I enjoy your site very much, – infact, I check it every day for the latest informatin on how to solve my problem. 

When I was attempting to pull $$ out of my house when I was out of work, I was contacted by a housing lender.   When I told them that I was temp. out of work, they wanted to know if my wife worked.  (My wife is a homemaker, but had a small cleaning business on occasion).  We told them NO, however the persisted and called us back several times.  They took my wife’s business card to show employment–although we had no W2 to back it up.  We were honest with them, but now feel that we were being led to slaughter.   I had a VA note, but when New Century got involved, it reset everything and we re-did another 30-year note.  New Century–almost overnight sold (or assigned) it to Ocwen. After all these years, Ocwen has us on a ARM and told me that I make too much $$ to refinance under the Obama plan, but would qualify under their plan.  I submitted paperwork, W2, paystubs, etc and were told that we were approved. (They didn’t tell me what year). 

As I am attempting to get answers to any/all questions, I submitted an “Extremely Qualified Written Request” some months ago.   As time passed…..and passed…I finally receive a letter with several spreadsheets & explanations as to what the different charges mean.  I have been very persistent to ask “Who is my lender”.   They finally wrote back and told us that it is “confidential information”, and they would not provide it. 

Question:  Where do I go from here?   Is this a TILA violation?   I thought they would have to tell me if I demanded it.   I did–several times with CMRRR.   They will provide me nothing.   I suppose they are afraid that I will go around them if I knew who the lender is–and they are correct.   Straight as a Martin to his hole. 

I make the money again, in a great company and have paid the mortgage on-time ever since my lay-off.   I’m stuck and need your advise.  Is there any law you can provide?  

Thanks for all your help and professionalism.

Rick

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Hello Rick,

I don’t know that there is any liability for the servicer under 15 U.S.C. § 1641(f)(2) and TILA doesn’t even set a deadline for a servicer’s response, although failure to properly respond to a QWR has liability.  There also could be some FDCPA violations with making false statements.

Read: Breath Inside The House – The Qualified Written Request

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

I read on your site: PATILA

Do tila violations apply to non-primary homes ?

Does this mean that TILA applies to commercial mortgages as well?

Kail

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Hello Kail,

The following are exempt per 15 U.S.C. § 1603(1):

“Credit transactions involving extensions of credit primarily for business, commercial, or agricultural purposes, or to government or governmental agencies or instrumentalities, or to organizations”

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

Jonah

——–

Hello Jonah,

Read: HOEPA

Thanks for the questions and hope this helps.

Paul

You wrote to Rae Jean:

“How were you going to tender the remaining balance due upon rescission?  If you’ve already had a recent discharged bankruptcy, then tender may not be made through another bankruptcy.  Without a means of tendering the reduced payoff, the lender is not required to rescind the loan.”

Why is that? Doesn’t TILA specify that the lien must be released within 20 days? Do you have case law to support this assertion? I’d be interested.

As far as I’ve seen, a judge can modify the terms of tender but rescission is supposed to be within a 20 day period. The judge, as I understand it, has no discretion over that.

I’ve seen rescission misinterpreted many times–even with otherwise knowledgeable judges.

John

——–

Hello John,

Please don’t be a Shelton!

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

I’ve written to you several times over the last year or more. I have an interest only option arm, I filed ch. 7 bk that was discharged 4.08 in which the mortgage was included and no re-affirmed. I am still in the home and had paid on time up until 2 months ago. I did have a forensic audit done by Patrick Pulate and I do have multiple tila violations. I did send a recission notice to Countrywide within the 3 year recission period but they just blew me off and never acknowledged it. I did hire an attorney here in Colorado to help me but he quit the case after a few months of being jerked around by CW. I have since tried to get a loan modification 4 times (2 on my own and the 3rd and 4th via NACA). 1 modification was denied by CW, the 2nd attempt was never answered, the 3rd via NACA I got an offer of 5% fixed but it raised my payment $200 per month (was only paying and affording minimum on interest only) so I rejected the offer (NACA submitted my self employment income wrong-too high- which made the payments too high), Also I am about 40k-45k upside down.

The loan will eventually reset and be so unaffordable there is no way we could stay.

Because I was in a modification mode (the one they offered) they took my mortgage payment for March (funds were withdrawn from my bank) but they do not show that payment was ever made. Therefore since they are not showing that payment, and I dont know if they will modify at an affordable rate I have not made my April or May payemnts. The March payment still shows as un-paid on the web-site.

Those are the condensed lengthy facts!!

Here are the condensed lenthy questions:

1- Since I have tila violations and I did submit the notice of recission or recission request letter within the 3 year period, shouldnt I be able to recind the loan?

