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Damien Bosco
Damien Bosco, Attorney
Category: Real Estate Law
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I have a private mortgage with predatory loan term under 5

Customer Question

I have a private mortgage with predatory loan term under 5 years with balloon payment. My private lender's not willing to extend the 3 year to the legal 5 year. I would like to rescind the loan and pay outstanding principle minus the interest paid over the illegal loan term. Is this possible? If so when and where can I file the notice to resind? My property is in Las Vegas Nevada, Many thanks
Submitted: 4 months ago.
Category: Real Estate Law
Expert:  Damien Bosco replied 4 months ago.

Hello. My name is***** am an attorney. I am here to help you with your question. I may take a moment to research or clarify issues. Okay?

Expert:  Damien Bosco replied 4 months ago.

Was there a written contract and a mortgage agreement? What is the basis of your belief that the loan is illegal?

Customer: replied 4 months ago.
Sure thanks so much
Expert:  Damien Bosco replied 4 months ago.

See my above questions. Thanks.

Customer: replied 4 months ago.
The title for the house is in my name. There's a note and deed of trust owned by the private seller finance. It was while I was attempting to refinance that I found the loan term to be illegal violation of 12 car 1026.43
Customer: replied 4 months ago.
CFR*
Expert:  Damien Bosco replied 4 months ago.

Have you spoken to lender about the illegality? What was their response?

Customer: replied 4 months ago.
originally he said that he would extend if it was proved to be illegal but now he refuses to respond as he thinks he can bank the lot. Last time we spoke he said "take me to court...I was told you'd lose" He actually said "loose" not lose
Customer: replied 4 months ago.
My mortgage expires Sept 1st. I have a hard money lender ready to buy but I want to rescind the loan so I can get the interest refunded
Expert:  Damien Bosco replied 4 months ago.

Okay. Thanks for the addition information. When a contract is illegal on its face, it certainly can be rescinded. In contract law, the term “rescission” refers to the undoing, or “unmaking” of a contract between parties. Rescission of a contract may be ordered by a court as an equitable remedy in a civil lawsuit, and is intended to bring the parties as close to the same position they were in before they entered into the contract as possible. While there are a number of reasons for which a contract may be cancelled, not all contracts may be rescinded. In addition, if the contract consideration, which is the thing of value given in return for goods or services, fails to become available, is inadequate, or is illegal, the contract may be rescinded. We can discuss more if you want.

Customer: replied 4 months ago.
how and where can I file to rescind. I only have 1 week until he hits me with an additional 20% and foreclosure
Expert:  Damien Bosco replied 4 months ago.

You would go to the nearest Nevada District Court and file a complaint. It is not a quick process but you can request along with the complaint a restraining order to prevent the additional 20% and foreclosure, pending the decision.

Customer: replied 4 months ago.
What if it gets denied do I still have the right to sell before forclosure?
Customer: replied 4 months ago.
Or they might give me an extension to allow time to refi or sell?
Expert:  Damien Bosco replied 4 months ago.

I think you should try for the extension if you can get it. You have a right to sell your home before foreclosure.

Customer: replied 4 months ago.
If I file the complaint you think he's likely to agree to the extension or the judge can decide?
Expert:  Damien Bosco replied 4 months ago.

The complaint may not do anything right away. You would have to do an expedited motion to get it before the Judge. It is difficult to do without an attorney. Not sure how the lender would react to the complaint you would file. Best to attempt to get the extension it seems.

Customer: replied 4 months ago.
He won't agree to an extension that's why I want to rescind. I can file a notice to rescind at the court house?
Expert:  Damien Bosco replied 4 months ago.

I don't believe it would be a notice to rescind. As I mentioned it would be a complaint. Also, the court may have a department that helps with foreclosure situations. Also, attempt to cal this HUD Hotline for residence in Nevada. They may be able to help also: 1 800-995-HOPE

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