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I am hearing reports that Judges are entering rulings based upon the “note holder” and other spurious premises in connection with the application of the rescission rules under the Truth in Lending Act (TILA). It is obvious that the Judges still don’t get it or don’t want to, both of which are perfectly understandable because the rules under TILA are VERY different from the the rules governing common law rescission.
Any ruling predicated on the note or mortgage after rescission is wrong unless it recognizes that there is no note or mortgage anymore. They became void by operation of law (i.e., the same as if a court order was entered) the moment the notice of rescission was dropped in the mail. The issue of when or whether the rescission is effective is OVER by operation of law. It’s done. Stick a fork in it.
There is no burden of proof for the borrower to make the rescission effective. And if the Borrower does sue to enforce compliance with TILA that is an enforcement action, the same as one would seek to enforce a judgment or order that has already been entered. At that point, unless the servicer or bank had filed a lawsuit challenging the rescission as a creditor (because the note and mortgage no longer exist) WITHIN THE 20 DAY WINDOW measured from the date of notice, the creditor has no right or standing to challenge the rescission itself or whether it should be considered effective.
ATTORNEY PRACTICE HINT: I think it is very important to say something to the effect “Judge, I understand your thinking on this and hundreds, perhaps thousands of judges agreed with you — until the US Supreme Court said otherwise a few weeks ago. This is not common law rescission. The note and mortgage cease to exist when the notice of rescission is dropped in the mail.”
The only way for an alleged lender or creditor to prevent an enforcement order being entered against them is to file a lawsuit contesting the notice of rescission within 20 days of the notice and to ask for an injunction. But in order to do that they would have to say that they are in fact the creditor — i.e., prove the actual debt due without the note and without the mortgage — because the note and mortgage ceased to exist by operation of law.
When that borrower drops the notice into a mailbox it is the same thing as a Judge entering an order. There is nothing left for the borrower to do and nothing left that the borrower can do to make the rescission effective. Most courts held that the borrower had to file a lawsuit or tender payment or both before the notice of rescission could be effective.
The unanimous decision of the Supreme Court in Jesinowski was that all those judges were wrong. And of course this court lacks jurisdiction or authority under the US Constitution to countermand a Supreme Court decision. There is no requirement of a lawsuit —the rescission is effective upon notice and notice is effective when it is dropped into a mailbox. There is no requirement of tender either.
The borrower may be obligated on the debt (after deductions for unpaid amounts from the creditor) but ONLY AFTER the creditor has complied with the three elements of mandatory compliance — return of the canceled note, satisfaction of the mortgage in the county records, and return of all money paid by borrower starting with the origination of the loan and continuing up to the date of rescission. Assuming a creditor has complied with TILA and now wishes to collect on the debt, THEN the creditor steps forward alleges the debt by showing proof of payment, not self-serving documents like assignments and endorsements. And if the creditor proves the debt, the debt is unsecured.
The purpose of TILA rescission was intentionally to provide consumers with a quick easy remedy that didn’t require a lawyer to cancel the loan. The Supreme Court ruling is that the statute means what it says. And the statute says that the note and mortgage are immediately nullified by operation of law (same as a court order) when dropped in the mailbox.
And the reason for that is the whole reason behind the Truth in Lending Act — to level the playing field between tricky sophisticated banks and unsophisticated borrowers who didn’t and don’t receive the information they needed to choose lenders or make a decision about which loan they would choose to take from which lender.
It was recognized by the framers of this law that in order for the old lender to get paid (assuming they could prove the debt without the note or the mortgage which no longer exist) the existing note (even if still held by anyone) and the existing mortgage of record (even if recorded in the county records) MUST be void in order for the borrower to get a new loan to pay off the old debt. Otherwise it would be impossible fro the borrower to go out and get a substitute loan.
And since it was obvious that the banks would ordinarily stonewall the rescission if they had the chance, Congress gave them no chance to stonewall. And that is why they made it such that the rescission becomes legally effective, voiding the note and mortgage the moment it is dropped into a mailbox.
The only way out for the banks is (1) after full compliance with the requirements of TILA (return of note, satisfaction of mortgage and disgorgement of all money received and paid in connection with the loan) to either ask for payment of the debt (once they prove it) or (2) to file an action in Court within 20 days of the notice alleging that they are the creditor (but they can’t rely on the now nonexistent note and mortgage) and alleging that the rescission should be set aside.
The lawsuit by the bank is akin to a motion to set aside judgment. That is where Judges are making errors and continuing to issue rulings that are wrong. The rescission is already effective if it was sent. There is NOTHING left for the borrower to do to make that rescission effective. Hence even if the lender wants to challenge whether the rescission was sent, they would have to do so in their own lawsuit brought within the 20 day window.
Comments invited.
Filed under: foreclosure | Tagged: rescission, TILA |
LOTS OF BANK MINIONS TRYING TO SLAM NEAL. SCREW EM AND PAY ATTENTION TO NEALS GUIDANCE. CHECK IT OUT FOR YOURSELF BUT CHECK IT OUT. IGNORE THE NAY SAYERS.
“According to filers, Mr. and Mrs. Schiano, who filed the False Claims Act complaint in September in the Southern District of New York, Ocwen and Wells Fargo pocketed the payoff money derived from the Schianos refinancing their home mortgage and also reported a default to U.S. government backed Freddie Mac.”
Hmmmm….isn’t this what someone was hollering about 3 years ago or so? Refinances and false default? If this allegation is true, I’m sickened, even in the face of all this other other bs.
ROCK AGAIN, YOUR SPEAKING WITH FORK TONGED.
THE CASE WAS SENT BACK TO COURT BY SUPREME COURT, TO TELL JUDGE HEY WAKE UP STUPID AND FOLLOW THE LAW!!!!
HIS RESCISSION WAS EFFECTIVE , THE MINUTE IT WAS PUT IN THE MAIL, AND AS A JUDGE YOU CAN NOT CHANGE THE LAW TO FIT WHAT YOU THINK SHOULD BE DONE. THAT’S NOT YOUR PLACE, NOW JUDGE FOOL US ONCE, BUT DON’T YOU DARE TO TRY TO FOOL US TWICE. NOW GO IN THE CORNER AND PUT THIS DUNCE HAT ON FOR AWHILE. HAHAAHA
AND BECAUSE THE BANK DID NOT RESPOND IN THE 20 DAY PERIOD AS REQUIRED BY LAW. IT’S ALL OVER FOR THEM.
RIGHT NOW THEY ARE COUNTING THE MONEY , THAT WAS OFFERED TO THEM . IT WILL NOT SEE THE A DAY IN COURT, YOU KNOW THIS.
Dulpeck, you’re right Jesinoski was remanded back to see if it fact there was a TILA violation. If there wasn’t, the Jesinoski’s lose their home; if there was the unwinding process begins with the bank tendering first, then the Jesinoski’s returning the money lent. Straight up 15 U.S. Code § 1635(b).
Moreover, the holding of the court was only that the borrower did not have to file a law suit within the 3 yr. statutory period!
The rest was just dicta, which are opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion, which are the individual views of the author of the opinion and NOT BINDING in subsequent cases AS LEGAL PRECEDENT. West’s Encyclopedia of American Law, edition 2. 2008.
rock, and, all 9 sitting in THE U.S. SUPREME COURT SAID THIS.
The unanimous decision of the Supreme Court in Jesinowski was that all those judges were wrong.
IN MY APPEAL TO NJ SUPREME COURT WOULD SAY ONLY THAT,
AS HIS JUDGE WAS COMPLETELY WRONG.
And of course this court lacks jurisdiction or authority under the US Constitution to countermand a Supreme Court decision.
Trying to misread what Justicr Scalia wrote in his opinion is not helpful to homeowners here struggling to challenge these pretend lender. The ruling of January 13th 2015 on a Jesinoski vs countrywide is what it is, borrowers to have to tender prior to the pretenders meeting their own obligations within 20 days. Why is it then that courts across the country are remanding and reversing their previous erroneous rulings ? If you can’t help homeowners as Neil has done over the past sevens , please stay in peeperdom.
Mr. Belanger, you stated: “NO JUDGE IN THIS COUNTRY CAN SAY TO A BORROWER, DO YOU HAVE THE MEANS TO PAY BACK THE BANK. THEY CAN NOT ASK THAT QUESTION,”
Well on this planet, one did, and then tossed the case because the borrower couldn’t show he could return the money lent. Just ask Dwight.
ROCK, PLEASE EXPLAIN YOURSELF. YOU STATED,
Rock, on April 8, 2015 at 6:18 pm said:
Dwight, the Supremes write their decisions to help direct the lower courts in making their decisions. They know that the lower courts are aware how common law rescission works, the rescinder must tender first.
However, when congress created TILA, they changed to the opposite of the common law and mandated the bank had to tender first.
YOU ARE CORRECT, AND THEY MUST DO THE FOLLOWING AS YOU KNOW.
The borrower may be obligated on the debt (after deductions for unpaid amounts from the creditor)
but ONLY AFTER the creditor has complied with the three elements of mandatory compliance — return of the canceled note, satisfaction of the mortgage in the county records, and return of all money paid by borrower starting with the origination of the loan and continuing up to the date of rescission.
SO NO JUDGE IN THIS COUNTRY CAN SAY TO A BORROWER, DO YOU HAVE THE MEANS TO PAY BACK THE BANK. THEY CAN NOT ASK THAT QUESTION. NOW WHAT THE JUDGE HAS TO SAY IS.
MR BANKER HAVE YOU DONE WHAT IS MANDATORY BY LAW FOR YOU TO DO.
YOUR HONOR, NO WE HAVEN’T, BECAUSE WE DO NOT AGREE WITH THE RESCISSION, THE STATUE OF LIMITATION IS WELL OVER, THIS LOAN WAS DONE IN 2005, IT’S 2015 YOUR HONOR ISN’T IT.
HOMEOWNER, OBJECTION YOUR HONOR, THE RESCISSION WAS
EFFECTIVE ON MARCH 4TH 2015, IT IS NOW APRIL 20TH 2015 , AND NO SUIT WAS FILED IN THE MANDATORY TIME FRAME FOR A BANK TO DISAGREE WITH THE RESCISSION, BY FILING SUIT IN THE 20 DAY TIME FRAME. THEY DIDN’T, SO BY THEM NOT FILLING A SUIT TO CHALLENGE MY RESCISSION ON 4 MARCH 2015, THEY WERE AGREEING WITH THE RESCISSION. AND THEY DO NOT , AND CAN NOT NOW CHALLENGE THE RESCISSION ON ANY BASIC OF ANYTHING.
AM HERE TO ENFORCE MY RIGHT TO RECOVER MY HOME, AND TO HAVE THIS COURT NOW ORDER THE BANK TO DO WHAT WAS MANDATORY FOR THEM TO DO BY LAW. AND THAT IS WHY WE ARE HERE TODAY YOUR HONOR, THEY HAD A CHANCE TO CHALLENGE IT, AND THEY DECIDED NOT TO CHALLENGE IT. IN THE 20 DAY WINDOW.
WELL, MR BANKER I GUESS HE TOLD YOU. AND HE IS RIGHT. YOU HAD TO FILE A CHALLENGE IN THE 20 DAY WINDOW, YOU DIDN’T. THIS COURT IS NOW ORDERING YOU BY CLOSE OF BUSINESS TODAY, YOU WILL CANCEL THE MORTGAGE AND NOTE, AND FILE IT IN THE REGISTRY OF DEEDS OFFICE, AND SEND THE HOMEOWNER HIS ORIGINAL MORTGAGE AND NOTE WITH A BIG FAT CANCELLATION BY YOU ON IT, YOU WILL ALSO PAY BACK TO THE OWNER ALL MONEY YOU RECEIVE FROM THEM , AND HAVE MADE ON THE MORTGAGE AND NOTE FROM 2005 TILL NOW, AND I HAVE THAT TOTAL AMOUNT HERE, TOTAL CLOSING COST OF 9500 HUNDRED, 145000 IN PAYMENTS FOR THE 5YRS, BY THE HUD 1 SETTLEMENT STATEMENT, YOU ALSO RECEIVED FROM BORROWER THE AMOUNT OF 235,603.78, AND THAT GIVE US A TOTAL OF 380,000 DOLLARS, AND AM GIVING YOU YOUR ATTORNEY FEE’S, AND TRIPPLE DAMAGES ON TOP OF THAT, IN THE AMOUNT OF 1 MILLION , 140 THOUSAND DOLLARS. I WILL ALSO PUT A PENALTY OF 25 PERCENT INTEREST PER DAY, UNTIL THEY PAY YOU. STARTING FROM TOMORROW’S DATE. MAYBE THIS WILL GET THEM TO PAY YOU AS MANDATED .
NOW MR HOMEOWNER , THIS DEBT IS NOW UNSECURED, AND WHO EVER REALLY OWNS IT MAY COME FORWARD AT SOME POINT TO TRY TO COLLECT ON IT. BUT THEY WOULD HAVE TO PROVE HOW THEY OWN IT.
SO MR BANKER, I WOULD START BY ASKING THE HOMEOWNER WERE WOULD YOU LIKE THE MONEY SENT TO, BECAUSE THIS COULD GET VERY UGLY FAST IN WHAT YOU WILL OWE AT 25 PERCENT A DAY INTEREST.
