Rescind My Loan

Some basic information on federal truth in lending loan rescission and how it relates to foreclosure defense….

Rescind My Loan by Foreclosure Defense Attorney Steve Vondran — Thu, 13 May 2010 22:55:11 +0000

We have been getting more and more questions about TILA (Truth in Lending Law) and the extended three year right of rescission. Here is one of our write-ups that discusses this concept in general terms. THE FOLLOWING IS NOT LEGAL ADVICE OR TO BE CONSTRUED AS LEGAL ADVICE OR A SUBSTITUTE FOR LEGAL ADVICE. FOR SPECIFIC INFORMATION ON YOUR CASE CONTACT A FORECLOSURE DEFENSE OR TILA LAWYER.

DEFENDANTS (THAT’S THE LENDERS/LOAN SERVICERS AND THEIR “INVESTORS”) SHOULD NOT BE PERMITTED TO FORECLOSE ON THE SUBJECT PROPERTY WHERE PLAINTIFF HAS EXERCISED ITS VALID RESCISSION RIGHTS UNDER FEDERAL TRUTH IN LENDING LAW. IN EXERCISING ITS RESCISSION RIGHTS, THE SECURITY INSTRUMENT ON THE PROPERTY IS NULL AND VOID AND THERE IS NOTHING TO FORECLOSE ON.

FEDERAL TRUTH IN LENDING LAW

The Truth in Lending Act (TILA) is a cornerstone of consumer credit legislation. The Statute is Congress’s effort to guarantee the the accurate and meaningful disclosure of the costs of consumer credit and thereby to enable consumers to make informed choices in the marketplace. See 15 U.S.C. § 1601(a).

The Act is designed to protect borrowers who are not on an equal footing with creditors either in bargaining power or with respect to the knowledge of credit terms. In other words, TILA was passed to aid the unsophisticated consumer. SeeThomka v. A.Z. Chevrolet, Inc. 619 F.2d 246 (3d Cir. 1980). The Act is also remedial and must be liberally construed in favor of borrowers. See King v. California, 784 F.2d 910 (9^th Cir. 1986). Except where Congress has relieved lenders of liability for noncompliance, it is a strict liability statute. Courts should continue to assure that consumers are accorded the full remedies available under the Act for violations found, even if they might seem technical. See Rodash v. AIB Mortgage Co., 16 F.3d 1142, 1145, 1149 (11^th Cir. 1994).

Although Congress permitted the Federal Reserve Board to issue regulations implementing TILA (Reg Z), and to issue interpretations and official staff commentary that the Courts consider to be persuasive authority, the FRB’s authority is not without limits, and a regulation that conflicts with TILA cannot stand. See Fabricant v. Sears, Roebuck, Clearinghouse No. 54,563 (S.D. Fla. Mar. 5, 2002).

NOTICE OF RIGHT TO CANCEL – DISCLOSURE REQUIREMENTS

Under Federal Truth in Lending Law, each Borrower, or person with ownership interest in the property, (in a non-purchase loan or other exempt transaction) in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any property which is used as the principal dwelling, shall be provided with TWO (2) COMPLETED copies EACH of a notice of right to rescind (cancel). It is the lender’s obligation to complete these forms and deliver TWO copies to each Borrower or person with Ownership interest in the Property. 15 U.S.C. § 1635(a), Reg. Z §§ 226.5(b), 226.23(b). If each borrower or person with ownership interest is not provided two adequate copies of this Notice, an extended three year right to rescind is permitted under the Federal Truth in Lending Law.

The notice shall identify the transaction or occurrence and clearly and conspicuously disclose the following:

(1) The retention or acquisition of a security interest in the consumer’s principal dwelling.

(2) The consumer’s right to rescind, as described in paragraph (a)(1) of this section.

(3) How to exercise the right to rescind, with a form for that purpose, designating the address of the creditor’s place of business.

(4) The effects of rescission, as described in paragraph (d) of this section.

(5) The date the rescission period expires. (See Reg. Z §§ 226.15(b)(5) and 226.23(b)(5))

The plain-meaning implication of this statutory provision is clear (and therefore is controlling), the lender has the obligation to complete these forms, it is not the borrowers duty to determine what dates to insert into the forms, much less at the direction of a mobile notary. In fact, the escrow instructions and lender’s instruction sheet for the notice of right to cancel form set forth the requirement that the dates be inserted before the borrower was to be asked to sign all copies.

This reading of the law (that it is the lender’s obligation to insert the dates, and not the borrowers) is also consistent with the requirement #5 (set forth above) that “the lender shall clearly and conspicuously identify the date the rescission period expires.” In fact, at least two courts have held in the First and Second circuit: “the complexity of business transactions under TILA means that the average consumer cannot figure out when TILA rights expire…..” See Bonney v. Wash. Mutual Bank, No. 08-30087 (D. Mass. July 30, 2008).

(2) The Lender is required to provide TWO copies of the notice of right to cancel to EACH borrower along with a copy of all of the material TILA disclosures. Failure to meet these requirements also provides an extended three year right to rescind the loan transaction. See 15 U.S.C. § 1635(a); Reg. Z §§ 226.15(b), 226.23(b) and Webster v. Centex Home Equity Corp. (In re Webster), 300 B.R. 787 (Bankr. W.D. Okla. 2003).

THREE YEAR EXTENDED RIGHT TO RESCIND

(a) Consumer’s right to rescind. (1) “In a credit transaction in which a security interest is or will be retained or acquired in a consumer’s principal dwelling, each consumer whose ownership interest is or will be subject to the security interest shall have the right to rescind the transaction….”

(b) Exercising the right of Rescission: 226.23(3) – “The consumer may exercise the right to rescind until midnight of the third business day following consummation, delivery of the notice required by paragraph (b) of this section, or delivery of all material disclosures, whichever occurs last. 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. In the case of certain administrative proceedings, the rescission period shall be extended in accordance with section 125(f) of the Act.” There is also legal precedence for “tolling” the statute beyond three years where fraudulent concealment is shown. See Bank of New York v. Waldon, 751 N.Y.S.2d 341 (Sup. Ct. 2002).

