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The short answer is YES. If a party initiates foreclosure proceedings based upon ownership of the loan, note and mortgage by a REMIC Trust, that ownership is based upon the express provisions of a trust instrument. And that trust instrument is the Pooling and Servicing Agreement (PSA). If that instrument is created under the laws of the State of New York, New York law expressly states that anything that violates the trust provisions is void.
So if US Bank, for example, says it brings the foreclosure by virtue of US Bank being the Trustee for a named Trust, then right there is an item for discovery —- is US bank really the trustee? Does the trust own the loan? If the answer is no, then there should be no foreclosure. Nothing could be more relevant.
So the theory that the borrower owes the money to SOMEONE, is not a very good precedent. It leaves the door open for anyone to demand payment on an account owned by someone else. Normal application of law would say that if the borrower paid the wrong party, then the debt is still owed. And if the borrower wants to use his wrongful payment to the wrong party, then he must show authority or apparent authority of the third party who wrongfully collected his payment — in which case the collection was not really wrongful.
Thus the rulings from the bench that the borrower has no right to challenge the assignment or the foreclosure on the basis of a violation of the enabling documents (PSA and Prospectus) are wrong. And just as I said regarding rescission, eventually there will be appellate decisions that overturn all the erroneous orders entered in connection with the the use of the PSA, relied upon by the foreclosing party, which essentially allow one party (allegedly for the benefit of the Trust) to use the PSA to their advantage establishing the right of the Trustee and the ownership of the debt, and then disallowing any inquiry or challenge into those assertions.
Add to this that the no Trust representative shows up at trial, ordinarily, and you have the reality revealed. These foreclosures are in actuality for the benefit of intermediaries and not for the benefit of the Trust or the holders of Trust certificates.
This is brilliantly argued in a brief drafted by Richard L Antognini, dated 11/18/14. Read it in full using the link above. If you still have doubts as to whether the borrower can use the PSA against the forecloser, then you are operating under the wrong legal presumptions.
Filed under: foreclosure | Tagged: PSA |
MF, its just not the law in MI., its the same in every state.
MF
Since the original thread is about the issue re:PSA, here is what the Mich COA has to say; this is opinion I believe is the longest one I’ve read and it shows the commitment of the COA to prevent the PSA from ever being relevant in any ways. Neil can you please give us Michigander your opinion on this. THX
http://publicdocs.courts.mi.gov:81/opinions/final/coa/20150120_c313790_51_313790.opn.pdf
Sulaiman law group in chicago has an interesting blog on rescission and bk (yahoo search).
“In Chapter 13 bankruptcy cases, following rescission, the creditor becomes an unsecured creditor and treated as other unsecured creditors.”
jg: I wouldn’t have phrased it this way because calling the lender whose loan was rescinded the creditor makes it sound like that party is still owed money under the note, when what he’s owed IF anything is tender. I suppose that still makes him a creditor (“as long as”), but for a diff reason then might be inferred from this.
“In Chapter 7 bankruptcy cases, it is possible to void the lien and discharge the debt. However, discharge of the debt that becomes unsecured as a result of rescission is not a guarantee, as the bankruptcy court may modify TILA rescission based on considerations of equity.”
jg: okay, but only as long as the lender performed, i.e., returned payments,etc or went to court within 20 days. imo. If not, the lender
comes to the bk court with dirty hands and “equity will not rescue one with unclean hands.”
Dwight – I’ll follow any links, but I think I know what you’re talking about.
You’re arguing you timely rescinded and further arguing the violations,
they’re arguing your rescission wasn’t rescission or even if it were, you didn’t sqwauk within a year and so tough luck and also that you failed to tender or demonstrate you could. The court is taking your claim of rescission as an affirmative defense and says it’s untimely or worthless or both. In so saying, the court has tacitly said imo that prior rescission
may not be raised in recoupment (something which defeats the sol) because tila has its own sol and the one being relied on here is the one year to squawk as if it applies to one’s rescission and not to damages caused by the violations, about which we both disagree because we agree (I think) that rescission has occurred already whether or not you squawked about it. But you just told me you filed a counter-claim, so yeah, I’d like to see how you framed what. It may be difficult to find
case law on prior rescission as an absolute defense since the J case is so new. Maybe you’ll make it!
Dwight, as I’ve said, imo you had and have no obligation to tender because I believe rescission occurred as a matter of law (tho I don’t think you answered me about whom you sent it to, so I’m guessing the servicer or the party who then claimed to only be the servicer to avoid the rams of the tila violations), no one gave you back what they must and beyond that, no one gave you any figures re: the amt due. Logically it would seem the amt due per a lender (had they done their return bit) would be the orig amt of the loan, but imo it doesn’t matter because it was their mandate to give you an amt. You had no obligation to tender and don’t now. imo.
(In fact, even tho whn says I’m full of it about bk, didn’t some yeahoo just lose its collateral (or more accurately was found to have already lost it by rescission) in someone’s bk for its failure to rescind? Seems to me the borrower bk’d any (possible) unsecured obligation to tender.
Must have been obl to tender since any obligation wouldn’t be based on the note after rescission.
it’s a crying shame more attorneys don’t understand this stuff to help out. If an attorney can articulate actual reasons x isn’t x, it’s one thing, but that isn’t what happens, is it? Even Weidner a few years ago let a
bankster get a voluntary dismissal (if granted, may return another day) when the writing on the wall was against it, by not filing a mtn for sj (if granted, bankster may not return another day) which would’ve precluded a vol dismissal. At least that’s the way I remember it. Doubt he’s done that again. I’m not trying to diss on W, just saying even attorneys learn things the hard way.
strictly lay opinions
JG … Thank you for the response , Wed I’ll be at the library and may be able to scan a few of my docs w/ redacted info so you can see what i’m talking about .. And then post a link you can open to review .. I did hire a foreclosure defense paralegal service, but the owner seems very confused about the rescission argument and thinks the tender issue is a legit reason for my judge to have denied it as one of my defenses and counterclaim. My answer to the foreclosure complaint clearly stated as an affirmative defense that I had rescinded in 2007 due to TILA violations … Before the Supreme court decision came out, WF filed a motion to dismiss most of my affirmative defenses and counterclaim based mostly on their arguments that I was time-barred from using them now, they said TILA was only good until 3 yrs after my closing in 2004, they stated that it is now 2014 and the TILA rescission defense is beyond the 3 years .. The judge agreed and rubber stamped their motion dismissing 99% of my defenses (including the rescission defense and counterclaim for damages that the statute allows for disclosure violations) .. I had requested oral arguments and when we got together he never allowed me to argue anything, he just cut it short and granted them the motion to dismiss my defenses. He allowed the issue of standing to proceed to trial and a couple other defenses, but he virtually destroyed my case by dismissing my defenses. WashingtoThat judge was the original judge in my first case who ordered a plenary hearing and wanted WF to bring in witnesses who could be placed under oath in regards to the standing issues he was concerned about, the note that magically got a stamp from WaMu after they had already certified to the other note without a stamp, etc, etc. He knew that I at least deserved a trial based on real party in interest, since they refused to bring in witnesses last time and dismissed, now he must have figured he was throwing me a bone to go to trial this time on the standing issues .. So I sent my interogs and demand for docs , in their replies they would write “we object to this question as we were not the original lender and we find this as harrassing and irrelavent” and this is how they answered all of my discovery questions and demands for documents pertaining to the history of the loan. This old judge was always commending me for putting up a valiant fight, he said I did a better job than most lawyers have done .. After court lawyers would walk over and congratulate me , I was arguing everything I learned on this board and many observers were impressed.. So when this old judge retired, who was allowing my case to go to trial, the new judge from 10 yrs in criminal court took over, he had no clue about any of the issues pertaining to foreclosures, rescission, TILA, pretender lenders, UCC, transfers, etc. ..it was all greek to him. He granted them their motion for summary judgment , denied my arguments based on the recent Supreme court rescission ruling, I motioned reconsider that my rescission defense was dismissed , submitted the Supreme Court case and he didn’t want to know anything , he cited old case law saying if the borrower didn’t tender at the time they rescinded, its meaningless. I’ll scan a few papers and try to link it here Wed.
http://quiettitleaction.com/Rescission%20of%20Closed-End%20Mortgage%20Loan%20Transactions.pdf
this has some good info imo. also a little case law.
“Absolute defense is a legal concept for a factual circumstance or argument that, if proven, will end the litigation in favor of the defendant. For example: truth of an allegedly libelous statement. Once an absolute defense is pled and proven, it is not subject to mitigation or collateral attack.”
Dwight, if you try hard and cannot find an attorney, you might call some well-seasoned paralegals. I don’t know what they may or may not do. There are also “ghost writers”, altho i DON’T know how legal they are or aren’t.,Getting either isn’t advice, it’s just something to look into.
Dwight: “My case began in July of 2007 when I rescinded a refinance that was table funded in 2004 by a pretender lender who signed it over to Washington Mutual at closing.”
jg: Wamu probably had a broker agreement with the originator and the note was endorsed before your ink was dry.( I’ve reminded NG half a dozen times about those agreements and any impact they may have on the ‘whose funds those were’ v the named payee issue so he’d address them). I did come across one such agreement, but can’t find it. Should have posted it when I found it. Knowing me, it was at the end of my daily rope mol)
why did you rescind? To whom did you send notice?
Fannie Mae is listed as the owner of the debt,
jg: where and when was / is fnma listed as owner of the debt?
“Wells Fargo became servicer in 2007 when I sent the rescission letter.”
jg: so you sent the rec notice to wf? anyone else?
who was your ben in public record? I personally believe that notice to the servicer is notice to the creditor, and I think this regardless of the relationship (like agency (prob not) or fiduciary (prob yes imo), but to ‘prove’ it is likely just another layer of a battle. But if I HAD to take on that argument, I would.
“.. They ignored the letter and filed foreclosure. The lawyers I spoke to back then told me the rescission was useless in court because they would ask me to tender first, so I didn’t file a suit. But now the truth comes out that the courts were wrong.”
jg: there’s a premise of law which may cover this. it’s ’emerging law’ or
something like that. There are a couple which get confused with each other, I think. It’s the one which gives retrospective / retroactive effect (think that’s the term) to (application of) the same law which had theretofore been applied / interpreted differently on the same set of facts. I’m afraid you’ll have to research this and if you’re committed, don’t stop til you find it. You may also have to ascertain that it (a jasinowski type decision) wasn’t already the law in your jurisdiction and that’ll take a research engine like lois law or west law. imo. I’m thinking but don’t know that if it were already the bomb in your own juris, you might not now be able to rely on the J case). That’s to the extent the
SC’s decision bears on your case.
“My rescission was still timely and within 3 years, so I assert that it is still effective.”
jg: it may well be, but as you can see, it depends on the one year deal, which as i said, I agree is about damages caused by the tila violations, not the lack of rescission. I mean, you could say ‘hey, I rescinded. They didn’t rescind, never asked for tender, and I had no obligation to do anything until they first performed.” So you went about your life….. But IF rescission occurs as a matter of law when the lender fails to perform, would that mean the borrower must then tender
without demand? I doubt it, and first of all, he’d need a number out of the creditor. The Act says the subsequent tender of what the borrower was given (money – and here I point to the “inequitable” recited in the ACT as to the amount of that money) MAY take place at the consumer’s home or elsewhere (I think as to the elsewhere). That implies someone (the lender imo) must arrange a time and place for that tender. No one ever said meet us at this place at this time, right (since they just ignored your rescission)? Fwiw, I doubt the consumer could say my house is now only worth 250k and I can only get a loan of
80% ltv or whatever one qualifies for so take this and that that could be the end of it as to the “inequitable”. The borrower may be compelled
to go to court for a determination on the ” inequitable”. And also, I think
the “inequitable” should be based on the value of the home at the time
of the rescission, not today’s value. But there may be legit arguments
on both sides of that one.
“My argument about the one year to file suit is that it was meant for damages for violations, one year to collect damages. It is not meant that a rescinding party needs to file suit to make the rescission effective, and i think the Supreme Court would agree. ”
jg: I’d have to look at that again to have any opinion.
can you recite it here, including its stat no. within tila? Actually, can you list that whole section so it’s all in one place? But from the hip, I think you’re right because the resc may have (key words) been affected by operation of law. It’s imo either rescinded as a matter of law or the failure to rescind does in fact create a separate cause of action for the failure, not just an action to compel the rescission. Damages. Now that’s
a good one. Chances are the consumer has not been damaged by the failure to rescind. There’s a reason for damages not to apply to failure to rescind. if damages are required to bring an action for failure to rescind, tila would have zero teeth. (But damages could be one’s state of uncertainty and all that means to one’s at least mental health. Th. is sort of damage has been tossed but imo because it wasn’t properly
stated). If there is no damage to substantiate for failure to rescind, it’s a clue to me that the one year was meant to relate to damages by the tila violations, the reason(s) for rescission), not failure to rescind. I can’t speak to damages caused by the violations because damages aren’t required to rescind for violations of the Act.