Any ruling predicated on the note or mortgage after rescission is wrong unless it recognizes that there is no note or mortgage anymore. They became void by operation of law (i.e., the same as if a court order was entered) the moment the notice of rescission was dropped in the mail. The issue of when or whether the rescission is effective is OVER by operation of law. It’s done. Stick a fork in it.
There is no burden of proof for the borrower to make the rescission effective. And if the Borrower does sue to enforce compliance with TILA that is an enforcement action, the same as one would seek to enforce a judgment or order that has already been entered. At that point, unless the servicer or bank had filed a lawsuit challenging the rescission as a creditor (because the note and mortgage no longer exist) WITHIN THE 20 DAY WINDOW measured from the date of notice, the creditor has no right or standing to challenge the rescission itself or whether it should be considered effective.
The only way for an alleged lender or creditor to prevent an enforcement order being entered against them is to file a lawsuit contesting the notice of rescission within 20 days of the notice and to ask for an injunction. But in order to do that they would have to say that they are in fact the creditor — i.e., prove the actual debt due without the note and without the mortgage — because the note and mortgage ceased to exist by operation of law.
When that borrower drops the notice into a mailbox it is the same thing as a Judge entering an order. There is nothing left for the borrower to do and nothing left that the borrower can do to make the rescission effective. Most courts held that the borrower had to file a lawsuit or tender payment or both before the notice of rescission could be effective.
The unanimous decision of the Supreme Court in Jesinowski was that all those judges were wrong. And of course this court lacks jurisdiction or authority under the US Constitution to countermand a Supreme Court decision. There is no requirement of a lawsuit —the rescission is effective upon notice and notice is effective when it is dropped into a mailbox. There is no requirement of tender either.
. That’s what Scalia was saying in dicta, it WAS NOT the holding of the case. See, Large v, Conseco Fin. Serv. Corp., 292 F.3d 49 (1st Cir. 2002). I can cite dozens more.
So what your judge was saying to you, assuming you had a TILA violation, can you tender after the bank does; if you can’t, it doesn’t make sense, and its a total waste of time for the bank to cut you a check, for you just have to turn around and send the bank back their check. I hope that makes sense.
Rock this case is from 2013 A$$hole
http://wvrecord.com/news/s-3962-state-supreme-court/261610-quicken-loans-ordered-to-pay-3-5m-in-mortgage-case-appeals
DwightNJ what is your court case number for all of us to share After all it is public isnt it?
Dwight, the Supremes write their decisions to help direct the lower courts in making their decisions. They know that the lower courts are aware how common law rescission works, the rescinder must tender first. However, when congress created TILA, they changed to the opposite of the common law and mandated the bank had to tender first. That’s what Scalia was saying in dicta, it WAS NOT the holding of the case. See, Large v, Conseco Fin. Serv. Corp., 292 F.3d 49 (1st Cir. 2002). I can cite dozens more.
So what your judge was saying to you, assuming you had a TILA violation, can you tender after the bank does; if you can’t, it doesn’t make sense, and its a total waste of time for the bank to cut you a check, for you just have to turn around and send the bank back their check. I hope that makes sense.
Rock … Upon reviewing the Scalia decision and the arguments that were raised by the lender which included TENDER, Scalia seems to clearly state that the tender argument fails because it is based on ommon law rescission principals which do not apply to TILA in the opinion of all 9 Justices of the Supreme Court. So I’m still no sure how you justify the judge in my case saying my rescission letter wss not effective because I failed to tender at the time I rescinded. Do you see the paragraph where Scalia explains this in the written decision?
Dulpeck, a LOSS is still a LOSS! Post something useful.
I know of groups that if you don’t post something of use, the first time your warned. The second time you get tossed. Wishful thinking, and frivolous arguments don’t win foreclosure cases. However, attacking the mortgage transaction does.
http://wvrecord.com/news/s-3962-state-supreme-court/261610-quicken-loans-ordered-to-pay-3-5m-in-mortgage-case-appeals
The Capps didn’t lose because they didn’t have the right to rescind. They lost because they sent in their rescission letter a day early. At lease the glass is half full. This doom and gloom is not helpful to homeowners here who just trying to match the efforts of the pretend lenders who are mostly guilty of repossessing homes that don’t belong to them.
Dulpeck, they lost their case. The Court Of Appeals Of Md. said the lower court, the Court of Special Appeals, got it wrong.
Does anyone think posting losers is helpful?
Rock,
Are you aware of Burson vs Capps in Maryland ? The Capps rescinded their loan but did so prematurely according to the Maryland court of appeals. If they had rescinded in a timely manner, the outcome of their case as ruled by the court of special appeals would have been different. Gilbert vs Residential funding from the 4th circuit court of appeals was cited numerously by the Capps’ attorney. This proves that rescission is exactly what the intent of congress was as affirmed by the United States supreme court. All is not lost even in a hostile State such as Maryland.
Rock who you calling Clown? Mother F60er. You are nothing but a Cyber Bull.
Clown statements like this last one posted by Belanger, is why so many homeowners are losing their homes to foreclosure. They listen to these parrots who regurgitate misinformation every ct. in the country has held is nonsense. These scammers should be reported to the state attorney general office, and the hacks reported to the bar, all of them need a stay in the grey bar hotel.
I feel for homeowners like Dwight who’ve been misled into making frivolous arguments and end up losing their homes because of it. Especially, in light of the fact these mortgage transactions are pregnant with breaches, errors, tortious conduct, setoffs, etc.
rock you stated this,
Rock, on April 7, 2015 at 4:52 pm said:
Dwight, the burden of proof refers most generally to the obligation of a party to prove its allegations at trial. Each party has the burden of proof of their allegations. Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party who offers an affirmative defense bears the burden of proof.
They allegedly had the note,
what proof did you have they didn’t?
first, if it is a securitized mortgage trust trying to foreclose, there can NOT BE A MORTGAGE NOTE INVOLVED.. NOW THAT IS SECURITIES LAWS. THERE CAN ONLY BE ONE OR THE OTHER,
1/ A MORTGAGE NOTE.
OR
2/ A SECURITIES CERTIFICATE, IE, STOCK CERTIFICATE,BOND
AND ONCE A ORIGINAL MORTGAGE NOTE IS DESTROYED YOU CAN NOT COME INTO COURT SAYING I HAVE THE ORIGINALS.
AND THIS IS ALL IN THE OCC MANUAL OF LAWS THAT BANKS HAVE TO FOLLOW.
What most people don’t understand, ownership is irrelevant to enforcement of the Note or deed of trust. Security interests transfer with the Note. Period.
One can be in wrongful possession of the note and have the right to enforce the Note,
THIS IS THE QUESTION. I DO HAVE THE ONLY TRUE , ORIGINAL COPY OF MY MORTGAGE NOTE, THAT WAS SUPPOSE TO BE DESTROYED BACK IN 2010, BY CLOSING ATTORNEY , THAT DID CLOSING IN 2005.
LUCKY FOR ME HE DIDN’T DESTROY THE WHOLE FILE , THIS IS WERE, I FOUND ALL THE MAGIC STUFF, LIKE, THE WIRE TRANSFER FUND DOCS SHOWING REAL LENDER, AND NOT MENTION TO US AT CLOSING, AND A COPY OF THE MORTGAGE NOTE ASSIGNED WITHOUT RECOURSE TO THIS LENDER THE DAY OF CLOSING. HUM FUNNY.
SO LEGALLY I OWN THE ONLY TRUE COPY OF MY MORTGAGE NOTE, SO AM IN WRONGFUL POSSESSION. RIGHT.
SO AGAIN, THE QUESTION TO YOU ,
WE ALL WANT TO FOLLOW THE LAW, THEY DO NOT WANT TO FOLLOW THE LAW, THEY THINK THEY ARE ABOVE THE LAW. IT’S THAT SIMPLE. BUT WE ARE GETTING CLOSER TO THE END OF THERE TIME.
and by extension, the security interest. That’s straight UCC 3-301.
As far as ideas for any motions are concerned, feel free to contact me at: justadummie@gmail.com and leave your contact info.
This blog has misled you again. The court was right, and you were wrong regarding the tender issue.
You must return the money, not your home. See, Moore v. Wells Fargo Bank, 597 F. Supp. 2d 612, 616 n. 2 (E.D. Va. 2009) rejecting creditor’s claim that borrower had obligation to tender her home; for refinance loan, consumer must tender the net proceeds, not the home.)
Rock … Do you see anything I can still do in the form of motions for reconsideration, etc. .. that I can employ in order to correct or repair my case record for a possible better chance at Appeal later? In other words, can I clarify some of my own points while motioning for reconsideration? Example; ask the judge to reconsider my response to his question of whether I tendered ..My response was “Yes” but he was in error when he said the tender had to be in the form of money and not property ..my offer of property was a valid option and misunderstood by him as I meant that I could refinance and tender back the funds..is this type of issue a reason for me to motion for reconsideration? Also that he forgot to demand the evidence of the notices that the lawyer said she had showing we had received the docs .. Rebuttable presumption that I rebutted , no evidence was shown, onny her statement saying that it existed. Also the other violations of APR , he never addressed those , but they were raised in my answer and defenses as part of my rescission .. He denied my rescission based on her statement alone ..yet i had evidence and exhibits that I tried to submit to support my proof of violations, he never allowed them in, is any of this a valid reason to motion for reconsideration before a final judgment is entered? And would it give me an opening to repair the record for an Appeal? Thanks.
Dwight, the burden of proof refers most generally to the obligation of a party to prove its allegations at trial. Each party has the burden of proof of their allegations. Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party who offers an affirmative defense bears the burden of proof.
They allegedly had the note, what proof did you have they didn’t?
What most people don’t understand, ownership is irrelevant to enforcement of the Note or deed of trust. Security interests transfer with the Note. Period. One can be in wrongful possession of the note and have the right to enforce the Note, and by extension, the security interest. That’s straight UCC 3-301.
Rock .. In my answer to the complaint, my pleadings denied that a legal or valid transaction took place at the origination. The issue that I raised was one of legal standing. My answer included the 2 notes produced after the last known HIDC went out of business in 2008. The one note presented to the court in 2010 was missing the stamped endorsement in blank from Washington Mutual , 3 months later they returned with a note that had the stamped endorsement but no date or records of when this had happened. That Judge wanted a plenary hearing to try and establish how the 2 differing notes could be explained , but Wells Fargo refused to put witnesses on and asked for a dismissal.
Now that same judge wanted this 2nd complaint to go to trial this time on the issue of standing , he said as much on the record when he struck some of my defenses but allowed some to survive. He retired on March 1, 2015 .. the new judge granted SJ on March 20, 2015. But what had they added to change the courts opinion on standing?
I feel my issues of material fact were still strong enough to deny their request for summary judgment. 2 differing notes? No dates ? They were included in my pleadings as exhibits .. doesn’t my pleadings count for anything? My exhibits ?
I denied any default taking place…denied the origination that any valid mortgage contract was completed .. I thought they would have to at least prove the contract was valid since I denied it in my answer.
The whole SJ was granted on a questionable note being in their possession. That doesn’t seem to be enough when viewed from the issues raised in my pleadings and answer .. how can one judge say the standing issue needs to be tried .. and the new judge says no, what changed ?? what did they offer to prove up their case ? the note ?
Dwight, here’s your problem as I see it. The bank allegedly has a document you signed agreeing you received the proper notices, which the judge bought. You basically said take my word for it, I never received the notices, which the court didn’t buy. Common sense dictates, if there’s no violation, there’s no rescission.
Therefore, that’s the “law of the case,” which means if there was no TILA violation, there’s no duty for the bank to return you to status quo ante, i.e. returning you the monies payed to them; and after that, no need for you to return them to status quo ante, i.e. tendering.
As far as the court’s order is concerned, in most places just signing the order itself, it becomes self-executing without entering it in the record. Therefore, filing a bankruptcy is probably a waste of time and money, but it wouldn’t hurt to call a bankruptcy atty., but I think that he would probably agree with me.
Also, from the case I sent you: “At its essence, the Plaintiff’s argument is that the District Court is wrong and this Court should re-evaluate that ruling. What the Plaintiff fails to appreciate is that this is not an appellate court. Whether the District Court was correct in its ruling is of no consequence for the purposes of the underlying Motion. It is not within this Court’s jurisdiction to decide if the District Court erred. That is an argument for an appellate court to consider.” IN RE HAFFEY, Bankr. Court, ED Kentucky 2015
I doubt seriously the appellate court would rule in your favor. The court gave you every opportunity to provide FACTS, as I stated earlier, regrettably you provided legal conclusions, not facts, and that dog don’t hunt.
To make myself clear once again, assuming a borrower actually has a TILA violation its no great shake anyway.
If you’re underwater, you can’t get conventional financing to tender. If you missed payments, you won’t be able to get conventional financing either. That’s what the court was trying to explain to you, the bank is foreclosing to get the property to sell it, because it knows you won’t be able tender.
Because most of your other causes of action are most likely time-barred. You need to find FACTS showing some sort of tortious conduct or error within the mortgage transaction, if you wish to prevail.
