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We have a borrower who is purchasing a new home, but we are also taking a security interest in their current principal dwelling as an abundance of caution. Does rescission apply in this case? – IBA Compliance Connection

IBA Compliance Connection

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We have a borrower who is purchasing a new home, but we are also taking a security interest in their current principal dwelling as an abundance of caution. Does rescission apply in this case?

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Yes, we believe the right of rescission would apply in this case.

Regulation Z generally provides a right to rescind a credit transaction when a consumer’s ownership interest in a principal dwelling will be subject to a security interest. Therefore, we believe this loan would be subject to Regulation Z’s right of rescission.

For resources related to our guidance, please see:

  • 12 CFR 1026.23(a) (“In a credit transaction in which a security interest is or will be retained or acquired in a consumer's principal dwelling, each consumer whose ownership interest is or will be subject to the security interest shall have the right to rescind the transaction, except for transactions described in paragraph (f) of this section. For purposes of this section, the addition to an existing obligation of a security interest in a consumer’s principal dwelling is a transaction. The right of rescission applies only to the addition of the security interest and not the existing obligation. . . .”) 
  • 12 CFR 1026.2(a)(11) (“Consumer means a cardholder or natural person to whom consumer credit is offered or extended. However, for purposes of rescission under §§ 1026.15 and 1026.23, the term also includes a natural person in whose principal dwelling a security interest is or will be retained or acquired, if that person's ownership interest in the dwelling is or will be subject to the security interest.”)