“Now when I fought WF off the last time affer they filed the FC in 2007, they didnt want to show how and when WashingtonMutual transferred the ownership ..and tt who they sold it …we still don’t know who the RPII truly is in my case. WF just rejected on the record that Fannie Mae owns my loan even though their loan info docs say they do. ”
jg: what loan info docs?
“The discovery I requested was objected to, WF objected to my demands for production of documents saying they dont have any from the origination and closing..they simply repeat that they have the note.”
jg: that one doesn’t have the docs requested is not properly framed as an objection imo. It was a stmt that they didn’t have them. Either way, I’m sure there was something to make of this, but I really can’t say what from the hip except that if they didn’t have any docs, they didn’t have the HUD 1 settlement statement which determines the application of every single dime paid by a borrower over the life of a loan. it’s the ONLY document which discloses the amt of the interest debit or credit to the borrower at closing.
“So they asked for a dismissal in 2011 after a 4 year fight…now they filed again in 2014 … My defenses are many, including the recent case in NJ Federal Bankruptcy court where the judge gave the free house.”
jg: I may have just read that. Which was it?
My case is the same and I am using the same arguments as the judge used in his decision, that WF accelerated the loan in 2007 when they filed the FC ..it has remained in acceleration for over 7 years, and the statute of limitations is only 6 years ..”
jg; I think you’re confusing two issues. The f/c action was timely brought (disregarding your rescission), so the sol is not in play.* What’s in play imo is “laches” , an affirmative defense, which is mol an inexcusable delay in asserting one’s right. The inexcusable delay might require at least prejudice to the other party (you) and you will have to support prejudice to you.
I personally think you’re first-in-time rescission is an absolute defense to the foreclosure.
*However, if the rpii is not the party who has sought to foreclose, then the sol could be in play. Beware acts to join the rpii as an allowance to join the rpii at this late date could “relate back” to the initial action. You may have that to argue, also, why it’s improper, if they try it. (i don’t know if your f/c is j or non-j). There ARE arguments, but you’ll have to find them.
“my judge disagrees with the federal bankruptcy judge too dismissing this defense”.
jg: Can’t dismiss an absolute defense. imo. As i’ve said, I believe your prior rescission is an “absolute defense”. No one denies receipt, right?
The rest of it is red herring. The matter of your rescission is imo the only matter appropriately before the court. IF tila results in rescission as a matter of law, if the lender didn’t rescind or act within 20 days,
there’s nothing to foreclose on. At this point, imo it wouldn’t matter if
your rescission were for a tila violation or you just thought it was a tila violation. The creditor lost its right to contest not only the rescission,
but the basis for it. I’m not capable of writing this for you and couldn’t as a lay person even if i were. I don’t know the posture of your case right now to know what if anything you must wiggle procedurally to assert the rescission as the absolute defense i believe it is. Chances may be that you’ve actually asserted the rescission as an absolute
defense and a higher court would see that or maybe if you’ve got a shot left at filing something in the court you’re in, you can yet reframe your argument. I think I already said this, but everything else is red
herring.
You’ve been, I think, defending your reasons for rescinding, and I think
you don’t need to, not now, not after 20 days.
strictly lay opinions
Maybe an attorney can and will help you if you narrow the scope of this battle by limiting it appropriately to the absolute defense of prior rescission.
more strictly lay opinion
I got the tapes from my hearings, and now I ordered transcribed for 450 bucks expedited 7-10 business days so we can move quickly. Another point about the rescission travesty was that the violations I claimed were more than just the issue of them not including disclosure docs but also that my APR was off …this wasnt even discussed as the judge denied me and allowed them to blurt out that they had proof that we had signed the rescission docs .. But in their discovery interogs answers they had said they have no docs pertaing to our closing?
JG … I appreciate all of your posts and research done in regards to the foreclosure mess, its a tangled web of deceipt hidden under piles of fraudulent documents and bad caselaw in many cases. The layers of the scheme have been made more confusing by courts who provide cover for the banks while denying borrowers full due process. I also appreciate everyone elses contributions in these comments sections when they are aimed at helping us to understand the issues. It’s my hope that everyone here can respect each other and not resort to attacking each other in posts. Those people who are critical should just post exactly what they have learned and maybe some of us will utilize it in our own cases. My case began in July of 2007 when I rescinded a refinance that was table funded in 2004 by a pretender lender who signed it over to Washington Mutual at closing. Fannie Mae is listed as the owner of the debt, Wells Fargo became servicer in 2007 when I sent the rescission letter .. They ignored the letter and filed foreclosure. The lawyers I spoke to back then told me the rescission was useless in court because they would ask me to tender first, so I didn’t file a suit. But now the truth comes out that the courts were wrong. My rescission was still timely and within 3 years, so I assert that it is still effective. My argument about the one year to file suit is that it was meant for damages for violations, one year to collect damages. It is not meant that a rescinding party needs to file suit to make the rescission effective, and i think the Supreme Court would agree. Now when I fought WF off the last time affer they filed the FC in 2007, they didnt want to show how and when WashingtonMutual transferred the ownership ..and tt who they sold it …we still don’t know who the RPII truly is in my case. WF just rejected on the record that Fannie Mae owns my loan even though their loan info docs say they do. The discovery I requested was objected to, WF objected to my demands for production of documents saying they dont have any from the origination and closing..they simply repeat that they have the note. So they asked for a dismissal in 2011 after a 4 year fight…now they filed again in 2014 … My defenses are many, including the recent case in NJ Federal Bankruptcy court where the judge gave the free house. My case is the same and I am using the same arguments as the judge used in his decision, that WF accelerated the loan in 2007 when they filed the FC ..it has remained in acceleration for over 7 years, and the statute of limitations is only 6 years ..my judge disagrees with the federal bankruptcy judge too dismissing this defense i raised, and my judge disagrees with the Supreme Court dismissing my rescission defense .. I’m in front of the most defiant, arrogant asshole in the land. I have affirmative defenses attacking the validity of the origination, I have shown proof that my loan might be part of a trust , I have 2 notes submitted and cerified to as being the true authentic notes, but they are different, the first one had no stamp endorsement from WaMu, the second one had the stamp added almost 3 years after WaMu went out of business .. I have a MERS assignment with a forged notary sig and showed the real signature for comparison, all dismissed by this judge. He granted them a summary judgment based soley on them having the note , thats all he based his granting them MSJ on ..all of my issues of material fact were valid issues, not the least of which was who is the real party in interest ..which remains a mystery and unanswered. we do not know who owns my loan …and this judge grants them a SJ .. Yeah I’m pissed off .. no lawyer had the balls or brains to take my case, so i had to fight it myself .. Now I finally found a para-legal service to help me with the procedural aspects and properly creating motions and appeals, etc…the guy seems pretty well versed on real FC Defense and hes got an office full of paralegal girls typing up the papers and case law etc… He charged me 1750 up front and wants 500 a month for as long as I use his service. He believes my best argument is going to be the federal bankruptcy judge argument on statute of limitations being 6 years in NJ .. He says thats better than the rescission in his opinion.
I don’t know if anything I’ve ever posited has ever done anyone any good. But I do know that if i wanted to bring a tila based action I wouldn’t have brought it against a servicer. I’d have more likely done one of two things: postured the person who accepted my payments was the successor creditor and left it to them to prove otherwise (v letting them merely disclaim liability based on being a servicer only) or brought it against the party named in public record. Did you fight to learn the identity of the rpii and get it so that you could prosecute the tila violations? If so, please share with the rest of the class. Sincerely.
I have suggested arguement that being in poss of a bearer note doesn’t mean that party is entitled to an assgt of the coll instrument. But since that party has been allowed by merscorp to use its own employee to execute an assignment to itself, that presents new problems. I’ve suggested other ways to help defeat a number of things,
more recently calling attention to the language in the note which imo restricts enforcement. I don’t know if anyone has used any of them or not or would it have helped if they did. There are times to do things and accordingly, there are times it appears to be impossible to raise new issues. I have no ideas on overcoming issues which are now subject to res judicata doctrine, but i have brought forth what I consider something quite valuable, and that’s defenses and counter-claims in
recoupment.
You say things like ‘go on the offensive’ (as if those here are in a position to do that). Brilliant! Why didn’t the rest of us think of that in a time when it would have been the thing to do? Christine, you may know something helpful. But it isn’t evidenced by what you write here. I think you must be lazy, for if you had any intention of helping, you would take pains to explain the how to of that instead of what it is you actually do.
If you do and you did, it may help at least a few here. But you don’t. And if that isn’t aggrevating enough, you malign others with nothing but empty, conclusory statements. This “rock” guy is aggrevating, also, but at least he, on occasion, attempts to articulate his objections and or beliefs. He doesn’t invite discussion; he throws down his assertions as fact and ignores challenges to his “facts”. I guess that’s his prerogative (everybody dance – love that song).
So, all in all, let me be blunt: you’re not king of the jungle because you won a pittance for some respa violations while losing the deadlier claims which were ill-postured. Least that’s the way it looks to me. I’ll give you this: you did fight the good fight to at least get the respa claims reinstated. I don’t feel I’ve violated any of the confidence you asked for since I haven’t disclosed your name or actual case, the one you say is plastered all over the internet.
And JG,
“you must know that many people here are past the point of taking the offensive position”
Well, I’ve been coming here for years and I said from day one: “Attack first”. If people keep on waiting and waiting for foreclosure, it will become increasingly more difficult for them to come out on top. Why? Because, thanks to LL and Garfield, the number of cases banks can draw from to shoot them has increased exponentially. Not my fault. On the other hand, I got a judgment. Doesn’t matter is it’s TILA, Respa or anything: you apparently don’t know what I was going for. Smug doesn’t replace truth.
So, I’ll ask again: anyone got a positive result reading JG ponder out loud defense for so many years? Anyone?
JG,
“You don’t contribute anything.” Really? Explain the number who contact me or ask me, right here, to contact them. I don’t see that happening to you. Any reason?
I don’t do nombrilism and I won’t touch intellectual masturbation leading to nowhere. I’m into result, the exact thing Garfield’s followers resist. Takes common sense and getting one’s butt off internet to document, document, document, so as to really prepare a solid file so that attorneys know they don’t deal will bozos, spoon fed on LL idiocy, or pro se so far gone into filing stupid motions that they can’t be salvaged.
I don’t contribute anything to stupidity. Revisit your Chapter 13/rescission insanity and get back to me on how it’s been working nationwide so far. There must be case law to quote from, right? Or… keep using this blog as your antidote to Alzheimer’s. At least, you’re using your brain to ponder out loud. Results from it? Anyone? Have we got one winner on JG’s thinking out loud?
We don’t have winners on this site. Period. Except Bob G. (long gone), Rock (just called it quits) and me. Funny thing… when most people win, they stop coming. I wonder why… And I wonder why only losers flock to this site. I have the ability to help and I’ll do it as long as I find pleasure in it. What I won’t do is quit and allow the dangerous insanity peddled here to keep creating more and more case law for the banks. LL has already caused enough damages as it is.
Can anyone tell me who is the recipient of trustees’ sale deeds? Is it the trust? If I ever knew, I’ve forgotten.
christine, well, I’m stumped. No surprise, acc to you. You don’t contribute anything. You just criticize a bunch of people you don’t seem to like. What I don’t get is why someone who not only claims not to be an idiot but is prob not an idiot as a matter of fact wastes her time being here at all. I mean, isn’t that idiocy?
Is there some wound you think could you possibly assuage by ad nauseum attacks on others, especially here?
You lost your tila claims last I knew. I’m sorry about that. Your respa violations survived. Well, (hot damn) and good for you. Truly.
Since you’re not an idiot, you must know that many people here are past the point of taking the offensive position and can only hope to posit affirmative defenses, yet you rail and rail and won’t let up as if you’re offensive behavior is going to change their realities. If it’s otherwise, I don’t see how empty critiques help. Are you maybe just lazy?
If you can’t factually and competently undermine my arguments and those of others, might be best to put a lid on it and as they say not open thy mouth lest you “remove all doubt”.
I regret (well not really) to inform you I won’t be following your suggestion as to my own conduct.
Moron.
He is setting them up for a Discrimination lawsuit.
cyber bullying is a serious crime.