Having said that, your SOL claim may have some traction, but I doubt that as well, because each time you missed a payment you re-breached the contract. But it appears, that’s your only viable argument on appeal.
Rock … Thank you, I see the problem once a final judgment has been entered. In my case no final judgment has yet been entered and I believe that if I was to file. BK before a final judgment, then I would not be barred from raising these same issues .. wouldn’t you agree? And the issue of my case and Wells Fargos summary judgment was primarily decided on the judges opinion that defendant did not tender, but as the transcripts show defendant did attempt to tender either the property or funds via a new refinance which could only have been completed if the lender acknowledged the rescission and worked with the defendant so that they could accept the tender offered. The TILA act explains that if the lender fails to accept your offer of tender after 20 days of offer, borrower may keep the property free and clear. My contention is that I did offer to tender during the communications evidenced by noted correspondences after the rescission, which supports the fact that the lender failed to accept the tender. The lender in my case failed both 20 day windows, the first 20 in which to reply to the rescission letter they failed and are non-compliance, the 2nd 20 day window in which they failed to accept my tender offer is a failure on their part which TILA states borrower may retain property without further obligation. As long as no final judgment has been entered I still have options open. If final judgment eventually goes thru, the Appellate Division still can find errors in the judges decision, agreed?
Dwight, read and understand this case: http://scholar.google.com/scholar_case?case=13063384031262953525&q=jesinoski+vs+countrywide&hl=en&num=20&as_sdt=6,47
Maybe I should also consider filing a bankruptcy in federal court right now if im going to lose this case..the federal bankruptcy judge for my area is the same one who ruled for the free house for the sol case of which my facts are similar , and he could also give a rescission opinion on my case too …giving me a new chance but with a federal judge?
Trespass, very well said, that’s why if you notice I always back up with facts and case law, not legal conclusions.
In Dwight ‘s case the bank had facts, Dwight had legal conclusions.
However, there is a problem with your comment, he is not entitled to a trial de novo, but he is entitled to an appeal, which regrettably he will lose. Why? Because the judge went out of his way to give Dwight an opportunity to prove up, as you pointed out, provide facts, but much like the scammers and legal illiterates on this blog he provided nonsense instead. It was clear the judge understands how rescission works, Dwight doesn’t; his reliance on Garfield’s nonsense sunk him.
However, that’s not his real mistake; Dwight ‘s mistake was not attacking the contract, for breaches, errors, setoffs, tortious conduct, etc. The only PROVEN methodology for winning. http://www.bizjournals.com/washington/prnewswire/press_releases/Georgia/2014/01/07/MN41655?ana=prnews&r=full&full=true
Trespass … Thank you for the response, i will definitely look into that. No final judgment has been entered yet, so i need to act fast incase its raised as a 20 day motion from an order? Or if i can request it anytime prior to final judgment. … Thank you
I KNOW NO THING
If I think I know something, I know nothing.
I do not give legal advice because I do not know legal things.
I’m full of opinions and they are as useful as they are, or worthless as they are, it’s up to the recipient.
Dwight’s situation has nothing to do with arguing Neil’s information.
Dwight, I have not argued a case in court, not pro se or with an attorney.
But, from what I guess, you can give the judge the most compelling reason to rule for you and it may even be convincing, but you have to include facts and then the law as it applies to those facts.
I posted similar info in a prior post before Neil made this new blog entry.
It was regarding filing a suit that would not get caught in a 12B6 ruling, but it would go for any case where you are trying to get remedy and avoid such judgments,
short and plain statement of a claim showing that the pleader is entitled to relief
The claim would be a cause of action –
A cause of action has elements,and you have to claim each element.
Must state sufficient facts, if true, state claim of relief plausible on face
(Note: no details, no life story, no exaggeration, no opinion of your own, just those of prior court cases, Further Note: on elements of a cause of action, you can’t just explain what a cause of action is, you got to claim it.)
Now being the backseat driver with no driving skills this is what I see from my point of view.
You stated
3……I felt that
4 since I asked for oral arguments, I should have been
5 given that chance.
(there was no case law to support your claim of given a chance for oral arguments)
And as above, no life story, no opinions, and as the judge mentioned nothing from the past, because they only deal in NOW and the facts you have right now, supported by case law.
The court seems to have decided there was no issue with the note, stripping out the other details
16 THE COURT:
….
18….. Everything is supposed to be in front of me
19 so I can make a decision.
….
21 …………………., given that they
22 have the note, it’s undisputed that you received — it
23 was delivered to you and that you’re in default. Tell
24 me what discovery that you are seeking is going to make
25 a difference with regard to that.
…..
4 THE COURT: Well, they have the note.
5 Notwithstanding anything about Fannie Mae, they have
6 the note.
…..
8 THE COURT: Under law they can proceed with
9 foreclosure with that note.
…………
11 THE COURT: All right. And that’s the issue
12 I’ll decide then.
………….
————– Your opportunity was right here!————————–
1 THE COURT: Well, let me ask you this: do you
2 disagree that they have the original note?
3 MR. BORROWER: Yes, I do.
4 THE COURT: And what do you base that on?
——————– Above Has nothing to do with Neil ———————-
———— Your answer did not help the judge rule in your favor ————
———— a copy is not the original, no wet ink signature is not the ——-
———– original —————— Answer has to be based in law ———–
——– which the jduge said Under law they could proceed ———-
———- and he heard you disagree and gave you an —————-
———– opportunity to cure his decision ———————————-
Three words.
Trial De Novo, get it in that you want a new trial, and this time present it with supporting case law for all the reasons you were giving.
————- based on the fact that it’s ‘law’ would have been better
————- than common knowledge, they are not a common
————– knowledge court
5 MR. BORROWER: I base it on the fact that it’s
6 common knowledge out there based on the fact that —
7 THE COURT: You can’t base it on common
8 knowledge.
————– court gave opportunity to cure the defect of the
————– statement, and your information had no supporting
————– case law
10 THE COURT: Based on what?
11 MR. BORROWER: Based on the State of New Jersey
12 and the Chief Justice Rabner and the Attorney General
13 and Judge Jacobson all agreeing that the integrity of
14 the judicial system is at stake, because it’s a known
15 fact, according to 50 attorney generals across this
16 country, that they’ve been attempting to submit faulty
17 documents, fabrications. This goes to consent order –
any cases won based on those fabrications and decisions made by
those you named would have been needed to support the facts you are stating without including case ‘law’ to support it.
And the most recent thing I had heard was you don’t have to know how to appeal the case, you can just tell the court you want a trial de novo,it’s your right, and you don’t have to give a basis, and you can get a new trial. You may have had an administrative proceeding, and you can request a judicial proceeding.
I have heard the trial de novo twice so far, once with a traffic case and once with a foreclosure.
santiago v makey attorney showed copy of a note when the request was to show the original note, and the borrower made the trip to the attorney office to view the original document. The case had something to do with presenting fraudulent documents is not the duty of the attorney to do fraudulent presentment for his client.
Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino
Sorry Dwight, but didn’t I tell you so. Welcome to how the REAL world works, not Garfield’s fantasy land!
Again, attacking the mortgage transaction is the ONLY verifiable documented methodology for winning.
Headline: ANOTHER GARFIELD DUPE BITES THE DUST
This is the actual transcripts from my recent hearing, where Wells Fargo had motioned for summary judgment right after the other Judge B. retired, Judge B. wanted a trial based on many of the material issues still in dispute. This new Judge who took over seemed to have his mind made up before the hearing that he would grant Wells Fargo the MSJ. He already had his lengthy decision written up prior to the hearing, he already had his reasons written on paper before hearing the arguments on rescission, 2 notes one with a stamp, one without, a forged MERS fraud assignment, Washington Mutual Bank last known HIDC, docs stating that Fannie Mae was now the owner, etc.
Borrowers had refinanced in 2004 with Commerce Bank, who endorsed the note to Washington Mutual Bank ..Wells Fargo became servicer of loan in 2007 right before the rescission letter was mailed on July 1, 2007. Borrowers were current thru June of 2007. They did not default because they rescinded while they were current on the payments, their first non-payment was July of 2007 when the letter of rescission was mailed. This was now the second attempt at foreclosure by Wells Fargo, in the answer to this complaint Defendants used the NG answer and denied the default, denied that any valid transaction occurred at origination. Defendants wanted the burden of proof to be shifted to the plaintiffs to prove that a valid legal loan took place at the origination. But Defendants also asserted Rescission in this answer and counterclaim .. stating that we had rescinded in 2007 prior to any alleged default having occurred. We also assert that it is not proper to foreclose on a void note and mortgage, and furthermore , a foreclosure demands that a default occurred, but our rescission protects us from having been deemed to default, you can’t be deemed to be in default if the TILA act says to stop paying your monthly obligations after mailing the letter. This new judge replaced the old foreclosure judge who wanted this to go to trial. This new judge came over from criminal court and seemed to have his mind made up before the hearing. They called me the night before and told me not to arrive at the normal 9 am time for motions to be heard, ours was pushed back to 10:30am .. and his decision was already written out before the hearing took place.
Transcripts of hearing below ……
THE COURT: Wells Fargo Bank versus BORROWERS.
2 All right. Enter your appearance.
3 MS. LENDER: Good morning, Your Honor.
4 Ms. Lender from Reed Smith for the plaintiff Wells
5 Fargo Bank, N.A.
6 THE COURT: All right. Sir, and your
7 appearance?
8 MR. BORROWER: Good morning, Your Honor.
9 Mr. Borrower acting pro se for myself and my wife,
10 Mrs. Borrower.
11 THE COURT: All right. I know that this is a
12 motion for summary judgment and cross-motion. Let me
13 hear from defendant first, and then I’ll hear from
14 plaintiff.
15 MR. BORROWER: Thank you, Your Honor. In the
16 original answer to the complaint we denied that a valid
17 transaction took place. So, Wells Fargo — it’s our
18 assertion that they’re not the true party in interest
19 here. That’s important to understand that. We’re not
20 admitting to default at this point. We want them to
21 prove the transaction history, especially because of
22 the fact that Washington Mutual went out of business in
23 2008. It’s very — it’s vital to a foreclosure that
24 they’re able to connect the dots of ownership of the
25 title. Title has to be transferred legally in order
1 for a holder of the note to foreclose.
2 So, since the beginning, we’ve been asking
3 for discovery. We’re not getting it. We want to see
4 proof of a transfer of title. They now contend that
5 Fannie Mae is the true party in interest, and they’re
6 representing Fannie Mae. Fannie Mae has never been
7 established in any of these two foreclosure complaints
8 as the true party. And — because of the question of
9 Washington Mutual going out of business and the
10 questionable notes that have come in. They certified
11 the notes without endorsement stamps, and then after
12 the fact, they found the note with the endorsement
13 stamp. That raises enough issues of material fact that
14 we feel summary judgment should be denied at this
15 point.
16 We also have other issues we’d like to
17 discuss.
18 THE COURT: I’ll hear all your — I’ll hear
19 all your arguments right now, sir.
20 MR. BORROWER: Okay. All right. The main
21 thing that happened was after we answered and showed up
22 for the initial conference, the plaintiff filed a
23 motion to strike all — most of our affirmative
24 defenses and counterclaim. I asked for oral arguments.
25 We came in for oral arguments. Unfortunately, I feel
1 that I didn’t get a fair chance to argue my points in
2 court. I guess, a judge has discretion whether he can
3 just base his decision on the papers, but I felt that
4 since I asked for oral arguments, I should have been
5 given that chance.
6 THE COURT: Well, rather than talk about the
7 past, just talk about what you have today.
8 MR. BORROWER: All right. So, getting up here,
9 I filed a motion to reconsider, even though it’s very
10 late, on the affirmative defense order that struck my
11 defenses and counterclaim. The reason is that new
12 evidence has been found that goes towards the Court
13 making an error by dismissing that counterclaim and
14 defenses.
15 One error would be the recent Supreme Court
16 decision on rescission. That wasn’t available at the
17 time we had oral arguments. And also that just came
18 out in January 2015. That was one of my counterclaims
19 and a couple of my affirmative defenses that were
20 struck. Now, the Supreme Court has cleared that issue
21 up. That should have been allowed in.
22 Also, other —
23 THE COURT: You’re — specifically you’re
24 talking about your notice of intent to rescind. Is
25 that what you’re talking about?
1 MR. BORROWER: Right.
2 THE COURT: On TILA claims?
3 MR. BORROWER: That was stated in my answer to
4 the complaint.
5 THE COURT: Right. I mean, at the heart of
6 that TILA claim, even if I were to accept that you
7 provided notice to rescind, I don’t see anywhere you’ve
8 tendered the amount owed under the disbursements. I
9 think you received, what, $232,000?
10 MR. BORROWER: Yes.
11 THE COURT: Have you made any tender to
12 $232,000 to plaintiff? Do you have that money to
13 tender?
14 MR. BORROWER: Yes.
15 THE COURT: You do? You have that money in
16 an account somewhere?
17 MR. BORROWER: No. I’m saying yes to the fact
18 that you asked have we ever tendered. We have the
19 option to tender property or money.
