New York, NY - July 24, 2014 - Attorney General Eric T. Schneiderman announced that he is leading a coalition of more than 25 states in filing a friend-of-the-court brief urging the U.S. Supreme Court to uphold consumer rescission rights under the federal Truth in Lending Act (TILA). TILA requires creditors to clearly and accurately disclose the terms of loans to consumers and to inform consumers about their statutory rights. When creditors fail to take these steps, consumers have three years from the date of a covered home loan, to rescind the loan. Rescission is a powerful consumer remedy and protects consumers from losing their homes in foreclosure proceedings.
“Homeownership stands at the heart of the social and economic well-being of our country,” said Attorney General Schneiderman. “As we work to make New York more affordable for the middle class, we must protect families fighting to avoid foreclosure and stay in their homes. That includes not only holding accountable those who prey on struggling homeowners, but also preserving the Truth in Lending Act’s important safeguards to help ensure that consumers can make informed decisions. TILA’s readily accessible right of rescission can help prevent more foreclosures and keep our country on the path towards financial recovery.”
New York’s amicus brief, filed in the case of Jesinoski v. Countrywide Home Loans, argues that consumers exercise TILA rescission rights by giving written notice to creditors and that TILA does not compel consumers to also file a lawsuit seeking rescission within three years of a covered loan. A lawsuit requirement would place rescission out of reach for many consumers because consumers frequently do not discover TILA violations until several years after taking out a loan—often, when they are facing foreclosure and cannot obtain legal representation to file a rescission suit.
TILA contains no express provision directing consumers to file a lawsuit to enforce rescission rights. While some federal courts have held that TILA authorizes consumers to rescind loans by giving written notice, other courts, including the Court of Appeals for the Eighth Circuit, have required consumers to sue creditors within three years of taking out a home loan to rescind the loan. In the states’ brief, Attorney General Schneiderman urges the Supreme Court to reverse the Eighth Circuit and to confirm that written notice alone is sufficient for consumers to exercise TILA rescission rights in a timely manner.
Argument in Jesinoski v. Countrywide has not yet been scheduled.
Attorney General Schneiderman’s brief is joined by 25 other states: Arizona, Arkansas, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Tennessee, Vermont, Washington, and West Virginia. The coalition is also joined by the District of Columbia.
The brief in the case was prepared by New York Solicitor General Barbara D. Underwood, Deputy Solicitor General Steven C. Wu and Special Counsel to the Solicitor General Cecelia C. Chang with the assistance of Jane Azia, Chief of the Consumer Frauds Bureau, Kristen Clarke, Chief of the Civil Rights Bureau, and Jessica Attie, Special Counsel for the Civil Rights Bureau.
The Attorney General’s Office is committed to protecting consumers in lending transactions. To file a complaint, contact the Office’s Consumer Frauds Bureau at 1-800-771-7755 or fill out the complaint form here. Consumers can also contact the Civil Rights Bureau at Civil.Rights@ag.ny.gov or 212-416-8250.
In addition to taking legal action to protect New York families, Attorney General Schneiderman’s Office launched the Homeowner Protection Program (HOPP), which funds roughly 90 organizations across the state that assist at-risk homeowners. These organizations have served a total of nearly 30,000 families since HOPP was launched in October 2012 by providing counseling and support for those at risk of foreclosure. Consumers can call 855-HOME-456 to obtain assistance through HOPP or visit aghomehelp.com.
A copy of the brief can be viewed here.