Sunday, November 30, 2008

What Is Right of Rescission, and When Should You Use It?

Did you know you can sometimes change your mind on a real estate transaction even if the note and deed of trust have been signed? It’s called your Right of Rescission, and it exists to give you time to consider your actions.

I had a gentleman call me today that had begun a transaction with another lender, and was getting cold feet. He said he had heard he could rescind or back of the transaction, but couldn’t find anyone who knew what he was talking about. Hmmm. That’s not a great thing to hear.

The Truth In Lending Act affords this “out clause” known as a Right of Rescission (ROR) to borrowers, giving them the right to cancel their loan within three business days of signing the final closing docs and allowing them to a full refund of any monies paid at that closing.

It turns out my guy was confused. He had only signed initial disclosure documents (that’s a whole other article), and had locked his loan. He could walk away from the deal. But as it turns out, this lender had extracted a $500 commitment fee which he probably wouldn’t see again. Note to self, avoid commitment fees.

However, if he had gotten as far as closing, he could have changed his mind. This fact is because his transaction would have met the guidelines for allowing for the rescission of the real estate transaction. He was refinancing the loan on his primary residence. If it was his beach house, then no, that wouldn’t work. It has to be the house you live in. It doesn’t matter what type of house it is, but where you call home. It doesn’t matter if he was refinancing to pull out a little cash to pay off bills or simply lowering his interest rate. He would have had a cooling off period (three business days mentioned above) before the funds to complete the transaction actually disbursed. For instance, if he signed on Monday, he would have Tuesday, Wednesday, midnight of Thursday to say, “HOLD UP!” Business days include Saturdays, but not Sundays or legal public holidays. Thanksgiving counts, but not the Friday afterward.

You can’t rescind every time you are refinancing your primary residence. For instance, if you are refinancing to pay off a construction loan because you just finished building your house, that wouldn’t count. If a state agency is your creditor, there is no ROR.

How do you go about exercising this right? Well, typically, your title company and lender give you very clear guidelines in writing telling you what you should do. During the rescission period, nothing really happens on your loan. If you want out, you have to send the request in writing to the lender, or else the title agency sometimes accepts it in on their behalf. But make sure you keep a paper trail and can show it was sent before midnight of the third day. A phone call or a visit to the lender isn’t legally sound, although most lenders wouldn’t hold you to the transaction if you called them; they’d just get you the paperwork to do it correctly.

Don’t misunderstand me. I’m not advocating people go hog wild and start exercising ROR for the fun of it. It’s very serious decision. A lot of people and companies worked hard to get you to the point of closing. It’s not a frivolous matter. And it happens extremely rarely because most folks are honest and do their jobs right. However, if you feel you were mislead in anyway, now you know you’re not backed into a corner. You have time to right any wrongs, reconsider or simply walk away.

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