226.23(2): (2) “To exercise the right to rescind, the consumer shall notify the creditor of the rescission by mail, telegram or other means of written communication. Notice is considered given when mailed, when filed for telegraphic transmission or, if sent by other means, when delivered to the creditor’s designated place of business.”

EFFECTS OF RESCISSION

(d) Effects of rescission. (1) When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.

(2) Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.

ASSIGNEE LIABILTY FOR RESCSSION

While assignees are only liable for TILA “statutory damages” that are “apparent on the face of the loan documents” assignees are subject to the rescission right to the same extent as the original creditor. 15 U.S.C. §1641(c) states: “Any consumer who has the right to rescind a transaction under section 1635 of this title may rescind the transaction as against any assignee of the obligation. See also the case of Ocwen Fed. Bank v. Russell, 53 P.3d 312 (Haw Ct. App. 2002) which rejected the assignees holder in due course argument as being no defense to rescission. As other courts have held: “without such protection for the consumer the right of rescission would provide little or no effective remedy.” See Stone v. Mehlberg, 728 F. Supp. 1341, 1348, (W.D. Mich 1989). A loan servicer is deemed an assignee if it “is or was the holder of the obligation.”

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WHAT DOES ALL THIS MEAN IN RAL LIFE WHEN FACED WITH FORECLOSURE?

(1) IF YOU HAVE A REFINANCE LOAN WITHIN THE LAST THREE YEARS YOU SHOULD HAVE YOUR LOAN FILE AUDITED TO SEE IF THERE IS A “MATERIAL” TRUTH IN LENDING VIOLATION THAT MAY ALLOW YOU TO RESCIND YOUR LOAN UP TO THREE YEARS AFTER THE LOAN OBLIGATION. THERE ARE SEVERAL DIFFERENT WAYS TO FIND A “MATERIAL” VIOLATION.

(2) DO NOT COUNT ON YOUR ATTORNEY OR ATTORNEY-BACKED COMPANY (LAW CENTER ETC.) TO CATCH THIS AS WE HAVE SEEN FAR TOO MANY INSTANCES OF NEGLECT IN THIS AREA

(3) IF YOU HAVE A RESCISSION CASE, YOU NEED TO MAKE SURE YOU SEND IN YOUR RESCISSION LETTER. CONTACT AN ATTORNEY TO DISCUSS THIS REQUIREMENT.

(4) YOU NEED TO START THINKING ABOUT A TENDER PLAN AND A LITIGATION STRATEGY. IF YOU DO NOT HAVE A TENDER PLAN, THEN TILA MAY NOT BE THE BEST WAY TO GO. AGAIN, CONSULT A FORECLOSURE OR TRUTH IN LENDING LAWYER TO ASSIST YOU AND EVALUATE YOUR CASE.

(5) ONCE YOU RESIND THE LOAN, THE SECURITY INSTRUMENT IS VOID AS A MATTER OF LAW, BUT BE PREPARED, YOU WILL NORMALLY HAVE TO ENFORCE THIS RIGHT BY GOING TO COURT. UNFORTUNATELY, CREDITORS FORCE YOUR HAND TO FILE A CIVIL LAWSUIT SEEKING A TRO AND INJUNCTION BEFORE THEY WILL CONCEDE.

(6) IF YOU ARE SUCCESSFUL IN YOUR TILA RESCISSION CASE, THE JUDGE IS SUPPOSED TO AWARD ATTORNEY FEES WHICH WILL HELP YOU RECOUP THE COSTS OF LITIGATION.

(7) EVEN IF YOU CANNOT EXERCISE TILA WITHIN THREE YEARS, YOU MAY BE ABLE TO ASSERT TILA AS A “DEFENSIVE” ACTION IN A RECOUPMENT CASE. WE WILL BE TALKING ABOUT THIS CONCEPT IN A FUTURE BLOG.

(8) FOLKS, IN THIS WAR ON FORECLOSURE, IT IS UP TO YOU TO IDENTIFY, ASSERT AND STAND UP FOR YOUR LEGAL RIGHTS. ALTHOUGH THE LENDERS WILL RARELY ADMIT TO A TILA VIOLATION, YOUR DOCUMENTATION FOLLOWING AN AUDIT WILL NORMALLY TELL THE STORY THEY WOULD RATHER NOT HEAR.

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KEYWORDS: TRUTH IN LENDING RESCISSION / INJUNCTION / TRO / LIS PENDENS / PHOENIX TRUTH IN LENDING LAWYER / SCOTTSDALE TRUTH IN LENDING LAW / ARIZONA TRUTH IN LENDING LAWYER / CALIFORNIA TRUTH IN LENDING LAWYER / ORANGE COUNTY TRUTH IN LENDING LAWYER / THREE YEAR RIGHT OF RESCISSION UNDER TILA / TILA TENDER PLAN / SCOTTSDALE LOAN MODIFICATION / PHOENIX LOAN MODIFICATION / SECURITY INSTRUMENT VOID UNDER TILA FOLLOWING RESCISSION / TILA RESCISSION LETTER / RESCIND YOUR LOAN IN BANKRUPTCY / TILA FORENSIC LOAN AUDIT

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Atorney Steve Vondran is licensed to practice law in the State of California and Arizona. WE HANDLE ONLY LITIGATION CASES IN CALIFORNIA POST SB-94, AND STILL HANDLE LOAN MODIFICATIONS FOR ARIZONA CLIENTS.

WE SERVE THE FOLLOWING CITIES IN CALIFORNIA AND ARIZONA.

