How Does Rescission Work as a Foreclosure Defense Strategy?

Rob and Linda Madison: A Basis for Rescission

Rob and Linda are a married couple. Rob is a general contractor and Linda teaches high school English. They refinanced their home's mortgage two years ago. At the closing, Rob and Linda were provided with two copies of the Notice of Right to Cancel. The loan was taken out only in Rob's name, but Linda signed the mortgage to waive her homestead rights. In Illinois, homestead rights are created by statute and protect up to $15,000 of the value of a person's primary residence from liens. Most mortgage lenders require that borrowers waive these rights to make foreclosing on a mortgage easier.

Based on these facts, Rob and Linda were not provided with the right number of copies of the Notice of Right to Cancel. TILA requires that every person with an interest in the property be provided with two copies of the Notice. Even though Linda was not personally obligated to repay the loan, the fact that she signed the mortgage entitled her to receive two copies of the Notice in addition to the two copies Rob should have received. Since their lender failed to provide enough copies, Rob and Linda have a three year right to rescind their loan. This provides Rob and Linda with a means of unwinding the loan, which can place them in a stronger bargaining position with their lender.

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