TILA or supposed “Forensic” Audits that use standardized check-off lists without providing a mathematical determination of the TILA Disclosure Statement and amounts are NOT Forensic Audits. A check-off list or automated/software-driven TILA Audit describing potential violations as “Serious,” or “Moderate” is incompetent and useless. A Forensic TILA Audit must provide accurate TILA; Regulation Z citations, case law precendent, as well as actual computation of all settlement service fees properly allocated in the TILA Disclosure Statement or the Audit will NOT withstand scrutiny by legal authorities. Do not be fooled by imitations using standardized check-off lists.
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I realized this morning that it’s been a while since I’ve covered the basics of foreclosure defense. For those of you readers who are behind in their mortgage and trying to work something out with the lender (who is usually just the servicer of your loan, not the owner), you must beware that MOST of these institutions do not deal with you, the homeowner in good faith. Every time I see the news media covering some ridiculous thing they call “reporting” of the facts, fair and balanced or whatever, what they “report” is that banks are hurting, the government is going to save the “people” from this mess and servicers are doing everything they can to help. Call this number, call that number and you’ll get help. Go to this government site, or that for more information… yadda yadda yadda.
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In the state of Florida, there is extensive established law that prevents summary judgment from being granted when there are outstanding issues of material fact. Johnson v. Boca Raton Community Hosp., Inc., 985 So.2d 141, Murphy v. Young Men’s Christian Association of Lake Wales, Inc., 974 So.2d 565. A “material fact,” for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case, Continental Concrete, Inc. v. Lakes at La Paz III Ltd. Partnership, 758 So.2d 1214.
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TILA stands for the “Truth in Lending Act.” It is the major piece of federal legislation that regulates lending practices of financial institutions. A borrower may have the “extended right to rescind” a loan for UP TO THREE YEARS FROM THE DATE OF CLOSING.
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This is one of the most powerful cases I have read in a long time. The borrower in this case rescinded the loan transaction because an audit of their closing documents revealed a “material disclosure” violation as is defined in 15 U.S.C. §§ 1601 et seq. (“TILA”) and its implementing regulations at 12 C.F.R. § 226 et seq. (“Reg. Z”).
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I recently started a blog post about TILA Violations and what these violations can mean for the financial institutions. This is a BIG can of worms for them because a large percentage of home loans were funded in violation of the federal TILA statute and its implementing regulations found in Regulation Z. In short, if a [...]
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The neat thing about TILA violations is that they are strict liability causes of action: the aggrieved borrower doesn’t have to prove they were defrauded or misled, or that they had actual damages. The fact that the disclosures were defective or inadequate in amount gives the borrower the right to rescind the loan and deprives the lender of the right to interest on the loan. Pretty powerful stuff.
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