Dear ReadTheCases:

I understand your authoring comments from a pseudonym because the outcome of your messages embarrasses you so. Here’s a case in point.  You have misconstrued the SCOTUS Jesinoski opinion as allowing a TILA rescission without a preceding TILA violation. I have pointed out that the Jesinoski trial court ruled against Jesinoskis and denied Jesinoskis their requested TILA resscission and damages because no TILA violation occurred to trigger the right to rescind. But you have repeatedly stuck to your wrongful thinking by claiming that the trial court was wrong.  You think Jesinoskis had the right to rescind without any TILA violation.

Your interpretation of TILA rescission would allow a borrower to put a creditor to an enormous amount of trouble and expense and then force rescission for no reason whatsoever.

Government would not create or enforce a law allowing a borrower to impair the obligations of a contract through unjust rescission because such a law would violate the US and state constitutions.

Florida Constitution Article I, Declaration of Rights, typical of state Constitutions:

SECTION 10. Prohibited laws.—No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.

Article I of the US Constitution contains a similar provision:

Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

You might want to read the Wikipedia article about rescission.

A borrower has two rights to rescind under TILA:

1. 3-day absolute;
2. 3-year conditional.

We’re talking about the conditional version.

A failure to give disclosures in a purchase money loan does not justify TILA rescission because TILA rescission does not apply to those loans. Purchase Money Loan = no conditional TILA rescission.

So that proves that circumstances must be right (HELOC or Refi) to “open the gate”to TILA rescission. That means a borrower cannot invoke conditional TILA rescission if the gate is closed (purchase money loan). No HELOC/Refi = no conditional TILA rescission.

Well, there’s another gate to conditional rescission: the loan must have been consummated (TILA rescission is, after all, a CONTRACT REMEDY, so a contract must exist before a party can rescind it). No consummation = no conditional TILA rescission.

Here’s yet another gate to conditional rescission: the borrower must not have sold or transferred the property. Property sold or transferred = no conditional TILA rescission.

And, there’s yet another gate (condition) to conditional TILA rescission: a TILA VIOLATION must have occurred. EVEN IF all those other gates are open, the borrower cannot force conditional TILA rescission if NO TILA VIOLATION occurred. So, NO TILA VIOLATION = NO conditional TILA RESCISSION

I explained this to you and showed you the regulation a couple of days ago:

12 C.F.R. §1026.23 “… If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation, upon transfer of all of the consumer’s interest in the property, or upon sale of the property, whichever occurs first. ”

As you can see from the explanation of Regulation Z above, the right to rescind extends beyond 3 days ONLY IF the required notice or material disclosures are not delivered.

Fail to deliver required disclosures is a TILA VIOLATION, and that triggers the right to rescind beyond 3 days after consummation. Thus, after 3 days, NO TILA VIOLATION = NO RESCISSION.

Moreover, NUMEROUS courts across the land before and since Jesinoski have endorsed the above principal: no TILA violation = no conditional TILA rescission.

Yes, a borrower can in the absence of a TILA violation wrongfully send a notice of rescission (as Jesinoskis did), or SUE to enforce the rescission (as Jesinoskis did). But, such a suitor will get no rescission and no damages (as happened to Jesinoskis).

Read through those opinions I listed below for you. You’ll see that the courts support my explanation of how TILA rescission operates, and that people lose who buck against the law and common sense.

Try to remember that, other than for an unconditional TILA 3-day right to cancel, Rescission is ALWAYS a REMEDY for a violation of an actual contract or related law. If no contract exists, or if the creditor does not breach the contract or related law, then no contract remedy applies.

Bob Hurt

On 2018-01-25 17:34, Readthecases wrote: