A society without rules is not a society. As Americans we agree, at birth or naturalization, to follow the rules. And between the executive branch of government that enforces the rules and the judicial branch of government that applies the rules to decide controversies, we know we live in a country people and businesses will be governed by the rules.
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If the country’s founding document states that the new nation shall be a democratic republic, then the people don’t make the rules. They elect the people who will make the rules.
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The rules are applied even if one of us disagrees because if disagreement was allowed as an excuse for violating rules, there would be no rules in which we could repose trust and confidence. If we evolve into something where individual grievances, ideologies, and provocative circumstances are used as a basis for “considering” the enforcement of the rules, then we live in a nation of “men” and not a nation of laws. Yes it IS that simple.
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Some rules are specifically designed to protect most of society. They are supposedly strictly applied, but experience says otherwise.
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The First rules are contained within the national and state constitutions. And more rules are allowed to the legislative branch in statutes as long as they comply with the constitutions. That is our system. That is not an opinion. It is a simple fact.
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Among them, there are the rules we follow as interpretations, but those interpretations are empowered by the founding document (constitution) as to the law — not the issue. As you will see in this article, the courts have wandered into a space where they have proclaimed themselves to be the arbiters of issues — and the law. And that explains why so many people distrust the government in general and are willing to vote for anyone promising to drain the swamp. The judiciary, I argue, is leading this erosion of public confidence.
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In 2016, Justice Scalia penned the opinion of the highest court in the land and ruled that rescission under the Federal Truth in Lending Act was constitutional, removing all doubt that the statute was the law of the land — even if some people disagreed with it and even if the people who disagreed were “important people.” The unanimous opinion of the Supreme Court held that the statute was clear, explicit, and unambiguous.
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That decision explicitly asserted that the statute applied to all instances in which a homeowner exercised their timely right of rescission — which means that all mortgage liens and notes were rendered void by operation of law and replaced with a statutory scheme and procedure for repayment of the “lender.” And that meant that all the foreclosures that preceded the Jesinoski decision were, as the homeowners, insisted, void because they were acting on the authority of two void documents that had been rendered void by operation of law, namely the note and mortgage.
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Classically trained lawyers and most consumers assumed that the crisis would be over as the government was forced to restructure the recorded title records, most of which was based on fake documentation, and even if the documents had not been fake they would still have been void by virtue of the homeowner properly exercising his/her right of rescission.
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There were two statutes of limitations that applied to the statute that contained the only enforcement mechanism in the ACT. One year for any monetary claim from the lender and 3 years for any other claim from the homeowner — like demanding the “lender” or “Successor” file the mandated satisfaction of mortgage required by the statute. If neither one did anything, neither one would ever collect anything despite direct explicit provisions for the “lender” to pay the homeowner and then the homeowner to pay the “lender” on the principal due.
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The investment banks did nothing because in order to file a claim for repayment they would need to show things in evidence that they could not show. For one thing, they would need to establish the bona fides of whoever they were appointed to be “creditor” or “lender.” For another, they had to comply with conditions precedent (more on that later) before they could seek repayment of the “loan,” assuming it still existed.
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If they did that, there was an entire superstructure of derivatives in multiple layers the sales of which had produced many times that amount of the “loan” in revenue. Canceling the transaction out of existence or admitting to the fact that it was canceled would probably result in millions of dollars in liability for each “loan” that was misrepresented as securitized.
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So they tried the bully’s way out and it worked. the courts did not enforce the statute even though the Supreme Court said they had to do so.
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Homeowners and their lawyers did not know what to file. Even though they knew they had rights, they were at a loss for figuring out a way to enforce them, and hundreds of thousands of illegal foreclosure sales ensued — this producing facially valid deeds that conveyed nonexistent title.
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The track record of all courts including the Supreme Court in following their own precedent reveals an intent to subvert the most basic premise of our constitutions: the rule of law. If they don’t like it, the judges rebel and refuse to apply it even if they said they would.
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When courts adopted an attitude of nearly uniform rejection of TILA rescission, they were applying the personal bias of judges in lieu of the obvious rule of law. SCOTUS, the same court that had removed all doubt as to the application of the law, reinforced this use of personal prejudice by rejecting all subsequent appeals from decisions in which trial and appellate courts refused to apply the Federal Statute and the final Jesinoski decision.
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If we don’t have agreed procedures in settling disputes then we have no rule of law. We are left to the whim of individual judges and appellate panels. There is no dispute what this means: it means that the effort of the founders to apply uniform laws is being rejected at a whim. And this anti-doctrine is being led by the current Supreme Court of the United States. And I don’t see this development as anything less than anti-American by definition.
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This trend toward imposing personal bias in politics in lieu of law is now on steroids, with the recent procedure employed by SCOTUS in allowing an absurd law whose effect is expressly intense to deprive citizens of rights that are well established. I speak not of the meat of the legal issue but of the procedure which is the most important thing in our Constitution which was based upon the articles of the Magna Carta signed by King John in 1215. That document, read aloud twice per year for centuries, is the foundation for all common law in the U.S. and U.K.
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Instead of using due process requiring a hearing, argument, opportunity to allow Amicus briefs etc., the court simply decided, 5-4, that they would not enjoin a facially invalid law. The Texas law delegates law enforcement to citizens instead of the executive branch. Somehow they are arguing that this is not state action and that enforcement in Texas court is not state action. That too has already been previously decided by the Supreme Court in 1982. Such a delegation of power is unconstitutional and antithetical to our system of government.
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This is different from the enforcement mechanism in TILA. All things in TILA rescission happen by operation of legislative law regardless of what the homeowner or the financial institutions want to happen. They can come to a new agreement but neither one can reverse a legal event that occurs by operation of law. That is not delegation. that is a right that acts as an enforcement mechanism to make sure that the “lenders” are lenders and that they have disclosed the realities of the transaction — something that hasn’t happened since the 1990s.