California:

Agoura Hills, Alameda, Albany, Alhambra, Aliso Viejo, Alturas, American Canyon, Anaheim, Anderson, Angels Camp, Antioch, Apple Valley, Arcadia, Arcata, Arroyo Grande, Atascadero, Atherton, Atwater, Auburn, Avalon, Avila Beach, Azusa, Bakersfield, Baldwin Park,Banning, Barstow, Beaumont, Bell Gardens, Bellflower, Belmont, Benicia, Berkeley, Beverly Hills, Big Bear Lake, Bradbury, Brawley, Brea, Brentwood, Brisbane, Buena Park, Burbank, Burlingame, Calabasas, Calexico, California City, Calimesa, Calipatria, Calistoga, Camarillo,Campbell, Capitola, Carlsbad, Carpinteria, Carson, Cathedral City, Ceres, Cerritos, Chico, Chino, Chino Hills, Chowchilla, Chula Vista, Citrus Heights, Claremont, Clayton, Clearlake, Cloverdale, Clovis, Coalinga, Colton, Commerce, Concord, Corcoran, Corning, Corona,Coronado, Costa Mesa, Cotati, Covina, Crescent City, Culver City, Cupertino, Cypress, Daly City, Dana Point, Danville, Davis, Del Mar, Desert Hot Springs, Diamond Bar, Dixon, Downey, Duarte, Dublin East Palo Alto, El Cajon, El Centro, El Cerrito, El Monte, El Segundo, Elk Grove, Emeryville, Encinitas, Escondido, Eureka, Exeter Fairfield, Fillmore, Folsom, Fontana, Fort Bragg, Foster City, Fountain Valley, Fowler, Fremont, Fresno, Fullerton, Garden Grove, Gardena, Gilroy, Glendale, Glendora, Goleta, Gonzales, Grand Terrace, Grass Valley,Gridley, Grover Beach, Hanford, Hawthorne, Hayward, Healdsburg, Hemet, Hercules, Hermosa Beach, Hesperia, Highland, Hillsborough Hollister, Holtville, Hughson, Huntington Beach, Huntington Park, Imperial, Imperial Beach, Indio, Industry, Inglewood, Ione, Irvine,Jackson, King City, La Canada Flintridge, La Habra, La Mesa, La Mirada, La Palma, La Puente, La Quinta, La Verne, Lafayette, Laguna Beach, Laguna Hills, Laguna Niguel, Laguna Woods, Lake Elsinore, Lake Forest, Lakeport, Lakewood, Lancaster, Larkspur, Lathrop, Lemon Grove, Lemoore, Lincoln, Littlerock, Livermore, Livingston, Lodi, Loma Linda, Lomita, Lompoc, Long Beach, Loomis, Los Alamitos, Los Altos, Los Altos Hills, Los Angeles, Los Banos, Los Gatos, Lynwood, Madera, Malibu, Manhattan Beach, Manteca, Marina, Martinez,Marysville, Maywood, Menlo Park, Merced, Mill Valley, Millbrae, Milpitas, Mission Viejo, Modesto, Monrovia, Montclair, Monte Sereno, Montebello, Monterey, Monterey Park, Moorpark, Moraga, Moreno Valley, Morgan Hill, Morro Bay, Mountain View, Mt. Shasta, Murrieta, Napa,National City, Nevada City, Newark, Newman, Newport Beach, Norco, Norwalk, Novato, Oakdale, Oakland, Oakley, Oceanside, Ontario, Orange, Orinda, Oroville, Oxnard, Pacific Grove, Pacifica, Palm Desert, Palm Springs, Palmdale, Palo Alto, Paradise, Paramount, Pasadena,Paso Robles, Patterson, Perris, Petaluma, Pico Rivera, Pinole, Pismo Beach, Pittsburg, Placentia, Placerville, Pleasant Hill, Pleasanton, Pomona, Port Hueneme, Porterville, Portola, Poway, Rancho Cordova, Rancho Cucamonga, Rancho Mirage, Rancho Santa Margarita, Red Bluff, Redding, Redlands, Redondo Beach, Redwood City, Reedley, Rialto, Richmond, Ridgecrest, Ripon, Riverside, Rocklin, Rohnert Park, Rolling Hills Estates, Roseville, Sacramento, Salinas, San Anselmo, San Bernardino, San Bruno, San Carlos, San Clemente, San Diego,San Dimas, San Fernando, San Francisco, San Gabriel, San Jacinto, San Jose, San Juan Capistrano, San Leandro, San Luis Obispo, San Marcos, San Marino, San Mateo, San Pablo, San Rafael, San Ramon, Santa Ana, Santa Barbara, Santa Clara, Santa Clarita, Santa Cruz,Santa Fe Springs, Santa Maria, Santa Monica, Santa Paula, Santa Rosa, Santee, Saratoga, Sausalito, Scotts Valley, Seal Beach, Seaside, Sebastopol, Selma, Shafter, Signal Hill, Simi Valley, Solvang, Sonora, South El Monte, South Gate, South Pasadena, South San Francisco, St. Helena, Stanton, Stockton, Suisun City, Sunnyvale, Susanville, Taft, Temecula, Temple City, Thousand Oaks, Torrance, Tracy, Truckee, Tulare, Turlock, Tustin, Twentynine Palms, Ukiah, Union City, Upland, Vacaville, Vernon, Vallejo, Ventura, Villa Park, Vista,Victorville, Visalia, Walnut, Walnut Creek, Wasco, Watsonville, Weed, West Covina, West Hollywood, West Sacramento, Westlake Village, Westminster, Westmorland, Whittier, Windsor, Winters, Woodlake, Woodland, Woodside, Yorba Linda, Yuba City, Yucaipa, Yucca Valley,Yorba Linda, Yuba City, Yucaipa, Yucca Valley

Arizona:

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FORECLOSURE INSIGHTS – SOMETIMES A SIMPLE TILA RESCISSION LAWSUIT CAN TURN INTO A CIRCUS…

Rescind My Loan by Foreclosure Defense Attorney Steve Vondran — Sat, 08 May 2010 17:11:56 +0000

PREDATORY LAWYERING? Here is another insider view of the types of things that go on when trying to saving your home from foreclosure……TALES FROM THE FORECLOSURE DEFENSE PIT. Attorney defending One West Bank and Wells Fargo in a TILA and Predatory lending lawsuit filed by our firm lies about postponing foreclosure.