NEVER AGAIN
“Cursory review”. Go to law school and learn the statutes. As usual, apples and oranges. And while you’re at it, study the case law on chapter 13 and rescission. When you’re done, come back and tell us how successful it’s been, nationwide.
“4) The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order.”
Right. But what may not be modified imo is that the lender receiving a notice of rescission must 1) rescind or 2) be the party seeking the
modification to its obligation to rescind within the 20 days. If the lender doesn’t do one of those two things, he has created a cause of action against him. If a lender doesn’t want to honor the notice, he may go to court within the prescribed amt of time, at which time, it’s possible the court could say the lender doesn’t have to rescind unless the borrower can demonstrate her ability to tender (that’s a modification contemplated in and by no. 4).
What should happen if the lender neither rescinded nor went to court in 20 days and one were forced to be the party bringing suit? Would one’s ability to tender become an issue? It shouldn’t. The sole issue when one is the plaintiff could be “failure to rescind” (as distinct from an action seeking rescission itself). That you didn’t demonstrate ability to tender or that you can’t now is not an excuse for the failure. imo.
Tila provides a lender one course and only one course of action against rescission: go to court within 20 days and get a modification of the obligation to rescind. Jasinowski made it clear there’s no self-help remedy; there’s no discretion to a lender in the Truth in Lending Act in the form of doing nothing, and by not rescinding, the lender has created a cause of action for the doing nothing.
I’m not advocating rescission or not advocating rescission fwiw. But if you rescind and you end up in court, even if you have cause of action for failure to rescind (again, a distinction imo from an action to compel), the lender could eventually have a claim of its own for your rescission which wasn’t backed by a violation or is found to have been untimely,* at least to the extent it can prove it was damaged. But I don’t believe a court may even consider one’s ability or inability to tender as an excuse for a lender not doing one of the two things it MUST in so far as an action for failure to rescind goes. TILA compels a consumer to perform after the lender’s performance, but it doesn’t say the lender may not perform if the consumer doesn’t prove it can tender. Failure to tender or inability to tender is NOT an affirmative defense for the lender for not doing what it should have.
lay opinions as always
*slow going on rescission as recoupment
It looks to me from a cursory review that rescission in conjunction with a chapter 13 bk can be deadly for a lender.
More blaming. Typical of a finished country. Oh well… the rest of the world is moving forward. Keep wallowing in self pity and martyrdom. That ought to really help this country get back up. What a sorry bunch!
Rock: “Dwight, there’s two problems with your last comment. First, if your property is underwater, you can’t refinance. Outcome, you lose your home because you breached the contract if you didn’t make payments.**
That could be a result, but it’s not a fact in evidence. TILA, as I’ve opined, leaves open “inequitable”. You got the loan because you didn’t have cash and you still don’t. You’re now underwater on your house. How is it equitable to make one return 200k (say) in cash on a diminished asset? No one would be looking at the value of the home were it not for the violation of the lender: the lender, who caused the situation to arise, should bear the results of its violation. I sure wouldn’t hesitate to make that argument, primarily because as I say, tila clearly, by it’s terms, meant to provide relief on the basis of “inequitable” to consumers who are victims of its violation.
dwight, I believe that there are some judges with bents and that they’ll do whatever they can to advance the will of the banksters. WF’s attorney was testifying as to evidence, something not allowable and could’ve been shut down by an objection on that basis. If an objection is overruled, I guess you preserve your objection on the record and then may, as necessary, file an interlocutory appeal or an appeal later after judgment is final. (don’t take my lay person word re: appeal – just clues) If the court made a ruling based on an attorney’s testimony,
you could prob file a mtn for recon before appealing. (need procedural advice from att – good luck on that one). The attorney could have said something like “he received the notices and I make an offer of proof”. A time might then be set for an evidentiary hearing on that offer of proof and when that hearing is (inevitably) postponed by the bankster, I’d object like hell ince there was a representation and an offer of proof that the evidence exists.
The attorney canNOT authenticate the notices she claims you got.
Who could, I’m not sure, but what I’m pretty sure of is that whomever it would be trying would have to rely on business records to establish your receipt. The first thing I’d have done is get an audio of the hearing.
Sometimes judges will hold a hearing after clearing the courtroom where it’s anticipated one of the parties is going to get nailed for contempt or like that. I understand your concern being that the court didn’t want any witnesses to chicanery. If that were the case, that’s pretty ugly. It also could be that of the gazillion mtns set for hearing that day at 9:00, yours was expected to be lengthy and that’s why it was moved to later. Sad to say, but maybe best these days not to go to court without at least a bud because sometimes a transcript (in addn to the audio) will state “inaudible’ for a period of time. The what to do about that seems to me to be in looking at the ruling. Does what’s audible support the conclusion? If not, i’d ask for reconsideration and or a rule 52(think it is) request for clarification.
Bad judges are those with bents who don’t fear appeal. imo. It is such a stinking drag to seek assistance, as e.tolle says, from attorneys who fail to see the devil’s in the details. Yvanova found an attorney after
fending for herself for quite some time who wasn’t afraid of and could
be bothered to navigate those nettlesome details, and he at least had some good ideas what to do about them.
lay opinions – ask an attorney or 10
“Christine’s always ragging on LL folks for blaming the judges and attorneys…”
Attitude determines altitude. Judging from this blog, sucky attitude and self-imposed martyrdom don’t promote a decent cruising altitude. And besides, this country will need a new national hobby: blaming everyone while taking no responsibility for one’s results is the antidote to winning anything.
I’ve got to agree with DwightNJ as to his dilemma. If he were simply talking about an appeal, and prior to Jesinoski, he’d probably be swimming upstream with one arm. The judge in his case is acting like a judge of old – out west of the Pecos. Not in my courtroom! Oh yeah? We’ll see about that you crotchety old fool. Sorry, I’ve lost what little respect I ever had for the robes due to nasty dealings. Things like my judge turning off his mic while addressing what he’s going to do and how for the bankster’s attorney tends to do that to you.
While coming across as crass in my dealings with Rock, I’d explain that I have no room for the talk-down he does to borrowers in general, and especially as it relates to folks on this blog. He acts as if none of us have the where-with-all to understand his higher thoughts on law, kinda’ pearls before swine like, when in actuality, nearly everything out of his mouth is bullshit. And bullshit repeated over and over still smells just the same. My only guess is that he never really took the time to read and digest Jesinoski. Posting 2009 state cases to refute the US Supremes is a classic that I won’t forget for a while. His leaving concludes yet another episode of Bad Law, Told Poorly. Stay tuned…I’m sure he’ll do re-runs too soon.
Not anywhere near an attorney here, but it seems to me that in light of Jesinoski, DwightNJ’s not only got his bases covered, but has a keen understanding of his situation, much more so than most over-paid attorneys one’s more than likely to come across out there in the barren land of savvy law offices. What a waste of an education….99% of the ones I interviewed back when should have changed their major to pet grooming, if that wouldn’t be too challenging. Christine’s always ragging on LL folks for blaming the judges and attorneys…just ask me, DwightNJ, and Elexquisitor about our experiences. Some of these courtrooms should have swinging banana leaf fans powered by natives and jack-booted machete bearing militia as bailiffs to add a little realism to the third world ambiance. And lots of Tequila.
Dwight
Im not saying no argument around re if when and what circumstances you rescinded, the supreme Court has decided, ee get 3 years, and they have 20 days to go to court for declaratory relief once we send notice of rescission, i did it perfectly within 3 years and i tendered minus equitible setoff ( to the creditor) but, if we are trying to resurrect that right retroactively this point Rock made will be raised and i believe the best defence is offence- be prepared, and i would want to have my ducks in a row with case law, and that is a part of my argument too, now, i petitioned, however i am at the mercy of the 9 th circuit. remember ” show me the note” arguments domino rulings on that, my judge also said it was a show me the note argument ( which it wasnt) i love the Supreme Court ruling, its just. what i myself am trying i posted already on here, not going to repeat myself because its pertinent to my set of circumstances in court, which are complex and a great record of how my home was taken by who and because of the path it took ( through no fault of my own, that is the truth, call me a whiner, truth is im trying to inform with the hope it helps someone in any small way ) so that point Rock made is true, ( dont like all his points though and hes very “pointy” ) its only small points we may get on here that may just make a difference thats all, because we all have a small blind feeling of the elephant, remember the analogy ( depends which part you are describing) thats the extent i think our expectations should be on here, especially pro se with no formal legal qualification, and i say that with respect for NG.
@ E….the lawyers all do the same thing….ever read these cases? It’s like they fax them around. They win because most of us screw up on procedure, IMHO
UKG….you got it: X amount of payments not made, legal fees, interest, etc….diminishing returns. Subjective value in many cases…if I understood you.
Liars, thieves, thugs…all while the entire court system and citizens watch, with eyes wide open!
Worth Repeating …..
ATTACK THE MORTGAGE CONTRACT!!!!!!
Your Honor… I offered tender but they didn’t get me the figures….. Thereby refusing tender.
GET FULL COPY’S OF THE COURT ACTION, AND WHAT ALL SAID, THEN TAKE IT TO NJ LEGAL HELP. AG OFFICE. FILE COMPLAINT, ARE YOU STILL IN PROPERTY??
LISTEN YOU NEED TO GET LAWYER. TO APPEAL IT ON THE BASIC THE JUDGE WAS NOT FOLLOWING THE SUPREME COURT DISC. ON RESCISSION.
IF YOU CANT AFFORD ONE THEN GO TO YOUR NJ LEGAL AID, ATTORNEY GENERAL OFFICE AND FILE A COMPLAINT ON THE JUDGE.
NJ HAS ALLOT OF LEGAL AID SERVICES, GOGGLE IT.
AND ALWAYS HAVE A COURT RECORDER IN WITH YOU . TAKING DOWN EVERY WORD. FROM ALL.
David, … I did try to object to the Judge twisting and ignoring the Supreme Court, but he’s the Judge and he can rule however he likes. I do believe he had an Ex Parte deal arranged with the female lawyer for Wells Fargo, my case was pushed back from the normal start time of 9 am , the court called me the day before the hearing and told me not to arrive until 11 am, they had cleared the court room of all other cases by the time I arrived, she was already there and the fix was in. … They had a devised plan on how to defeat my rescission defense, the Judge prosecuted the case from the bench, he stated on the record that I had never tendered and so my rescission claim was no good. How does he know if I tendered or not? He never asked me before he made that damaging statement on the record. I was shocked that he jumped to such a conclussion as if it were fact … I neither admitted nor denied tendering, I kept insisting that they ignored my rescission letter and that I needed them to first acknowledge my rescission letter .. He asked me “you had 180,000 dollars” … I replied “I had the property worth 300,000 dollars”…. The female attorney for WF lied and interjected that they had proof that we had been given the notices of right to cancel, but she never showed any proof after she said that.. I had proof with me that showed my closing docs never had the disclosures, but he would not allow me to submit them into the record…he said that I’ve already submitted a lot of paperwork and he didn’t want anymore. While reading his decision against me, he glanced up at the girl for Wells Fargo and winked while reading “the plaintiff disputes the defendants claims of disclosures missing anddstates that they were included” … The wink was the deal they had made, they together formed a plan on how to deny me justice under rescission, but i have no way of proving it. If anything, a fair trial should have been held to determine the facts, he just took the banks lie as fact without any proof to back it up ..so the plan was to accuse me of not tendering, and then lie about the notices being included in the closing docs. Now I have to wait until a final judgement is entered on this foreclosure case in order to be allowed to appeal, from what i’m told. I’m wondering if I can file what is called an interlocatory appeal right now since no final judgment has been entered yet.
DWIGHTNJ,
DO YOURSELF A FAVOR, GO AND MAKE OUT CHECKS FOR EVERYMONTH, MAKE CHECK OUT FOR FULL BALANCE OF LONE ,DATED BACK WAY BACK LIKE AFTER FIRST PAYMENTS WAS MADE, JUST MAKE COPYS AND HAND THEM OVER TO JUDGE.
SAYING I MADE COPYS OF ALL MY CHECK YOUR HONOR TO SHOW YOU I MADE ALL PAYMENTS AND EVEN PAYED IT OFF.
IF HE SAY AND THEY WILL SAY , NO COPY WILL DO, WERE ARE THE CANCELLED CHECK FROM BANK.
WAIT YOUR HONOR, YOU ARE LETTING THIS BANK COME IN HERE WITH COPYS. AND SAYING ITS OK . HUM . SIR ARE YOU IN ON THIS SCAM TO???
AM NOT AFRAID. LET HIM EXPLAIN HIMSELF WHY ITS ALL OK FOR THEM TO MAKE COPY’S . AND YOU CANT MAKE COPY’S.
