Lender's "Boilerplate" Disavowal Dooms Rescission of a Common Loan Modification Agreement - Lexology

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Lender’s “Boilerplate” Disavowal Dooms Rescission of a Common Loan Modification Agreement

Lender’s “Boilerplate” Disavowal Dooms Rescission of a Common Loan Modification Agreement

LEXOLOGY-

In a case with potentially broad implications, the Sixth Circuit becomes the first federal circuit court to hold that the Truth in Lending Act provides no right to rescind a loan modification agreement entered into with a successor creditor. TILA exempts from rescission “refinancing” transactions with “the same creditor secured by an interest in the same property” but not “refinancing” with a different creditor.

The case impacts those borrowers whose loans were assigned after origination (an everyday occurrence), and who seek rescission after receiving a common form of modification that lowered their interest rate, recalculated the principal due to include only the unpaid balance plus earned finance charges and premiums for continuation of insurance, and perhaps even extended their payment schedule.

Regulation Z provides that a “refinancing occurs when an existing obligation … is satisfied and replaced by a new obligation undertaken by the same consumer” and that a refinancing does not include a “reduction in the annual percentage rate with a corresponding change in the payment schedule.”

[LEXOLOGY]

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