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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
We have been obliged to drill down to what happens post judgment for the banks. Can you rescind. I have arrived at two diametrically different conclusions depending upon whether the state conducts foreclosures judicially or non judicially, but you should check with a qualified attorney who knows your facts before you make any decision based upon the content in this article.
Simply stated, in a nonjudicial state, you can still send the rescission post judgment because the judgment is not a foreclosure judgment and the loan contract obviously exists — otherwise there would be no right to sell the home non judicially.
In a judicial state it gets more complicated — and the likelihood of having any judge agree that the rescission had any effect narrows considerably.
There is a question of when you could send a rescission and have a real chance at getting traction in court. While we started from the premise that any rescission sent at any time is effective until it is declared ineffective by a court order, it became apparent during the review process on some loans and afterwards, that there was a specific procedural issue that several lawyers with whom I consulted, stated was a real problem.
That issue was that judgment had already been entered. While we could attempt to use the rescission as a procedural tool and while it is possible to attack anyone seeking to avoid the rescission on the issue of standing, we were unable to develop a theory or fact pattern in which it would not be apparent on its face that the loan contract, if it ever existed, no longer existed. And THAT meant that the rescission would NOT be effective when mailed because there was no loan contract to rescind. That is based upon the conclusions that after judgment is rendered, the rights and obligations of the parties arise from from the Judgment, not the loan contract, note or even the mortgage. [Comments and analysis on this are welcome. Send them to neilfgarfield@hotmail.com].
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There are some divergent opinions on this issue but I have ultimately decided that I agreed with the attorneys who took the position that the loan contract was legally over when judgment was entered and the time for rehearing and appeal had run. My decision is based upon a very technical gray area of Florida law. Different states have different laws.
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I have voiced the opinion that it can be sent (there is nothing stopping you, even now) and recorded as an exhibit to a Notice of Interest in Real Property, and that it would be effective, as a matter of law when mailed. I still think that is the case.
The question, though, was whether the rescission would actually have an effect if there was no loan contract. For a while now I have believed that the loan contract existed, at least in part, for the duration between entry of judgment and sale of the property. But I have now narrowed my opinion to be that while the judgment is in the period of time for rehearing or appeal, there might indeed be a way to argue that the loan contract still existed and that it could therefore be canceled. After researching the matter further I concluded that based upon Florida statutes and case decisions, most courts would conclude that a letter announcing rescission long after Judgment was irrelevant — because there was no longer anything to rescind. And the rescission could not vacate the judgment entered by the court.
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But none of this means that you couldn’t attack the foreclosure as a wrongful foreclosure based upon fraud as to the owner of the debt, the owner of the note and the owner of the mortgage. And that in turn frequently leads to settlement, including retention of the house. It is in this area that the right to actually cancel the loan contract might still technically exist, although I doubt any Judges will take the bait.
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Sometimes professionals must protect their customers from themselves. I recently concluded, for the sake of a prospective client, that the odds were stacked against them on all fronts and that while possible, there was nothing “probable” about winning anything. Having come to that decision I could not in good faith take any more money from them for the purposes of attacking the banks. Other attorneys might differ.
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My job is tell you you what I think, not necessarily to tell you what you want to hear. In the end, after consideration and reconsideration I have decided that in a judicial state where the time for rehearing and the time for appeal has already run, such a case does not did not present a high likelihood of success on the issue of rescission.
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I still see actions for wrongful foreclosure being very ripe for litigation for foreclosures based upon fraudulent documents and representations to the court. Attacks on Judgments are tough but attacks on the banks for abusing the judicial process are opening up and getting easier. Any action taken post judgment in a judicial state is still an uphill battle. But the case law is changing in favor of homeowners seeking damages as opposed to defending foreclosures.
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