The court then distinguished Beach, noting that it had addressed the issue of whether a borrower who had never taken any action to rescind within the three-year period could assert rescission as a defense rather than the issue of how such a right of rescission must be exercised in the first place.
(88) Because the borrowers undisputedly had sent written notification to the lenders within three years of execution of the loan, and because of the clarity of the statute, the borrowers had properly exercised their right of rescission. (89) Further, reasoned the dissent, the majority had misplaced its reliance on Beach as governing the instant case.
(93) Rather, the type of action required depends on what the statute provides, and TILA clearly allowed borrowers to exercise the right of rescission by mere notification.
Stated differently, may an investor in a Rule 506 offering that does not otherwise meet all the requirements of the Florida Private Placement Exemption claim the issuer violated the Florida Securities Act by failing to register as an issuer/dealer and, therefore, demand a 30-day right of rescission under [sections] 517.2117
Counsel representing defrauded investors should be aware that the Florida Securities Act provides a three-day right of rescission to investors that purchase securities in a private placement to five or more persons in Florida.
And under the new system, most of the old pitfalls would still exist: the three-year
right of rescission remains in place, there is no mention of the "direct recourse before civil action" concept, and there is no mention of shaping penalties to reflect actual harm suffered by consumers.
For transactions subject to this
right of rescission, the Board also recommends that the disclosures given three days before closing also include a notice of the right not to complete the transaction and receive a refund.
Buyers and their attorneys are also claiming that the Next Block Over closing doesn't nullify their
right of rescission because it is a commercial unit, not a residential one.
"Everybody's looking for a right of rescission," she said.
Already, buyers at Long Island City's Crescent Club were offered the right of rescission this winter that the developer, NCF Equities, missed the promised delivery date, according to Prudential Douglas Elliman Senior Vice President Avi Voda, who is handling sales at the 130-unit building.
As lenders attempt to replace problematic developers at stalled or failed projects -- a move that would typically require an amendment to the offering plan -- they are going out of their way to avoid triggering the buyers' right of rescission, said Matt Blesso, the president of the development firm Blesso Properties.
"If the substitution of the sponsor, one entity for the other, is not something that adversely affects the purchasers, then it's possible there would be no right of rescission dictated in that situation," she said.
