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Appeals Court Considers Rescission Claims

Appeals Court Considers Rescission Claims

A homeowner, facing a sheriff’s sale following an adverse judgment for a substantial consumer debt, turned to a private investment firm for help to save her house. She signed a deed, other closing documents, a closing statement, and a lease providing she could lease the property back, with an option to buy it back, at a later date. The closing was recorded on audio tape. At the closing, the homeowner wrote out in her own handwriting a declaration that she knew and understood she was making an absolute sale and would have no interests in her property after the transaction closed except those of a tenant under the terms of a lease.

The homeowner remained in the house after the transaction for more than two years, paying rent intermittently. Then, she filed suit claiming the financing transaction was fraudulent, and contending she did not want, or mean, to sell her house, but thought she was simply taking a loan.

The trial court sided for the homeowner, ordering that the entire transaction be rescinded. The finance company appealed, noting it paid nearly $50,000 of the homeowner’s debt, kept her in the house when it was certain she would have lost the entire property, and gave her a chance to salvage her equity under the terms of the lease.

In March, 2008, the Nebraska Court of Appeals heard oral argument in the finance company’s appeal. During the argument, David Domina observed that the payments of the debt, and the overall structure of the closing transaction, including the safeguard of audio taping it, made it quite clear the homeowner knew what she was doing. She was not mislead – and even if she was, her home was about to be lost, but was salvaged.

Domina asked the Court of Appeals to apply a trial de novo standard of review, reconsider the evidence, and reverse the district court.

A decision is expected within approximately 120 days.

Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

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