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#20150 - 06/10/02 02:57 PM Reg Z Section 226.23 Right Of Rescission
Anonymous
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Regulation Z, Section 226.23 note 47 Stipulates that "delivery of the required notice shall begin the rescission period." What constitutes "delivery." Does anyone have statutory or case law that provides an explination of this term.

Thank you in advance for any feedback,

Matt

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Lending Compliance
#20151 - 06/10/02 06:21 PM Re: Reg Z Section 226.23 Right Of Rescission
BankerMama Offline
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BankerMama
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Posts: 1,543
Isn't the only way to consider "delivery"as when the rescission was actually signed?

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#20152 - 06/10/02 07:20 PM Re: Reg Z Section 226.23 Right Of Rescission
David Dickinson Offline
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David Dickinson
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Central City, NE
I agree with bwest, except RofR doesn't have to be signed. Before I start an argument, I agree that it SHOULD be signed, but it doesn't HAVE TO be signed, at least not by regulation. I think "delivery" means when you "delivered" the RofR notice to the customer - usually at closing.
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David Dickinson
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#20153 - 06/11/02 05:17 AM Re: Reg Z Section 226.23 Right Of Rescission
Anonymous
Unregistered

Here is some case law I found on the issue: It looks like "delivery" is when the notice is "received" by the borrower but that proving the borrower "received" it can be a problem even with a signed acknowledgement of receipt.


Schumacher v ContiMortgage

Schumacher said in his complaint that neither he nor his wife, received the proper notice of his right to rescind.

In response, ContiMortgage produced documents which included "RECISSION NOTICE/RIGHT TO CANCEL" document The document had Schumacher's signature. This according to ContiMortgage created a rebuttable presumption that ContiMortgage complied with the disclosure requirements of the TILA. See 15 U.S.C. ยง 1635(c).

Schumacher contended, however, that he was hurried into signing the papers without reading their content and was not told of his right to rescind. He maintains he signed the papers without having read them on the presupposition that the paperwork would later be sent to the Schumachers by mail and he could assess their content then. According to Schumacher, he never received said papers in the mail.

Courts have consistently held that a debtor's testimony that he/she did not receive the TILA disclosure statement is sufficient to rebut the presumption that he/she did. See In re Williams, 232 B.R. 629, 641 (Bankr. E.D. Pa. 1999) (finding debtor's testimony of nonreceipt of TILA disclosure statement sufficient to rebut presumption); Stone v. Mehlberg, 728 F.Supp. 1341, 1354 (W.D. Mich. 1990) (finding affidavit testimony rebutted presumption and failure of lender to provide additional evidence of receipt entitled debtor to judgment as a matter of law); Pinder v. Lomas & Nettleton Co., 83 B.R. 905, 913 (Bankr. E.D. Pa. 1988) (finding testimony by debtor that she received a "stack of papers" but could not find TILA disclosure statement among them, along with similar testimony from her attorney, was sufficient to rebut presumption of receipt); Jenkins v. Landmark Mortgage Corp., 696 F.Supp. 1089, 1093 (W.D. Va. 1988) (finding that testimony that debtor did not leave attorney's office with disclosure statement and did not receive a form she could actually keep until much later was sufficient to rebut presumption); Cole v. J.L. Lovett, 672 F.Supp. 947, 952 (S.D. Miss.), aff'd, 833 F.2d 1008 (5th Cir. 1987) (finding debtors' testimony that they did not receive TILA disclosure statement and did not know they could rescind contract until they consulted with attorney was sufficient to rebut presumption and found debtors were not informed of their right to rescind). This Court is not inclined to diverge from this line of precedent and concludes Schumacher has successfully created a question of fact as to whether he received the disclosure statements at issue in the present action.


"This is just my personal opinion and not legal advice."

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