Right to rescind under the Federal Truth in Lending Act (TILA)

The right to rescind under the Federal Truth in Lending Act (TILA) is the topic of this blog post. In the recent case of Jesinoski v. Countrywide Home Loans the United States Supreme Court ruled unanimously that a borrower exercising their right to rescind under TILA is only required to provide written notice to their lender within the 3-year period, they are not required to file any lawsuit against their lender within that 3-year period.

Notification that a homeowner is exercising their right to rescind should be done by the service of a notice of rescission to the lender or their assignee which is sent under the provisions of TILA which are found in 15 U.S.C. section 1635 and also by the provisions of Regulation Z found in 12 C.F.R. 226.23(b)(5). 15 U.S.C. §1641(c) states that the right of rescission applies to any assignee of the obligation.

A homeowner should consider serving a notice of rescission if they are contending that the lender violated TILA for one or more reasons such as the reason that the disclosure statement was defective in some way such as a failure to disclose the Annual Percentage Rate (APR) or an under-disclosure of the APR and/or finance charges, existence of a variable rate feature, total amount financed, total of the payments, or a failure to provide copies of other required notices such as in a refinance transaction where each borrower or person with ownership interest in the property did not receive two copies each of the federally required notice of right to cancel, failure to properly disclose the date or dates that the rescission period expires, etc. If each borrower or person with ownership interest in a refinance transaction was not provided two adequate copies of this Notice, an extended three year right to rescind is permitted under TILA.

Valid service of a rescission notice by a homeowner on their lender or their assignee renders any security interest in the real property completely void pursuant to 15 U.S.C. § 1635; Regulation Z, § 226.23 and the lender has twenty days to return all of the payments made by the homeowner on the loan and to terminate their security interest in the real property. A homeowner may wish to turn over possession of the real property to the lender if the situation warrants it.

Note however that in some circumstances the homeowner may have to tender money in some circumstances if they wish to remain in possession of the real property although there are some published cases suggesting that a Court can exercise its “equitable discretion” under TILA and allow the borrower to make payments over time as part of meeting the borrower’s tender requirement such as reducing the monthly payment over a period of time. See for example In re Stuart, 367 B.R. 541, 552 (Bankr.E.D.Pa.2007); Shepeard v. Quality Sliding & Window Factory, Inc., 730 F.Supp. 1295 (D.Del.1990) (allowing borrower to satisfy tender obligation by making monthly payments), and Mayfield v. Vanguard Sav. & Loan Ass’n, 710 F.Supp. 143, 149 (E.D.Pa.1989) (allowing borrower to satisfy tender obligation by making monthly payment).

Careful consideration of both the unique circumstances and facts of any given situation should be given before any decision is made as to whether or not to serve a rescission notice under TILA to a lender or their assignee.

Attorneys or parties who would like to view or download a sample notice of rescission under TILA available in Word or PDF format created by the author can see below.

You can view portions of over 255 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.”

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Posted in California freelance paralegal, evictions after foreclosure, foreclosure | Tagged , , , , , | Leave a comment

Motion to consolidate California eviction case

A motion to consolidate a California eviction case is the topic of this blog post. A motion to consolidate a California eviction case in California is authorized under the provisions of Code of Civil Procedure sections 1048(a) and 1177. A motion to consolidate a California eviction case may be filed in situations such as an eviction after foreclosure case where the defendant is alleging that plaintiff does not have valid title to the real property due to a defective or wrongful foreclosure, or the defendant is alleging an interest in the real property and has filed an unlimited civil action for fraud, quiet title or wrongful foreclosure, etc.

A motion to consolidate a California eviction case is filed by a defendant who wants the Court to consolidate the eviction case with another case filed in unlimited civil jurisdiction involving title to the real property such as a fraud or quiet title action for several reasons particularly the fact that that the two cases are related and that determination of complex title issues should not be decided in a summary proceeding as that would unfairly prejudice the defendant who would not have the time to properly prepare for trial given the short time frames involved in California eviction proceedings and would not have the ability to engage in any meaningful discovery regarding the issue of whether the plaintiff holds valid title to the real property or whether defendant may have an interest in the real property.

Because an eviction case in California is what is known as a summary proceeding the trial date is scheduled much faster than in other civil cases and the discovery cut-off date is much closer to the trial date.

Section 1170.5(a) of the Code of Civil Procedure provides that the trial date in a California eviction case must be set within 20 days from the date that a party files a request for trial setting.

Section 2024.040(b)(1) of the Code of Civil Procedure states in pertinent part that discovery in eviction cases must be completed on or before the fifth day before the date set for trial which does not allow sufficient time to conduct any meaningful discovery before the trial date.

The California Courts of Appeal have issued several decisions including a very recent decision in which they have stated that a trial court has the statutory power to order that an eviction proceeding be consolidated with a pending action in which title to the real property is in issue. The reasoning is because if the tenant is successful in their claim of title that would defeat the right of the landlord to possession of the real property. The cases have also stated that a Court may stay the eviction proceeding until the title issue is resolved in the other pending action.

The California Courts of Appeal and even the United States Supreme Court have stated that the summary unlawful detainer procedures are only constitutionally acceptable when applies to straightforward issues of possession and incidental damages. In fact the United States Supreme Court stated in a case that “the constitutionality of these summary procedures is based on their limitation to the single issue of right to possession and incidental damages.”

Yet another alternative ground for a motion to consolidate is the fact that because of the unique issues involved between the parties the eviction case does not qualify as a limited civil case under California statues governing limited civil cases such as Code of Civil Procedure section 85 and 86.

