Legal Question in Real Estate Law in California

Re: refinance/recision question.

Answered in first post.

Re: refinance/recision question.

It would be useful to know the exact posture of this loan or loan application. Has the loan funded? Has escrow closed? If so, how long ago - yesterday or six months ago? Did you notice the predating? Did someone predate the date of your signature, or some other aspect? Do the note and deed of trust have the same dates? How much was the pre-dating - a few days or a few months? Most important, how are you harmed, if at all, by the predating? Does it cut off your three-day right of rescission, or cost you a few more days of interest, or what?

As to whether the loan is voided automatically, I'd say probably not. There is a big difference in law between a legal document or instrument that is "void," on the one hand, and one that is "voidable," on the other. If the paper is void, it has no legal effect and neither party can enforce it, ever, against the other. If a contract, deed, mortgage, note, or whatever is merely voidable, it is legally effective unless and until a party with the power to disavow or rescind it does so by taking some affirmative action.

If a loan is voidable, the party with the right to void it would ordinarily have to turn over all the benefits it received. If the borrower is voiding the loan, he would have to return the loan proceeds; if it is the lender with the right, it would have to return the collateral.

There are just a few basic and general rules about void and voidable documents. In the area of mortgage lending, many state and federal laws may affect the rights of the borrower and allow rescission. One of these is the Federal Truth-in-Lending law, under which a loan can be rescinded up to three years after it is made for failure to deliver certain required documents, or for major untruths or errors in those documents. There is also a three-day "cooling off" period required in the funding and closing of many residential loans; this applies if the loan is not purchase money and is secured by the borrower's principal dwelling.

The whole subject of legal, questionable and downright predatory and illegal lending is very complex, and it really isn't possible to give advice on what you describe as "pre dated docs" without knowing what was predated, and what bad consequence, if any, you suffered. It could be anywhere from downright fraud to a perfectly acceptable and normal practice based on the many variables mentioned above.