20 THE COURT: None of the case — well,
21 $232,000 you have to tender the disbursements made to
22 you at the time of the loan. That’s under the case law
23 of Guillame. So, even assuming, which I’m not doing,
24 that the handwritten notes that you provided me
25 provided sufficient notice under TILA within the three
1 years, I would still have to find that you had $232,000
2 which you’ve tendered in offer in return for the
3 mortgage and recording.
4 MR. BORROWER: Well, that’s where Justice
5 Scalia more or less clarified that issue. He said that
6 the trial courts have misunderstood that the first —
7 he said that the lawmakers — Congress wrote the act as
8 a protection for borrowers, that would not force a
9 borrower to go to court. Everything, as long as the
10 two sides came to an agreement —
11 THE COURT: Right. Well, you’re talking
12 about something different. I’m talking about the
13 notice. I said even assuming that that notice that you
14 provided — and what Scalia said was that the notice
15 doesn’t have to be by way of a complaint. It can be by
16 way of a notice, which is sufficient to provide the
17 bank notice that you intend to rescind.
18 MR. BORROWER: Right.
19 THE COURT: Even if I were to assume that,
20 you have not provided me any evidence that you have
21 $232,000 to tender to the plaintiff —
22 MR. BORROWER: Well, see, Justice —
23 THE COURT: — which you’re required to do.
24 MR. BORROWER: I feel the Supreme Court
25 directly spoke to the fact that the first step to the
1 process after the rescission notice is put through, the
2 very next step is that they have to step forward within
3 20 days and act. They failed to do that.
4 THE COURT: Well, under Guillame, which is
5 the case that — the New Jersey Supreme Court case. It
6 says even if rescission is available, the defendant has
7 to come forward and provide evidence that you have the
8 ability to tender that $232,000. That you will tender
9 that $232,000 back to the plaintiff.
10 So, I’m just saying even if I were to find
11 that the notice was sufficient which I — quite
12 frankly, I do not, but even if I were, the ultimate
13 place where you’re trying to get to, you can’t get
14 there anyway. You don’t have $232,000 to tender.
15 MR. BORROWER: Well, I would have to disagree
16 only based on the way the act is written.
17 THE COURT: You haven’t shown me anything.
18 You haven’t shown me.
19 MR. BORROWER: Okay.
20 THE COURT: I’m saying you’ll have to agree
21 with — for now, you’re going to have to agree with my
22 interpretation of the law.
23 MR. BORROWER: Well, just like the commentary
24 of the — there’s an agency, a Federal agency called
25 the Consumer Financial Protection Bureau. They’re
1 charged with overseeing TILA and its implementation.
2 They have spoken on these cases that ended up in
3 federal court. And they absolutely line up with the
4 Supreme Court.
5 The first thing that needs to happen is the
6 bank has to respond some way somehow within 20 days to
7 show that either they disagree — you can’t jump to the
8 next step and say, oh, the borrower needed to send a
9 written notice, plus they needed to go chase down the
10 bank and offer the tender. That’s not how it’s
11 written. It’s specifically written that they need to
12 act within 20 days. At that point, if they disagree,
13 they can bring it to court, a judge could then
14 adjudicate it based on do I have either the property or
15 the money to tender.
16 You know, we have the option to tender the
17 property. That’s clearly written in the act. You
18 know, they can give back our payments, we could give
19 them the property and the two parties go their separate
20 ways.
21 THE COURT: Essentially, that’s what’s
22 happening in the foreclosure. They’re seeking the
23 property. If you want to do a deed in lieu of
24 foreclosure, you could talk to the bank about that.
25 Essentially, that’s what they’re doing. They’re
1 looking for their property back.
2 MR. BORROWER: Well, the problem with this is
3 that they are in non-compliance with the Federal
4 statute that protects borrowers.
5 THE COURT: Well, now you’re jumping to
6 something else.
7 MR. BORROWER: Yeah. Well, I’m just saying
8 that that —
9 THE COURT: And that’s something that you
10 maintain which, you know, —
11 MR. BORROWER: We have spent the past eight
12 years trying in good faith to even deal with them. We
13 were told by the lawyers that we seeked help with and
14 even Judge B (just retired) mentioned it at one of the
15 hearings that there was no allowability for what we’re
16 attempting to do now. In the past, it was always the
17 borrower needed to tender first. And without that, the
18 issue was —
19 THE COURT: Well, not only in the past, but I
20 think now the current law, as Guillame in the most
21 recent Supreme Court case —
22 MR. BORROWER: What date was that decided,
23 because I feel that the Supreme Court disagrees with
24 the fact that any court demanded that the — that case
25 may arise out of an actual dispute where the plaintiff
1 brought it to court. And if they did it within 20
2 days, well then, that’s understandable that the judge
3 would turn to the borrower and say do you have the
4 tender, because it’s being adjudicated.
5 THE COURT: No. The point is is that what
6 the courts have found is that it would be — it
7 wouldn’t be fair to require the bank to give the
8 security — to discharge all the security and then
9 stand and wait for you to pay the money, because then
10 what would happen is people that were in second
11 positions, everybody else would move up. It would be –
12 – it would work an injustice to the bank to require
13 them to relinquish their security without any kind of
14 guarantee that you’re going to give them the money.
15 MR. BORROWER: I understand. And that’s been
16 the thinking of the courts all along, and that’s why
17 this Supreme Court decision was, you know, so
18 important; that they told the courts that’s not the
19 spirit of that law. It was a protection for borrowers.
20 THE COURT: All right. So, that’s your
21 primary argument. Anything else, sir?
22 MR. BORROWER: Well, that’s the argument. And,
23 of course, I have more proofs from after we sent the
24 recision notice in. The following weeks after that,
25 they respond with letters.
1 THE COURT: Well, I’ve read all your papers.
2 I’ve read the documents. Anything else you want to
3 argue, sir?
4 MR. BORROWER: Yes. Also, the statute of
5 limitation argument. One thing that the Court didn’t
6 address at my motion to dismiss based on statute of
7 limitations was — there were two points: (1) is that
8 New Jersey statute clearly, by operation of law, makes
9 the note unenforceable six years after the plaintiff
10 accelerates.
11 THE COURT: That’s the bankruptcy judge that
12 says that, which I’m not bound by that.
13 MR. BORROWER: Well, no. The New Jersey
14 statute says that.
15 THE COURT: Well, the New Jersey statute says
16 that it is six years from the maturity date as listed
17 in the — that’s the 2009 statute — as listed in the
18 mortgage or 20 years from the default. It doesn’t say
19 — it doesn’t do what Judge Kaplan said in the
20 bankruptcy. You kind of ignored that part of the
21 statute. What he said is when they accelerate, it’s
22 six years from that acceleration date. And if you do
23 that, it does create a problem in a case like this
24 where the complaint is filed, it’s accelerated and then
25 it’s dismissed. What would be the maturity date on
1 something like that? It’s dismissed. Clearly, the
2 defendant benefitted from the dismissal, right? But
3 yet, they were still under that — they were punished
4 possibly.
5 MR. BORROWER: That’s why under contract law
6 with the clause that’s available to them in contract
7 law, nobody forced them to initiate or trigger an
8 acceleration. They also have the power to de-
accelerate. So, if they feel that this case wasn’t
10 ready and we couldn’t win the case, now there’s a
11 dismissal, they need to act on that to make sure their
12 six years doesn’t run out. They don’t do that.
13 THE COURT: Which points out the problem with
14 Judge Kaplan’s decision, because that is a moving
15 target that is very — really near impossible to hit in
16 many of these cases. And that’s why the other courts
17 that have considered it have not decided it the same
18 way Judge Kaplan has.
19 MR. BORROWER: And I just wanted to add one
20 last thing to that. Judge Kaplan, though, was trying
21 to differentiate between two issues; one is the note
22 and one is the mortgage. They come forward claiming
23 they want to foreclose. They’re not here trying to
24 enforce the note for money. They want the property.
25 But I think they all consent that the note, by New
1 Jersey statute, is unenforceable, but they’re feeling
2 that they still can enforce the mortgage. That could
3 be looked into by the Appellate Division. I guess
4 they’re reviewing Judge Kaplan’s decision now. I’m not
5 sure if it’s New Jersey or federal —
6 THE COURT: It’s not — it’s no more — it’s
7 no more an authority that I consider making my
8 decision. It’s not mandatory on me.
9 MR. BORROWER: All right.
10 THE COURT: All right?
11 MR. BORROWER: And then the other issue would
12 be the denial. I’m seeking the Court to deny granting
13 them the relief of summary judgment mainly because
14 there’s real issues of material fact. Like I discussed
15 earlier, it’s important because of the mystery of
16 Washington Mutual going out of business. And nobody
17 has ever shown that this note actually was transferred
18 or the title was transferred. And the issue that my
19 homeowner’s insurance, I just discovered, has the first
20 mortgagee listed as Trust Bank.
21 Now, it’s common knowledge that Fannie Mae,
22 who the plaintiff contends is the true owner at this
23 point, Fannie Mae is absolutely involved in mortgage-
24 backed securities. If at some point they purchased our
25 mortgage and invested it, who knows what happened. The
1 note may not even exist anymore. It could be invested.
2 But that opens up a cause for deeper discovery. The
3 insurance, homeowner’s insurance company, told me it’s
4 been like this since — as far back as they see.
5 THE COURT: I don’t want you to tell me what
6 other people tell you.
7 MR. BORROWER: All right.
8 THE COURT: All right. Anything else, sir?
9 MR. BORROWER: Well, at this point, I’ll rest.
10 And, you know, I just feel that there’s enough issues
11 also with the affidavit that they presented. I don’t
12 think it lives up to the threshold that the Appellate
13 court has set, you know, just referring to business
14 records and not really showing the important, crucial
15 documents of when and how anything was transferred. We
16 don’t even have a date when this stamp came in. The
17 stamp came in after the case began at the first
18 complaint.
19 First, there was a note with no stamp. Then
20 the stamp came in, but the problem was the stamp is
21 from a company, Washington Mutual, that was already out
22 of business two years. And at the first complaint,
23 Judge B (just retired) did agree that that’s an issue that
24 needs to go to plenary hearing. When did you get the
25 stamp put on the note because the bank that supposedly
1 put it on is out of business two years, and you have no
2 date. So, that’s something to consider also. Thank
3 you.
4 THE COURT: All right. Thank you.
5 MS. LENDER: We’ve tried to address all of
6 these issues in our moving papers and the response to
7 defendant’s various cross-motion. But just so the
8 record is clear, I heard the defendant say that no one
9 — or everyone consents that the note is unenforceable.
10 And I just want the record to be clear that that is
11 nothing that we have ever said or admit. And I don’t
12 know what the reference to Fannie Mae is because the
13 plaintiff here is Wells Fargo. And I don’t see
14 anything asserted in our papers that Fannie Mae is the
15 true plaintiff. We’ve never taken that position.
16 I understand that the defendant doesn’t
17 believe Wells Fargo has the note or something strange
18 happened. And that’s why in November, I wrote to him
19 and said we have the original note in my office. You
20 just need to call and you can come and look at it. And
21 the mortgage, I have it all in the vault here. And
22 he’s never — he’s never —
23 THE COURT: And copies have been provided in
24 your papers.
25 MS. LENDER: Pardon?
1 THE COURT: And copies of the note have been
2 provided.
3 MS. LENDER: Yes, they are. And the note’s
4 endorsed in blank. And I currently hold it. It’s in
5 my office. You can come look at it. He’s never come.
6 So, if there is an issue that the defendants don’t
7 believe that it exists, again, it’s at my office. And
8 it’s been there, and it’s been made available, but you
9 can’t oppose a motion for summary judgment by just
10 standing up and saying I don’t believe you.
11 And on this notice of right to rescind,
12 obviously, we would contest the validity of that
13 handwritten note. That’s dated from 2007. But it’s
14 important for the Court to also hear that obviously the
15 defendants don’t have a right to rescind. And they
16 both signed notices of right to cancel, swearing that
17 they received two copies of the notice of right to
18 cancel. And then they signed the notice of right to
19 cancel again on the day that they got $22,000 out. The
20 disbursement date on the loan, they took $22,000 out
21 and the closing agent had both of the defendants come
22 in and re-sign the notices saying —
23 THE COURT: After the alleged notice to
24 rescind.
25 MS. LENDER: Right. So, they —
1 THE COURT: They took more money out, is what
2 you’re saying, after their notice to rescind?
3 MS. LENDER: I’m sorry. No. I’m saying the
4 closing happened October 19th, 2004. The time to
5 cancel is three business days. After that three
6 business day period had passed, October 25th, the
7 defendants went back to the closing agent and re-signed
8 the notice of right to cancel saying we didn’t cancel
9 so that they could get the cash out. So, I mean, the
10 documents speak for themselves. And I have copies if
11 the Court needs them, but there is no right to cancel,
12 no right to rescind after the three-day period. And
13 both defendants already said that they were not
14 cancelling within that three-day period in 2004.
15 THE COURT: All right. I think what — I
16 think what he’s arguing is the three-year period, right
17 to rescind under — under misrepresentation.
18 MR. BORROWER: Well, also it’s Federal law that
19 — we have our closing documents we’ve always kept.