THAT’S WHY. COPY DONT WORK IN THE COURT OF ( REAL LAW)
JUST SAYING .
IAN,
YOUR RIGHT.
PLUS ALL PSA SAYS IT DOESN’T MATTER IF THE BORROWER PAYS ON THE MORTGAGE OR NOT. YOU SERVICER/TRUSTEE MUST PAY ON THE CERTIFICATES/BONDS.
SO IF THE BANKS SAY YOUR IN DEFAUT OF THE CONRACT ASK THEM , THIS ON WHAT CONTRACT THAT YOU AND I SIGN???
WATCH THERE FACE.HUM WELL , SHOW ME THE ORIGINAL BLUE INK CONTRACT I SIGNED IN 2005??? AND IF THEY DO SHOW UP WITH IT, AND THEY ARE FORECLOSING IN A TRUST NAME. FRAUD WILL COME UP, BECAUSE YOU CAN NOT HAVE A MORTGAGE AND NOTE AS SAME TIME AS A MORTGAGE AND NOTE JUST HANGING AROUND FOR ANYONE TO TAKE, THIS IS WHY THEY WERE ALL DESTROYED. …..GET IT. NOW. AND BY THE WAY I WILL HAVE TO GET THE PAPER ANALISED TO SEE IF IT OF VINTAGE PAPER FOR THAT YR WHEN CONTRACT WAS DONE.
YOU ALL KNOW THIS RIGHT. PAPER IS STAMP WITH DATES ON THEM. THEY CAN TELL IF THE PAPER USED TO FORGE ALL DOC IS FROM PAPER OF THIS YR.
AND THIS GO TO ALL THAT DISCOVERY IS A MUST IN ALL DOC/TRANSACTIONS. ETC.ETC.
Deb, … I have to disagree with your analysis that Rock is correct, please explain how a borrower can be in found to be in breach of a mortgage contract that was rescinded and no trial or evidentiary hearing was conducted to establish the facts. The rescission notice halts all payments as per federal statute, so you can’t be in default, no default means no breach. The security instrument was void before the next payment was due. Even if underwater, the borrower was still owed their payments and damages which could be applied to the value of the home, making the return of the underwater property an even exchange. But under no circumstance should the bank be allowed to ignore the rescission and then try to foreclose on a void instrument. If they responded in 20 days and adjudicated the rescission, then maybe a court could have helped work out a fair resolution, but they chose to ignore the rescission, they do not deserve to be rewarded for their non-compliance , they do not deserve to take the house through a FC and just disregard the rescission. The security is void, let them sue on the unsecured difference if need be, but foreclosure should not apply to rescinded contracts because no default occurred.
IAN,
NO I DIDNT, JUST MAKING A STATEMENT. BUT DO KNOW THAT UNDER THE BAIL OUT APPROVED BY CONGRESS OF 700 BILLION DOLLARS. THEY STILL HAVE OVER 1/2 LEFT. HOW COULD THAT BE?????
BUT THE POWER THEY GAVE FEDERAL RESERVE AND TREASURY WAS HIDDEN TO THE PUBLIC,
THEY USED THAT POWER TO SAVE AIG, AIG THROUGH BACK DOOR WAS USED TO PAY OUT OVER 30 TRILLION DOLLARS TO CHINA. MR HANK PAULSONS PERSONAL FREIND THAT WAS BUYING ALL THIS CRAP.
THATS WHY A FULL AUDIT OF FED AND TREASUARY NEEDS TO DONE
THATS WHY THE BANKS AND FEDS ARE FIGHTING SO HARD NO TO HAVE FED AUDITED DONE
i dont understand why so many here are having a problem understanding rescission. any rescission.
first and foremost. please understand one thing. IF THE BANK DOES NOT FILE A SUIT IN COURT IN 20 DAYS, ALL DEFENSES FOR THEM TO DISPUTE YOUR CLAIM OF RESCISSION. THEY CAN NOT, PLEASE LET ME REPEAT THAT. THE BANK CAN NOT DISPUTE ANY OF YOUR CLAIMS UNDER THE RESCISSION YOU SENT TO THEM.
THEY LOSE ALL DEFENSES OF YOUR CLAIM.. PLEASE THIS IS WHY WE THE HOME OWNER HAVE HAD SO MUCH TROUBLE IN COURT, ON DEFENDING OUR CLAIMS. ITS BECAUSE THEY SAY WE LOSE OUR CLAIM ON DEFENSES ON NON-TIMELY CLAUSES.
THIS IS WHY THE BANKS DON’T WANT TO FILE IN COURT, THEY HAVE NOTHING. AND IF THEY DO FILE, THEY HAVE TO PROVE ALL OF THE TRANSACTIONS. FROM START TO FINNISH. AND THEY CANT, WITHOUT SHOWING ALL THE FRAUD THEY COMMITTED.
AND NJ, you need to file a complaint on the judge that did not honor your rescission. he is bought. he can not do what he wants. the court should of told the bank you cant say anything. you didn’t file in the 20 day period. you or your lawyer didn’t do your job. in ojections.
1/ bank can not bring up anything on timing of rescission, even if it was 5 10 yrs ago when closed. they cant tell judge hey this was done 8 yrs ago . they can say boo. they can not say anything. they did not file. stating they disagree with THE RESCISSION, BECAUSE OF THE STATUE OF LIMITATIONS ARE OVER. THEY DID NOT FILE. SO THE HOMEOWNER WINS. BECAUSE OF THEM NOT FILING A OBJECTION TO THE RESCISSION ON THE BASES OF STATUE OF LIMITATIONS. THEY CAN NOT BRING IT WHEN YOU GO TO COURT TO CLAIM THEY OWE YOU A CLEAN TITLE AND NOTE AND MORTGAGE CANCELLED. AND TO GET ALL MONEY THEY HAVE MADE ON YOUR NOTE. PAYMENTS, ETC,ETC.
IT IS VERY SIMPLE.
Rock what you said here is true you said
“Dwight, there’s two problems with your last comment. First, if your property is underwater, you can’t refinance. Outcome, you lose your home because you breached the contract if you didn’t make payments,”
So why was that and how was the borrower harmed, is why we are having discussions.
I was totally willing to take it on the chin
If all things were equal in that contract
But its pretty obvious things were and are not. Yet. Rescission is one tool, we will see how useful as cases come to light.
So complex is the subject matter is why the banks and lawyers have huge advantage over us. I still do not believe we should lie down, i believe in putting a best fight forward, but its not for everyone, each case is different. This is why i get frustrated. Be supportive.
David Belanger-,did you do the math to see that the 500 GMAC MBS totaled ten trillion dollars as per one of your posts?
S & P stated during the FCIC hearings that they rated 43,500 MBS. What do the remaining MBS add up to?
FYI- at the height of the meltdown, there was 13 trillion in existing US mortgage debt. 20 % were subprime. 20% of subprime were in default/foreclosure.
Your number plus the remaining 44000 MBS would appear to corroborate that the mortgages/notes were sold many times over. Didn’t think of this until I saw your post.
Melissa, … Don’t begrudge the rest of us discussing Rescission, it’s important and vital that we discuss all possible issues regarding the lenders crimes and the possible remedies that can be argued for the borrowers favor. You say “none of you are lawyers” .. we have brains and can read laws, we have not been helped by the legal profession in regards to the injustices taking place inside court rooms. Most of the legal profession has no clue about these issues that lay at the heart of the foreclosure crimes. Most just want easy money where they try to get you a modification or file a bankruptcy, so complaining that we are not lawyers only points out how pathetic the legal prrfession has been in bringing more light to this subject, there are some good ones, but few and far between. We need all of these arguments to be brought before the Supreme Court, everything regarding origination and consummation..and all the way to foreclosure..we need true justice. In the meantime we discuss it amongst ourselves and thats good. Why not tell us about your keys to success, how have you remained in your house so long? What points have you argued in court?
Michael K .. Agree, it’s an uncomfortable discussion for most people to engage in, especially those people who have been fortunate and never had to deal with this in their own personal lives. Those people have no idea how deep the corruption ran which led to the mortgage meltdown. The govt has promoted the notion that it was all caused by the poor working class slobs who got in over their heads and defaulted, most americans have no idea how the banks intentionally built a scheme to profit off the ilegal Ponzi scheme they created, most people have no idea how the ponzi scheme actually worked. The govt obviously has winked and nodded to the lower courts to just “hurry up and get these foreclosures off the docket asap, no matter what defense they raise”. This is the second part of the nightmare, how the courts are complicit and involved in helping the criminal conduct get a free pass in the foreclosure courts. Obama and Holder stopped the attorney generals of 50 states from filing criminal charges pertaining to our transactions, they instead decided to take the 25 billion dollar bribe and look the other way as the victims lost their homes. It’s pure evil and has nothing to do with the laws of the land, attacking the mortgage, hiring the right lawyer, raising the correct defenses, etc. .. the system is in agreement that the borrower/victims are expendable and need to lose. The recent Supreme Court decision was an exposure of the lower courts crimes. The Supreme Court needs to look at all the issues of foreclosure cases and expose all of the denials of justice taking place in state courts. Rock is relying on bad case law that is based on errors of Judges who helped facilitate the mantra “no borrower gets the house” , so citing bad caselaw doesn’t make it correct and just caselaw, it just points out how bad the foreclosure travesty of justice truly is, our judicial system has lost credibility and integrity. The court system is now part of the crime.
The act of rescission can’t be construed as a breach of contract because no contract exists upon written notice of rescission. You can’t breach something that doesn’t exist. The refi was 230k, I paid 50k in payments, leaving a tender balance of 180k, the house is valued at 280k right now, and was valued at 300k back when I rescinded.and they ignored. Why should they get a 280k house when the tender only called for 180k ? They failed to comply within 20 days and never returned the ccncelled note and mortgage. They are not entitled to the house because it was my house before I ever refinanced with them. The act of rescission places both parties back to their positions as if no deal had ever taken place, they didn’t own this house, we did. They do not deserve the house under any circumstances. As long as the letter of rescission was mailed within the 3 yrs allowed, and my closing docs show that they did not include any notices of rights to cancel, then my part of the rescission effects the voiding of the security instrument, there is no longer a mortgage contract that could be breached. If the lender disagreed, they should have challenged it and had a court hold a trial to determine the facts. But the answer cannot be foreclosure because a foreclosure needs to have a default, the federal statute declares that the party rescinding should stop paying, meaning there can be no default and no foreclosure.
Dwight, there’s two problems with your last comment. First, if your property is underwater, you can’t refinance. Outcome, you lose your home because you breached the contract if you didn’t make payments.
Second, you can only return what the bank gave you, the money. Therefore, you can’t take the money and run, like you think. Outcome, you lose your home, if you didn’t make payments.
Once again, TILA rescission is no big deal; if you want to save your home, you need to attack the mortgage contract–period!!!!
Sorry, but I can’t waste anymore time with this subject.I gave you the facts and law, I can’t understand it for you. The scammers and legal illiterates will be glad to hear I’m leaving, I’ll leave them to their own demise. However, for you others I hope was able to clarify the misinformation they posted.
Again, I only comment when Garfield posts something ridiculous, which regrettably is way to often.
Failed on FDCPA but successful on violation of ECOA
for terminating loan modification, is. “revocation of credit” (adverse action)
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/03/11-16816.pdf
Trespass Unwanted
Memory Lane
http://api.ning.com/files/ndc8DqfBQG6hENNk8laYm3Rmu8kuMuiez2S0-Z*tgoWUZYfhOfmLacMhWQcNvz4eGIGTLnRzCoHWUUJWYC4-1KIOEk94TpIK/NyeLisaFLASCEfile.pdf
The Shapiro Firm virtually admits to the Court that it and its alleged
clients are unable, under penalty of perjury, to verify and attest to which
party (or client) can be held accountable for bringing meritorious foreclosure
actions and delineates as rationale for this legal handicap its inability to:
a) Allege the proper and lawful amounts claimed due;
b) Attest to the default status of a loan or date of default;
c) Delineate the chain of title to the promissory note;
d) Reveal the true owner of the note and holder in due course;
e) Allow parties to produce discoverable evidence and testify in
support of Plaintiff’s allegations;
f) Produce the proper decision maker for appearance at mediation conferences;
g) Show who are the proper parties who can lawfully receive and approve modifications, short pays, settlements,
accord and satisfaction, and other alterations of terms and conditions; h) Steer defendants in foreclosure actions towards the proper party or nonparty from whom the defendant can seek discoverable evidence and testimony in furtherance of their defenses and counterclaims.
