TILA versus TILA: Rescission by Notice or Lawsuit

Jonathan Foxx, Ph.D., MBA
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Here’s something to ponder on:

“Whether the Truth in Lending Act entitles homeowners to rescind their mortgage commitment by notifying the lender in writing within the period specified by the statute, or whether the homeowner must file a lawsuit to make the rescission effective.”

The foregoing ponderable – ably condensed into a single contemplation by the American Civil Liberties Union in announcing its amicus brief – is expected to be adjudicated by the US Supreme Court in its next term. The ACLU’s amicus brief is in favor of written notification.

Before we get started, it should be noted that the ACLU is hardly alone in offering an amicus brief favoring written notification: Attorney General of New York, Eric T. Schneiderman, has announced that he is leading a coalition of more than 25 states in filing an amicus brief urging the U.S. Supreme Court “to uphold consumer rescission rights under the federal Truth in Lending Act (TILA).”

Indeed, in addition to the private litigants, the United States as well as several organizations have filed an amicus brief in favor of written notification, such as the American Association of Retired Persons, National Consumer Law Center, National Association of Consumer Advocates, and the Center for Responsible Lending.

Given the immense legal implications, especially with respect to the loan flow process from point of sale through portfolio and securitization, I would urge a familiarity with the positions taken by both parties to the litigation.

Would you like to venture a guess on the outcome?

For the time being, while we explore this case, please put on hold whatever you know, thought you knew, or assumed regarding rescission. You might find your view challenged by the contours of this lawsuit.

So, let’s ponder this issue that is flaring up from the Truth in Lending Act (“TILA” or “Act’)!

Throughout this article, I will refer to the subject case as “Jesinoski v. Countrywide” or just “Jesinoski.”

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Jonathan Foxx, Ph.D., MBA
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