20 There was never a right to rescind notice given to us
21 which is a Federal law that protects borrowers. They
22 claim that they did give them to us. This is a
23 rebuttable presumption that is allowed for deeper
24 discovery.
25 We clearly have the actual good faith
1 estimate sent by the bank, all the closing documents,
2 the two sets of documents given, one to my wife, one to
3 myself. Nowhere was there ever the notice of
4 rescission rights included. And that’s a violation
5 that extends your statute of limitations to three
6 years.
7 THE COURT: That’s your argument, right?
8 MR. BORROWER: Yes.
9 THE COURT: And you’re arguing also that you
10 provided that notice to rescind within that three
11 years, is what your other argument is.
12 MR. BORROWER: Well, yes. That I mailed it in.
13 THE COURT: Based on that handwritten note,
14 which —
15 MR. BORROWER: And also by their responses to
16 the rescission. They sent me letters dated right after
17 that July 1st letter that we sent. So, I mean, they
18 don’t just send letters saying, you know, blah, blah,
19 blah, we discussed — we’re discussing this problem
20 with you on the telephone, maybe we can work something
21 out. We have documentation supporting the fact that we
22 did send a rescission letter. So, that hasn’t yet been
23 introduced into the record, but I would like to do that
24 before we leave today. **(ALSO ATTEMPTING TO SUBMIT THE TILA VIOLATIONS EVIDENCE INTO THE RECORD RIGHT HERE, LATER JUDGE SAYS HE DID NOT SEE ANY TILA VIOLATIONS, THE CLOSING DOCS FOR REVIEW)
25 THE COURT: So, you had emails or letters
1 from them acknowledging the right of rescission within
2 the three years.
3 MR. BORROWER: They didn’t mention the word
4 rescission, but right after our July —
5 THE COURT: But why haven’t you provided that
6 information? If you had this information, why —
7 MR. BORROWER: When I opened my statement just
8 now, I said that I have more documentation I’ve come
9 across.
10 THE COURT: Well, what I’m going to do is I’m
11 going to ask you — just so that counsel is not working
12 at a disadvantage, just if you could provide them to my
13 clerk. My clerk will make copies and give them —
14 MR. BORROWER: And also that —
15 THE COURT: We’ll take 15 minutes.
16 MR. BORROWER: Okay. Thank you, sir.
17 (Off the record – On the record.)
*(BORROWER had attempted to have the court clerk copy all of the closing disclosures too in order to submit them into the record showing that they TILA violations existed, as per no notices of right to rescind were included. The clerk refused to copy the docs supporting the TILA violations, later the judge would say he saw no evidence of any violations.}
18 THE COURT: All right. Back on the record
19 with Wells Fargo versus BORROWERS. Before we left, there
20 were some documents Mr. Borrower said that he had which
21 he maintains acknowledged the receipt of his notice of
22 intent to rescind within the three-year statute.
23 Counsel, had an opportunity to look at those
24 documents?
25 MS. LENDER: Your Honor, thank you. I
1 received an August 27th, 2007 letter from Wells Fargo
2 home mortgage addressed to BORROWERS (phonetic)
3 . A Wells Fargo home mortgage monthly mortgage
4 statement addressed to BORROWERS dated June
5 20th, 2007, two pages. And loan information report
6 that’s handwritten “Fannie Mae owner”, and it’s noted
7 created June 13th, 2014. I don’t know where that came
8 from.
9 None of these documents reference a right to
10 rescind or acknowledge receipt of any letter in 2007.
11 I don’t know what they have to do with the right to
12 rescind issue.
13 MR. BORROWER: If I could, Your Honor.
14 THE COURT: Okay.
15 MR. BORROWER: I’d like to state that no bank
16 in the past, I guess, ten years has ever sent a
17 correspondence admitting that a borrower has rescinded.
18 They specifically ignore the rescission.
19 THE COURT: Well, I don’t know if you have
20 the ability to say something like that. I don’t know.
21 There probably is many rescissions to start with and
22 whether you’re familiar with all of them would be whole
23 other thing.
24 MR. BORROWER: The fact of the matter — the
25 one document, they had no reason in August 27th to sent
1 a correspondence stating that they spoke to us about a
2 problem. That’s the issue I’m trying to make that they
3 did reach back. There was something that came up,
4 because up until June mortgage statement, we were
5 current. The first time we attempted to rescind was
6 July 1st when that payment was due. That supports our
7 argument that we did send a rescission letter, because
8 July 1st was the first missed payment. And that was
9 followed up by communications back and forth between us
10 and Wells Fargo.
11 Also, the fact that the Fannie Mae statement,
12 we never did discuss my motion to compel discovery. I
13 have a document here that was never submitted to the
14 record. It’s Wells Fargo’s response to defendant’s
15 demand for production of documents.(this is already in the record and was included as an exhibit to my opposition to MSJ)
16 THE COURT: I’m not going to get in the habit
17 of allowing you to start introducing things at these
18 motions. Everything is supposed to be in front of me
19 so I can make a decision.
20 Now, what request for discovery that you have
21 would make a difference of the fact, given that they
22 have the note, it’s undisputed that you received — it
23 was delivered to you and that you’re in default. Tell
24 me what discovery that you are seeking is going to make
25 a difference with regard to that.
1 MR. BORROWER: Because there’s — you’ve heard
2 them right here on the record state that they don’t
3 know anything about Fannie Mae.
4 THE COURT: Well, they have the note.
5 Notwithstanding anything about Fannie Mae, they have
6 the note.
7 MR. BORROWER: Well, they have to —
8 THE COURT: Under law they can proceed with
9 foreclosure with that note.
10 MR. BORROWER: I disagree with that.
11 THE COURT: All right. And that’s the issue
12 I’ll decide then.
13 MR. BORROWER: I would like to state that a
14 holder of the note must establish by what authority
15 they come forward. You can’t just wave the note around
16 because anybody can find a note and make a copy. You
17 have to be able to establish — you know, rebuttable
18 presumptions if they’re raised. I raised a definite
19 valid rebutt due to the fact that there were
20 inconsistencies and discrepancies with their stamped
21 endorsement. I mean, they submitted that into a court
22 proceeding without the stamp. And then two years
23 later, it magically appears. I don’t believe a
24 foreclosure would be just at this point without a
25 little bit deeper discovery into —
1 THE COURT: Well, let me ask you this: do you
2 disagree that they have the original note?
3 MR. BORROWER: Yes, I do.
4 THE COURT: And what do you base that on?
5 MR. BORROWER: I base it on the fact that it’s
6 common knowledge out there based on the fact that —
7 THE COURT: You can’t base it on common
8 knowledge.
9 MR. BORROWER: Okay.
10 THE COURT: Based on what?
11 MR. BORROWER: Based on the State of New Jersey
12 and the Chief Justice Rabner and the Attorney General
13 and Judge Jacobson all agreeing that the integrity of
14 the judicial system is at stake, because it’s a known
15 fact, according to 50 attorney generals across this
16 country, that they’ve been attempting to submit faulty
17 documents, fabrications. This goes to consent order –
*(I was quoting from the Robo-signer scandal where NJ threatened to shut down all 5 big banks for submitting faulty, fraudulent, fabricated documents into NJ foreclosure courts, NJ Highest Courts and Judges were saying it threatened the integrity of NJ Judicial System And they were quoted in all newspapers).
18 THE COURT: Sir, let’s go to the heart of
19 this. The heart of this is is you don’t dispute that
20 you received $232,000, right?
21 MR. BORROWER: Well, I’m disputing who did I
22 receive it from. I know it wasn’t from Wells Fargo.
23 THE COURT: Let’s say this. You don’t
24 dispute that you received $232,000 as part of a
25 mortgage and note, correct?
1 MR. BORROWER: That’s correct.
2 THE COURT: You don’t dispute that you failed
3 to pay your mortgage obligation.
4 MR. BORROWER: I do dispute that.
5 THE COURT: So, you’re saying that you paid
6 it up until today?
7 MR. BORROWER: No. I rescinded July 1st. That
8 was the first missed payment. I did not default. By
9 operation of law, that note and mortgage became void.
10 The Federal government mandates that they return the
11 cancelled note to me.
12 THE COURT: Let me ask you this: so if I were
13 to rule in your favor today and say you have the right
14 to rescind, you have $232,000 to give to them?
15 MR. BORROWER: Well, no. Here’s what —
16 THE COURT: No. That’s not my question to
17 you. Do you have $232,000 to give to them?
18 MR. BORROWER: I have a home that’s worth at
19 least that much.
20 THE COURT: That’s what they’re trying to do.
21 That’s what this whole thing is about. They want that
22 home in exchange for the money.
23 MR. BORROWER: But here’s the problem with
24 that. What they need to do if they want to adjudicate
25 a Federal rescission law that they ignored for eight
1 years is they can’t come in the back door under a
2 foreclosure and have a foreclosure judge attempt to
3 adjudicate an eight-year old non-compliance. They’ve –
4 –
5 THE COURT: Well, you’ve lived in the house
6 for eight years, right?
7 MR. BORROWER: Yes.
8 THE COURT: And you haven’t paid anything.
9 MR. BORROWER: According to the TILA law, it
10 says that I have every right to live there. If they
11 don’t return your note and mortgage, it says if another
12 20 days goes beyond the first 20, it says you can keep
13 it with no further obligations. That’s written right
14 in the Federal act.
15 THE COURT: Okay.
16 MR. FRAZEE: You know, they did not comply.
17 THE COURT: So, your application really at
18 the heart of it, you want this house for nothing.
**(My mind went blank and I didn’t have a response ready for that question, I didn’t have my end-game exit strategy ready, I was getting worn down by his badgering and questioning)
19 MR. BORROWER: Well, no. I would rather this
20 go before a Federal court where they — no. They
21 should be forced to file their own complaint to come
22 against my rescission and let the proper court take
23 care of this issue. It’s a Federal law that they — my
24 argument is they didn’t comply with it in the statute.
25 Twenty days went by, they never responded.
1 THE COURT: All right. I understand your
2 argument.
3 MR. BORROWER: Now, as far as where we are
4 today, I don’t believe it would be just for you to
5 issue a foreclosure based on a void mortgage and note,
6 which by operation of law under the Federal authority
7 was voided before they ever filed a foreclosure
8 complaint.
9 So, for you to say, oh, let’s foreclose
10 today, you really need this to be adjudicated, the
11 rescission issue. You should probably dismiss this
12 case would be my opinion. Let them bring an action
13 against my rescission and let the chips fall that way,
14 you know, because —
15 THE COURT: Well, that was my question. Do
16 you have $232,000 to give to them for rescission?
17 MR. BORROWER: I understand this TILA, the way
18 it’s written, it doesn’t demand that you — it gives
19 options.
20 THE COURT: Humor me. Do you have $232,000
21 to give to them? That’s a yes or no.
22 MR. BORROWER: If I sell the house, I’ll have
23 more than that.
24 THE COURT: Well, if you —
25 MR. BORROWER: That’s why it gives the option
1 to a judge, you know, when the parties come together
2 and they — within the first 20 days, if they were to
3 come oppose this, and you were satisfied that I did
4 send the rescission letter, how you would adjudicate it
5 is by working out a deal. If he puts the house up for
6 sale, will you allow six months? He’ll give you the
7 cash. Or do you want to return his payments, three
8 years worth of payments, and take the property instead?
9 That’s where a judge would come in to help facilitate
10 the Federal act.
11 At this point by them ignoring it, Congress
12 never wanted to give them an incentive to ignore a
13 rescission letter. They should not be rewarded by
14 doing nothing and then eight years later saying, I
15 guess, we’re ready to adjudicate this rescission
16 letter. No. The Federal law stated that they would
17 pay a severe price if they chose to ignore. This is
18 the same as non-judicial foreclosures where the
19 homeowner has a choice. You either respond or it’s
20 going to be done outside of a courtroom. That’s how
21 this act was written. It was written that it doesn’t
22 have to take place in the court if —
23 THE COURT: I understand. You said that.
24 Anything else, sir? Okay.
25 MR. BORROWER: Just the fact of my discovery, I
1 feel that it does say, according to Wells Fargo’s
2 responses, that — from Wells Fargo’s company, not from
3 the attorneys, that Fannie Mae is the owner, but they
4 have no way to confirm anything about my closing
5 documents. That’s right in their response from Wells
6 Fargo. And that goes to the issue of the TILA
7 disclosures that were missing. So, in their own
8 response to me, they claim that they’re just the holder
9 of the note, they’re the servicer. They really have no
10 access to the original closing documents. So, that
11 does raise an issue of material fact.
12 THE COURT: All right.
13 MR. BORROWER: Thank you.
14 THE COURT: You care to be heard further?
15 MS. LENDER: Just so the record is clear,
16 Your Honor, I’m not a liar. I have the original note.
17 It’s been made available. So, I don’t appreciate the
18 common knowledge of fabricating documents. That’s not
19 happening here. And I have never fabricated anything
20 and submitted it to the Court. Definitely not in this
21 case.
22 And I hear that Mr. Borrower keeps believing
23 that he sent some handwritten note in 2007. He doesn’t
24 have a right to rescind the loan, and Judge B (retired)
25 already told him that in September.