Statement of Facts

My Client had rescinded their loan under Truth in Lending Law, and sent in a rescission letter to their lenders to this effect (due to material truth in lending violations). Under TILA, such rescission election applies to each and every loan assignee including in this case, Wells Fargo and One West Bank (you know the guys that bought up the failed Indymac’s loans in a sweetheart deal from the FDIC). Anyway, our firm was hired to file a lawsuit to assert our Clients rescission rights because, as is normally the case in TILA rescission, the “lender” denied my Client’s rescission rights forcing us into Court to rescind the loan, and seek our attorney fees.

As we have discussed in previous posts, the lenders typically and routinely deny your rescission request. Why? because they can, and because they like to force you into court where they try to raise the “tender” issue (one of their favorite ploys) even though the literal reading of TILA requires them to pay you back all the monies they received from you, and to remove the security instrument leaving no rights to foreclose on your property. At any rate, you can view other blogs for the tender issue.

At any rate, our lawsuit named One West Bank (supposedly the loan servicer) and Wells Fargo (supposedly the investor). We say supposedly, because when you are dealing with securitized loans, it can often be difficult to ascertain who in fact is the real lender and who has the note and deed of trust and the proper rights to collect money on your loan, and to foreclose on you. We talk about these types of “produce the note” and “prove you are a creditor in bankruptcy” issues on other blog posts.

So back to our story, so we file a TILA lawsuit, and seek to rescind the loan. We have a tender strategy in place and my Client wants their money back that they paid on the loan. This is their right. We are prepared to seek the TRO and then the Preliminary Injunction and prove up our case in a court of law.

Now remember, after you file a lawsuit, the Defendants only have a limited amount of time to answer the complaint or file a motion, etc. – typically 30 days in California and 20 days in Arizona. Defendants One West Bank and Wells Fargo (company that purchased Wachovia and World Savings) failed to file any responsive pleading in this time frame. YEAH, I SUPPOSE THEY WERE TOO BUSY DENYING LOAN MODIFICATIONS TO RESPOND TO A CIVIL LAWSUIT FILED UNDER TRUTH IN LENDING LAW. We know its not a money issue, because they got their nice big fat juicy bailout, so that couldn’t be the issue right?

So after the case is filed, and no answer or responsive pleading is made to the TILA lawsuit, we filed for a entry of DEFAULT and were preparing to prove up our case to the judge. That’s when the nonsense begins. First thing that happens is a lawyer for Wells/OneWest (yes, nowadays these companies typically hire one lawyer to represent both of their interests if you can believe it) calls and says he represents Wells/OneWest and that he wants back in the case even though he failed to respond in a timely manner. This attorney and firm shall remain nameless out of professional courtesy even though such is not really deserved.

So this attorney literally begs my Client to let them back into the case and agrees to postpone the sale date (that was already scheduled) but not yet enjoined by the TRO or preliminary injunction. The attorney even sends us an email to that effect. Since we realized in many cases the Courts are going to simply let the defendant back into the case anyway, we agreed to stipulate to allow them back into the case and to refrain from filing the TRO as we agreed to work on early settlement negotiations in good faith.

Good faith? Too good to be true. Next thing that happens is we start getting calls from another firm stating they represent Wells Fargo / OneWest Bank on the same case? Huh? One law firm is not enough so they hire two different firms to defend the TILA case and neither knows about the other. Laughable, but only somewhat surprising given some of the things we have seen in loss mitigation.

Thereafter, Attorney#1 goes on and has his Client conduct a foreclosure sale even though he later claimed (“this was against my advice”) and after also claiming (“I knew nothing about this”). Hmm. Long story short, we send a scathing letter to Wells One West demanding that they rescind the foreclosure sale because under TILA they had no security interest to foreclose on. Attorney #1 says he is no longer on the case, but that they have agreed to rescind the foreclosure sale. Then Attorney#2 calls and says he is on the case now but he will not answer any of our questions about rescinding the sale, but he begins to beg us for a stipulation to allow them back into the case and set-aside the default. At this point we tell them to pound sand unless they rescind the sale as they said they would do. Of course, this never happens. Instead, we moved froward with our TRO (restraining order) and eventually get our preliminary injunction granted even over the object of the Attorney#2 who was on the phone (courtcall) making some silly argument about tender. He really had nothing else to say. Keep in mind, Attorney#2 had not even appeared in the case, or filed any motions to get back into the case or rescinded the wrongful sale or anything. This is life in foreclosure land. Alot of chaos, confusion, and lack of good faith.

We are now going back in to prove up the default and seek to rescind the loan and get our attorney fees. This is just an example of how even relatively simple tasks (such as responding to a civil predatory lending lawsuit) are getting completely fouled up by these fortune 500 bankers and their attorneys who either care less about you, or worse, are predatory themselves.

This story only reinforces our vigor on why we need to hold these callous financial institutions accountable, and demand that they own up for the predatory loans they profit off, and the truth in lending rescission claims they think they can completely ignore (even after a lawsuit has been filed), and move to foreclose on a California homeowners primary residence even when their attorney states they wont. These types of callous and indifferent acts by major lenders and their foreclosure counsel only adds gas to the foreclosure defense fire by interjecting questionable conduct that seeks to deprive a California homeowner of their home.

MORAL OF THE STORY: Folks, when you are dealing with big lenders such as Wells Fargo and One West bank, be advised to look out only for yourself. This is not the first example of tricks, lies, and false statements in the foreclosure defense and bankruptcy context which stories abound (at least as far as the calls our office is concerned). At the end of the day these bully lenders and financial institutions and their hired guns have an arsenal of laws (and taxpayer bailout money) created especially for them (by their powerful lobbies and special interests) – such as (1) the tender rule following a foreclosure sale, (2) alleged federal preemption of state law predatory lending claims, (3) holder in due course doctrine, and the; (4) no duty owed by a bank to a borrower rule etc. (these are the big defenses the big boys typically pull out when sued and called to answer for their roles in mortgage meltdown).

