I believe Neil Garfield misleads borrowers with his diatribe in the article Rescission Confusion Persists. He must have become desperate to sell his useless rescission packages. He keeps hammering his readers to file a notice of rescission, no matter what, implying that they have a ghost of a chance of success. He ignores reality, like all kool-aid-drinkers do. Here’s the reality.
Many court opinions, revealed on previous TILA rescission threads attest to how rescission works. That has not changed at all. TILA and Regulation Z require an unwinding of the transaction with tender first by the lender then by the borrower, and that typically happens when the borrower files an answer to the foreclosure complaint or when the borrower sues to enforce the rescission. The court will determine the following:
1. Did a TILA violation warranting rescission actually occur?
2. Did the borrower send notice of rescission to the creditor within 3 years after loan consummation?
3. Did the creditor receive that notice?
4. Can the creditor tender?
5. Can the borrower tender or will the lender accept an alternative?
A NO answer to any of the above can justify defeat of the rescission, and the court will not order it.
The borrower has one year after expiry of the 20 days following sending of notice of rescission to the creditor in which to sue the creditor for failing to respond within 20 days.
Jesinoski opinion changed nothing in the US Circuits that allowed suit after 3 years. It merely requires all courts to allow the borrower to sue for rescission later than 3 years after consummation of the loan, provided 1, 2, and 3 above occurred.
The creditor has no legal duty to sue the borrower to force a TILA rescission.
Garfield doesn’t want to tell readers the hard core truth that very few people qualify for a TILA rescission because most who sent the notice stopped paying and face foreclosure, and they cannot tender. Therefore, the court will not order the rescission and they will lose the house. They would be totally stupid to pay Garfield for a rescission package.
To understand the proper way to beat the bank, visit the Mortgage Attack web site.
Read my discussion of TILA rescission and related case law at Scalia, Jesinoski, and the Process of TILA Rescission/