1 And every time we come to court, it’s a new
2 issue. Now he wants us to dismiss the case. There’s
3 been multiple motions for reconsideration. He hasn’t
4 paid. The loan is due for October 2007. I mean, I
5 don’t know what else we need to do.
DECISION
6 THE COURT: Okay. All right. Plaintiff has
7 filed this motion for summary judgment. The defendant
8 has opposed this motion for summary judgment, made
9 cross-motions first to reconsider the striking
10 affirmative defenses and counterclaims. Second,
11 reconsider the order denying the motion to dismiss due
12 to statute of limitations. Three, dismiss June 2007
13 rescission letter and, four, compel discovery.
14 In October 9th, 2004, the defendant executed
15 a note in favor of Commerce Bank in the amount of
16 $232,000. To secure the note, defendant executed a
17 mortgage in favor of Mortgage Electronic Registration
18 Systems, MERS, as nominee for Commerce Bank on the
19 property located at 123 Any Road, Any Town,
20 New Jersey.
21 On October 8th, 2007, MERS, as nominee for
22 Commerce Bank, assigned the mortgage to Wells Fargo.
23 The assignment was recorded on October 10th, 2008. The
24 defendants defaulted on the loan by failing to make
25 payments on July 1st, 2007. Complaint and foreclosure
1 was filed September 25th, 2007 under docket number F-
2 25290-07.
3 This matter went to final judgment, but the
4 judgment was vacated and the case was dismissed without
5 prejudice in October of2007. Defendant made some
6 payments in 2008 and 2009 bringing the payments current
7 to October 1st, 2007. The plaintiff then filed another
8 complaint and foreclosure on May 9th, 2014. Defendant
9 filed an answer/counterclaim on June 27th, 2014. The
10 plaintiff was granted a motion to dismiss the
11 counterclaims and affirmative defense, defenses
12 numbered 2, 3, 8, 9, 10, 11, 13, 14, 15, 17, 18, 20,
13 21, 22, 23, 25, 26, 29, 30, 31, 32 and 33 with
14 prejudice.
15 The Court will address defendant’s cross16
motion and then the plaintiff’s motion for summary
17 judgment. The defendant has made a motion to
18 reconsider the order striking affirmative
19 defenses/counterclaims. On September 19th, 2014, the
20 Court ordered the dismissal of defendant’s
21 counterclaims and affirmative defenses, as indicated,
22 with prejudice.
23 In New Jersey a motion for reconsideration
24 can be made pursuant to Rule 4:49-2. This rule states
25 that:
1 “A motion for a re-hearing or reconsideration
2 seeking to alter or amend a judgment or order shall be
3 served not later than 20 days after service of the
4 judgment or order upon all parties by the party
5 obtaining it. The motion shall state with specificity
6 the basis on which it is made, including a statement of
7 matters or controlling decisions which counsel believes
8 the Court has overlooked or as to which it has erred
9 and shall have annexed thereto a copy of judgment or
10 order sought to be reconsidered and a copy of the
11 Court’s corresponding written opinion, if any.”
12 And that’s Rule 4:49-2.
13 “Furthermore, to succeed a motion for
14 reconsideration, the Court must grant relief in
15 consideration of Rule 4:50-1. The rule is designated
16 to reconcile the strong interest in final judgment and
17 judicial efficiency with the equity — with the
18 equitable notion that courts should have authority to
19 avoid an unjust result in any given case.” And that’s
20 Mancini v. EDS, 132 N.J. 330, 334 (1993). I’ll omit
21 the internal citations.
22 “The trial court determination under the rule
23 warrants substantial deference and should not be
24 reversed unless the results are a clear abuse of
25 discretion.”
1 And I’ll also omit the internal citations of
2 the case.
3 The defendant has made the motion to
4 reconsider out of time, first of all. The defendant
5 had 20 days to follow the order on September —
6 following the order on September 19th, 2014 to make the
7 motion. Furthermore, the defendant has not annexed to
8 his motion a copy of the order which he seeks to have
9 reconsidered. They’re technical violations.
10 Therefore, the defendant has not complied strictly with
11 New Jersey 4:49-2.
12 Moreover, if the Court were to overlook the
13 procedural deficiencies in the motion, it must be
14 denied for the substantial reasons: that is, the Court
15 does not find any adequate basis for which to overturn
16 the Court’s prior decision. The burden to succeed
17 under the rule is high, as evidenced in cited
18 decisions. The Court originally barred the claim under
19 the Truth In Lending Act or TILA claim as being brought
20 out of time, past the three-year statute of
21 limitations.
22 Defendant now claims that they did exercise
23 their right to rescind the loan contract within the
24 three years providing what is a handwritten document
25 which purports to be notice. The United States Supreme
1 Court decision in Jesinoski also relies on that. In
2 Countywide v. Home Loans, 135 Sup. Ct. 790 (2015) case
3 which holds that: “The borrower may notify the lender
4 in writing of their intention to rescind the loan
5 within the three-year statute of limitations rather
6 than forcing the borrower to file a complaint within
7 the three-year statute of limitations.”
8 However, the Jesinoski court also stated in
9 its decision that: “This regime grants borrowers —
10 this regime grants borrowers a non-conditional right to
11 rescind for three days after which they may rescind
12 only if the lender failed to satisfy the act’s
13 disclosure requirements. But this conditional right to
14 rescind does not last forever, as the court indicated.
15 That’s where the lender fails to make the required
16 disclosure, the right of rescission shall expire three
17 years after the date of consummation of the transaction
18 or upon the sale of the property, whichever comes
19 first.” And that’s the Jesinoski at 792. See also 12
20 C.F.R. 226.23.
21 Therefore, this three-year statute of
22 limitation right only exists if the defendant was not
23 given the property disclosures. The note and mortgage
24 very clearly on their face recite the material
25 disclosure required by the law, Section 12 C.F.R.
1 226.32 stating: “The term ‘materials disclosure’ means
2 the required disclosures, the annual percentage rate,
3 the finance charge, the amount financed, the total
4 payments, the payment schedule and disclosure
5 limitations referred to in section 226.32(c) and (d),
6 and 226.35(b)(2).”
7 The defendant has not identified the missing
8 disclosures which would justify the statute of
9 limitations to continue to run and three-year
10 limitations either initially in the motion before Judge
11 B (just retired) or in this motion to reconsider. Even if
12 defendant were to show that the conditional three-year
13 statute of limitations were to apply, defendant lacks
14 sufficient evidence to first show that they properly
15 effectuated the right to rescind.
16 Defendant has submitted a handwritten copy of
17 a letter that is dated July 1st, 2007 and simply titled
18 “Truth In Lending Act Rescission Notice”. The Court
19 has no way to properly ascertain nor could anyone
20 properly ascertain whether this letter was actually
21 mailed, made or received by plaintiff to effectuate the
22 rescission.
23 The defendant’s failure to provide
24 substantive support for his assertions notwithstanding,
25 the defendant asserts that the rescission of the loan
1 would simply discharged the note and mortgage. While
2 this would be true, to rescind the note — the loan,
3 the defendant would need to return the loan proceeds to
4 plaintiff which amount to over $180,000.
5 The Supreme Court has stated in U.S. Bank v.
6 Guillame, 200 — 209, pardon me — 209 N.J. 449, 481-
7 482 (2012) that, “TILA sets forth a procedure for
8 homeowners to tender the property that he or she has
9 received from the lender, citing to the U.S. Code,
10 citation omitted.
11 “Although the statutory language calls for
12 rescission by the lender prior to homeowner’s tender of
13 the balance of the loan, federal courts have held that
14 TILA need not be interpreted literally as always
15 requiring the creditor to remove its security interest
16 prior to the borrower’s tender of the proceeds.” And
17 that’s Yamamoto Bank of New York vs. Bank of New York,
18 329 F.3d 1167, 1171 (9th Circ. 2003)
19 “Courts adjudicating TILA claims have
20 discretion to deny recision if the homeowner cannot
21 tender the property that he or she has received from
22 the lender.” See American Mortgage Network, Inc. v.
23 Shelton, 46 F.3d 815, 821 (4th Circ. 2007) holding that
24 once the trial judge in his case determined that the
25 Shelton’s were unable to tender the loan proceeds, the
1 remedy of unconditional rescission was inappropriate.
2 Also, Yamamoto, Super 328 F.3d 1172, footnote
3 5, noting: “Authority holding that rescission may be
4 conditioned on borrower’s repayment of the loan
5 proceeds.”
6 And Williams v. Homestake Mortgage Company,
7 968 F.2d, 1137, 1142, (11th Cir. 1992), stating: “In
8 the context of rescission under TILA, the courts should
9 consider traditional equitable notions including
10 whether the borrower has the ability to repay the
11 principal amount.
12 Federal Deposit Insurance Company v. Hughes
13 Development Company, 938 F.2d 889, 890 (8th Cir. 1991)
14 stating that: “TILA gives Courts discretion to
15 condition rescission upon the debtor’s prior return of
16 the principal.”
17 Brown v. National Permanent Fed Savings
18 Association, 683 F.2d, 444, 447, 221 U.S. App. D.C.
19 125, 125 (D.C. Cir. 1982) holding that: “A court may
20 condition the granting of rescission upon plaintiff’s
21 repayment of the principal amount of the loan to the
22 creditor.” Internal quotations and citations omitted.
23 See also Rudisell v. Fifth Third Bank, 622
24 F.2d 243, 254 (6th Cir. 1980) holding that: “Since
25 rescission is an equitable remedy, the court may
1 condition the return of money to the debtor upon the
2 return of the property to the creditor.”
3 See also Powers v. Sims and Levin, 542 F.2d
4 1216, 1221 (4th Cir. 1976) holding as follows: “That
5 surely, the Congress did not intend to require a lender
6 to relinquish its security interest when it is now
7 known that the borrower did not intend and were not
8 prepared to tender restitution of the funds expended by
9 the lender and discharging the prior obligations of the
10 borrowers.” And that’s the case at 1221.
11 Additionally, defendant does not adequately
12 address the other claims and defenses which were
13 dismissed pursuant to the order of September 19th,
14 2014. Therefore, for the reasons stated, defendant’s
15 motion for reconsideration September 19th, 2014 order
16 is denied. I’ll note that the purported notice of
17 rescission did not include any reference to the monies
18 being returned or any indication that they had the
19 monies to return. I find that it is insufficient.
20 Defendant’s motion to reconsider the order
21 denying the defendant’s motion to dismiss under the
22 statute of frauds, in addition. Defendant seeks
23 reconsideration of the February 20th, 2015, order which
24 denied the defendant’s motion to dismiss the complaint
25 under the statute of frauds. In this motion for
1 consideration, the defendant is again subject to New
2 Jersey Court Rules 4:49-2 and 4:50.1. The motion was
3 filed on March 20th, 2015, and was within the requisite
4 time frame for a motion to be filed for reconsideration
5 under 4:49-2. However, the defendant has not attached,
6 as indicated to seek reconsideration, the order for
7 which they seek reconsideration. It’s stated within
8 the specificity the basis for the motion is made.
9 The defendant has not supplemented the
10 argument to provide a basis for which relief can be
11 granted under the rule. In the prior motion, defendant
12 argued that the six-year statute of limitations under
13 N.J.S.A. 2A:50-56.1a began at the time the loan was
14 accelerated in 2007. The defendant relies on
15 Washington v. Specialized Loan Servicing, L.L.C., a
16 2014 bankruptcy case Lexus 4649 which is a non17
published opinion by the United States Bankruptcy Court
18 for the District of New Jersey. There, the court ruled
19 the maturity date for the purpose of the statute of
20 limitations is the acceleration date.
21 This Court noted at the time that the
22 Bankruptcy Court’s decision was not binding for two
23 reasons: first, the case is unpublished; and, second,
24 the New Jersey Superior Court Chancery Division is not
25 bound by decisions made by the Bankruptcy Court in that
1 regard. Thereafter, the Court ruled that the
2 Washington decision was not persuasive in making its
3 decision. The maturity date as set forth in the
4 original note and this date does not change regardless
5 of acceleration rights held by the plaintiff.
6 And the Court cited to, and I’m citing to
7 generally, Garruto v. Cannici, 211 N.J. Super
8 unpublished Lexus 1436 (App. Div.) The Court applied
9 the plain language of the statute which stated that:
10 “An action in foreclosure residential mortgage shall
11 not be commence six years from the date fixed in the
12 making of the last payment or the maturity date set
13 forth on the mortgage.” N.J.S.A. 2A:50-56.1a.
14 The Court ruled, therefore, that the
15 plaintiff may bring the action within six years of the
16 maturity date of the loan. Here, the maturity date in
17 the note is November 1st, 2034. And the statute of
18 limitations, therefore, extend six years following that
19 date to November 1st, 2040. Furthermore, the Court
20 denied this motion on the alternative grounds that the
21 motion to dismiss had not been properly brought before
22 the Court.
23 Plaintiff correctly asserts that the statute
24 of frauds and affirmative defenses had been dismissed
25 with prejudice by order of the Court on September 19th,
1 2014. The defendant could not, thereafter, bring that
2 defense by way of motion to dismiss. In conclusion,
3 the defendant has not provided adequate grounds for the
4 Court to reconsider the order entered on February 20th,
5 2015, and the motion is denied.