We are all lead to believe (or should I say the banks argue) that the bailed out banks have done absolutely nothing wrong and played no role whatsover in this current financial crisis and that they deserved the bailout President Obama and Congress gave them, and that they hold all the cards in regard to loss mitigation, and that it was the borrowers created this mess, and that you are essentially powerless to challenge any of their acts of wrongdoing. In California, SB94 was passed to essentially deprive you of legal representation when seeking reasonable loss mitigation options. I suppose that is too much to ask for to allow Californians the “freedom to contract” with who they see fit to help them. It seems unconstitutional to simply impinge on your “freedom to contract” but again, I suppose your freedoms are subject to forces more powerful than you, namely fortune 500 financial institutions who literally write the laws. At the end of the day, they get their well-paid lawyers to fight their battles for them, while you are told YOU HAVE NO RIGHT TO PAY ANYONE IN ADVANCE TO REPRESENT YOUR INTERESTS. Welcome to the jungle!

Folks, you also need to ask yourself what types of banks and financial institutions you want to do business with in the future? Are there any banks that have your best interests at heart? Does anyone care about your legal rights or is it just about getting their hands on your money? You should think honestly about who you are going to bank with and deal with going forward. The lesson to be learned here, is that so-called “lenders” and “investors” are basically only out for one thing – money and profits, and if you and your home and your dreams stand in the way, they will do whatever it takes to steamroll over your opposition to their asserted authority. Should anyone really be surprised at anything these bailed-out dinosaur financial institutions pull? California and Arizona homeowners you must remain vigilant in this war against foreclosure, trust no-one and seek to identify, assert, and stand up for your rights.

PS. If you have a refinance loan within the last three years, make sure to have a TILA audit / forensic loan audit of your file undertaken by a foreclosure defense lawyer or other qualified professional. If you have a right to rescind your loan you should review this strategy with your foreclosure defense attorney. TILA creates some powerful rights that could wind up being the difference between facing a deficiency judgment and walking out of court with a check in hand following a bona fide rescission claim. The lenders would prefer you not examine this avenue of potential defense. TILA rescission also gets real muddy for them when dealing with securitized loans and trying to identify who got paid on the loan.

If your truth in lending rescission case lacks a tender plan, there is always the short sale option…..

Rescind My Loan by Foreclosure Defense Attorney Steve Vondran — Tue, 23 Mar 2010 11:33:21 +0000

We are getting more and more calls from people who have decided to give up on the hopes of principal loan balance reduction (we have always told people principal loan balance reductions are like a bigfoot sighting) and instead seek to short sell their property letting the bank deal with the property, especially where the stubborn bank (that got their bailout) refuses to help the homeowner save their home by providing a reasonable and meaningful loan modification.

Now, in the context of shot sales, there are a few things to consider:

(1) Will you be liable for a deficiency judgment (meaning if the lender allows you to sell your home for less than its worth, can the lender come back against you for a deficiency judgment?

We have talked about deficiency judgments in Arizona on one of our other websites: Click here for more general legal information: http://www.arizonadeficiencyjudgment.com/

(2) Are there tax implications involved with the lender forgiving debt owed?

(3) Are you entitled to $1,500 relocation expenses following a short sale under the HAFA (Short Sales Incentives law)?

(4) Do you qualify for HAFA?

We outlined the general qualifications for HAFA and some of the general rules on our HAFA short sale blog which can be found here: http://activerain.com/blogsview/1546150/short-sales-overview-before-and-in-anticipation-of-hafa

(5) Can a forensic loan audit and letter to your lender help assist in them accepting a short sale over forcing you into foreclosure? Do you have any predatory lending violations that you can leverage? Is it better to file a lawsuit against your lender?

We have previously outlined some of the things we look for in an Attorney forensic loan audit on this website: http://vondranlegal.com/2009/08/15/what-is-a-forensic-loan-audit/

(6) What other options might you have if the lender refuses to accept your short sale? Options such as filing bankruptcy or pursuing a deed-in-lieu of foreclosure?

Our Arizona bankruptcy website can be found at www.ArizonaBankruptcyResourceCenter.com

(7) If the lender insists on denying your short sale, have they followed the foreclosure process that would permit them to legally foreclose on you?

(8) Are there outstanding issues that can be solved with a Qualified Written Request under RESPA?

We have discussed in general terms the topic of Qualified Written Request under another blog that can be found here: http://www.foreclosuredefenseresourcecenter.com/forensicloan-loan-audits/qualified-written-request/

(9) Do you have a right to rescind your loan under Truth in Lending (TILA) extended three-year right to rescind?

We have a website dedicated to truth in lending rescission rights (TILA) which can be found here: http://www.rescindmyloan.net/a-general-overview-of-truth-in-lending-law-and-the-right-to-rescind/

These are some of the loss mitigation and foreclosure defense questions/issues we deal with on a daily basis. If you are facing any of the above legal issues, you might want to think about retaining a real estate and foreclosure lawyer to protect your interests. The banks, lenders, and loan servicers have lawyers on their side and they are probably hoping you don’t take this step on your end. In California, the lenders backed SB94, a law that prevents any lawyer or broker from accepting any advance fees for loan modifications which has literally allowed lenders to force California homeowners to be unrepresented in the loan modification context. This is the way they wanted it done, and the California legislature went along with it. In Arizona, you may still hire a lawyer to assist you, at least for the time being.

For more information about hiring a Phoenix Short Sale Lawyer, please visit our website at www.PhoenixShortSaleLawyer.com

KEYWORDS: PHOENIX SHORT SALE LAWYER / SCOTTSDALE SHORT SALE LAWYER / ARIZONA SHORT SALE LAWYER / SHORT SALE ATTORNEY / PHOENIX SHORT SALE ATTORNEY / SCOTTSDALE SHORT SALE ATTORNEY / ARIZONA SHORT SALE ATTORNEY / ARIZONA FORECLOSURE LAWYER / PHOENIX REAL ESTATE LAWYER / SCOTTSDALE FORECLOSURE ATTORNEY / PHOENIX BANKRUPTCY LAWYER / PHOENIX BK LAWYER / REAL ESTATE LOSS MITIGATION / DEED-IN-LIEU OF FORECLOSURE / ARIZONA INJUNCTION / FILING LIS PENDENS / PHOENIX LOAN MODIFICATION / SCOTTSDALE LOAN MODIFICATION / ARIZONA LOAN MODIFICATION / TILA RESCISSION / RESPA QUALIFIED WRITTEN REQUEST

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This is an advertisement and communication pursuant to state bar rules. All websites listed herein are provided as general legal information only.

how bank lawyers really feel about homeowners trying to save their homes from foreclosure and using the law to assist them…..

