TILA AND HOEPA RESCISSION MAKING BIG COMEBACK: TENDER IN INSTALLMENTS APPROVED LESS DAMAGES $90,000 AWARDED IN ATTORNEY FEES

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CONGRATULATIONS JOHN DUNN: Finally a US District Judge Applies TILA rescission the way it was written. Judge rejects tender before rescission, rejects tender in lump sum, awards statutory damages, and awards $90,000 in fees. And THIS is in MINNESOTA which tried to legitimize MERS.

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Excerpts:
Technicality argument:
“After denying [TILA and HOEPA] violations for almost a year, First Commercial and Crossroads now attempt to minimize these violations as mere technicalities. The Court disagrees. Requiring three days’ advance written disclosure of key information is a central pillar of HOEPA. By failing to comply with this requirement, Crossroads deprived Coleman of the opportunity to consider the terms of the Loan in the peace and quiet of her own home, with the counsel of trusted friends and family members, and without the confusion, time pressure, and intimidation that any homeowner (particularly an elderly homeowner such as Coleman) may experience at a closing. Likewise, by failing to inform Coleman of the correct date on which her rescission right expired after the closing, Crossroads deprived Coleman of an additional day on which she could have exercised her right to get out of what appears to have been a bad loan. Rather than having a full six business days during which she could consider and discuss the wisdom of entering into the Loan, Coleman was given only two days — and, contrary to the intent of Congress, those two days were both after the loan had closed. . . . The Court . . . rejects the notion that the TILA and HOEPA violations in this case were mere technicalities that had no effect on the outcome of the Loan transaction and did not affect Coleman’s substantive rights.”

Tender vel non of payoff amount for previous lender, and manner:
“[T]he parties dispute whether Coleman must tender an additional $29,819.50, which is the amount that was disbursed to pay off the HRA Loans. The Court finds this to be a close and difficult question. . . . The Court . . . concludes [for reasons explained] that Coleman’s tender must include the $29,819.50 that was disbursed to pay off the HRA Loans. . . . The parties next dispute when and how Coleman must tender the required amount. . . . The Court finds that, in this case, permitting Coleman to pay her tender obligation in monthly installments is the most appropriate remedy. . . . Coleman has acted reasonably in attempting to effectuate rescission, but her efforts have been frustrated by First Commercial’s conduct. . . . It would not be fair for the consequences of First Commercial’s delaying tactics to be visited solely upon Coleman.”

Attorney fees, right and amount:
First Commercial argues that, because Coleman has been represented by attorneys working pro bono and by a nonprofit legal-services organization, she is not entitled to recover fees. Even assuming that First Commercial has not waived this argument by failing to raise it earlier, it is plainly meritless. . . . In the alternative, First Commercial argues that Coleman’s fee request is unreasonably large and should be significantly reduced. Having witnessed the progress of this case and the conduct of counsel, the Court strongly disagrees. . . . The Court disagrees with First Commercial’s argument that the requested rates are too high because this action did not require much legal skill. Having endured a great deal of poor lawyering in TILA cases, the Court is grateful to have had the assistance of Coleman’s knowledgeable, experienced, and ethical counsel in this case. . . . The Court also finds that the number of hours expended — approximately 325 — is reasonable. This case was actively litigated, and much of that litigation was caused by First Commercial’s unreasonable behavior. . . .

In disputing the reasonableness of the fees sought by Coleman, First Commercial makes a number of arguments that are absurd. Prominent among those arguments is First Commercial’s contention that because its violation of TILA was so obvious, this litigation could have been resolved with little or no discovery. Yet in its answer, First Commercial denied that it had violated TILA. If the TILA violation was as obvious as First Commercial now claims, then First Commercial and its attorneys should be sanctioned under Fed. R. Civ. P. 11 for denying that violation in the answer. It gets worse: After answering, First Commercial continued to refuse to acknowledge its supposedly obvious violation of TILA, forcing Coleman to bring a summary judgment motion. And yet First Commercial now objects to having to pay for the time that Coleman’s attorney spent traveling to and appearing at the hearing on that motion — a motion that was in large part necessitated by First Commercial’s wrongful refusal to acknowledge its supposedly obvious TILA violation.

In short, First Commercial’s unreasonable conduct both necessitated and prolonged this litigation. In contrast, Coleman and her counsel have acted reasonably and efficiently to bring this matter to a conclusion. The Court therefore finds that the lodestar is properly calculated at $90,165.75.


14 Responses

  1. Is it true that you can have a rescission of the mortgage if you are in foreclosure…bypassing the 3 or 4 year statute of limitations?

  2. HR 3803 is BACK for an attempted over-ride of the President’s veto.

    This article from 4closureFraud.org contains a link to contact your Representative.
    http://4closurefraud.org/2010/11/16/update-h-r-3808-will-be-voted-on-to-override-or-uphold-the-presidents-veto-tomorrow/

    I just got off the phone after calling Susan Davis’s office and telling them my interest in this PERSONALLY, having out-of-state robo or electronic signer’s on the documents being generated this year for a company that is no longer in business.

