subject: How to Stop Foreclosure: Extended Right of Rescission by:Khayyam Jones [print this page] With the wave of people facing foreclosure there are many who are asking for help. What can be done to stop the foreclosure process. Many of our clients have decided to use the powerful extended Right of Rescission which immediately terminates the foreclosure process permanently. Let me explain.
The US Government passed a law commonly known as the Truth in Lending Act. This act was designed to protect consumers from predatory lending practices. This protection was in the form of various disclosures showing the real cost of various loans and lines of credit. However, with the wave of loans being originated some of these disclosures have become misleading (either accidentally or intentionally) and it has hurt the general population.
Under the Truth in Lending Act each consumer is given a 3 day Right of Rescission, a cooling off period, to determine if the loan or line of credit is what they want, what was advertised and what they can afford. If a consumer changes their mind during the 3 day period they can cancel any loan by signing a Notice of Rescission and they are then free from any and all obligations associated with the loan.
What we have helped 95% of our clients to discover is that their required disclosures, under the Truth in Lending Act, are actually incorrect in some way. These errors actually violated the consumer's (borrower's) rights under the Truth in Lending Act and give the consumer an extended Right of Rescission. The extension can last up to 3 years from the date of the loan origination.
What this means is that if someone is in foreclosure and there is an error under the Truth in Lending Act, the borrower can actually sign a Notice of Rescission and send that notice to the lender. This immediate removes all obligations in relation to the loan and, by law, the lender must remove the Trust Deed from the property within 20 days. Without a Trust Deed the lender cannot foreclose on the property.
Not only does this rescission stop the foreclosure process immediately but the law requires that the lender repay all of the money received in connection with the loan. This means that the borrower will receive all of their mortgage payments back in addition to the closing costs directly associated with the loan. Once the borrower has received this rebate from the lender they have the choice to give the lender the property or its reasonable value in cash (usually through a traditional refinance).
Not only is the lender required to return all the money paid but they cannot give any negative reporting to the credit bureaus because the loan and note were rescinded. That means there is no obligation to pay and therefore there can be no late payments and no foreclosure. With renewed credit worthiness the borrower is often able to refinance the property with a new lender and will have the means to repay the original lender or the borrower can move to a new property with their cash rebate and buy a different home all together.
Another variation to this Right of Rescission process is the lengthy amount of time involved in litigation. Most lenders react poorly to losing their Trust Deed and right to foreclose and will usually challenge the process through a lawsuit. With bankruptcies and other issues associated with the down-turn in the economy, most courts are full and there is an extended waiting time for a court appearance.
According to the Truth in Lending Act, once a Notice of Rescission has been sent to the lender all obligation to pay is legally ended. This means that through out the lawsuit time frame, the borrower is allowed to retain possession on the home and no mortgage payments are due to the lender (with no negative reporting to the credit bureaus). A few of our clients have exercised their Right of Rescission simply to stall the process of losing their home so that they have a place to live (rent & mortgage free) for several months and no negative credit reporting (no foreclosure on their credit even though they will eventually lose the house). These clients have used the free housing option in order to pay down other debt and get their finances in order so they can move on with their lives once the litigation has concluded.
And one last kicker...! If the lender doesn't pay up within the first 20 days after the Notice of Rescission has been filed, they are also required to pay all attorney's fees accumulated in enforcing the consumer's Right of Rescission. Nearly ever lender has filed a lawsuit or proceeded with the foreclosure (illegally) rather than pay up in the first 20 days, so our clients haven't even had to pay for our services!
There is another option for the consumer which hasn't been utilized by our clients on a high level, yet. Once the Notice of Rescission has been filed (sent to the lender) an opportunity for negotiation exists. The lender has a very sticky predicament: they have to pay the consumer back all of their payments (up to 3 years), pay their corporate lawyers additional money above the foreclosure fees already spent, can't damage the consumer's credit by reporting late fees and foreclosure, realize additional lost mortgage payments during litigation and in the end they just get the house back (which may not be worth what they lent on it due to a falling market). Quite frequently the bank will consider a significant loan modification in favor of the borrower including reduced interest rate, reduced mortgage payments, reduced principle balance owed, loan reinstatement, include loan assumption language or waive "due on sale" clause, etc. This way they don't have to pay additional money for the home and can recapture some of their money through the mortgage interest.
This is a pretty amazing tool for stopping foreclosure and forcing the bank to seriously consider negotiating loan terms. However, not everyone qualifies for the extended Right of Rescission. My real estate team includes two specialists in the area of Truth and Lending violations and litigation. We're happy to discuss your situation with you if you don't currently have an attorney who specializes in this area of litigation.
About the author
Khayyam Jones is a real estate investor and Realtor in the State of Utah. He specializes in distressed property investments including fixer-uppers, foreclosure/short sales, and small infill development.