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We have now a trend toward thinking of the provisions of the National and State Constitutions as mere guides that can be varied at will. It is reaching a dangerous culmination point. The system was designed to allow for change. If you don’t like a rule you can seek to amend it or even abolish it. But the system as drafted and accepted by anyone calling themselves a citizen of the United States, does not allow anyone, even a judge, to ignore the rules.
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Thus we are seeing a strong tendency of a minority of the population to reject the rule of law (rather than oppose it). And because SCOTUS is at the center of it, there is no other solution the American citizen can turn to force compliance with the rule of law — except using political strength at the polls and the power of the majority to pass new laws that make SCOTUS more likely to act within the bounds of the rule of law — an iffy proposition.
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The national constitution gave Congress the right to regulate interstate commerce. As to homeowner transactions with financial institutions, congress specifically identified what needed to be regulated and how it should be regulated. Thus in the 1960’s they passed the Truth in Lending Act requiring “lenders” to state with certainty who they were and how much money they were making on the deal. And Congress decided to allow regulation by empowering any individual homeowner to cancel the deal if the “lender” did not comply with the rules. Once the homeowner exercised this right, the mortgage lien was void and so was the note.
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A new statutory scheme was put in place to assure compensation to the “lender,” although not in the way it had intended. Hundreds of thousands of homeowners exercised their rescission rights. By “operation of law” the mortgages and notes were void. And still, the courts proceeded to enter foreclosure judgments and allow foreclosure sales based upon void mortgages and void notes. And since then there have been many resales or refinancing of property that was acquired solely by force of law instead of the application of the law.
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If the “lenders” wanted to contest the exercise of the rescission rights, they could have sued within the period of time in which compliance was required — i.e., filing the satisfaction for county records, returning the canceled note, and returning all money that had been paid thus far.
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But the lenders did not do that. they decided instead to use their influence on governmental powers to avoid the rules and the TILA rescission statute. And unfortunately for all of us, they were right. They got the title by force of law even though it was an illegal act according to the Federal statute and the U.S. Constitution. A triumph of might over right.
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TILA rescission was intended to prevent the very catastrophe that happened to American homeowners and which nearly destroyed the American economy and society — and which is still sucking the life out of the U.S. economy. It is the only enforcement mechanism of TILA. It is the law of the land, and yet it is not applied. And as a result, millions of people were forced out of their homes by actors looking for profit rather than the satisfaction of a loan account receivable. The shift in wealth caused by the whimsical decision to avoid the application of TILA rescission remains a huge drag on the American economy. Worse, it decreases confidence and trust in our institutions and in our laws.
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Millions of homeowners lost their homes and lives and lifestyles as a result of the judicial attitude toward enforcement of the rules which the bench has largely determined to not apply if they would produce a result that the judge does not like. Acceptance of such behavior means that no title nor any law is established as the boundaries in our society in any situation unless a judge in that particular situation decides that he or she will apply it. Of course, that means the rule of “man” rather than the rule of law, which is merely a potential “guide” to use in deciding whether someone will lose the largest investment of their lives.
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Looking at it from that perspective we can see that the current political attempts to reject legal conclusions created by legal process in elections is solidly based on the nonexistent right to reject laws when their application produces an uncomfortable result to the objector. Looking at history we might have missed the main point — that this chaos in which the rule of law versus the rule of man is still a matter of debate — is not the source of judicial arrogance but rather the other way around. And it will continue until the courts start applying the law instead of inventing it.
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Virtually all foreclosures would be forced into settlement without great costs to either the homeowner or the claimants if the courts insisted on applying another law that has been repeatedly declared as constitutional and in full effect — that contained in UCC 9-203 requiring the claimant to have paid value for the underlying obligation. The wink and nod judicial attitude allows for all sorts of presumptions to be applied based on the apparent transfer of the note — without one stick of evidence that the payment of value has ever actually occurred.
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If the courts were to require that proof with the filing of the claim, the claims would vanish — but would still be subject to reformation and other remedies to arrive at a settlement — agreed or ordered. But the courts, terrified of the threat of Armageddon promised by investment banks, have arrested the natural development and evolution required to be undertaken as a result of the erratic application of theories of securitization.
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BOTTOM LINE: ANYONE WHO THINKS THEY HAVE TITLE TO PROPERTY ACQUIRED FROM SOME FINANCIAL INSTITUTION OR INTERMEDIARY AFTER A NOTICE OF RESCISSION WAS MAILED (NOT NECESSARILY RECORDED) DOES NOT HAVE CLEAR TITLE IN MY OPINION AND IN THE OPINION OF EVERY TITLE EXPERT I HAVE EVER INTERVIEWED. OF COURSE, THE COURTS HAVE REJECTED CLAIMS TO QUIET TITLE BECAUSE THE HOMEOWNERS DO NOT HAVE THE STANDING TO CHALLENGE ANYTHING ABOUT SECURITIZATION EVEN IF THE LOAN WAS NOT SECURITIZED.
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BUT THERE IS NO STATUTE OF LIMITATIONS ON TITLE. ONCE THE MORTGAGE LIEN WAS RENDERED VOID BY OPERATION OF LAW TITLE WAS VESTED IN FEE SIMPLE ABSOLUTE IN THE NAME OF THE HOMEOWNER AND STILL IS. THE COURTS CAN RULE WHATEVER THEY WANT — THEY HAVE SHOWN AN UNNERVING WILLINGNESS TO DO SO — BUT THOSE RULINGS DO NOT CHANGE THE LAW OR THE FACTS THAT UNDER OUR LAWS THE HOMEOWNER STILL HAS TITLE..
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