H-8 or H-9 Rescission Form (2024)

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Thread Options H-8 or H-9 Rescission Form (1)

#1608920 - 09/26/11 08:56 PMH-8 or H-9 Rescission Form
MortgageMakerH-8 or H-9 Rescission Form (3)
New Poster
Joined: Mar 2011
Posts: 16

Hi, i have a question regarding which form to use. We are having a disagreement and need another opinion. We have a customer that already has a Line of Credit with us. It is the only lien they have. We are subordinating to 2nd position and recording a first. Since the second (that is being subordinated) is open ended and we are recording a closed end transaction (new first by us), we would use the H-8, right?

-please settle our differences,
MM

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Lending Compliance

H-8 or H-9 Rescission Form (4)

#1609017 - 09/26/11 11:33 PMRe: H-8 or H-9 Rescission Form MortgageMaker
jlrobertsH-8 or H-9 Rescission Form (6)
Diamond Poster
H-8 or H-9 Rescission Form (7)
Joined: Sep 2009
Posts: 1,601
Ohio

Sounds to me like they are entering into a new transaction to increase the amount of credit previously provided to them, we would use H-9.

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#1609028 - 09/27/11 12:41 AMRe: H-8 or H-9 Rescission Form jlroberts
MortgageMakerH-8 or H-9 Rescission Form (9)
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Joined: Mar 2011
Posts: 16

We are actually not increasing the amount of credit previously provided. The Line of Credit will still be intact and untouched, just subordinated into 2nd position. For example, when they applied, they had a 40k LOC with us. We are subordinating, to ourselves, and putting the 40k LOC behind a 150k first lien. We are currently closing the 150k first. Does the 150k first, need the H-8 or H-9?

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#1609080 - 09/27/11 01:40 PMRe: H-8 or H-9 Rescission Form MortgageMaker
Dan PersfullH-8 or H-9 Rescission Form (11)
10K Club
H-8 or H-9 Rescission Form (12)
Joined: Aug 2002
Posts: 47,574
Bloomington, IN

The subordination is not a new loan transaction therefore no rescission is required.

The first lien loan is a new transaction and you would use the form (H-8) for a new transaction.

Last edited by Dan Persfull; 09/27/11 01:43 PM. Reason: Add an additional comment.

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The opinions expressed are mine and they are not to be taken as legal advice.


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#1609530 - 09/27/11 07:45 PMRe: H-8 or H-9 Rescission Form Dan Persfull
MortgageMakerH-8 or H-9 Rescission Form (14)
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Thanks Dan!

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#1646224 - 01/05/12 03:14 AMRe: H-8 or H-9 Rescission Form MortgageMaker
MortgageMakerH-8 or H-9 Rescission Form (16)
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Joined: Mar 2011
Posts: 16

Ok additional question for this topic. Hope you guys can help. What if we actually provided the H-8 and should have provided an H-9. The loan has already closed and funded. We don't necessarily want to send a new right to cancel to open rescission, but is it requried?

Has anyone run into this scenario?

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#1646250 - 01/05/12 01:20 PMRe: H-8 or H-9 Rescission Form MortgageMaker
Dan PersfullH-8 or H-9 Rescission Form (18)
10K Club
H-8 or H-9 Rescission Form (19)
Joined: Aug 2002
Posts: 47,574
Bloomington, IN

Although the H-8 was preferable the H-9 will suffice. I can't give you off the top of my head the cases but there have some that courts have ruled that using the wrong form does not invalidate the right of rescission.

_________________________
The opinions expressed are mine and they are not to be taken as legal advice.


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#1649467 - 01/11/12 05:35 PMRe: H-8 or H-9 Rescission Form MortgageMaker
MadMaxH-8 or H-9 Rescission Form (21)
Junior Member
H-8 or H-9 Rescission Form (22)
Joined: Dec 2003
Posts: 39
Cleveland, OH

The most recent case on the subject I am aware of is Watkins vs SunTrust Mortgage.

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#1970184 - 10/17/14 03:21 PMRe: H-8 or H-9 Rescission Form MadMax
Reads RegsH-8 or H-9 Rescission Form (24)
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Joined: Nov 2004
Posts: 2,310

I came across this discussion and wanted to know if anyone is aware of any court decisions where the lender gave the H-9 when the H-8 should have been used. We have a correspondent lender that did this and my lending personnel are asking me whether this is a problem. I think it is but was curious to see if the courts have opined on this. Thanks.

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Opinions expressed are my own and not necessarily those of my employer. They are not legal advice.


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#1970373 - 10/17/14 08:25 PMRe: H-8 or H-9 Rescission Form MortgageMaker
fmissleH-8 or H-9 Rescission Form (26)
Diamond Poster
Joined: Jul 2007
Posts: 1,018
Pac NW

I did a quick search and couldn't find any cases that follow that scenario.

Here is some information about the SunTrust case mentioned above. http://www.philadelphiafed.org/bank-reso...-the-docket.cfm

Included in that section is this

Quote:

The federal appeals courts are divided over whether a creditor's use of the wrong model rescission form allows a borrower to exercise the right of rescission for up to three years after consummation. The Seventh Circuit (covering the states of Illinois, Wisconsin, and Indiana) holds that it does (see Handy v. Anchor Mortgage Corp., 464 F.3d 760 (7th Cir. 2006)), while the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island), Eleventh Circuit (Florida, Georgia, and Alabama), and now the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia) hold that it does not. See Santos-Rodriguez v. Doral Mortgage Corp., 485 F.3d 12, 18 (1st Cir. 2007), Veale v. Citibank, 85 F.3d 577, 580 (11th Cir. 1996), and Watkins.

So it looks like the courts are somewhat divided. Although there is a Supreme Court case on rescission this term, it doesn't address this type of question.

I guess it depends on where you are right now!

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#1970643 - 10/20/14 08:54 PMRe: H-8 or H-9 Rescission Form fmissle
Reads RegsH-8 or H-9 Rescission Form (28)
Diamond Poster
Joined: Nov 2004
Posts: 2,310

Thanks. We don't do business in any of these states but I'll have Legal Counsel take a look at them.

_________________________
Opinions expressed are my own and not necessarily those of my employer. They are not legal advice.


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