Rescind My Loan by Foreclosure Defense Attorney Steve Vondran — Sun, 07 Mar 2010 01:31:33 +0000

WHAT LAWYERS WHO REPRESENT LENDERS AND LOAN SERVICERS REALLY THINK ABOUT YOUR ATTEMPT TO FIGHT TO SAVE YOUR HOME FROM FORECLOSURE

Here is a recent email exchange I had with one of the large lender/loan servicers in regard to asserting my Client’s Truth in Lending rescission rights.

This email allows you to get a little flavor of what the big bad bailed out banks think about helping other people who need a bailout.

HERE WAS HIS EMAIL QUESTION TO ME:

It is a mystery to me why lawyers get involved with clients simply to delay the inevitable. The only reason I’ve been able to fathom is that the lawyer gets paid instead of the bank, while the borrower continues to live in the house. Doesn’t seem like a good way to keep one’s malpractice insurance premiums down.

I’m not suggesting that is what you’re doing here. However, XXXXXXX must protect itself and the loan owner from such pointless shenanigans.

I’m not aware of a new date for the foreclosure sale, but this doesn’t mean that one hasn’t been set……

NOTICE HOW HE SEEMS INTENT ON LECTURING ME ABOUT MY MALPRACTICE INSURANCE AND ASSUMING EVERYTHING IS INEVITABLE. IN HIS WORLD, THERE IS NO TAKING ON THE BANKS, NO QUESTIONING THE BANKS, NO DEFIANCE THAT WILL BE TOLERATED BY THE BANKS, THEY GOT THEIR MODIFICATION BUT HOW DARE YOU TRY TO ASSERT YOUR LEGAL RIGHTS, ESPECIALLY WHERE VALID TRUTH IN LENDING RESCISION RIGHTS WERE PRESENTED AS PROOF TO THIS GUY. HERE IS MY RESPONSE TO THE GENTLEMAN.

XXXXXXXX,

I can appreciate your position here are a few mysteries I am looking for answers to:

(1) Why when banks get bailed out big time, do they act like no homeowner deserves a decent bailout?

(2) Why in all of my cases where I find a bona fide Truth in Lending (”TILA”) violation, does the lender always either (a) deny that the violation exists in the face of attached documentary evidence, or (b) refuse to even respond to a TILA rescission letter?

(3) Why do lenders/loan servicers routinely fail to address the question of who actually owns the loan? Or provide proof of such?

(4) Why do loan servicers routinely fail to respond, or fail to respond in a timely manner, to legitimate qualified written requests under RESPA?

(5) Why are lenders refusing to do short-sales at or near fair market values only to find that they get less at a foreclosure sale?

(6) Why are lenders/loan servicers routinely making blatantly false declarations under California Civil Code Section 2923.5?

(7) Why is California Civil code section 2923.6 routinely violated?

(8) Why do “lenders” continue to try to collect payments where the loan in question was already paid off via insurance, bailout money etc.?

(9) Why is it that MERS continues to try to pretend it is a beneficiary and foreclose on people?

(10) Why is it so many substitutions of trustee are invalid and the resulting Notice of Default invalid and not in compliance with California Foreclosure Laws?

(11) Why is it that other lawyers who represent banks (who are making out pretty nicely for their efforts) complaining about other lawyers who are fighting for Clients who want to keep their houses and exercise legal rights that they clearly have?

(12) Why won’t attorneys for lenders/investors be honest about sale dates? Is there truly something to hide or is it a total lack of respect for attorneys who represent deadbeat homeowners?

As a lawyer, I am sure you are aware there are two sides of the coin here. It is not a black and white issue. Can you send me proof of who the owner of this loan is in the form of an indorsed promissory note that your client is in possession of? I have not seen any proof. Seriously, do not fault us for fighting for the rights of homeowners who are often facing severe financial hardship (usually for reasons out of their control - like a bogus economy), and who are fighting to keep a roof over their head, and using the legal rights the law affords them to fight the system that was setup to defeat them.

To your malpractice claim assertion, it is malpractice NOT to identify, stand-up and assert my Client’s legal rights – whatever you may think of them.

If you do not want to be straight up and inform us of the new sale date, and if foreclosure is inevitable, why not just tell me there is nothing that is going to be done, and the sale will occur whenever your Client feels like it. I can live with that if you want to be honest. If that is the truth let’s talk honestly about it. I can handle the truth!

(parts omitted due to client confidentiality)

You are a beneficiary of this system partially created by your Clients, so I would not be flabbergasted by what you are dealing with.

This is a typical day in the life of dealing with big banks and fighting for our clients using every law that we can think of that may help in the fight to save a home from foreclosure.

Going hand in hand with this article, here is another post we posted discussing other reasons we work so hard to battle these banks:

Phoenix Foreclosure Defense Attorney strives to put the “TRUTH” back in Lending!

