I wrote a post similar to this yesterday. It was a post on TILA rescission that referred to a married couple who rescinded their loan AFTER foreclosure was filed. They subsequently filed a Chapter 13 bankruptcy as well. The lender (Option One Mortgage Corp. – division of Wells Fargo) balked and refused to honor the rescission. The borrowers filed an Adversary Proceeding in bankruptcy court and won. CLICK HERE to read the full post.

This post is focused on alerting America’s homeowners who want to stay in their homes (but cannot afford the payment anymore) of the BEST REMEDY you may have. This is not for the proverbial “deadbeat” who just wants to cheat the system and live for free. However, there are much fewer of those kinds of people than those that can afford the payment might think. Millions of Americans are losing their jobs, being laid off, having their salary and overtime cut back while the costs of living have increased. The cost of living has been increasing (ie. inflation) for quite a while. From insurance costs to groceries to the costs of labor. Because of this cost of living increase, many fixed income families were forced to start living partly on credit cards. By the way, had this “credit” not been available in the first place, I don’t think we’d be where we are today. Supply and demand will keep the economy in check unless you can artificially fuel demand with borrowed money that someone can’t really afford to pay back.

Because of these extra credit payments and loss of income or a job, millions of families are on the verge of foreclosure or already there. If this is where you (or a friend/family member) is at, you MAY have one very powerful remedy to force the lender/servicer to work with you.

This remedy is called “TILA Rescission.” 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.

It is important to note that a loan can ONLY be rescinded when:

1. The loan is a refinance transaction;
2. Funded in the last three years
3. On the borrower’s primary residence;
4. When a “material disclosure violation” is found

The term “material disclosure violation” is a very important component. Many people (including self-proclaimed experts in loan auditing) think that “any” violation of the Truth in Lending Act gives someone the right to rescind.  That is patently wrong. The four conditions above must be true in order for the borrower to have the possible “extended right to rescind” the loan transaction. There are only 4 potential “material disclosure violations.”

Many homeowners don’t want to just “walk away.” They want to stay in their home. The bad news is that these lenders are run by criminals. Literally. They’re getting billions in bailout money. They’re getting millions to billions more in insurance payouts on defaulted debt. Homeowners who are trying to save their homes are running into the brick wall of GREED. Loss mitigation departments are being run by a bunch bungling fools who don’t even know how to answer a phone much less deal with a homeowner with dignity and respect. The corporate bottom-line is driving our country to the bottom.

So, if you’re like me, when you’re backed into a corner, you take the gloves off and you come out swinging. I think that Congress and corporate America really does underestimate the average American patriot. That’s their first and biggest mistake.

If you want to fight the battle to save your home… if you want to go on the offense, then TILA Rescission is one great weapon to fight with. You need to have an audit of your loan file done by someone who really knows what they’re doing. Most of the businesses and people out there claiming to know what they’re doing, don’t. Beware. If someone is trying to charge you over $750 for an audit, don’t just beware, don’t do it.

With a professional audit of your loan closing file, the auditor is investigating for material disclosure violations. If one is found, you have the right to rescind the loan – if the loan has been closed in the last three years and it was funded on your primary residence.

The loan is rescinded by sending a “rescission letter” to the servicer, the originator of the loan and any special servicer(s) that may need to be notified as well.

This puts the screws to the lender immediately and they end up in a real quagmire. TILA is meant to be a “self-enforcing” statute. This means that the lenders are supposed to enforce it on themselves. They are not allowed to sue a homeowner to get around the self-enforcing nature of the statute. Doing so is another violation. The only thing a lender can do is to “seek judicial guidance” in a TILA rescission claim.

In practice, when a homeowner rescinds the loan and IF they have a competent attorney well-versed in TILA, they are going to be asked by the lender or opposing counsel to submit a “proposal.” Folks, this is legal-speak for we’re willing to modify your loan, send us a proposal.

If you truly want a loan modification, a workout of your existing loan, a payment reduction plan, this is THE best and most powerful remedy one can have. Not all homeowners qualify and not all loans will have a material disclosure violation. I can tell you that I find material disclosure violations in greater than 50% of all loan packages I audit.

You have to be very careful to ensure that the “chain of custody” of your loan documents is protected. This is one main area a lender’s attorney will try to attack in an attempt to discredit the claim by saying that the documents could have been lost or altered because the homeowner, auditor and/or attorney for the homeowner were careless in preserving the integrity of the original loan copy package they received from the closing agent.  A good attorney and auditor should have procedures and systems in place to combat this potential attack and preserve integrity of the documents.

If you have any questions about the loan audit process or would like to inquire about a professional mortgage loan audit, contact me by email at Lane@LaneHouk.com