2009 and we still see the same stuff, different day
Trespass Unwanted
Remember:
https://livinglies.wordpress.com/2015/03/06/rescission-if-no-lender-disclosed-then-there-was-no-consummation-no-loan-contract/
Then you have the following theory, no consummation, TILA never tolled, good for a past 3 year-er:
(1) Ramsey v. Vista Mortgage Corp, 176 BR 183 (TILA RESCISSION IN BANKRUPTCY CHAPTER 13 CASE). In this case, the court laid down the test of when the three year right to rescind begins to run and specifically tackles the concept of when a loan is “consummated.” Several internal citations also help clarify this point. Here is what the Ramsey Court said:
“When Ramsey signed the loan documents on September 13, 1989, he knew who was going to provide the financing. Courts recognize the date of signing a binding loan contract as the date of consummation when the lender is identifiable.” The Court also cited to the Jackson v. Grant, 890 F.2d case (9th Circuit 1989), a NON-BANKRUPTCY CASE, and said: “the Ninth Circuit held that under California law a loan contract was not consummated when the borrower signed the promissory note and deed of trust because the actual lender was not known at that time. Under these circumstances, the loan is not “consummated” until the actual lender is identified, because until that point there is no legally enforceable contract.”
Trespass Unwanted
Nope… If she did she would know TILA covers that too.
Just Sayin. ……
It dint stop them from coming back on collectible advances …. I.e..tax and INS and ask the court not to allow me to reinstate…..hahaha on tax and INS I have paid and have receipts to prove.
Any wonder why their attornies drop them like a hot potato?
Melissa
Nice post. And the motto a friend once gave me which i have held onto ” cool calm and collected” i Keep my eye on justice and its not a dirty word ” seek and you shall find”
UKG…over the years I have heard many theories and seen homeowners lose case after case. I only used what I could prove as facts and turned the tables on them. Having a Good attorney makes all the difference. I studied and became a reverse mortgage specialist after we closed on this property. I saved many elderly couples from making life changing mistakes and my attorney represented those widows who got snookered into them under false pretenses. The thought of our mortgage being so similar never occurred to me as we are a lien theory state. Nobody had permission to gamble and over ccollatorize the title to our r estate. Had I known the true terms of the transaction…..I would never have signed the mortgage. But now that I am stuck with it….. I WILL DEAL WITH IT. I am stuck with a property that can be sold for 30 years and now has a bad title. I have had no choice but to defend the title I warranted via a warranty deed . A debt collector can not foreclose on an irrevocable living trust with two granters on an unsecured debt of only one of them. At least not without my say so.
I offered full tender …. But they didn’t accept in 2010.
Res judicita and collateral estoppel …..
Non lawyers lawyers and nincompoops read
https://consumercomplianceoutlook.org/2010/second-quarter/right-of-rescission/
Ss 226.2(3a)1)-4 and 226.15(a)(1)-6
These exemptions can create ambiguities. For example, if a borrower offers her current residence as collateral to finance the construction or purchase of another property to be used as a principal residence in the near future, is the loan subject to rescission? The Official Staff Commentary (OSC) to Regulation Z addresses this issue in comment 226.23(a)(1)-4 for closed-end credit and comment 226.15(a)(1)-6 for open-end credit: Transactions such as bridge loans are subject to the right of rescission. The right of rescission also applies when the bridge loan is secured by both the current residence and the new property to be used as a principal residence. The consumer’s current principal dwelling triggers rescission rights in this circumstance because the bridge loan is secured by the current dwelling and is not for the purpose of purchasing that dwelling. But if the consumer’s construction loan for a new principal dwelling is secured only by the new dwelling, the loan would qualify as a residential mortgage transaction that is exempt from rescission.2
Another complex situation is whether the residential mortgage transaction exemption applies when a consumer obtains an open-end credit line and uses a portion of the line for a down payment to purchase a dwelling securing the remainder of the line. In this circumstance, comment 226.15(f)-1 clarifies that only the portion of the line used for the down payment is exempt from the right of rescission.
You know, the way I figure it, even though it’s all funny money…..
79 x 1500 = $188,500 ( less 8 payments and taxes and insurance)
Legal fees= $250,000 (first F/C, BK, state action, BK adversary)
I win.
Any comments about those 30day letters mailed after the 30 day expires to request the identity of the real creditor and contest the amount due?
“Everyone is reading too much into TILA, remember it was designed to protect the consumer and to self police the banks. It was written in 1969, when things and Wall Street wasn’t so greedy.”
Agreed. But it was just recently codified by the SCOTUS, and in a most unpredictable way. Wall Street isn’t used to getting handed bad rulings, they pay way too much for those things. Remember, they own the place. This decision is the best thing that’s happened in a long while….but, and a big but, it’s a half a decade too late, by design.
Like the whistleblower said, we are “ACCEPTABLE CASUALTIES”.
Sorry, I am laughing to hard to respond because TIL is ……well…….
never mind.
*Snorts*
@Dwight,
It is irritating and it makes people uncomfortable.
At the same time, it is a discussion that is long overdue.
It also has a direct bearing on why the banks are being protected despite their blatant criminal behavior.
They took out bets against your mortgage after they realized their irresponsible lending during the Subprime years had rendered them insolvent.
Because this is true, the foreclosures are, in fact, a foregone conclusion. This is why foreclosed homes remain empty for years: the bankers have already collected on their derivatives bets; “who cares about the house?”.
This is why some people are foreclosed even though they never missed a payment and it is also why distressed borrowers by the hundreds of thousands were told to “skip payments” in order to be eligible for HAMP modifications…
The foreclosures have to become reality…
Because… if the 680 Trillion Dollars these criminal filth have lodged as bets against your ability to pay fail to reward this illegal and immoral behavior, the American Dollar as the “International Reserve Currency”, or “Sovereign Currency” will be devalued internationally.
This is why the Chinese are, even now planning an alternative to the American Dollar and it is also why the Euro is in peril at the moment.
The courts have been indemnified by the government and this is why the middle class has been deemed expendable. After all, why should the pigs on Wall Street ever be forced to pay the penalty for the catastrophe they have wrought?
It’s so much easier to throw a few smallpox blankets into the cribs of the local villagers.
Besides, the focus of empire has moved to the Pacific Rim. The Banker Overlords have been hoarding gold in Australia even while Australia is a perfect location from which to begin to exploit and despoil places like China and India with their vast multitudes.
This is why the new “free-trade” agreement is being rammed down everybody’s throat, the “Trans-Pacific Partnership”.
Of course, everybody in “Honey-Boo-Boo Land” is busy staring into space and drooling over pictures of Kim Kardashian’s backside…
Nobody reads a book or endeavors to enlighten themselves…
It is far easier to allow others to manipulate US and thereby define the reality of our miserable condition.
None of us here are lawyers!!! We are all trying to get to get thru this mess and figure out the law along the way. If the good, David, the bad Christine and the ugly Rock would shut their keyboards down we would all be better off. Everyone is reading too much into TILA, remember it was designed to protect the consumer and to self police the banks. It was written in 1969, when things and Wall Street wasn’t so greedy. The only way tender comes into the game is in common law and when the bank files a action in court defending the recession. Keep your eyes on the ball and not the bat. The banks are counting on us to screw this up and then they win. Just like usedkarguy, I have been in my home and have not made a payment since 2008, its not about the money or the free house. Its about who you MAYBE OWE THE DEBT TO, IF ANYONE. PAY ATTENTION.
Ian,
A loan mod is not an extension of a new credit but a temporary rework of a previous loan. Since rescission applies to new credit (such as a refi), I can’t see how rescission could apply to a mod.
Dwight,
“…you have the property which is worth more than the amount needed to tender back.” Depends where. I can guaranty you that in MI, IL, AZ, NV and many other states, properties have taken such a dive that you may end up having to tender much more than the value of the property you’re in. If you don’t have the cash and you can’t get it for want of collateral to put up, rescission will not be an option. Think about it.
Christine,
Thanks once again. I am, again, just asking questions. I am not planning on rescinding anything.
Someone here asked can you rescind a loan modification? I’m not doingthat either. But I believe NG posted an article stating that there are laws/rules in place which distinguish a loan mod from a new mortgage. Did t know that. Anyone?
I don’t think it can be construed as frivolous because you have the property which is worth more than the amount needed to tender back. Of course the lender and the judge will want you to lose the house but thats only because they have a personal bias, not because its the right outcome based in a just law. Remember their mantra “nobody gets a free house” , this is why they can’t accept the TILA Rescission and The Supreme Court ruling, because they are under a deep delusion that we are all getting a free house, but they are wrong and are delusional. They are mentally ill over this, they are the co-pilot locking Justice Scalia out of the cockpit as they deliberately steer their plane full of citizens into the mountainside .. rather than accept that they have been exposed as the sick, twisted, evil-doers that they truly are. They hate justice, they hate regular middleclass citizens, they hate laws that protect the little common citizens..probably because they serve satan and hate God. What other theory could explain their rotten actions? The Supreme Court exposed them and shined a light on the travesty they have been engaging in. It goes deeper than misinterpretation, their intentional actions go all the way to the gates of hell .. thats how deep they go.
NPV,
It can backfire and people need to be aware of it. Because when it does, the downfall may be crushing. For someone who doesn’t have anything, being in contempt for having filed a frivolous lawsuit, and assessed the other party’s legal fees may not be so tragic: it can be discharged in BK later on. But for someone still in the house, with a regular income but barely holding on and with expectations of better days ahead, it can be the last nail on the coffin.
Word to the wise: don’t rush into it.
In regardsto the Rescission issue … If the stated goal of the statute is to return each party back to their prior position, then it makes sense that the homeowner retains the property, because they already had the property prior to refinancing with the other party. All this means is that the way the statute is written makes perfect sense , with each step being a progression towards the goal. STEP #1 – The letter is mailed, which immediately rescinds the refinance, stops payment obligations, starts the 20 day clock for the lenders response. STEP #2 – The lender must return the payments made and cancel / void the note and mortgage, or file an action if they contest or object. STEP #3 – The borrower can now refinance with a new lender and tender back what is owed to the other party, which restores both to their prior positions. This is how it was meant to happen, or if the property was worth the exact amount owed after payments were refunded to borrower, he could choose to tender back the property and walk away with his refunded payments in hand. If he wants to remain, refinance with a new lender. STEP #4 – If the lender fails to take your offered tender deal within 20 days (the 2nd 20 day trigger period) the borrower may keep the property without further obligation. Which means the borrower had obviously been in position of strength at that point, there is no mention or inference of the borrower having to tender first and be in a weakened position of probable failure , by unjustly requiring a tender first from the borrower makes it impossible for the two sides to return to their prior positions. The lower courts who have demanded such futility are guilty of abuse and defiance of a federal Act.
I say file a case for rescission regardless. At the very least, you are getting more time in the house and the more work for the same amount of Judges mean all get more time in the house…
Motion for Summery Judgment….why do so many defendants fail to file?
The sstatement says recoverable advances.
The filed documents say abandonment.
How much more evidence does one need?
Recoverable advances for taxes and INS I paid and have the receipts to prove it. There is no abandonment as I made my claim known public.
Now the question is what chicken grew a set of balls and tried to defraud me again by filing fraud on the court and criminal slander to title And asked the court to not allow me to reinstate?
I may never know as there have been 4 plaintiffs and their attornies keep dropping like flies.
Nothing a permnant injunction against them and their successors can cure…right?
Trespass
The conflict lies in where a person needs to be right no matter what the evidence tells them, and then they get all mad at others, as we see, on here.
Theres a word for that too.
Taxes…Insurance…Maintaince…Property Abandonment….
Leading causes of Foreclosure.
@ Christine,
In defense of Christine, I have come to the conclusion she is attempting to dissuade some among us from rushing head-long into a faulty defense for which there will be consequences…
Consequences for the individual and consequences to the case law as it goes forward and further arms the banks to destroy us one-by-one.
I think her motivation, as described, if I have it correctly is commendable on both counts.
I also feel we should refrain from personal attacks- they just cheapen the dialogue.
Having said all that, I am kinda’ new here as a poster and recognize it isn’t my place to lecture anybody.
In the meantime, here is my dilemma:
In the post below:
http://www.natlawreview.com/article/truth-lending-act-and-rescission-lessons-learned-lenders-jesinoski-v-countrywide
Part of the verbiage reads, as follows:
“… if the mortgage lender makes all necessary disclosures at the closing table, but make sure the disclosures are complete and meet all TILA requirements.”.
I Know for a fact, from personal experience, “the disclosures” are incomplete.
Moreover, because this is true, even as these disclosures were deliberately withheld, isn’t that “fraudulent concealment”?
