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.
The following article was originally published in the Daily Business Review by Adolfo Pesquera and has been republished in the South Florida Law Blog with excerpts from foreclosure defense attorney Roy Oppenheim.
A few good men and women last week enjoyed a lively conference in a mock courtroom to discuss the state of residential homeowners and foreclosure law in Florida.
Tougher standards for getting evidence into the record is having a profound effect on the number of new residential foreclosure cases being filed in Florida, a panel of circuit judges told a hall of defense attorneys.
However, as homeowners win more dismissals, foreclosure defense attorneys are finding the homes come with a catch — title insurance is virtually impossible to get.
Throughout the discussion, foreclosure attorneys vented their frustration over court procedures. They cited numerous situations where judges bent over backward to accommodate lenders seeking foreclosure.
Broward Circuit Judge Sandra Perlman acknowledged plaintiffs delays were a problem, but the appellate courts give them great leeway. Until that changes, she said trial court judges will feel obliged to grant continuances. Continue reading
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Governor Rick Scott signed a bill that aims to move foreclosures through the court system more quickly, but some homeowner advocates worry that it will erode their rights.
House Bill 87 requires banks to file cases with a clear chain of ownership of the mortgage note and how the delinquency occurred. If the case has the correct documentation, the lender can seek a “show cause” order as to why it shouldn’t be awarded a judgment and take the house. The homeowner would have to quickly raise a valid defense.
The foreclosure fast bill prevents homeowners who wrongly lost homes to foreclosure from getting them back. Instead, they would be awarded monetary compensation.
Weston foreclosure defense attorney Roy Oppenheim said the bill gives title insurance underwriters a get out of jail free card because they are no longer liable for the improper sale of bank-owned homes.
“The original homeowner who was foreclosed upon, and may have been illegally foreclosed upon, ultimately is the big loser,” Oppenheim said. “While they can sue the bank for an illegal foreclosure, if they can find a foreclosure defense ttorney willing to handle such a case, they will never be able to get their home back.”
In addition, lenders would have only one year to seek a deficiency judgment against a borrower to nail them for the judgment amount in excess of the value of their home.