Posted on Wednesday, December 8, 2010
WASHINGTON — As Americans continue to lose their homes in record numbers, the Federal Reserve is considering making it much harder for homeowners to stop foreclosures and escape predatory home loans with onerous terms.
The Fed's proposal to amend a 42-year-old provision of the federal Truth in Lending Act has angered labor, civil rights and consumer advocacy groups along with a slew of foreclosure defense attorneys.
They're not only asking the Fed to withdraw the proposal, they also want any future changes to the law to be handled by the new Consumer Financial Protection Bureau, which begins its work next year.
In a letter to the Fed's Board of Governors, dozens of groups that oppose the measure, including the National Consumer Law Center, the NAACP and the Service Employees International Union, say the proposal is bad medicine at the wrong time.
"At the depths of the worst foreclosure crisis since the Great Depression, we are surprised that the Fed has proposed rules that would eviscerate the primary protection homeowners currently have to escape abusive loans and avoid foreclosure: the extended right of rescission."
Because the public comment period on the Fed's proposal is still open until Dec. 23, a spokesman declined comment on the matter.
But in a September passage in the Federal Register, the Fed said the proposal was designed to "ensure a clearer and more equitable process for resolving rescission claims raised in court proceedings" and reflects what most courts already require.
Since 1968, the Truth in Lending Act has given homeowners the right to cancel, or rescind illegal loans for up to three years after the transaction was completed if the buyer wasn't provided with proper disclosures at the time of closing.
Attorneys at AARP have used the rescission clause for decades to protect older homeowners stuck in predatory loans with costly terms. The provision is also helping struggling homeowners to fight a wave of foreclosure cases in which faulty and sometimes-fraudulent disclosures were used.
The violations must be of a material nature to invalidate a loan under the extended-rescission clause. To do so, homeowners — usually those facing financial problems or foreclosure — hire an attorney to scour their mortgage documents for possible violations regarding the actual cost of the loan or payment terms.
If problems are found, a notice of rescission is sent to the creditor, which can either admit to the alleged violation or contest it in court.
Creditors that end up rescinding a loan are then required to cancel their "security interest," or lien, on the property.
Once that occurs, the homeowner must then pay the outstanding loan balance back to the lender — minus the finance charges, fees and payments already made.
Dropping the lien provides homeowners with a defense against foreclosure and allows them to refinance to pay the outstanding loan amount.
Critics say the proposed change by the Fed would render the rescission clause useless. The Fed proposal would require homeowners who seek a loan rescission through the courts, to pay off the entire loan balance before the lender cancels the lien.
"This, of course, would be almost impossible for most consumers to do because they can't come up with the money until they get out of the loan. And they can't get out of the loan until the lien is released," said Barry Zigas, director of housing and credit policy at the Consumer Federation of America. "None of us are quite sure what purpose is being served by this proposal or what prompted it."
The Fed's proposal is part of an ongoing effort begun in 2005 to review and update rules and guidelines for disclosure in the rescission process, said Kathleen Keest, the senior policy counsel for the Center for Responsible Lending. That effort, which includes a review and update of the forms used for rescission, pre-dates the housing-market meltdown and the recession, she said.
The Fed "believes this adjustment would facilitate compliance with the Truth in Lending Act," adding that the "majority of courts that have considered this issue" condition the release of a lien on a homeowner's ability to repay the balance.
The Mortgage Bankers Association, the main trade group for the real estate finance industry, hasn't taken a position on the issue or submitted public comment to the Fed. But "we are inclined to support the direction the Fed is headed," said John Mechem, the MBA's vice president for public affairs.
Requiring homeowners to pay what remains of the original loan before a rescission can proceed is tantamount to a "verdict first, trial later" philosophy, Keest said.
"It basically puts the cart before the horse," she said, adding that securing the "right to rescind determines how much you have to (pay)."
David Certner, the legislative policy director at AARP, which also has criticized the proposal, said rescission is an effective tool to make sure creditors follow the rules and are transparent about the true cost of loans.
"It can help put off a foreclosure and give one the leverage in negotiating some other type of appropriate payment or settlement. It's a very powerful tool to help people stay in their homes," Certner said. He called the proposal "egregious."
McClatchy Washington Bureau
Tony Pugh | McClatchy Newspapers