are left with a void note and mortgage thus justifying the cancellation of the instrument in the chain of title.

Thus anyone claiming to be a “creditor” may not relyupon the mortgage or note to enforce coelection. And absed upon the wording of the statute, even if there is a genuine “creditor” in the mix, it appears that no action may be taken to enforce the debt either in any lawsuit.

The choice of the creditor to ignore the notice of TILA rescission is a dangerous choice — blocking any right to enforce a void note and void mortgage, rendered void by operation of law; and blocking any attempt to collect on the debt under any other grounds because they failed to follow the TILA statutory procedure which appears to be the only procedure available to enforce the debt.

Beneficial’s actions display stonewalling and arrogance. The clear intent was to steamroll the judge and the homeowner, preventing the homeowner from clear-cut relief in the Truth in Lending Act. Now they have painted themselves into a corner. There is no debt or document left to enforce.

 

 

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