6 Defendant also makes a motion to dismiss the
7 complaint due to defendant’s 2007 rescission letter.
8 This motion dismissed as being brought now upon the
9 same facts and basis as the TILA claim which was
10 dismissed with prejudice on September 19th, 2014. The
11 defendant cannot at this time make a motion to dismiss
12 the complaint on the basis of a counterclaim that has
13 previously been dismissed in an attempt to subvert the
14 court rules or procedure.
15 Even considering a motion to dismiss, the
16 defendants fail to satisfy the standard for dismissal.
17 Under Rule 4:6-2e: “A claim can be dismissed for
18 failure to state a claim upon which relief can be
19 granted if the complaint states no basis for relief and
20 the discovery would not provide one. Dismissal of the
21 complaint is appropriate.”
22 See Camden County Energy Recovery
23 Association, LP v. New Jersey Department of Environment
24 Protection, 320 N.J. Super 59, 64 (App. Div. 1999)
25 Aff’d. 170 N.J. 246 (2001). “However, reasonable
1 inferences are to be accorded to the non-moving party”
2 — I’ll omit the internal citations otherwise noting
3 Printing Mart Morristown v. Sharp Electronic
4 Corporation.
5 “In determining a motion to dismiss under
6 this rule, the Court may only consider whether the
7 complaint states a cognizable cause of action,” Reider
8 v. State Department of Transportation, 221 N.J. Super
9 547, 552 (App. Div. 1987).
10 “Dismissal is mandated where the factual
11 allegations are palpably insufficient to support the
12 claim.” And that’s Reider, 552.
13 While defendant may wish to have the
14 complaint dismissed, they have not pled a basis — may
15 wish not to have it — they have not pled — made a
16 sufficient basis to deny the dismissal.
17 Furthermore, the Court has dealt with the
18 decision issue at length already, disposing of such
19 argument despite the defendant’s improper procedure,
20 and, therefore, the motion is denied.
21 Defendant’s motion to compel discovery. The
22 defendant has made a motion to compel discovery. New
23 Jersey Court Rules 1:6-2c states that, “Every motion in
24 a civil case in Chancery Family Part not governed by
25 Paragraph (b) involving any aspect of pretrial
1 discovery or the calender shall be listed for
2 disposition only if accompanied by a certification
3 stating that the attorney for the moving party has
4 complied with certain requirements and is personally
5 conferred by the attorney for opposing counsel.”
6 The defendant certified his motion that they
7 have advised the attorney for the opposing counsel or
8 the party if appearing pro se by letter that if I will
9 make this motion, otherwise, if you don’t comply with
10 my discovery request. However, defendant does not show
11 the letter to support the certification. The plaintiff
12 further argues that not only has the defendant not sent
13 a letter in advance of the motion, but they did not
14 know that the defendant had an outstanding discovery
15 issue because they were not notified of such until the
16 cross-motion was filed.
17 The defendant has also failed to specify
18 exactly what discovery they are seeking to be
19 compelled. The defendant in their brief states, “We
20 have not yet received the full discovery that we should
21 have due to the plaintiffs objecting to most, if not
22 all, of our interrogatory questions and requests for
23 documents.”
24 The Court cannot understand this or what
25 deficiencies the plaintiff has committed in producing
1 discovery. Furthermore, plaintiff argues that they are
2 not required to produce discovery on the claims and
3 defenses that have already been dismissed with
4 prejudice six months ago.
5 The defendant has not properly brought the
6 motion to compel discovery. This Court finds, as their
7 certification is deficient and the defendant has not
8 identified to the Court what discovery is deficient.
9 Moreover, given the proofs in possession of plaintiff,
10 it is unclear what the discovery would produce given
11 the plaintiff is in possession of the note. And the
12 other important prima facie aspects of the case have
13 been proven through the certification which I’ve
14 accepted.
15 Plaintiff’s motion for summary judgment. The
16 plaintiff seeks summary judgment on the remaining
17 defenses raised by defendant. Their answer, the
18 defendant has opposed this motion. Pursuant to New
19 Jersey Court Rule: “Summary judgment may be granted if
20 there is no genuine issue as to any material fact
21 challenged, and that the moving party is entitled to a
22 judgment or order as a matter of law.” And that’s Rule
23 4:46-2.
24 Also, Brill v. Guardian Life Insurance. I’ll
25 omit the citation.
1 “New Jersey Supreme Court has put forth the
2 standard for determining whether or not summary
3 judgment should be granted stating that: “The judge
4 must consider the elements of the non-moving party’s
5 substantive case and decide whether the competent
6 evidence, evidential materials presented when viewed in
7 the light most favorable to the non-moving party are
8 sufficient to permit a rational fact-finder to resolve
9 the alleged disputes issued in favor of the non-moving
10 party.” And that’s Brill at page 540.
11 “In an action for foreclosure, the only
12 material issues are the validity of the mortgage, the
13 amount of the indebtedness and the right for the
14 mortgage to restore the mortgage premises.” And that’s
15 Great Falls v. Pardo. I’ll omit the citation.
16 “The prima facie right to foreclose is made
17 upon proof of execution, recording and non-payment of
18 the note and mortgage.” That’s Stork v. Floormore
19 Corporation. (phonetic) Again, omitting the citation.
20 Under Rule 4:64-1c(2): “An answer to a
21 foreclosure complaint is deemed to be non-contesting if
22 none of the pleadings responsive to the complaint
23 either contest the validity or priority of the mortgage
24 or lien being foreclosed or create an issue with
25 respect to the plaintiff’s right to foreclose on it,”
1 as stated otherwise in Old Republic.
2 “If the defendant’s answer fails to challenge
3 the essential elements of the foreclosure action, the
4 plaintiff is entitled to strike the defendant’s answer
5 as non-contesting. Where the answer in defense failed
6 to challenge the essential elements of the mortgagor’s
7 right to foreclose and fail to impose a validly
8 cognizable defense, the mortgagee is entitled to final
9 judgment of foreclosure.” See Met Life v. Washington
10 Adam Associates, 159 N.J. 484 (Sup. Ct. 1999)
11 Pursuant to the Rules of Court, affirmative
12 defenses must be pled with specificity. Rule 4:5-4
13 requires a specific statement of facts for each
14 separately-pled affirmative defense. In the context of
15 a foreclosure action, the party seeking to foreclose a
16 mortgage must own or control the underlying debt.”
17 That’s Bank of New York v. Rationis. I’ll omit the
18 citation.
19 “Plaintiff must have either physical
20 possession of the note or an assignment of the mortgage
21 that predated the original complaint to have standing.”
22 That’s Deutsche Bank v. Angeles. Omitting the
23 citation.
24 The plaintiff has brought this motion to
25 strike the following defenses as numbered in the
1 answer: (1) the complaint failed to state a claim; (4)
2 damages caused by others, not the defendants; (5) no
3 contract ever existed; (6) any wrong was the result of
4 plaintiff’s own conduct; (7) estoppel; (12) failure to
5 attach the required documents; (16) violation of Fair
6 Foreclosure Act; and (19) failure to attach required
7 documents; (24) failure to attach required documents;
8 (27) notice — notices were not sent by authorized
9 person; and (28) standing.
10 Plaintiff argues that they have shown a prima
11 facie right to foreclose upon the property. Plaintiff
12 has shown their prima facie right to foreclose as the
13 loan documents were executed, the mortgage was recorded
14 and there was a default on the loan. Therefore, the
15 defendant’s defense stating that the complaint does not
16 state a cause of action must be struck. The plaintiff
17 also asserts that they have standing — asserts that
18 they have standing to foreclose. They contend that
19 they were in possession of the note prior to the
20 foreclosure complaint. They were assigned the mortgage
21 from MERS as nominee of Commerce Bank on October 8th,
22 2007, which assignment was recorded on October 10th,
23 2008 — pardon me — in 2007. This is included in the
24 plaintiff’s certification.
25 “To have standing to bring a foreclosure
1 action, the plaintiff must show that they were either
2 in possession of the note or assigned the mortgage
3 prior to the filing of foreclosure complaint.” See
4 Deutsche Bank v. Angeles.
5 The plaintiff has shown that the assignment
6 was made and recorded prior to the foreclosure
7 complaint. Defendant argues that the legal title never
8 transferred from MERS to Wells Fargo by stating that
9 the date of fabrication recording are different. And
10 this is, “The date of fabrication recording are
11 deficient. Together with discrepancies of the note
12 fabrication, no dates of when the note was sold,
13 stamped, transferred, et cetera.” See defendant’s
14 brief.
15 The defendant also questions the validity of
16 the note and also its chain of title. The defendant’s
17 argument is difficult to follow by this Court and
18 dissect. However, the Court, after reading the briefs
19 of defendant, does not find that there is any apparent
20 fraud or issues or even evidence of any apparent fraud
21 or issues with regard to the plaintiff’s standing.
22 The defendant also discredits the plaintiff’s
23 certification in support of their motion for summary
24 motion. Defendant argues that the plaintiff does not
25 have the person who created the records making the
1 certification of — accuracy of such to the Court.
2 However, the business records exception to the hearsay
3 rule applies. The plaintiff submitted a certification
4 made by Elisa Depp (phonetic) who is the vice president
5 of loan documentation for plaintiff Wells Fargo. A
6 certification can be made based on the business records
7 hearsay exception to the records which are pursuant to
8 regular business practice records was made at or near
9 the time of the event being recorded and the
10 circumstances and methods of preparing the records
11 justify its admission into evidence. It was made by
12 somebody with actual knowledge of the event at the time
13 of its entry. That’s also Rule 1:6-6 Business Record
14 and 803c(6).
15 Ms. Depp has certified that she is familiar
16 with the type of records maintained by the plaintiff
17 and also the procedures in which producing and
18 maintaining these records within Wells Fargo. Ms. Depp
19 has certified that the records are made at or near the
20 time of the occurrence of the matter by persons with
21 personal knowledge of the information recorded. Ms.
22 Depp has certified that she has personally reviewed the
23 subject documents and the certification including the
24 note, mortgage and assignment. Therefore, the
25 certification submitted by the plaintiff is admissible.
1 The plaintiff also states that the original
2 note and mortgage are being held at their counsel’s
3 office, Reed Smith, in Princeton in New Jersey. The
4 plaintiff contends that the defendants have been given
5 an opportunity to come and inspect the documents, but
6 the defendants have chosen not to avail themselves of
7 this opportunity.
8 The Court finds that because of the reasons
9 stated in defendant’s defense brief and based on the
10 standing, the answers — that the answers in the
11 defendant’s answer must be stricken and affirmative
12 defenses.
13 Plaintiff argues that there has been no
14 violation of the Fair Foreclosure Act. The plaintiff
15 certifies that the notice of intent to foreclose was
16 sent out on April 1st, 2014, more than 30 days prior to
17 the filing of the foreclosure complaint on May 9th,
18 2014.
19 The defendant, in their opposition, does not
20 address this defense. The Court is, therefore,
21 satisfied that plaintiff has complied with the notice
22 requirements set forth in the F.F.A., and as such, the
23 defense is stricken.
24 The plaintiffs argue also that defendant has
25 not supported his defenses; that is number (4) damages
1 are the fault of the third party; (6) plaintiff caused
2 its own damages with any basis of fact. The defendants
3 have failed to oppose the plaintiff on these counts in
4 the summary judgment motion. The Court finds that both
5 of these defenses should be struck from the answer.
6 The plaintiff argues similarly that defendant has not
7 opposed their motion for summary judgment as to
8 defenses on (7) estoppel and (12), (24) and (27)
9 failure to attach documents.
10 The plaintiff argues that the doctrine of
11 estoppel is to be used very infrequently and only when
12 circumstances demand its use to bring equity to the
13 parties. Defendant has made no showing of its use
14 here. Further, the plaintiff argues that they have
15 attached all the required documents. The defendant has
16 not made a specific objection to this outside of their
17 abstract discovery demand which has already been
18 discussed at length in this opinion. Therefore, the
19 defense (7) of estoppel, (12), (24) and (27) for
20 failure to attach documents are hereby stricken.
21 One remaining defense made by the defendant
22 is number (5) that is: no contract ever existed. This
23 defendant likely mad
correction
you could send your money to the bank they would put it as a prepayment on your loan; they would take it as settlement.
and you are trying to prevent that.
Dulpeck,
Thanks for adding more info, but I also want to add to your comment, it appears Maryland still has contracts under seal, and as just the wordseal is not enough to make it a seal contract, an actual seal whether raised like county clerk or diploma or ink stamp like a notary seal, some contracts still have a longer statute of limitations and it would behoove people to check their codes to see if they have the longer statute of limitations.
I think that’s why the guy mentioned it, to get folks to pay attention and not just let it go by without doing the rescission under TILA.
Also, my comprehension was if the loan is not consummated, and Neil mentioned what would consummate the loan, one item keeping the loan from being consummated if the real lender is unknown, and that seems like MERS in Deed of Trust and Morrtgages, in my opinion, so to continuewithout a known lender there is no statute of limitations on the rescission because the loan is not yet consummated.
