The loan was not consummated when the borrower signed the promissory note and mortgage/deed of trust because the actual lender was not known at that time. Under these circumstances, the loan is not “consummated” until the actual lender is disclosed, because until that point there is no legally enforceable contract.”
You could say that it’s merely a discovery point and the rescission is conditionally effective until discovery is complete as to what actually occurred and can be put together by the court from the evidence (Then maybe a TILA rescission will be effective, maybe not; if not because there is no contract, what does the homeowner care? You will get the same result, plus he gets to sue for fraud and other damages suffered.)
What is a homeowner to do when past three year right of rescission when arguing TILA?
...if it turns out that consummation did not occur because the broker willingly withheld the table funded partners identity, or alternatively was acting as STRAWMAN for undisclosed investors, and was using their money directly instead of funneling through the REMIC to purchase the home loan (therefore it really was not a buy-sell transaction, it was a disguised buy using duped investors money who expected a legitimate buy-sell to occur, but the REMIC was not properly funded), then what angle do you think is best for TILA? Leave consummation out of the initial argument, and hang your hat on equitable tolling if past three year mark, or keep it in and argue both points”
This raises an interesting question. If the lender was not disclosed at closing, then when is a TILA rescission effective? My first answer is that if the rescission notice is sent, then the mortgage and note are nullified by operation of law unless the “lender” files a lawsuit within 20 days contesting the notice of rescission. So whether you were right or wrong, it would be my opinion that if the “lender” does not respond, the matter is closed and that is the end of the note and mortgage. And if there is no note and mortgage then anything that happens afterwards is void because the lender cannot foreclose on a mortgage that legally does not exist, even if a copy of the mortgage is sitting in county records.
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See Also:
Legally Cancel Your Student Loans. http://studentloan2.com
Void Judgments: http://void-judgments.com