2- If so, it is all great in theory but how do I accomplish such a task? My last attorney quit! Its almost comical. I have to laugh or I will cry and not stop

3- I am on the fence about even accepting a new modification offer (Naca is requesting 3% fixed which would keep the payment just a few dollars higher than the minimum I have been paying for the last 4 years) but not sure its financially even worth it since we are 40k+ upside down.

So if I dont take the offer and decide to walk am I correct that I can let it foreclose and I am not legally liable for the balance due to my chapter 7 bk?

4- Is there any benefit to doing a short sale? I live in Colorado and it looks to me from reading other posts that CO is a power of sale state and there really wouldnt be a huge benefit in short selling?

5- If I short sale or foreclose will my credit report show a bk and a forecloser? (I understand I will have to honestly answer the question about if I have ever foreclosed when applying for a loan in the future)

6- Also when I did this mistake of a refinance 4 years ago the loan was put in only my name. The bk is only in my name too, and we did a quit claim deed to take my husband off the deed since he would no longer be on the loan, but they messed that up too and he is still on the deed. I have the quit claim I signed and you can see that they charged my $6 to process it on the hud1, but it was never filed/processed because they filled the form out wrong. If I decide to walk how do I get my husband off of the deed so he isnt liable for taxes, etc? Can I just take the papers to the county and show them we filed, filled out the forms and were charged for it?

I am so tired of all of this it is making me physically ill. Best case I would like the loan rescinded but dont know how to make that happen or how to find a lawyer capable of making that happen. If offered a loan mod of 3% fixed I may take it just so we dont have to move, but I’ve been waiting forever and I am really thinking about walking away. If I walk away I just need some advise on the best way to do it. Can I just let it foreclose since I am in Colorado and the house was in the bk or should I short sell? Then how long before we can apply for a loan? I am thinking of walking and trying a rent to own, or lease option, possibly owner fincanced due to my credit issues.

I just want my life back, and want this all over with. Its been a nightmare to say the least!

Sorry for the long long story. Just alot involved and too many questions that nobody seems to know the answers to.

Thanks for a great web site with tons of good info!

Rae Jean

———-

Hi Rae Jean,

How were you going to tender the remaining balance due upon rescission?  If you’ve already had a recent discharged bankruptcy, then tender may not be made through another bankruptcy.  Without a means of tendering the reduced payoff, the lender is not required to rescind the loan. 

You are correct that Colorado foreclosure is through power of sale by public trustee, but a ‘Public Trustee’s Deed’ or ‘Deed of Trust to Public Trustee’ is public record and picked up by credit bureau contractors to record in the public records section of a credit report.  As a result and in the event of foreclosure, the credit bureau will list a foreclosure and bankruptcy in the public records section, but the tradeline itself is required to be frozen at time of bankruptcy – no more late payments beyond the issuance of the case number. 

Regarding obtaining another mortgage: according to Fannie Mae, a foreclosure is a five year wait, whereas a short sale is a two year wait.  FHA permits a borrower to obtain another mortgage three years after the date the balance was zero on a foreclosure.

The failure of the settlement agent on that last refinance to record the quit claim deed may create a cause of action for your husband against the title company or possibly the lender if either one of them are still in business, the property goes to foreclosure, and the foreclosure shows on your husband’s credit report.  If it were me, I’d record the deed now.

Although I know that borrowers often feel that a loan modification on an upside down home effectively turns a homeowner into a renter; nevertheless, if the loan mod payments are affordable then my vote tends towards accepting the loan mod as opposed to rejecting it and completing a short sale, deed-in-lieu, or foreclosing.

Thanks for the questions and don’t be a Shelton.

Paul Jerome

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

RE:  Fred Flintstone Account#1234567890

Dear Sirs,

With this letter I hereby exercise my rights under the Federal Truth in Lending Act, 15 U.S.C. § 1635, Regulation Z § 226.23, to rescind the above referenced mortgage loan.  The Truth in Lending disclosure statement was defective for the following reason:

TIL disclosure failed to list a payment frequency. 

“…Ameriquest cannot escape the fact that it committed a technical TILA violation by failing explicitly to state the payment period of Hamm’s and Jones’s loans on the Disclosure Statements.” See Hamm v. Ameriquest Mortgage Co., 2007 WL 3010973 (7th Cir. Oct 17, 2007)

Pursuant to 15 U.S.C. § 1635(f), my right to rescind this loan extends for three-years as a result of this defective Truth in Lending disclosure statement.  This rescission notice has been sent to you within that time period.

