livinglies.files.wordpress.com | June 28, 2015
by Neil Garfield
Bank Lawyer’s Seminar: Rescission Changes Everything
From one of my readers, I received the Power Point Presentation (PDF) given by a law firm representing the banks. It confirms everything I have been saying. It also offers a glimpse of some of the ways they will try to wiggle out of it.
Suffice it to say that in addition to losing far more cases than what has been previously been reporting, the banks are now stuck with a problem that they can't fix, to wit: when they try to "securitize" a pool of new loans they cannot say that the deal is done because the borrower could assert a right to rescind triggering a nightmare of problems for all the parties starting with origination. The appetite for mortgage backed securities is almost certainly going to decline or vanish completely.
Key points from seminar: (You would think I was the presenter!)
- Mailing the notice is sufficient to cancel the loan, note and mortgage.
- No tender or money or property is required
- It is risky for lender to ignore notice of rescission
- Rescission is really a borrower's remorse remedy
- Bringing suit immediately is the only way to end the issue --- but only if you have absolute proof of the loan and the disclosures conforming to TILA.[Editor's note: any failure to disclose compensation off the books of the "closing" would probably be evidence of non-disclosure on multiple levels]
- AFTER the lender has complied with 1635(b) (termination of security interest), after the lender has returned the canceled note and after the lender has complied with 12 CFR 1026.23(d)(2) (Return of any money or property that has been given to anyone) THEN the borrower must tender[Editor's Note: This imposes a requirement that will put the trusts in immediate conflict with the investors and the facts. In order to "return" the money to borrower somebody has to pay it. The servicers, the banks sand the trusts don't have any investment in these loans. They have been getting a free ride for years. They can't go to the investors for the money and ask them so they can only advance the funds and hope they will get it back or just steal it from investors, which looks eerily like the start of mortgage securitizations]
- According to TILA the lien is void upon mailing of the notice.
- Banks better do their homework and identify all the loans that are not supported by TILA disclosures. [Editor's note: My observation is that this is approximately 90%-96% of all alleged mortgage loans. As I said in 2007-2008: In my opinion the vast majority of all loans produced void notes and mortgages or were subject to rescission which results in the same thing --- cancellation of the note, cancellation of the encumbrance, and disgorgement of all money paid.]
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager
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