June 23, 2017

Huge TILA Rescission Victory in Oregon

A homeowner who retained our services to investigate his mortgage loan just recently scored a major victory in US District Court in Oregon in Barnes v. Chase Home Finance.

Our investigation revealed that the borrower, Timothy Barnes, had the extended right to rescind his loan under TILA/Regulation Z due to material disclosure violation by the original lender. We assisted Mr. Barnes in drafting the appropriate notices to rescind his loan and he subsequently elected to send the notices and rescind.

At the time the first notices were sent, Chase Home Finance was the servicer. Chase failed to respond appropriately to the rescission notice. Chase subsequently decided to transfer servicing to IBM Lender Business Process Services. Notice of Chase’s failure to rescind and/or respond according to the requirements under TILA/Reg. Z was provided to IBM. IBM also failed to respond according to the regulations and refused to rescind.

Mr. Barnes subsequently drafted and filed a Pro Se complaint in federal court. Chase and IBM have been playing games in this case and they filed a Motion to Dismiss (predictable). The federal magistrate assigned to the case seems to have a real bias for the banks and handed down a terribly misguided decision dismissing Mr. Barnes’ claims. He objected to the magistrate’s jurisdiction and essentially appealed the woefully wrong conclusions.

Judge Anna Brown analyzed the issues, pleadings, etc. and handed down a near complete reversal of the magistrate’s decision. Her brief has since been published on WestLaw and multiple legal databases since it so complete. She goes into great detail on the actual law which we stand on in this case.

CLICK HERE to get the slip copy of her brief published in WestLaw. It goes through the entire history of this case in great detail along with her reasoning and findings.

This is a major score for the homeowners in Oregon especially but really all over the US. I have been saying for years and years that TILA Rescission is a complete defense to foreclosure and provides the most comprehensive remedy to a homeowner when PROPERLY applied.

The key issue is that most attorneys do not truly understand TILA Rescission and really don’t know how to apply it and argue the elements. That’s ok if they have an expert like myself helping them but it’s so important for homeowners to understand that TILA Rescission is an excellent tool to fight with when you have the statutory right to rescind.

The other problem I have seen though is that most of these “forensic auditors” out there who are not experts, many, if not most are actually scammers, and the few who aren’t an outright scam have no clue how to properly apply the elements of TILA rescission and analyze the issues to elicit if the homeowner has the right to rescind. In fact, I have seen many many cases where the homeowner thinks they can rescind but really don’t have the right under TILA to do so.

Yes, there are instances where fraudulent inducement or fraudulent concealment or mortgage fraud may provide for a claim of common law rescission but that is completely different from TILA rescission. It’s important to have an expert truly analyze your loan.

For Tim Barnes, way to go. Great victory and anxious to see how this case progresses now that we have a real judge involved who cares about the law. Way to go Judge Brown. It’s refreshing to see a judge who takes the time to understand the issues and truly cares about applying this consumer protection statute properly, without bias.

 

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