Legal Question in Real Estate Law in California

Re: Mortgage Co. failure to comply with Notice of Right to Cancel

You should obtain a strong attorney letter after an attorney reviews your documentation and supports your position that you have a case.

Our firm can review your documetation to see if you have a case.

Re: Mortgage Co. failure to comply with Notice of Right to Cancel

After re-reading your facts several times and reviewing the federal Truth-in-Lending Act, I think you MAY be correct and that you do indeed have a right to resind the earlier transaction. One item you didn't mention is whether the refi you're trying to resind was with the original (purchase money) lender -- if it were, there is no right to rescind.

Another potential weakness in your case is that you accepted the benefits and were content with the deal until, well after the rescission period would have ended, the lender attempted to correct a minor defect in the original disclosure, which, if it had been correct in the first place, wouldn't have caused you to choose to rescind.

I'm not sure the foregoing is a good defense, but I can predict the lender would use some such argument against you.

So, what to do? I guess it depends upon how important rescinding is to you, and what kind of money and personal time you're willing to devote to a potential legal battle. Unless there is a weakness (or strength) to your case that doesn't stand out from the brief facts you've given, I'd say you have a little better than 50-50 chance of obtaining an uncontested rescission, an out-of-court settlement, and/or a judgment in your favor.

If you decide to pursue the matter (and maybe you should take your paperwork to a LOCAL real-estate attorney before deciding), there are at least three avenues of approach: (1) call the Federal Trade Commission; they have a toll-free complaint line; (2) place calls higher up in the lender's hierarchy (finding the numbers can be a chore, but somewhere they have lawyers and executives who can be reached, with diligence; or (3) have a lawyer file suit on your behalf, including a request for a temporary restraining order telling the lender to take no adverse action pending a hearing on your right to rescind, and maybe requiring them to show why the loan shouldn't be rescinded by the TRO itself.

When a suit seeking a TRO is served on a major corporation, suddenly you get their attention.

Please bear in mind that to a judge it may well appear that you are depending upon a technicality to get out of a deal. Can you also show that the error in the disclosure documents was harmful or caused you to make a decision to borrow that you otherwise wouldn't have made? If so, your case is more symathetic. Even so, a court could decide in your favor on the basis that the law must be followed strictly.

By the way, this case would probably belong in federal court, not state court.