Some people have asked me, why are you passionate about foreclosure defense and helping Arizona homeowners? One of the answers I like to give is the following:

OUR MISSION: “WE ARE FIGHTING FOR “TRUTH IN LENDING” (a strange concept, i know!):

(1) WE ARE FIGHTING FOR TRUE AND ACCURATE DISCLOSURE OF A LOAN PRODUCT, ITS NATURE, AND TERMS (TELL PEOPLE THE TRUTH ABOUT THE LOANS THEY ARE LOCKING INTO). GIVE THEM THE CHARMS BOOKLET AND CALIFORNIA ARM DISCLOSURES

(2) WE ARE FIGHTING FOR TRUE AND FAIR DISCLOSURE OF THE PRICE-TAG FOR THE LOAN (APR AND FINANCE CHARGES THAT ARE TRUE AND ACCURATE). ACCURATE TRUTH IN LENDING STATEMENTS

(3) WE ARE FIGHTING FOR FAIR AND ACCURATE DISCLOSURE OF THE RIGHT TO CANCEL THE LOAN WHEN APPLICABLE (GIVE PEOPLE THEIR REQUIRED COPIES AND GIVE TRUE DATES UPON WHICH LOANS CAN BE RESCINDED)

(4) WE ARE FIGHITNG FOR FAIR AND HONEST UNDERWRITING THAT IS BASED UPON A CLIENTS TRUE ABILITY TO REPAY A LOAN (WHICH MAY MEAN VERIFYING INCOME AND TELLING SOME PEOPLE THEY DON’T QUALIFY) AND TRUE AND ACURATE APPRAISAL OF PROPERTY THAT SUPPORTS THE UNDERWRITING.

(5) WE ARE FIGHTING FOR FULL DISLCOSURE OF THE HOLDER OF THE LOAN (INVESTOR) AND PROOF AS TO WHO OWNS THE RIGHT TO BE PAID, AND THE RIGHT TO FORECLOSE, AND WHO MUST BY LAW CONTACT CALIFORNIA HOMEOWNERS TO DISCUSS LOAN MODIFICATIONS AND ASSESS BORROWER FINANCES.

(6) WE ARE FIGHTING FOR FULLFULL AND FAIR ACCOUNTING FOR PAYMENTS, LATE FEES, ESCROW CHARGES, AND OTHER CHARGES IN THE LOAN SERVICER’S BACK-ROOM. ANSWER THOSE QWR’S ON TIME, AND IN UNDERSTANDABLE DETAIL. STOP REPORTING NEGATIVE CREDIT DURING THIS PERIOD.

(7) WE ARE FIGHTING FOR HONESTY AND “TRUTH IN TRIAL PLANS” – IF HOMEOWNERS DON’T QUALIFY FOR A MORTGAGE RESTRUCTING / LOAN MODIFICATION, DON’T SEND THEM A TRIAL PLAN THAT LEADS THEM TO BELEIVE THEY DO. IN ADDITION, BE TRUTHFUL ABOUT THE PRECISE TERMS OF THE LOAN MODFIICATIONS (DISCLOSE THE TERMS CLEARLY) AND HONOR YOUR TRIAL PLAN AGREEMENTS.

ITS TIME THE LENDERS OPEN THE BOOKS AND SHOW US WHERE THE BAIL-OUT MONEY HAS GONE. WE NEED SOME TRANSPARENCY. WE NEED SOME ACCOUNTABILITY TO SHOW WHAT HAS BEEN DONE WITH TAX-PAYER MONEY. WAS YOUR LOAN ALREADY PAID OFF VIA THE BAILOUT, AND NOW THEY WANT TO COLLECT MORE MONEY FROM YOU FROM A LOAN THAT MAY HAVE BEEN ALREADY PAID? IF YOUR LOAN WAS SECURITIZED INTO A “LOAN POOL” IS THERE ANY CHANCE YOUR ENTIRE POOL OF LOAN WAS BAILED OUT AND PAID OFF? IF SO, DOES THAT MEAN THEY STILL GET TO COLLECT FROM YOU AS WELL? WHAT IS THAT? ISN’T THAT A WINDFALL……..UNJUST ENRICHMENT?

PEOPLE DESERVE TO BE REPRESENTED BY A FORECLOSURE DEFENSE LAWYER WHEN TRYING TO RESOLVE ONE OF BIGGEST PROBLEMS MOST HOMEOWNERS WILL EVER FACE. IN MANY CASES, A FORECLOSURE DEFENSE LAWYER CAN EVALUATE YOUR LOAN, REVIEW YOUR MORTGAGE DOCUMENTS (FORENSIC AUDIT), DEMAND THAT DEBTS BE VALIDATED, SEND MODIFICATION PROPOSALS, REVIEW TRIAL PLAN AND OTHER LOAN MODFICATION AGREEMENTS, ADVISE ON DEFICIENCY JUDGMENTS, DISCUSS POTENTIAL BANKRUPTCY AND SHORT-SALE OPTIONS, AND ENSURE THAT YOUR RIGHTS UNDER THE FORECLOSURE LAWS ARE ADHERED TO AND PROTECTED. THE BANKS HAVE EXPENSIVE LAWYERS ON THEIR TIME, YOU DESERVE TO BE REPRESENTED DURING THIS CONFUSING AND STRESSFUL ORDEAL. THIS IS THEIR GAME AND THEIR BATTLEFIELD.

IF YOU ARE AN ARIZONA HOMEOWNER PLEASE CONTACT US (877) 276-5084 TO DISCUSS YOUR FORECLOSURE CASE.

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KEYWORDS: ARIZONA FORECLOSURE DEFENSE LAWYER / ARIZONA FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / PHOENIX FORECLOSURE DEFENSE ATTORNEY / TRUTH IN LENDING LAWYER / TRUTH IN LENDING ATTORNEY / PREDATORY LENDING LAWYER / PREDATORY LENDING ATTORNEY / QUALIFIED WRITTEN REQUEST / RESPA LAWYER / RESPA ATTORNEY / PHOENIX TRUTH IN LENDING LAWYER / PHOENIX TRUTH IN LENDING ATTORNEY / FORENSIC LOAN AUDITS / ATTORNEY LOAN AUDITS / SCOTTSDALE FORECLOSURE DEFENSE LAWYER / SCOTTSDALE FORECLOSURE DEFENSE ATTORNEY / SCOTTSDALE TRUTH IN LENDING LAWYER / SCOTTSDALE TRUTH IN LENDING ATTORNEY / SCOTTSDALE LOAN MODIFICATION LAWYER / PHOENIX LOAN MODIFICATION ATTORNEY / OPTION ARM LOAN LITIGATION.