Please be advised there is a short sale in process with your company and I am prepared to tender the reduced payoff amount through the short sale once the proper credits have been reflected in my reduced payoff.  Alternatively, please be advised that tender may also be made through bankruptcy [Jaaskelainen v. Wells Fargo Bank, N.A. (In re Jaaskelainen), 391 B.R. 627 (Bankr. D. Mass. 2008)], although I would prefer a short sale and this is not an area that I have explored, yet I do feel I would qualify and this information is provided as formal notice that tender is available once the credits have been made through one of these options.

Additionally, please consider this letter a “Qualified Written Request” per RESPA and as such I am demanding an accounting of my loan including the following: loan disbursements, charges, all payments paid to date, and the principal balance.

Please be advised that your security interest in my home is now void per 15 U.S.C. § 1635; Regulation Z § 226.23 and you have twenty-days to return all of the payments I have made on this loan and to do your part to terminate the security interest in my home.

Thank you for your immediate attention to this matter and govern yourself accordingly.

Fred Flintstone
(555) 555-5555
100 Bedrock Lane
Flint, Michigan 98765

——————-

The letter listed above is provided for informational purposes only.  Broken Credit, LLC and/or its principals do NOT give permission for copying or reproduction of this letter in any way, shape, or form.  You must always consult an attorney for legal advice.  We are not attorneys.

If a homeowner lost their home through foreclosure, and later found violations of the Truth in Lending Act, would they be able to to have an unlimited period to recoup those monies? Would the state’s statute of limitations come into play?

Elisa

——–

Hi Elisa,

The time to raise TILA claims is defensively at the onset of the foreclosure proceedings.  Upon the disposition of the foreclosure case, TIL claims are generally barred by collateral estoppel, res judicata, and/or the Rooker-Feldman doctrine. 

With regards to extended rescission, Reg Z § 226.23(a)(3) reads (in part, emphasis added): “If the required notice or material disclosures are not delivered, the right to rescind shall expire three years after consummation, upon transfer of all of the consumer’s interest in the property, or upon sale of the property, whichever occurs first.”

And in that case, the answer to your question would appear to be no.

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

I had a short-sale close in Sept 2008.  The loan amount showed on 2 of the 3 credit agencies.  I did receive a document from Countrywide that it was forgiven.  How do I get the other 2 agencies to remove this as Experian was the only one who did.

Also, when can I apply for another home loan.  My FICO is 626.  I also have debt that needs to be brought down but I don’t know how fast I can get that done.

Thanks for being here for all of us in this nightmare.

Rosanne

———–

Hi Rosanne,

You’ve got until September 2009 to pester Countrywide via a Qualified Written Request and you also have the FCRA if the settled tradeline is not ‘complete and accurate’.  Generally, the tradeline remains on the report, but is listed as ‘settled for lesser than amount’ and has a zero balance.  The ‘forgiven’ means that the lender is not pursuing continued collection; however, as I mentioned the tradeline doesn’t go away, unless it was a rescinded loan under the TILA and in that case, the settlement could be a short sale with full release of liability with the trandeline permanently redacted with forward flow from the credit report.

It is normally a two year wait to obtain another FNMA loan after a short sale whereas a foreclosure requires a five year wait under those same guidelines.  FHA requires a three year wait from the date the balance is zero and in the case of a foreclosure where the property doesn’t sell for enough to cover the balance, that clock never starts ticking.

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

Do construction loans require the bank to give the borrower’s two copies of the “notice of right to cancel” each like a refinance loan? They owned the land free and clear before they got the construction loan.

Thanks

Gil

———

Hello Gil,

In Perkins v. Central Mortgage Corp., 422 F.Supp.2d 487, 489 (E.D. Pa. 2006) we read:

The right to rescind does not apply to residential mortgage transactions. 15 U.S.C. § 1635(e)(1); 12 C.F.R. § 226.23(f)(1). Hence, there is no obligation to deliver a notice of right of rescission in connection with such transactions…

A “residential mortgage transaction” is defined in TILA as:

a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the consumer’s dwelling to finance the acquisition or initial construction of such dwelling. 15 U.S.C. § 1602(w).

Thanks for the questions and construction loans do not require a notice of right to cancel.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

Is it true that voluntary agreements the banks are sending to clients to modify their loans may have traps in giving away clients valuable legal rights to sue them after the acceptance to go after them later for TILA, GFE or other violations and infractions?

thank you

William

———–

Hello William,

The Supreme Court decided in Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945) that:

“..a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy..”

And of course, as a result Forbearance & Loan Modification Waivers are Unenforceable with regards to the TILA (and RESPA, UDAP, etc.).

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.