    Use the link, look up the number, CALL your representative!

  3. This parable pretty much says it all. The defense rests your honor, the case against a foul industrial military corporate complex, and all of it’s inherant wickedness cannot lose.

    If you’ve read this story already, enjoy it again. It so reminds me of the over reach of corporate insanity that truly believes that Gordon Gecko and cubicles are worth that two weeks in the sun per year. What a joke!

    ~~~~

    An American investment banker was taking a much-needed vacation in a small coastal Mexican village when a small boat with just one fisherman docked. The boat had several large, fresh fish in it.

    The investment banker was impressed by the quality of the fish and asked the Mexican how long it took to catch them. The Mexican replied, “Only a little while.” The banker then asked why he didn’t stay out longer and catch more fish?

    The Mexican fisherman replied he had enough to support his family’s immediate needs.

    The American then asked “But what do you do with the rest of your time?”

    The Mexican fisherman replied, “I sleep late, fish a little, play with my children, take siesta with my wife, stroll into the village each evening where I sip wine and play guitar with my amigos: I have a full and busy life, senor.”

    The investment banker scoffed, “I am an Ivy League MBA, and I could help you. You could spend more time fishing and with the proceeds buy a bigger boat, and with the proceeds from the bigger boat you could buy several boats until eventually you would have a whole fleet of fishing boats. Instead of selling your catch to the middleman you could sell directly to the processor, eventually opening your own cannery. You could control the product, processing and distribution.”

    Then he added, “Of course, you would need to leave this small coastal fishing village and move to Mexico City where you would run your growing enterprise.”

    The Mexican fisherman asked, “But senor, how long will this all take?”

    To which the American replied, “15-20 years.”

    “But what then?” asked the Mexican.

    The American laughed and said, “That’s the best part. When the time is right you would announce an IPO and sell your company stock to the public and become very rich. You could make millions.”

    “Millions, senor? Then what?”

    To which the investment banker replied, “Then you would retire. You could move to a small coastal fishing village where you would sleep late, fish a little, play with your kids, take siesta with your wife, stroll to the village in the evenings where you could sip wine and play your guitar with your amigos.”

  4. UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA LENNARS THE BUILDERS SUBSIDIARY.

    http://www.scribd.com/doc/42718136/ORIGINATOR-DOCUMENTS-ALL-Universal-American-Docs-Full-Set

  5. Any homeowner that wants help from OCC about a fraudulent mortgage do not waste your time. I wrote and spoke to them for 2 years asking for their help and they told me to get a lawyer which I did. BOfA has OCC in their pocket. I sent them hundreds of copies of fraud documents and OCC just looked the other way. They are worthless.

  6. ORIGINATOR DOCUMENTS SET 2 PRODUCTION INTERROGATORIES AND ADMISSIONS.

    http://www.scribd.com/doc/42717743/DISCOVERY-SET-2-ORIGINATOR-Universal-American-Discovery-Part-2-LENNAR-LENDER-SUBSIDIARY

  7. DISCOVERY SET 1 ALL THE ORIGINATOR UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA THE BUILDER LENDER–

    http://www.scribd.com/doc/42716183/DISCOVERY-SET-1-UNIVERSAL-AMERICAN-MORTGAGE-COMPANY-OF-CALIFORNIA-Uamcc-Set-Discovery

  8. No sooner had I written that post about John Walsh of the OCC than was his reply to Grayson published. What I find most important/revealing in his reply to the Congressman is this:

    “The Federal Reserve, the FDIC, and the FHFA is leading an examination of MERS, which operates as a system that electronicaly registers and tracks mortgage ownership and servicing rights and may serve as the mortgagee of record as a nominee/agent of the owner of the a [sic] loan (the lender or subsequent investor).

    Notice how he legitimizes the entire process of MERS in his usage of language. No word of investigation, as Grayson had asked. It’s not an investigation, it’s an examination. Gee, everything looks fine from here! G30, remember folks!

    There’s going to be a full court press by TPTB to establish MERS going forward. And it may just be the spark for revolution II, the sequal. State’s rights and comunities v. big banks and their owned politicos and globalization.

    Have pitchfork, will travel. If not, get ready to work in a sneaker factory in Detroit for $1.75 per hour.

  9. A must see.

    Thank you CNN.com Please watch the Judges in Florida in action. I am speechless as to Judge Soud comments.

    http://money.cnn.com/video/news/2010/11/15/n_fla_foreclosure_court.cnnmoney/

  10. Unfortunately, the OCC is not clueless, they know exactly what they’re doing. There’s the report out about 5 AG’s having a meeting with director Walsh of the OCC, only to be shown the door with a stiff and resolute NO as the answer to their plea for help.