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ABOUT US:

The Law Offices of Steve Vondran in licensed to practice law in California and Arizona. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.

He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084

Offices:

Arizona Office (Esplanade): 2415 E. Camelback Road, Suite 700, Phoenix, AZ, 85020.

California Office (Fashion Island): 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

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Our Real Estate Law Services:

1. Loan Modifications / Loan Workouts (World Savings and Wachovia Loans)2. Commercial Lease Modifications3.DRE audits, hearings and investigations4. Real Estate Broker admissions cases5. Foreclosure Defense6. Mortgage Law & Predatory Law7. Phoenix Real Estate Zoning Attorney – Greater Phoenix (Scottsdale, Goodyear, Buckeye, Casa Grande etc.)8. Phoenix Eminent Domain Attorney / Inverse Condemnation / Prop 207 (Greater Phoenix)9. Real Estate Arbitration, Litigation and Mediation10. Foreclosure Consultant Contracts / Loan Modification Contracts11.Real Estate LLC’s & Incorporations12. Real Estate Partnership Law13. Quiet Title Actions14. Forensic Loan Audits – Greater Phoenix (Truth in Lending (TILA), RESPA, HOEPA, Fraud, etc.)______________________________________________________________________________

KEYWORDS: ARIZONA FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / SCOTTSDALE FORECLOSURE DEFENSE ATTORNEY / SCOTTSDALE FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY PREDATORY LENDING LAWYER / ORANGE COUNTY FORECLOSURE DEFENSE ATTORNEY / ORANGE COUNTY FORECLOSURE DEFENSE LAYWER / TRUTH IN LENDING LAWYER / TRUTH IN LENDING ATTORNEY / SOUTHER CALIFORNIA MORTGAGE LAW ATTORNEY / MORTGAGE LAWYER / RIVERSIDE FORECLOSURE ATTORNEY / RIVERSIDE FORECLOSURE LAWYER / RESPA LAWYER / RESPA ATTORNEY / FORECLOSURE DEFENSE LAW / PHOENIX LOAN MODIFICATION ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY REAL ESTATE LAWYER / ORANGE COUNTY PREDATORY LENDING AND MORTGAGE LITIGATION ATTORNEY / NEWPORT BEACH FORECLOSURE DEFENSE LAWYER / NEWPORT BEACH FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE LAWYER / PREDATORY LENDING LAWYER / LOAN RESCISSION ATTORNEY / TILA RESCISSION LAWYER / WACHOVIA OPTION ARM LOAN / WORLD SAVINGS OPTION ARM LOAN / RESCIND MY LOAN /

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HELPFUL FORECLOSURE DEFENSE LINKS:

To see some of other other websites dealing with the financial crisis please review the following websites:

(1) www.OptionArmLawyer.com (potential attacks against the predatory option arm loan – aka “Pick-a-Prey”)

(2) www.TrialPlanFraud.com (tackling issues involved with what we call trial-plan shennanigans)

(3) www.BKAttorneyS.net (BK Attorney Steve – Chapter 7 Bankruptcy information for Arizona and California Homeowners)

(4) www.RescindMyLoan.net (website that discusses Truth in Lending Rescission information)

(5) www.LoanModRadio.com (site which features foreclosure defense issues in streaming audio)

(6) www.ProduceTheNoteAttorney.com (general information on the “Produce the Note” foreclosure defense strategy that is running rampant on the Internet)

www.LoanModSolutions.net (Submit your Wachovia / World Savings Loans)

www.LoanModificationRipoff.net (Submit your Loan Mod Scam – we may be able to take your case on contingency).

Our profiles will also be listed on www.ContingencyCase.com an online legal directory for lawyers who will consider taking cases on a contingency fee basis in a variety of legal areas. I will be listed for our World Savings and Wachovia Option Arm loans.

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Our Real Estate Law Services:

1. Loan Modifications / Loan Workouts (World Savings and Wachovia Loans)

2. Commercial Lease Modifications

3. DRE audits, hearings and investigations

4. Real Estate Broker admissions cases

5. Foreclosure Defense

6. Mortgage Law & Predatory Law

7. Phoenix Real Estate Zoning Attorney – Greater Phoenix (Scottsdale, Goodyear, Buckeye, Casa Grande etc.)

8. Phoenix Eminent Domain Attorney / Inverse Condemnation / Prop 207 (Greater Phoenix)

9. Real Estate Arbitration, Litigation and Mediation

10. Foreclosure Consultant Contracts / Loan Modification Contracts

11. Real Estate LLC’s & Incorporations

12. Real Estate Partnership Law

13. Quiet Title Actions

14. Forensic Loan Audits – Greater Phoenix (Truth in Lending (TILA), RESPA, HOEPA, Fraud, etc.)

THE LAW OFFICES OF STEVE VONDRAN IS LICENSED TO PRACTICE LAW IN ARIZONA AND CALIFORNIA. PLEASE DO NOT SEND US CONFIDENTIAL EMAILS OR POST CONFIDENTIAL CASE INFORMATION ON ANY OF OUR BLOGS OR WEBSITES. THERE IS NO GUARANTEE OF PRIVACY.

WE SERVE ARIZONA REAL ESTATE CLIENTS IN THE FOLLOWING CITIES: PEORIA, SURPRISE, SUN CITY, PHOENIX, GLENDALE, CASA GRANDE, SCOTTSDALE, TEMPE, MESA, CHANDLER, MARICOPA, BUCKEYE, GOODYEAR, AVONDALE AND OTHER SURROUNDING CITIES IN THE GREATER PHOENIX AREA.

THIS IS AN ADVERTISEMENT AND COMMUNICATION PURSUANT TO STATE BAR RULES.

How bank lawyers really see your Truth in Lending Rescission Rights…….and your fight to save your home…..

Rescind My Loan by Foreclosure Defense Attorney Steve Vondran — Sun, 07 Mar 2010 01:28:31 +0000