Attorneys or parties in California who would like to view a portion of a 27 page sample motion to consolidate an eviction case in California that includes brief instructions, a table of contents and table of authorities, memorandum of points and authorities with citations to case law and statutory authority, sample declaration, proof of service and proposed order granting motion for consolidation sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

You can view portions of over 255 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.”

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Posted in California evictions, California freelance paralegal, California law and motion, California legal topics, California unlawful detainer, law and motion, Uncategorized | Tagged , , , , | Leave a comment

California motion to consolidate cases

A California motion to consolidate cases is the topic of this blog post. Code of Civil Procedure section 1048(a) authorizes the filing of a motion for consolidation of two or more cases in California provided that the moving party meets the requirements.

Motions to consolidate in California are made on the grounds that consolidation of two or more cases should be granted as all of the cases arise out of the same set of operative facts, contain common issues and that consolidation of the cases would avoid unnecessary duplication of evidence and procedures in all of the cases; avoid the risk of inconsistent adjudications and avoid many of the same witnesses testifying on common issues in all actions as well as promote judicial economy and convenience.

A motion to consolidate under Code of Civil Procedure section 1048(a) should only be used where all of the cases are pending in the same Court. The moving party must also comply with the provisions of California Rule of Court 3.350.

A motion to consolidate in California can request either a complete consolidation or consolidation for purposes of trial only.

Requesting a complete consolidation of cases should only be made where the parties in all of the cases are identical and all of the causes of action could have been joined as the cases will be essentially merged into one case.

Requesting a consolidation of multiple cases for trial only is generally made on the grounds that it would avoid repetitive trials of the same basic issues and would avoid any unnecessary costs or delays to either the Court or the parties and eliminate any risk of inconsistent adjudications. Consolidation for trial simply means that the actions are tried together for the sake of convenience and judicial economy. When multiple cases are consolidated for purposes of trial only all other matters including pleadings, verdicts, etc., are still kept separate.

A California Court of Appeal has stated that a trial Court has very broad discretion in ruling on a motion to consolidate.

Attorneys or parties in California who would like to view a portion of a sample 19 page motion for consolidation of cases in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration, proof of service by mail and proposed order sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

You can view portions of over 255 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.”

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Posted in California civil litigation, California freelance paralegal, California law and motion, California legal topics, law and motion | Tagged , , , , , | Leave a comment

Motion to quash service in California divorce

A motion to quash service in a California divorce is the topic of this blog post. Quashing service in a California case is authorized by Code of Civil Procedure Section 418.10 which states in pertinent part that a defendant may file a motion to quash service of summons on the ground of lack of jurisdiction of the Court over him or her.  This blog post will use the term defendant instead of the term respondent which is used in a California divorce case as the issues discussed herein apply to both a defendant and a respondent.

This post discusses using the grounds that the service on the defendant was defective as the Court does not acquire jurisdiction over a defendant unless proper service of the summons and complaint has been made. This lack of jurisdiction applies even though the defendant may in fact be a resident of California.

A motion to quash service in California may be filed in a legal separation, nullity or other family law case pursuant to the provisions of Family Code section 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Any party contemplating filing a motion to quash service should be sure to comply with the requirements imposed. Those requirements are that a motion to quash service must be filed within 30 calendar days from the alleged date of service unless the Court has granted an extension of time to plead or a stipulation to extend the time to plead has been entered into. The motion to quash must be filed before any response is filed as it is considered a “special appearance” meaning that it does not admit the Court’s jurisdiction over the defendant.

Failure to timely file a motion to quash constitutes a waiver of any objection to the service of process pursuant to Code of Civil Procedure § 418.10(e)(3). The hearing on the motion must be set within 30 days from the date of filing of the motion to quash pursuant to Code of Civil Procedure § 418.10(b). California case law is well settled that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid.

The California Courts of Appeal have also stated that a defendant is under no duty to respond to a defectively served summons until a plaintiff shows that service is valid. This is particularly relevant when the defendant was served by “substituted service” as the statutes allowing such service are strictly construed. Therefore the substituted service must be made at the address where the defendant currently lives even service made at a close relative’s house can be ineffective.

Attorneys or parties in California who wish to view a portion of a sample 10 page motion to quash service in a divorce case complete with brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

You can view portions of over 255 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro/documents

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.”

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Posted in california dissolution, California Dissolution of Marriage, california divorce, California freelance paralegal, California law and motion, California legal topics, motion to quash, motion to quash service in California | Tagged , , , , , | Leave a comment

Renewing a motion in a California divorce

Renewing a motion in a California divorce case is the topic of this blog post.   A motion in California may be renewed pursuant to Code of Civil Procedure section 1008(b) and has one very important advantage compared to a motion for reconsideration in that it is not subject to the 10 day statutory time limitation imposed on motions for reconsideration. However the disadvantage of a renewal of a motion is that they can ONLY by brought by the party who filed the original motion.

Code of Civil Procedure § 1008(b) states in pertinent part that “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

A request for a renewal of a motion may be filed in a divorce, legal separation or nullity case under the provisions of Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

There are requirements that must be met in order to successfully renew a motion. The party renewing the motion must make a showing of new or different facts, circumstances or law since the date of the original order that the moving party was not aware of and could not have discovered with reasonable diligence. Failure to comply with the statutory provisions may result in denial of the renewal of motion.

Several decisions of the California Courts of Appeal have stated that a decision on a motion is not res judicata, and a trial court has jurisdiction to consider a renewal of a previous motion.

Attorneys or parties in California who would like to view a portion of a 10 page sample renewal of motion for a California divorce sold by the author that contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and proof of service can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

You can view portions of over 255 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro/documents

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.”

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Posted in california dissolution, California Dissolution of Marriage, california divorce, California freelance paralegal, California legal topics, divorce | Tagged , , , , , | Leave a comment