Posted in consumer protections, Financial, Foreclosure, Foreclosure Defense

Sickler Article on TILA Rescission and the Attitude of the Courts

Rescission Words

This law review article examines the Truth in Lending Act (TILA) from a different perspective. For several decades now, the banks have been able to steer the courts into re-writing this very important consumer protection statute. This law review article examines the trend of courts to ignore the plain language of TILA and substitute their own view of TILA. In the beginning, judges understood the importance of TILA and the fact that a lender who fails to follow TILA’s plain and unambiguous language has no one to blame but themselves for whatever ills befall them. Below are a couple of my favorite citations from some early TILA cases. I would love to see judges ruling in this fashion once more.

“The creditors, of course, failed to carry out any of their statutory duties, and thus their lament of any inequity being visited upon them is utterly unpersuasive, for the power was completely theirs to prevent this parade of creditor horribles from ever occurring.” Sosa v. Fite, 498 F.2d 114, 119 (5th Cir., 1974).

“Applying these requirements to this case, when defendant Warwick Credit Union received plaintiffs’ notice of rescission, had it complied with the Act (instead of attempting to foreclose) by then returning any money paid by the plaintiffs within 10 days and terminating any security interest created, plaintiffs would have then had to return whatever amounts they had received from such defendant and defendant would have suffered relatively minor pecuniary loss. Sosa, supra at 118-119. However, since the defendant did not comply with the above-stated statutory requisites, it becomes amenable to the rather harsh legislative remedy which the Truth in Lending Act imposes upon errant creditors.” French v. Wilson, 446 F. Supp. 216 (D.R.I., 1978)

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Hat tip to Carol Molloy, Esq. in Tennessee in bringing this article to my attention. I think that the author, Alexandra P. Everhart Sickler associate Professor of Law at North Dakota School of Law, has done an excellent job in analyzing the legal precedent, the statutory provisions, the agency rules, and the general attitude of the Courts that seek to restrict the effect of TILA Rescission. Published by Rutgers Journal of Law and Public Policy, this is the best of what I have read thus far. I see many parts that could be quoted in briefs and memorandums of law.


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