I mean, after all, I thought I was purchasing a mortgage and, in fact, that is what I was lead to believe; nobody told me anything about being held accountable to third parties to the transaction and, had they done so, there is no doubt I would never have entered into the agreement willingly.
This is particularly true in light of material evidence of fraud that has been concealed from my wife and children and I these many years.
So, is every loan that never entered the pool subject to question of law? I think the answer is “yes”.
I also think the judges are deliberately rejecting any attempt on the part of persons in my predicament to gain the actual evidence now in possession of the very bankers that instigated this disaster in the first place.
I have a problem with that. In fact, I have lots of problems with that.
If We are to remain a country governed by law, due process is necessary while honesty and fair dealing are no less obligatory on the part of the plaintiff than it is presently being used to disparage hapless defendants.
The evidence is not subject to judicial whim, or perhaps put more succinctly, “it shouldn’t be”. And I suspect the truth will ultimately manifest itself even as I pray it happens sooner, rather than later.
Protac is exactly want they want you to take… Its your choice. …bury your head or fight for right.
We granted a Warranty Deed to the Capital Asset Company…long arm look alike name of the pretender lender to irrevocably hold in a living trust.
And as a non borrowing granter I plan to enforce it. Defraud me and …………… I bite back.
Android does not take to backspace well, apologies for the typos
The goal of mean spirited words is not to build nor create.
Its to destroy.
Ask yourself why someone will choose this blog to destroy, assuming everything written here was garbage; it would destroy itself.
Who takes interest in garbage?
Ask yourself; is it really garbage to attract and keep the interest of people who claim the site is beneath their knowledge.
Of all the sites I. The world, here is where their interest lie.
Would you come here if you did not need the info communicates here?
Would you come here if you were paid to distract from the brainstorming over a subject that should have been long dead and decided?
Someone is afraid if the info posted here.
People fight when they are afraid.
Show me peoe who are not afraid and move in loving ways fighting…..you won’t find it.
When someone is afraid, they result in emotional violence or physical violence to try to gain a status they believe they lost in the perceived conflict.
Where is the conflict in people discussing how their home was stolen or how the court system rules in favor of people who were foi g to get their home stolen?
Trespass Unwanted
1. Rescission-at-law, which requires the rescinding party to return what he received before rescission can be effected; or
2. Rescission-in-equity, which requires a court to affirmatively decree rescission of a sale.
Those were the challenges.
What if the rescinding party did not receive anything; what if the rescinding party created the funds for the transaction with their signature and also gave more money thinking it was owed.
What if they wanted to exit the transaction because their signature was all that was needed?
The banks want more money but do not want to return what they received. You will never discover they paid anything; that’s why they put a middleman in the transaction to fence off the fact that they did not provide the money for the purchase.
This bypasses the court turning junk into value with the paperwork created to purport an obligation that does not exist.
http://www.jdsupra.com/legalnews/supreme-court-provides-tila-home-loan-re-44061/
Trespass Unwanted
What kills this website is mean spirited words written On here, nothing to do with what Neil writes, be it right or wrong.
That’s why TILA has to be honored and why it is specific about getting the money back without having to give more money to do it.
Trespass Unwanted
Ian,
Jesinoki is not the new door to the promised land. It is only a clarification of what procedures lenders must comply with and whether or not a lawsuit is necessary to enforce the provisions of TILA. Lenders are going to be inundated with notices of rescission (most of them will be deemed invalid) and courts will be inundated with non meritorious pro se lawsuits because it has now become the new game in town.
Why? Because every time a case has made a big splash, thousands of poorly prepared pro se litigants have jumped on it and quoted it ad nauseam to get… Nothing and even less! Kemp was an example. Glaski was an example. There are thousands of such examples. Big cases supposed to be “the case to end all foreclosures”.
Read what Rock wrote because he is absolutely right: as more and more non meritorious suits are being filed and qualified as such, more and more judges will impose legal expenses. People don’t learn.
http://www.natlawreview.com/article/truth-lending-act-and-rescission-lessons-learned-lenders-jesinoski-v-countrywide
PROZAC FOR EVERYBODY!
What a bunch of children…..
Tolle, don’t waste your breath. No wonder this site is dead.
No information, just a bunch of crybabys. Yeah, I lost, but I’m still in my house. Doing a second BK. Anybody still in their house after stopping payments in 2008? No? I guess I won, then. Even when they take the house, I kept a roof over my families’ heads for 7 years. I WIN!
A bit of clarity is needed here- are all these TILA recissions refinances? We all know that all the amounts proffered as due and owing are incorrect. At last I heard, 96% of the homeowners don’t show up in court. Of the 4% who do show up, half are pro se and the other half are represented by counsel.
And the homeowner in a judicial state is on the hook for the alleged monies owed after the credit bid.
No one seems to address this.
Any case law out there? Thx
The unfortunate part of all of this is basic history from the very congressional documents that recorded it is we are the creditors and our signature creates the money.
Investors come in when we turn around after signing to pay for the home, we encumber it again.
Just because a document calls someone a lender does not mean they lent the money and calling so.some the borrower does not mean they borrowed the money.
Once I was at the county clerk’s office and we got into a discussion over the position of the parties in their records.
For my home I was listed as the grantor and the mortgage company as the grantee.
The woman said she can remember who is who because the grantor is selling and the grantee is purchasing.
If we stopped when we signed the promissory note we had the home, but we entered into an agreement ( after the note left the room) and we encumbered our home into a trust. There is quite a bit of info in the public record showing what we did.
Just the word ‘execute’ does not have the lay man’s meaning, it is a legal term.
We terminated our ownership and entered into tenant ship and its presumed we knowingly did this because we are old enough to contract.
When the federal reserve took over, congressional documents state all debts were to be cancelles by our signature, but we have the right to enter into agreement that make us pay someone if there is a meeting g of the minds and they provide consideration.
Where is the consideration? Its missing .
Everyone who thinks a debt is owed has not watched a single video I put the link in this blog for how money is created; or they just really can’t know that it is really true.
People have won their cases by knowing no money was lent, but I went into this putting myself at the same knowledge level of my family and friends to see if the courts would protect our rights and found out they would not.
There are many like me who have been robbed of our homes.
Its not about just me, its about the equality of justice for all, sure one can buy their way out of a problem; where are the protections for the ones who can’t or don’t know?
There are none.
I will not gloat over keeping my home knowing my family and friends would be homeless not because they deserve it; but because a system of people who are supposed to be under the liability of the oath have decided to rob the meek rather than protect them.
If it was over, we wouldn’t still be talking g about it, and this blog would not continue to interest people who do not needbits contents because they purportedly beat the system and kept their home.
Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino
Well I reckon it’s Prozac for me from here on out. I have no idea how to live with the shame.
Nope.. We are not Wrong. You pick and choose comments from the ruling…specifically the ones you need to hear. You must apply the ruling in its entirety.
You first must decide what it is you want before you decide to enforce or rescind. And from what I have seen enforcement works just fine.
Either way the debt is owed….
E. Tolle,
I made long ago the mistake of thinking that you were smart. Eventually, I realized you weren’t, far from it. What is puzzling to me is that in addition to being very obtuse, you are also both petty and catty. I suppose it’s that impotence thing again…
When you speak and write fluently 3 languages and make a pretty decent living at it, I will consider taking lessons from you. And until you get your house back or you demonstrate how to win anything, all you have to offer anyone is… nothing of any value to anyone!
Shadowcat says, in that Renfieldesque style of speaking to herself, “Shadowcat does not waste time attacking the Judges and Courts or everyone who knows what they are talking about.” As she rips the wings off yet another hapless fly, tossing the body into her gaping jaws whole.
Shadowcat, you do realize that I’m the one representing what the Supreme Court is actually saying in this argument, right? By quoting them whole, with attributes, right? NOT Rock, right? Can you get that?
I’m not attacking the judges and the courts, I am attacking Rock and Christine, and now you, for deliberately skewing the facts here….the US Supreme Court IS NOT SAYING WHAT ROCK REPEATEDLY SAYS THAT THEY ARE SAYING! He’s choosing to fall back on earlier lower court rulings that he learned when he first got into this business, some three weeks ago.
And it doesn’t matter one bit how many times he, she, and you repeat the very same fact sets, you are all wrong……
This is just like the movie Groundhog Day.
And Shadowcat as an Investor Homeowner Taxpayer and disgruntled vendor prrrrs… gently while sleeping in her home each night.
Shadowcat does not waste time attacking the Judges and Courts or everyone who knows what they are talking about.
Basically that means Shadowcat is not a Troll or a Loser.
Scratched…….
Many Blessings to All.
Foreclosure actions need to establish that a default exists in order to proceed. The TILA Rescission statute establishes that no payments are due after sending the notice. No default = No right to foreclose. If TILA instructs me not to make payments, then my judge is in error to grant a lender a FC based on a phantom default.
Rock, overheard saying, “This Scalia guy doesn’t know what he’s talking about!”
And Shadowcat drools on, mindlessly waving her pom-poms, repeatedly tripping over her baton….
That’s It Rock… argue what was found out in the mortgage transaction. The one I signed by inducement and fraud on the Face of it.
There is nothing Conventional about it.
Fee Simple…..
They have : here it comes : 20 days
As to Christine’s response to me, “so much, real doers get a headache ready it.”
Okie Dokie then….
What do you say we try English?
Right ETolle
Emperor had no clothes
Rock… is correct.
Christine made a joke in the midst of Applying Tough Love. 🙂
Now..in 2010 I requested payoff and full tender as a non borrowing spouse / grantor / new buyer and wanted a squeeky clean title…. then I discovered and cut ties work ties with LPS And TBTF.
Payoff never given and tender not accepted.
Why?
Help them out Rock.
Dwight, you’re misreading the court case and the statute. The statute and Reg Z are clear, the “the CONSUMER SHALL TENDER the money.”
Dwight, again I ask you, if you get just one notice of right to cancel, do you really believe you now have no obligation to return the money the bank lent you? If you do, you still don’t understand how a TILA rescission works.
Deight
Think ” particularity” to impress a judge you need to substantiate everything you plead in your PARTICULAR case and if in STATE court according to state law.
Just suggestion for research not a lawyer no legal advice.
Dwight, not advice, simply a recommendation…get your advice from someone who doesn’t argue with the US Supreme Court.
Just saying….
Why such effort Christine
Just thinking out loud.
Rock, … Point 1) The Supreme Court did address the tender issue when Scalia explained in a paragraph how common law rescission principles do not apply to this federal statute, meaning the notice alone voids the note and mortgage upon mailing. … Point 2) My Judge never held a trial or plenary hearing in order to establish what happened, he assumed we didn’t tender and already had his mind made up before this hearing. This hearing was in opposition to Wells Fargo’s MSJ on Foreclosure complaint. The Judge erred by allowing a FC to stand against a void note and mortgage. You can’t file a FC complaint against a void note and mortgage. At the very least, plaintiffs complaint should have been dismissed because NO DEFAULT EXISTS ONCE THE RESCISSION LETTER IS MAILED. …But the FC complaint rests on a default in order to accelerate the mortgage contract clause triggering foreclosure. The TILA law tells the borrower to STOP MAKING PAYMENTS when they mail the rescission letter, which means there cannot be a default which the plaintiff relies upon to foreclose. Foreclosure court is the wrong venue for the plaintiff to be in, if they disagree they can file a seperate action specifically designed to try and undo the rescission and argue the merits of the rescission. … Point 3) The Judge never inquired and investigated if the ORIGINATOR FAILED TO INCLUDE DISCLOSURES, Wells Fargo in their replies to my discovery said they were not the originator and did not have those docs, after I had demanded the production of all docs pertaining to closing. The judge failed to establish anything of material fact to support his decision to deny my affirmative defense and counterclaim of rescission. He gave them a 300,000 dollar house for a 230,000 refinance, and I never received my 50,000 dollars in payments made prior to my rescinding. They got a windfall as servicer on a void note and mortgage. A judge would have to reinstate a note and mortgage by declatory judgement based on trial evidence testimony etc. In order to undo a rescission.
Its gets interesting with the issuance of 1099a and no 1099c especially in light of what is entered into evidence in my case (s) AND the fact that i rescinded in 09, before foreclosure. What a monumental mess .
Christine Cyber bullying is a serious crime.
NEVER AGAIN
Sean, your TILA complaint was dismissed in 2010, therefore the bank would argue be res judicata and/or collateral estoppel. However, if you’ve never argued what was found in your 2011 mortgage transaction analysis, that’s what you should be arguing now!
Dwight, for you and others who are interested in the truth instead of conjecture or wishful thinking, allow me to explain rescission and how it works.
