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Predatory lending--Does it apply to my case? I took out a fixed home equity line of credit in mid 2006 to complete renovation

Chicago, IL |

of my newly-acquired condo in 2004 because I had bad luck with contractors and ran out of money for gut-rehab. When I was shopping for a loan, I stated to the bank's loan officer that I would live in the condo and the officer explained that they would give me a true in lending statement and good faith estimate before closing, and, after closing I could rescind within three days. But, after signing the paper on the closing day, the officer told me that I could not rescind the loan because the condo at issue was not my primary residence. Back then, the condo was inhabitable (be/c gut rehabbed) and I stated my intent to live there (and I did until I moved out of state). Therefore, I would like to know whether the lender committed predatory lending when they denied my right to rescind.
Thx.

Attorney Answers 3

Posted

Even if they did violate the Truth in Lending Act (which is unclear based on the facts you have provided), there is a three year bar on asserting the right to rescind, and it has been well over 3 years since your loan closed. The statute of limitations for most other claims somebody could raise in a predatory lending case have also run -- the Consumer Fraud Act has a 3 year statute, and common law fraud is 5 years. You might be able to assert these defensively, if you are sued, but otherwise it is likely to be too late.

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Posted

Pay an attorney to review your case.

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Posted

No. Predatory lending is different from any potential claim you have arising under the facts you've provided. You may have a possible claim under TILA, but as attorney Goodwin noted in her answer this has a three year statute of limitations (at least to have the recission remedy). You may be able to plead this issue as a defense in foreclosure, but only in the nature of a recoupment or set off to the judgment amount (and even this remains difficult to prove to certain judges). Think of how you would possibly prove your claim - it would be your word against theirs unless you have any of this in writing. Additionally, it would not be any bar to their foreclosure or right to proceed, but again, purely a setoff/recoupment to their judgment (and how any judge would value any such setoff, or what sort of harm you could even prove as damages, is tough to conceptualize). The general damage provisions under TILA provide for actual damages, statutory damages up to $4,000 and attorney's fees and costs. You will also likely have an issue of extending liability to the current lender/assignee, as liability only extends to assignees where the violation is apparent on the face of the loan documents. 15 U.S.C. § 1641(a).

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