CFPB files amicus brief in TILA appeal

12 Jun

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Thursday, April 05, 2012 6:23 AM
To: Charles Cox
Subject: CFPB files amicus brief in TILA appeal

CFPB files amicus brief in TILA appeal

By Martin C. Bryce, Jr. on March 29th, 2012

On March 26, the CFPB filed an amicus brief in an appeal involving the Truth in Lending Act before the Tenth Circuit. The question presented in Rosenfield v HSBC Bank, USA is whether a lawsuit seeking rescission is timely where the consumer provided notice of rescission to the lender within three years of closing but did not file suit until after the three-year deadline had passed. In its brief, the CFPB takes the position that a borrower need only send notice of rescission to the lender within the three-year period to validly exercise a right to rescind.

The majority of courts that have looked at this issue, including the Ninth Circuit most recently, have concluded that the requirement for the borrower to also file suit within the three-year period is consistent with the language of section 1635 of TILA and prior precedent, including the U.S. Supreme Court’s decision in Beach v. Ocwen Fed. Bank. Nonetheless, the CFPB disagrees, taking the contrary position that notice is all that’s required. According to its brief, the CFPB intends to file amicus briefs taking the same position in at least three other appellate cases (which are in the Third, Fourth and Eighth Circuits).

While arguing that a borrower need not also file a rescission lawsuit within the three-year period, the CFPB provides no clear answer for the question of how long a borrower can wait to file suit. Instead, the CFPB suggests only that a time limit for bringing a rescission lawsuit may exist and offers possible sources for that limit.

In its press release announcing the amicus filing, the CFPB stated that “the CFPB is committed to filing amicus briefs in litigation involving the federal consumer financial protection laws that it oversees and in which the CFPB determines its views will assist the courts in correctly resolving the matters.” (The CFPB has also filed amicus briefs in two appeals involving the Fair Debt Collection Practices Act–one in the Tenth Circuit and the other in the Eleventh Circuit.)

We think it’s worth noting that the CFPB’s proactive approach stands in stark contrast to the approach taken by the Federal Reserve Board when it was charged with implementing federal consumer financial protection statutes such as TILA. When the Fed felt the courts were incorrectly interpreting the statute in question, the Fed would generally address the issue by proposing revisions to the implementing regulation or official staff commentary rather than by submitting an amicus brief.

Rosenfield_vs_HSBC_Amicus.pdf

One Response to “CFPB files amicus brief in TILA appeal”

  1. fightin4rights June 13, 2012 at 8:16 pm #

    I’m a homeowner, and I am also fighting against my lender concerning the TILA/RESPA ACTS, currently appealing a lawsuit in Virginia, concerning my 3-day cancellation notice, my continued “due diligence” to have my lender recognize my cancellation; forced to send my rescission notice, within the 3-year statute of limitations, with ALL being completely ignored.
    I have read every document received from said Lender, It looks pretty cut and dry to me, as I have read it from several different publications. I have NEVER read ANYWHERE where you have to start a lawsuit to enact our right to rescind.
    These “ACTS”, were supposed to HELP homeowners from getting screwed over by mortgage lenders.
    The lenders have been able to “Torture the Laws to their own means”, making completely irrelevant statements, to bedazzle judges. Which, if borrowers’ had proper representation, they would point out the fact that the statements the lenders’ attorneys are stating is not “against” the borrower, it’s additional evidence of the lenders’ wrong doing or they have nothing to do with the facts of their unfair, deceptive, fraudulent acts, they just spew, so it’s true…
    Judges have to rely on the facts, and I guess there was a time when attorneys only used the “LAW” to prove their cases, which is why Judges “believe” what, said attorneys, are telling them, is exactly what said the laws, statutes and acts mean, as same said attorneys “Specialize” in this “New” field.
    What I have found is just because some high priced flunky gets up in front of GOD and everybody and states “something”, seemingly, a more extensive explanation or addition to unfamiliar laws, has nothing what-so-ever to do with the law. They just make it up as they go, being just an excuse for their negligence; throwing the blame on homeowners. But, because we homeowners do not have proper representation, what the flunky says goes…for instance: “it appears the homeowner made a timely rescission, but she also made payments after said rescission.” This means, to us “uneducated folk”, I cancelled the B.S. Loan because it was not what I was promised, but, at the closing, what they wanted me to sign for, I didn’t want it, I sent in my cancellation within the 3 days I am given, they ignored my cancellation, and put some horrifying loan thru. I disputed from day one, saying “I’m not paying you, I cancelled your B.S. LOAN”, but they extorted payments from me, by threatening to ruin the rest of my world; reporting to the Credit Bureaus that I failed to pay my mortgage payments, which makes my 0%-5% interest accounts sore to 39.99%, and close, having my monthly payment accounts demand payment in full, cutting me off from qualifying for a descent loan… and they are threatening to Foreclose on my home…
    They had no right to put the horrible loan thru, but THEY DID… what is going to stop them from illegally stealing (foreclosing on) my home?
    Instead of cancelling my loan, as they stated receiving my cancellation/rescission notices, answering my “Qualified Written Requests” still ignoring; even answering with a document TELLING ME “We have received your several requests of rescission, and we will not address again”. But, they promised to reduce my principal (which is now, 80% lenders’ closing costs and fees) and reduce my monthly mortgage payments, ‘MODIFY” my loan. Of course this is using OUR MONEY, the tax payers, from one of many “bail-outs the President/our government GAVE THEM, for that said purpose, but my lender has failed to do ANY modifications. Instead, they used the modification process as just another scam, to force me to STOP making my mortgage payments, so they could state, I’m in default, and steal my home. Then, I paid thousands to “Save my home USA” to do a forensic analysis of my loan documents hold the lender and all actors responsible for their unfair, deceptive acts, stop ALL foreclosure proceedings, reduce my principle, interest and monthly mortgage payments, but, after doing due diligence, checking BBB, and government agencies, getting everything they promised in WRITING, even sending to an attorney to protect my interest, I paid, as being the only way they would do their job, and they never even made a phone call to my lender, forcing me to pay $12,000.00 to get my home of the auction block.
    Feel free to call me if you can help me, or if you want to talk to someone who has been there, and still there, living in MY HOME…I’m not an attorney, I can not give any legal advice and have no legal background, so you with not be fed any B.S., call anytime, 24/7 Rita Cheche 757-427-0075

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