Under common law rescission, the RESCINDING party must first tender the property that he has received under the agreement before the contract may be considered void. 17A Am.Jur.2d Contracts § 590, at 600-01 (1991). Once the rescinding party has performed HIS obligations, the contract becomes void and the rescinding party may then bring an action in replevin or assumpsit to insure that the non-rescinding party will restore him to the position that he was in prior to entering into the agreement, i.e., return earnest money or monthly payments and void all security interests. Id. § 604, at 610-13. Under § 1635(b), however, all that the consumer need do is notify the creditor of his intent to rescind. The agreement is then automatically rescinded and the CREDITOR must, ordinarily, tender first.
This is what the Court was saying in Jesinowski. Moreover, the question before the court was not how rescission works, but does the rescinding party have to file a lawsuit to begin the rescission process
§ 1635(b) deviates from the traditional common law rules of rescission, Congress enacted a rescission scheme particular to TILA which provides consumers with stronger rights than they would have under common law rescission. There is nothing to suggest that Congress acted other than intentionally in fashioning rescission in this manner. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998) (quoting Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990)) (“We assume that Congress is aware of existing law when it passes legislation.”); United States v. Phillips, 19 F.3d 1565, 1581 (11th Cir.1994) (“Congress is presumed to be knowledgeable about existing case law pertinent to any legislation it enacts.”). Congress must have certainly been aware when it chose to alter the common law rules of rescission by providing for the voiding of a creditor’s security interest before the obligor has tendered what he or she owes to the creditor that it would put the creditor at risk because the obligor may refuse to perform or might be financially unable to do so.
As § 1635(b) is written, when an obligor exercises his right to rescind, the obligor is relieved of the obligation to pay any finance or other charge associated with the loan transaction and any security interest given by an obligor becomes void upon rescission. No steps or procedures are required or needed to effect these results; they occur upon rescission by operation of law, namely by operation of § 1635(b) and, as such, are substantive rights granted by the statute. § 1635(b) sets forth certain steps, duties or procedures which MUST BE followed or performed after rescission has occurred to accomplish the process. These steps are set forth in the second to fifth sentences of § 1635(b) and include, for example, the creditor’s duty to return money or property given by the obligor as earnest money or a downpayment and the creditor’s obligation to take action to reflect the termination of its security interest.
The aforementioned interpretation of § 1635(b) is directly supported by § 226.23(d) of Regulation Z which states:
(d) Effects of rescission.
(1) When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.
(2) Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.
(3) If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the CONSUMER SHALL TENDER the money or property to the creditor or, where the latter would be impracticable or inequitable, tender its reasonable value. At the consumer’s option, tender of property may be made at the location of the property or at the consumer’s residence. Tender of money must be made at the creditor’s designated place of business. If the creditor does not take possession of the money or property within 20 calendar days after the consumer’s tender, the consumer may keep it without further obligation.
(4) The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order.
Don’t be misled by the ramblings of the scammers and legal illiterates who mislead you to believe that if you get just one notice of right to cancel that you have no obligation to return the bank’s money do you, that’s not how rescission works. Again, everyone must be made whole again, which includes the borrower tendering the money received.
Dwight, you found out the hard way how rescission REALLY works, the judge got it right. However, the losers fall back position when they lose their case making frivolous arguments–tyrannical courts, the judges are in the banks pocket, ad nauseum.
Also, as a warning to homeowners considering a rescission claim or defense, make sure you know what you’re doing because if you’re wrong be prepared to be sanctioned by the court and that usually means at least paying the bank’s attorney fees, which could be in the thousands.
@Christine,
I recognize your win. Congratulations.
I have no idea why you are barking at me and would prefer if you leave me out of it.
Thanks.
I also realize an attorney is necessary in this fight as the judges will have nothing to do with pro se litigants.
In the meantime, at the very least, this site provides insight into what is truly a national disgrace and without it, those in distress would be left entirely in the hands of any number and class of unscrupulous … I hesitate to call them people.
I can only speak from experience and what I perceive to be the truth.
Having said as much, I believe your win follows from your evidence and due diligence regarding the money trail and etc. As such, again you should be commended.
But, others are less fortunate; in their ignorance of their own plight, even as their particular situation is almost certainly indicative of a broken system.
I choose not to castigate those in distress because, in my experience, this entire mess was fashioned by bankers that knew they were deliberately preying upon my family.
I know you would agree. I also suspect you are trying to help those less fortunate than yourself by attempting to block them from a path that, to you, seems fruitless.
In a similar vein, I did contact Gene, at his urging and delivered the specifics regarding the predatory behavior relating to my rental property.
You may recall he was soliciting people here to say he sensed a new, vigorous mood in the ranks of law enforcement. He also seemed to imply he could deliver should a given case have certain elements of predatory lending etc.
I have all of those elements on our rental property. But, when I contacted Gene, after he made such a fuss, he was no help at all… None whatsoever.
In fact, after explaining as much to you, in a separate email, you questioned whether he and I had had some conflict… I explained that wasn’t the case at all, and, I couldn’t account for his erratic behavior.
We are all victims here. Each of us brings their own experience and resources. We are not in agreement over a deliberate path largely because we are subject to the whim of the judiciary…
I believe Neil Garfield recognizes as much and while others may not agree with him, it is simply because, imo, the enormity of the fraud defies comprehension on so many levels.
Because, despite the present environment, it shouldn’t be about personalities, it should, instead, be about the truth and the rule of law.
While we are awaiting such an epiphany on the part of law enforcement, I can only suggest that, along the way, we should, at least try to remain civil.
So, let’s get it very straight.
The A Man, on March 27, 2015 at 6:48 pm said:
Christine the cyber bully if you are that good open your own blog and make millions.
NEVER AGAIN
A Man: are you still in the house you bought and forked up money on? No? Why are you posting here? I thought LL was a site where people could… OFFER help? What do you have to offer to anyone, other than “NEVER AGAIN”? Can you share your experience of what doesn’t work so that no one else duplicates your results?
Trespass Unwanted, on March 27, 2015 at 6:27 pm said:
“300 milliion and more people in these united States.
several hundred million and more homes stolen.
Two posters, only, on a blog ‘won’ their case.”
Hello…? 7.2 billion people on earth and work to do. You lost your house so long ago, it isn’t even funny. Have you helped anyone by telling us what doesn’t work from your own experience? Is there a reason to revisit failure over and over and not take responsibility for it? What’s your vision for the future? Are you DOING anything or just sitting in front of a screen throwing nonsense, in hope “someone” will fix things?
E. ToLLe, on March 27, 2015 at 8:28 pm said… so much, real doers get a headache ready it.
The guy is… above the tech curve: he can actually bold on LL. Pretty cool! I can’t and I don’t care to learn: anyone can do that. Chinese can do that. Russians can do that. The guy also has his own problems to deal with. “And that goes for your bankster fellating moll Christine as well.” Probably impotence and other image issues. SEX (or lack thereof) is BIG in E.Tolle’s world. So is bowel movement. Very big for E. Tolle. E. Tolle works from the waste down. And technology.
He still managed to lose his house to the bank. Can he help anyone get ahead in the foreclosure arena? Hell no! But he will attack, in italic and bold, anyone who dares talk about how detrimental LL has been to homeowners as a whole by creating an entire case law proving how stupid and dumb homeowners are. Who’s the mole? E.Tolle does have a master brain though: William Butler, martyr to the cause. Bad attorney who co-mingled his own case with that of clients and was disbarred. Some Guru!
David Belanger and Charles Reed are the truly sad cases. Typical cannon fodder for Washington. Brainwashed to death in the military, fighting wars they have no idea were to advance whose agenda, and unable to think for themselves. The VA (tax payer funded) won’t do anything for them. The poor souls come here hoping to get… help!
On a website were the only one who makes out like a bandit is… Garfield!
@Ian, Dwight and Michael Keane:
Two bloggers are still coming here with solid, proven wins. Tnharry left long ago. Bob G. left long ago (damn! he just had a hell of a win too! He is not coming back. Disgust goes a long way…). Gene is gone.
Are we the enemy? Because we won fair and square by fighting in court, we are moles? Shills for the banks? Do you see the insanity of this blog?
Bob G. used to call it “Group Therapy”. He was wrong. A race to the bottom is more like it.
That’s OK. The entire country is racing to the bottom, at a pace never envisioned before. And in 7 years, the same people will still haunt this blog and getting nowhere.
I expect a lot more from my fellow Americans. Unfortunately, LL is a microcosm of how low this entire once-great country has allowed itself to fall. It will get worse.
Can anyone answer if you can bring up TILA rescission in an on-going California state court case? Or is it for fed court only?
I actually rescinded back in 2010 but case was dismissed. I appealed and the 9th Circuit denied as “frivolous”. My first cause of action was TILA.
I would like to avoid Federal court, if possible.
Also, Christine… congrats on your case. In my opinion, everyone on this blog is correct despite the courts not adhering to our Constitution, Due Process and Title Law. We need to stop the bickering and focus on facts. Christine is correct that most of our claims do not work but we need to stay focused and continue to fight for justice….
Btw, Christine, I hired Storm Bradford back in 2011 and he did a great audit on my family home showing numerous original loan violations including appraisal fraud, ECOA violations and failure to disclose. It wasn’t working back in 2011 and I lost my family home due to a “nefarious” judge. Would it be possible for you to email me? seanmpark67@yahoo.com. Much thanks, if you’re available.
I have a new case in Superior Court and now want to use my rescission from 2011. Just wondering if I can or if I have to go back to the 9th Circuit to re-review.
Any suggestions and/or info is appreciate…….
Bless everyone in this mess….It has taken a toll on me and my family like all of you….
Sean
@ Michael Keane, I wrote to the trustee HSBC regarding my loans and did receive a signed reply from Fernando Acebedo. He verified my loans were collateral for the trust (I did not mention in my letter the Master Servicer report had one of my loans listed as “paid in full” when it was charged off)?? He did not address my other direct questions – instead said they (hsbc as trustee) rely on the servicer and master servicer to maintain that information and they (hsbe as trustee) cannot independently verify their records. Reminds me of very old show called “Hogans Heros” the German Sargent would say “i see nothing/I know nothing” when he caught the prisoners clearly breaking the prison camp rules…
@ neidermyer – did you ever look at the emails I sent you around New Years? Included the page from the master servicer’s report – would like your take is that normal for a charge off to be marked ” paid in full” – if loan is paid in full how can it still be collateral for the trust??? Confusing! Thanks!
Rock, you are one thick headed troll. You’re ugly too. Your head’s as hard as…uhm ….a ….big slimy rock. And that goes for your bankster fellating moll Christine as well. Neither one of you can stand to see folks collaborate on issues that affect them, issues of great concern, due to your absolute need to chime in with your much valued (by your selves) viewpoints, which are not only always wrong, but are always against beleaguered borrowers and for the machine that’s trampling on rights across the globe. To call you two idiots is a waste of ones and zeros. And for God’s sake, you’ve picked a losing battle. Can’t you two see that?
A few weeks ago here on this blog, you, Rock, made the absolute statement that rescission required tender and the filing of a follow-up suit by the borrower. I posted info from reliable sources that showed you’re wrong. You conveniently left without answering my claims, after calling me a parrot. I like birds, so that didn’t bother me. It does, however, get under my feathers when you continue to make unsubstantiated legal statements that might persuade people to give up their defenses due to your sheer ignorance and bank friendly (whoring) stance. Once again, from JDSupra, I’ll squawk this:
Prior to the Supreme Court’s ruling, the U.S. Court of Appeals for the Eighth Circuit had affirmed a district court decision holding that the Jesinoskis were required to file a lawsuit within the three-year period provided by Section 1635(f) of TILA rather than merely provide the lender with written notice of their rescission. The Supreme Court reversed, finding the language of Section 1635 “le[ft] no doubt that rescission is effected when the borrower notifies the lender of his intention to rescind,” and that “so long as [a] borrower notifies [the lender] within three years after the transaction is consummated,” the rescission is timely. The Supreme Court noted that “[n]othing in [TILA] suggests that a borrower need also file a lawsuit within th[e] three year period.”
You, Rock, also said that the bank could/would merely refuse to honor/deny the rescission letter, and that the borrower would then be forced to file suit, or get a declaratory action in their favor. JDSupra:
The Supreme Court rejected the argument—strongly promoted by the mortgage industry (as well as repeatedly by Christine and Rock) — that written notice of rescission does not suffice if the lender disputes the adequacy of the disclosures — finding Section 1635 of TILA draws no distinction “between disputed and undisputed rescissions.”