    I met with my state’s AG today. They said that they’re not getting any help from the Feds whatsoever. Especially the OCC. Now why would that be?

    John Walsh, the acting Comptroller of the Currency, which supervises more than 1,500 federally chartered commercial banks and about 50 federal branches and agencies of foreign banks in the United States. These institutions comprise nearly two-thirds of the assets of the commercial banking system.

    Prior to joining the OCC, Mr. Walsh was the Executive Director of the Group of Thirty (G30), a consultative group that focuses on international economic and monetary affairs.

    Folks, this group is an enemy of the state of the highest order, and the entire planet for that matter. They’re the idiots pulling the levers behind the curtains, with complete and reckless disregard for the citizenry, our communities, and the state and local level. The Evil Empire.

    They’ll go to great lengths to convince you otherwise. They’ll tout all of the great things that multinational corporations do for underdeveloped nations….using catch phrases like clean water and better agriculture, when in reality, it’s Monsanto and other large corporations “mining” the resources of those lands. Most banana republics are just that, thanks to these jerks.

    If it’s not the minerals being mined, it’s the labor. These are the same multinational corps and bankers who prop up government leaders with cash while establishing oil interests, slave wage factories, and many other “interests” that are beneficial to “free trade”.

    Just read their recent intro to a paper entitled, “Regulation Without Reason”:

    For months, the media have been predicting that a strong new regulatory flux would emerge from the financial crisis. Now, with a new report by the dirigiste wing of the Group of Thirty (G30), we know what the future could look like. A good summary is that bank-like regulation would be spread beyond the banking industry. But there’s a problem: banks have been tightly regulated for years, both in the United States and Europe, and of all the institutions hurt by the financial crisis, they are in the most trouble. How do the bankers, academics, and financial policymakers who make up the G30 deal with this? They don’t. In the wake of this report, the principal question that Congress, the Obama administration, and the American people should ask is why regulation should be extended to most of the major players in the financial system when it has been a consistent failure for banks.

    Regulation creates anticompetitive economies of scale.

    Regulation impairs innovation.

    Regulation adds costs to consumer products.

    Safety-and-soundness regulation in particular preserves weak managements and outdated business models, imposing long-term costs on society.

    These are the exact institutions that we need to systematically take down, if in fact we’re ever going to renew our local communities, the very same ones shredded by the globalization of our labor’s productivity.

    The G30 is in bed with Sacs, Chase, and all of the other major players who believe in enslaving our municipalities and citizens in a debt cycle that can never be ended. Read Matt Taibbi’s article in Huffpo recently concerning the Alabama county’s death gurgle because of this very thing. $400 monthly sewer bill? What kind of shit is that?

    We will never live in harmony again, as our fathers and their fathers did, as long as we allow usury such as this to continue. To live in an assett based society instead of a debt based society is the difference in being able to play with your kids, own a house, and help your neighbor and those in need around you, instead of all your days spent throwing yourself against the corporation’s gears. It’s just that simple.

  11. FLORIDA AND THE FORECLOSURE MILLS.

    http://www.scribd.com/doc/42697088/Taking-Knocks-in-Court-Foreclosure-Lawyers-Facing-Florida-Bar-Investigations-Too-FAT-BOY-ED-TREDER-NDEX

    This month , the Bar was investigating 43 reports of some type of foreclosure fraud involving 32 lawyers. One involves a Jacksonville judge’s ruling this year that lawyers from a South Florida firm committed “fraud on the court.” A new category solely for foreclosure fraud was added recently to the Bar’s system for tracking complaints.

    To find new cases, the head of the Bar is asking judges around the state to report lawyers who break the rules — and pointing specifically to news coverage of claims about foreclosure suits.

    “We haven’t received many complaints about this misconduct from the judiciary. In fact, oftentimes we have learned of these matters only from the media,” Bar President Mayanne Downs wrote last month in a letter to the chief judges of Florida’s 20 judicial circuits.

  12. Does anyone know where you can post robo signed
    documents on Deutsche Bank? so everyone can be
    more imformed. I have searched the internet to no
    avail. Thanks

  13. http://www.scribd.com/doc/42694614/OCC-ALLOWS-MEMBERS-TO-MONITOR-THY-SHELF-THEY-ARE-WORTHLESS-SJohnWalshResponse-10Nov2010

    THE OCC IS CLUELESS ON THE SERVICERS AND ALLOWING THEM TO MONITOR THYSELF. WHAT GARBAGE THIS ORGANIZATION HAS SHOWN TO BE. THEY WANT TO LOOK FORWARD FOR CHANGE INSTEAD OF BACKWARDS FOR CULPABILITY.

  14. Can we clone this judge and send a few copies to VA, where the pretenders are getting free homes from some judges that do not get it no matter what!!

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