It should have been a straightforward case, but a clerical error put Bank of America on the losing end of a four-year foreclosure case Wednesday.
The bank won a final judgment against homeowner Heather Epstein in 2009. By the following year, she had vacated her Tamarac condo, and Bank of America gained control of the property with a new certificate of title.
The problem was the mortgage and all subsequent documents included an incorrect legal description of the condo.
“It’s about mistake upon mistake upon mistake,” said Epstein’s attorney Roy Oppenheim, who teamed with Donna Greenspan Solomon of Solomon Appeals Mediation & Arbitration and Jacquelyn Trask and Geoffrey Sherman of Oppenheim & Pilelsky. “And the mistakes continue to compound.”
The Truth in Lending Act (TILA) gives home loan borrowers a three-day right to rescind, or cancel, a loan transaction. For these first three days, this right is unconditional, without any caveats. After the three days run out, there is a catch; the borrower has the right to rescind only if the lender has failed to satisfy TILA’s disclosure requirements. Even if the required disclosures are never made, the right of rescission will expire after three years; thus, straying from the pack.
Will botched paperwork affect the outcome of foreclosure appeals? It depends on the judges.
The decisions in three cases came down to paperwork and procedure Wednesday before the Fourth District Court of Appeal. Continue reading