And as to the current question from Dwight that you’re maiming in your answer as badly as a raccoon who was a little distracted while attempting to cross the rush hour interstate, you AND fellow blow-hard Christine both are equally adamant that the borrower has to stuff thousands of those little paper coin tubes full of shiny pennies and return them to the criminals before the banksters will be forced to shell out the mortgage docs. You even went so far as to try and impress Dwight, by showing off your Latin, when you said:
“Rescission is what is known in legal terms as “status quo ante.” In layman terms putting each party back in the sane [sic?] position they were in before the consummation of the contract.”
I know a little Latin as well Rock…. quod vos es an asshole! Again, JDSupra:
As an important corollary to its principal determination, the Supreme Court also noted that TILA expressly rejects the common law rule that a rescinding party must return what he/she received before rescission can be effective—which in the case of a mortgage loan is the money lent. The Supreme Court noted that Section 1635(b) of TILA was a statutory right that did not adopt common law equitable requirements, thereby potentially weakening several remedies frequently employed by creditors following the receipt of rescission notices. It now appears that a borrower’s written notice of the intent to rescind is complete and effective solely upon the proper delivery of a rescission notice.
As to Dwight’s present plight, and a very hard one at that, he’s deserving of all the patience and understanding that one could possibly muster after he was unceremoniously refused his day in court because of a “BAD JUDGE”! There….I said it! There’s simply no other explanation for judges who will continue to rule, day in, day out, for all of the obvious criminality before carrying out the express will of the higher court and ruling in favor of a borrower. Rock said to Dwight:
– “Dwight, regrettably like you and others have been misled by Garfield and the other legal illiterates that roam these blogs.
Rescission is what is known in legal terms as “status quo ante.” In layman terms putting each party back in the sane position they were in before the consummation of the contract.
– That means to make you whole the bank has to give you back every dime you gave them. To make the bank whole you have to give back every dime they gave you. If either party can’t perform than there is no rescission.
– Matter of fact, most federal courts will make you allege you can tender in your pleading or they will dismiss your rescission claim sua sponte.
– Don’t blame the judge, blame those that misled you.”
JDSupra:
“….prior to this decision, many courts had invoked their equitable powers to require borrowers to tender or demonstrate an ability to tender back to the lender the money that originally was lent before requiring a lender to release its mortgage lien. The Jesinoski decision can be read to imply that a rescission notice itself has an effect on an existing mortgage lien. (While it is clear that a lender would retain the right to sue on the promissory note, the potential loss of the real property security may make recoveries of loan proceeds more problematical.)”
Now my question for the Dufus Twins is simply, when will you two come to grips with the fact that Jesinoski was a very damaging ruling for your keepers, it hurt them a lot, no doubt that they’re already cruising the halls of congress with IOU’s to call in and wads of cash getting an assault ready for immediate action. In the meantime, will you two just shut the fuck up for a while?
http://www.jdsupra.com/legalnews/supreme-courts-jesinoski-ruling-provide-45538/
I think they won
JESINOSKI v. COUNTRYWIDE HOME LOANS, INC
NEVER AGAIN
Christine the cyber bully if you are that good open your own blog and make millions.
NEVER AGAIN
300 milliion and more people in these united States.
several hundred million and more homes stolen.
Two posters, only, on a blog ‘won’ their case.
Wow what statistics.
Proof that you can win, about the same proof as winning in Las Vegas.
Winning happens. Aaaand what else is new.
Everyone has been pushed to the bottom.
Some just float a little longer than others.
I’m waiting on the what’s next, and its coming.
Trespass Unwanted, Creator, Corporeal, Jure Divino.
Holy S#”&! What a load!
Is this a race to the bottom? Thing is… Rock and I are the only ones on this blog to have WON our cases. And we sure as hell didn’t by listening to Garfield or any of the regular losers posting here. Keep marinating in your juices. You deserve what you get.
Be careful of the void v. voidable argument, though. Some courts (bassman in Ilinois, some fed courts, others) are holding wrongly, that a late assignment maybe voidable at the election of the beneficiaries. Most PSA’s state the beneficiaries have no rights and may not vote or otherwise manage the REMIC.
The key is to show that it NEVER HAPPENED, therefore is not voidable under any circumstance. Not easy to do in non-judicial states, but can be done.
As for Belinger’s info, if a bank in bankruptcy claims to own nothing and someone has your name tied to an obligation stating it is an obligation to the one who says they have no outstanding obligations and no outstanding liabilities, then someone has taken the identity of the one they claim is under the obligation, and that is identity theft.
I may know you name and address, and I may know you had intent to perform some obligation, but if the one you had intent to be obligated to claims to have no one outstanding and owing any obligation, then unless I have power of attorney, I have no business, nor power to make you remain obligated to anyone not making the claim.
In the same sense, I have no right to obligate you to anyone, to appear, or to pay them based on me knowing identifying information about you.
Thus my comment in the Neil Garfield show post, that mentioned identity theft.
We’ve named RICO and ID theft ab initio, and the people who could hear won’t, and the one’s who so called won, are still trolling here to complain about the rest of us trolling here.
If you are going to be a troll with the rest of us, it’s hypocritical to point fingers, so unless paid to do what you do, I don’t comprehend why one would troll here to brag of winning and complain about the honesty of the people who have been dispossessed.
The communication police, who wants to tell everyone how to express what they experienced.
The communication police who wants to plant the thought that the reason we are without home is because we didn’t do as they do.
Well FDIC guy didn’t do as they did, and FDIC guy had been part of a team that shut down a bank and still got caught in their net of theft.
Communication police needs to file an abicus brief to his case and tell him it’s his fault and he should do what they did and he’d keep his home, hey, maybe publish in craigslist and tell everyone to give up, cause they owe people who claim to be owed and if they want their home, they can’t expect to get the money back too.
As far as I’m concerned if someone wants their home, they should at least be paying the one who was behind the transaction that got them the home, and no one else.
Base case, did I pay you to get this home and were you the one I was supposed to pay, if not did you create involuntary servitude where I worked to upkeep and labored to pay for something I would never own. Did you sell me the equivalent of the Brooklyn Bridge and are lawyers creating filings to make legitimate and are courts upholding that sale by a different name?
Trespass Unwanted, Creator, Corporeal, Jure Divino
To make the bank whole you have to give back every dime they gave you. If either party can’t perform than there is no rescission.”
bank don’t ‘give’ anything, they don’t loan anyone else’s money and are prohibited from loaning their own.
That party can not give a dime when it gave no dime.
Dis-information is prevalent, and presumptions rule judges and lawyers and it keeps the confusion which doesn’t justify the truth of the transaction.
Once one reveals the truth, it matters that others know it and abide by it. Not this one revealed it so they get a pass, and that one is close, but it’s their own fault for not knowing how to state the obvious.
Pat yourself on the back for being the one to know, but that doesn’t mean anyone who doesn’t is giving permission of their free will to be in peonage and pay a debt not owed and be robbed of the money paid thinking it is for one transaction when the true transaction is not revealed.
Pat yourself on the back but it does not make right the wrong and never will.
Trespass Unwanted, yes, unwanted, Creator, Corporeal, Life, Free, Independent, People, State, In Jure Proprio, Jure Divino
Christine, that’s why its basically a waste of time commenting on this blog. I know you do it for the same reason I do it, if we can save just one poor soul from losing their home it makes it all worthwhile.
Again, I shall leave the others to their own demise.
“That means to make you whole the bank has to give you back every dime you gave them. To make the bank whole you have to give back every dime they gave you. If either party can’t perform than there is no rescission.”
I have been saying it for so long, it’s not even funny! But because this is not the message they want to hear, they systematically shoot the messenger and flock back together in their dreamland, not realizing that all those messengers they shot for the past 5 or 6 years might have had what it took to help them and were more than willing to. Instead, those dreamers with no common sense decide to file everything and anything, regardless how incoherent and irrelevant to foreclosure defense and… they lose their case, adamant that it wasn’t caused by their stupidity but by the bias of all judges and the incompetence and greed of all attorneys. After which they rejoin the ranks of all the self-made martyrs who were screwed by banks, judges, society, government, everyone but… themselves!
Dwight, regrettably like you and others have been misled by Garfield and the other legal illiterates that roam these blogs.
Rescission is what is known in legal terms as “status quo ante.” In layman terms putting each party back in the sane position they were in before the consummation of the contract.
That means to make you whole the bank has to give you back every dime you gave them. To make the bank whole you have to give back every dime they gave you. If either party can’t perform than there is no rescission.
Matter of fact, most federal courts will make you allege you can tender in your pleading or they will dismiss your rescission claim sua sponte.
Don’t blame the judge, blame those that misled you.
The Supreme Court decision meant nothing to the Judge in my case heard last week. I did send my rescission letter within 3 yrs and showed proof .. the bank ignored it and filed foreclosure … now that the Supreme Court validated my rescission, this judge twisted and spun it into denying the rescission saying I had not tendered the money owed to the bank …he ignored my rescission and the Supreme Court saying its all meaningless unless you tender …he granted WF the right to foreclose on my void note and mortgage ..he said the Supreme Court decision was only talking about the 3 yr window and the notice, but that they did not mandate how he can rule in regards to tender, so he will deny rescissions based on that loophole. Justice Scalia did speak to the tender issue, but maybe he should have spelled it out in more clear terms? Scalia should have given a hypothetical scenario of how it should work from beginning to end … So here you have it, the judges are defiant and do not want to accept rescission My judge cited an old case Yammamoto in his decision, saying tender was reason to deny a rescission..its total bullshit because I never said I didnt tender. The courts do not want to accept rescission, and my case just heard after the Supreme Court decision and submitted into the record, is proof of how the renegade judges will continue to foreclose.
Belanger,
Win, win, win.
I can say no more.
Trespass Unwanted
ng, nothing is relevant after this , as you and i have said for yrs.
What the US Supreme Court unanimously ruled about one month ago was that hundreds of judges on trial benches and appellate benches were completely wrong in applying principles of common law rescission to TILA rescission. No lawsuit is required to have the rescission effective. A letter does it all. And no tender is required from the borrower — quite the opposite the creditor must return all money ever paid by the borrower going all the way back to origination.
Those issues are ONLY addressed IF a creditor files a declaratory action against the borrower seeking a judicial determination that the rescission should not be allowed to stand. So the question about whether it was right to send the notice doesn’t stop anyone from sending it. But if the creditor files a challenge in court (not a letter stating its rejection), then and only then a Judge may decide whether the the rescission stands. But in order to do that the creditor must allege and prove the loan disclosures were complete and accurate; they must prove the loan origination, the loan acquisition and the money trail to establish standing (in my opinion). Without that, the burden of proof cannot shift to the borrower without violating the spirit and express wording of TILA.
There is a reason why it works that way. The purpose of allowing a borrower to cancel a deal (TILA rescission) with a simple letter is to take away the power of the “lender” to tie up the borrower and extort the borrower into complying with predatory loan terms or inadequate disclosures. Rescission is “effective” the date of the notice. It’s done. The mortgage and note are gone.
If you have HSBC as “trustee” for the “trust” into which your loan is said to have been placed…
You may wish to recover the affidavit from Fernando Acebedo, a VP, Corporate Trust and Loan Agency-Structured Finance, HSBC Bank USA, N.A. (National Association).
I find the affidavit comparable to the disclosures put forward in Kemp v Countrywide, wherein Bruce Levitt, from the Oranges in New Jersey, allowed Linda Demartino from Countrywide to admit that, as a matter of standard procedure, the notes never left the possession of Countrywide.
So, they never transferred.
In a similar vein, in answer to discovery requests from the estate he and his cronies are attempting to defraud, Mr. Acebedo as VP for HSBC Trusts, claims there are:
“2. 450 … RMBS …which in total contain hundreds of thousands of mortgage loans”.
He then goes on to say:
“5. HSBC, as trustee, is not in possession of the documents and information requested…”.
Whereupon he admits:
“8. In addition, HSBC does not generally maintain files on the individual mortgage loans contained in the RMBS trusts for which it serves as Trustee… Instead, … the mortgage notes, assignments and the like – are maintained by the servicers of the mortgage loans.”.
Well, if the trust doesn’t have the documents how can they foreclose?
The affidavit is found on :
http://www.clerk.co.montgomery.oh.us/pro/
Enter the case number: 2007 CV 09439. Then click that case number on the left side … a number of those numbers will pop up, click any one of them.
Then click just to the right on the “docket” in the headings provided.
The case commenced on June 1, 2007.
Scroll through the “PDFs” until you see the one for 6/1/2011.
Then copy.
Also, don’t forget to input 3 digit code at bottom right or you can’t access the case.