I’m just stating in opinion no legal advice that the three year statute of limitations is not firm, the mortgage or deed of trust may be a contract by seal giving it longer statute of limitations than regular contracts three year statute of limitation in the state, AND the mortgage and deed of trust may not be consummated, MERS?, giving more people the right, right, right to rescind at any time, and the cause the lender 20 days to file suit.
I like the 20 days, when they stole my home they only gave me 21 days to save my right to property and I don’t know legal things. Since they have unlimited creation of money, they have access to legal things they can put their stuff together to prove their claim, something they won’t do when they are stealing.
And another comment about the tender.
The people discussing TILA said there would have to be proven there was a loan and not an extension of credit. If there was an extension of credit there was no exchange.other than good faith.
Lawyers want to say, its the checks you walk away from the table with, you’d have to return when you rescind, but that’s not the case.
Further discussion about the bank returning the money.
The reason the legislature put that in TILA
you could send your money to the bank they would put it as a prepayment on your loan; they wouldn’t take it as settlement. So to stop them from doing that, the courts said the banks, first, has to return the money, and the banks, owe the money that you paid to date, and the banks, first, have to clear your mortgage, before you have to tender; not the money you got; but the present value of what you received. If it were a house, it would be the present value of the house.
Trespass Unwanted, Creator, Corporeal, Life, Free, State, Independent, In Jure Proprio, Jure Divino
dwightnj,
look up the following , its from the SOUTH JERSEY LEGAL SERVICES,INC, CONSUMER UNIT.
RE; BANK OF N.Y. as trustee for certicate holders CWABS, Inc. Asset-based certificates , series 2005-abs V. UKPE, DOCKET NO F-10209-08 APRIL 20, 2009 PLENARY HEARING.
I WOULD BE GOING DOWN THERE.
745 market street, camden, new jersey, 08102
856 964-2010
Trespass Unwanted,
I’m not a lawyer and i don’t play one on the internet either.I would however like to remind you of the supremacy clause in the US constitution which gives precedence to federal laws over state laws. The truth in lending act is a federal act and rescission of a loan rendered all instruments of the said loan void. The Supreme Court has spoken on this matter three months ago and it’s time for those who’ve ridiculed Neil for advocating this remedy seven years to agree they were wrong. Also, regarding statute of limitations in Maryland, its three years on written contracts. The Maryland court of Appeals in Rouse-teachers properties inc vs Maryland casualty ruled that seal documents must have more than the word seal next to a signature for it to be considered a seal document.
I know no legal things, but came across this information please research for truth in this matter.
Regarding TILA rescission statute of limitations be careful,
Some of these mortgages and deeds of trust are considered to be contracts under seal, and the statute of limitations for some of them is 22 years, Pennsylvania has a 22 year statute of limitation for contracts under seal,, Maryland has 12 year statute of limitations for contracts under seal.
HOWEVER, the one giving the info mentioned a local legislation that has changed in a state,
As of July 1, 2014 contracts under seal as it pertains to mortgages where the property is owner occupied the statute of limitations is three years, but I don’t know what state was being referred to for that new legislation, it may be Penn.that has that new legislation.
My opinion is as much as we may have known the rules when something happened to our property, years have passed and legislation has been changing to re(view)verify whether you still have the same tools, remedy available and nothing you rely on for your court cases or have studied for future litigation has changed, been added, been repealed.
……………………… info on FDCPA ………………………………
On a side note, I heard an audio that if if a business in the regular course of doing business collects money for someone else they are a debt collector under FDCPA, and the example used was the HOA, where sending out annual assessments for their dues but part of that money collected was to pay their attorney fees for filing liens, which put them in the business of collecting money for another, ie, making the HOA a debt collector.
Of course research this, but may be able to see if a bank tacks on fees, like attorney’s fees to swallow up potential equity, it accelerates the notes, and by federal law the bank has to provide monthly statements, and if those statements contain bill for payment and late fees, all of that is in violation of FDCPA.
Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino
trial de novo, a new trial as if the first one never happened?
I don’t give legal advice because I don’t know legal things.
Anyone with Ocwen….
OCWEN ABC v DEF…U.S. ex rel Mr. and Mrs. Schiano v. Wells Fargo & Co. et al | Case Filings and Related Case | Commentary | Wells and OCWEN accusations: Defraud FreddieMac and their Insurers and Stole $$’s and property from Homeowners … ONGOING
I personlly rescinded because i was told ********* was ” the investor and owner of my loan” i researched and they were master servicer to a trust my loan was * unqualifued to be in,
Foreclosure time no where did it say ******* had a pecuniary interest and nowhere assigned or recorded at any time i was also told i could not rescind and it was well past 20 days,
Next point – who releases me from the debt who will put their name on the 1099c. I await, and wait,
Right DB
Like my 1099a
facts , like the wire transfer fund receipt from closing attorney bank accounts, I HAVE IT.
like, my copy of the mortgage note, sign dated, as of closing date, to the bank that did the wire transfer. to closing attorney.
these are fact. let a judge try to say different.,
so anything that this pretender lender, i.e. gmac mortgage corp, did after 8 nov, 2005. as they did sign it over to real lender same day as closing. to them without recourse.
and at the regidtry of deeds, as of 14 nov, 2005. the mortgage and note was to gmac mortgage corp. no so.
this is why i rescinded the whole deal, found this out late 2013, and 2014. well within the 3 yr time frame.
And i mean facts not speculation
What im saying is may be worth a shot
Because had you been in possession of certain facts at the time ( within thst 3 day – 3 yr period you would have exercised your right and so perhaps tolling never commenced
Just my understsnding not an attorney
Argue it UkG
No consummation,
See what they come up with. You know what to do.
Yes, guys, I get it. The lender wasn’t the “lender”. I have the same issue. But the judges don’t and won’t wee it that way.
Just for shits and giggle, I’ll send in my recission letter Monday and let everyone know how it works out……
AmAn
Thus far they have managed to argue their way out of a tupperwear safety lid box of frongs.
We made a contract that was based on Fibs. The so called Lender was really a Broker with an undisclosed lender.
We dont have to get into that because they probably wont answer with in the 20 calendar days.
To make a long story short.
The above is only my opinion.
NEVER AGAIN
So then :
http://definitions.uslegal.com/f/fraud-in-factum-fraud-in-making/
If the loan is not consummated, you can rescind, however many years later. The truth is supposed to be that there is no full disclosure, and also that there are defects in the documents.
Not consummated includes, if the real lender is not known.
I posted that from one of Neil’s posts about rescission.
Was listening to someone discuss Rule 12B6 Federal Rules of Civil Procedure Rule 8
Some notes I took in case it helps someone when they have a pleading in federal court,
I think the judge gave reasons for the 12B6 ruling in this case and that’s why the host referenced it to learn what to do and what not to do to avoid a 12B6 ruling.
Not sure if I spelled the Plaintiff name right. — seems a life story or too much detail will cause it to bounce back on that rule.
Hugh S Wells vs BAC Home loans W-10-CA-00350 United States District for the Western District of Texas Waco Division 2011
(Note – Pleader did not provide a (among other things):
short and plain statement of a claim showing that the pleader is entitled to relief
The claim would be a cause of action –
A cause of action has elements,and you have to claim each element.
Must state sufficient facts, if true, state claim of relief plausible on face
(Note: no details, no life story, no exaggeration, no opinion of your own, just those of prior court cases, Further Note: on elements of a cause of action, you can’t just explain what a cause of action is, you got to claim it.)
More info I think from the same court case:
Facial plausibility requires the plaintiff to allege the supporting recovery under a viable legal theory although heightened fact pleading of specifics is not required
The plaintiff must include enough facts to provide fair notice of the nature of his claim and the grounds on which they rest,
unsubtantiated accusations, conclusory assertion, or the formulary recitations of the elements of a cause of action will not do.
…………..
…………
Regardless of how well pleaded they may well be, the factual allegation must show an entitlement to relief under a valid legal theory, complaints based on an outlandish legal theory, or on a close but ultimately unavailing one should be dismissed.
When examining the complaint the court engages in a two part inquiry
1. it distinguishes between factual allegation and legal conclusions because the latter is not entitled to the presumption of truth
2. the court determines whether the alleged facts plausibly give rise to an entitlement to relief, it will assume that the facts are true, construe in the light most favorable to the plaintiff, and draw all reasonable inferences in his favor. Those facts must allow the court using it’s own experience and common sense to draw the reasonable inference that the defendant is liable for misconduct alleged.
Seems people fail on the short and plain statement of a claim.
Then only list the cause of action but do not go into the elements </b.
Trespass Unwanted, Creator, Corporeal, Life, Free, People, State, In Jure Proprio, Jure Divino
Neil mentions that less is more regarding how you rescind
But my question that fundamentally is it a reliance / right to rely on TILA like RESPA. Being established standards ??
Any thoughts ?
UKG,
YOU stated how can anyone say they can rescind after 5,6,8,10 yr.
well this is how i see it.
first when tila was made into law, no bank could do what they have been doing for the last 10 yrs or so! securitization of real property!
so there is a ARGUMENT to be made, on the basis of WHO was the borrower really consummating a CONTRACT with !!!!!!
because even if its states on mortgage contract, as lender, as being
gmac mortgage corp, they gmac mortgage corp never lent one penny to the loan contract. and i have proof of that, and all originator of these
securitized mortgage trust, did before the borrower sign a mortgage/ and note, assigned it to a securitized mortgage trust, by way of commitment letter, to warehouse lender, and i have proof of that, as in the WIRE TRANSFER FUND, that i have showing this is true, as the warehouse lender was given a SECURITY INTEREST IN THE MORTGAGE AND NOTE ( YOUR MORTGAGE AND NOTE ) PRIOR TO YOU SIGNING THE MORTGAGE AND NOTE.
AND , i have proof of all that , as i have my mortgage note, assign without recourse to warehouse lender from gmac mortgage corporation as of the day of closing. AND ITS NOT A STAMP, IT IS SIGN AND DATED, WITH REAL SIGNATURE.
so this is why i believe everyone can and will get a court to say RESCISSION IS APPROPRIATE. BUT ONE MUST BE ABLE TO GO TO COURT AND PROVE UP ALL WHAT I SAY.
THIS IS WHY AM ON COURSE TO FILE, NOW THAT THEY DID NOT RESPOND IN THE 20 DAYS OF MY RESCISSION, FOR A COURT TO
GET THEM TO PAY ME, AS I DONT HAVE TO PROVE ANYTHING, AS TO 2YRS,5YRS,10YRS.
The banks would of HAD TO FILE suit to DISAGREE WITH THE RESCISSION, AS THEY DID NOT DISAGREE, MEANING THEY DID NOT FILE SUIT IN THE 20 DAYS REQUIRED BY LAW.
THEY ARE SAYING , THEY AGREE WITH MY RESCISSION.
UKG,
I don’t huff and puff. Out of 58 people, 6… no, 7 (if the last one actually does what she said he will do) will be out of that defensive mode and flying with a solid attorney.
Takes a lot out of me. I’m actually tired of talking to people, holding their hands, coaching them into preparing their documents and making timelines, reviewing them, correcting them, finding and calling attorneys nationwide and being there when they have buyer remorse, just as soon as they are asked the hard questions.
6 out of 58 getting what they want is better than average (whether it be a permanent mod or their day in court). I’ll know tomorrow if it’s 7 out of 58. It’s still weary. Many hours holding hands. They trust me because they want to win, they have nobody else to help them and I’m there.
Nah, UKG. No Huffing and puffing. I just wish that site yielded more winners so the load could be more evenly shared. Because I already have a full time job.
UKG,
People are all three but they are not the same people you asked moderator to block. Notice the names have changed. The issues and the desperation have not. There is an unlimited supply of desperate homeowners flocking here for help and grasping at every straw thrown in their direction by non winners who won’t fess up to their poor choice of an attorney, their reasons to go pro se or their poor results for doing so.
And there is an unlimited supply of people with a few bucks left, willing to spend them on everything but a decent attorney they are being referred to by winners and ready to jump on any bad advice they get here, including some worthless audit no judge will look at.
Take care of you own case. Win it. Then, you can come back and try to help someone else by teaching what works. You’ll become the enemy.
Such is humanity.
Hi Christine. Best to you, too. We have spoken on the phone before, and there of course is no animosity between us. I know all about Slorp (and so did the judges in the 7th Circuit). This really isn’t rocket science. But in Wisconsin and the 7th Circuit in particular there is a real disconnect between the law as we know and the law as applied.
Counsel and I had some issues getting extensions, but the target on her and me came from our positions taken against the attorneys. I believe that when these people sit around together (judges and foreclosure-mill attorneys from the largest law firm I ever saw surrounded by bullet-proof glass and concrete) and enjoy their little ex-parte soiares disguised as legal education, there is no way the judge is going to consider criminal action against the criminals buying her drinks afterward..
The only reason they’ve targeted me and my lawyer is because we read their book! I have them at every turn with the forged affidavits, the assignments, the notes, even the billing records showing the bank counsel took this to the level they did because we’ve been hitting them on all the right issues.
You can huff and puff about how right you are (or were) but it doesn’t make everyone else stupid or wrong. I think you’re a little over the top with your statements, but I really couldn.t give two shits about it either way. It used to be that bloggers here had some comradery and respect for each other. Now you just talk like an asshole.
wow, just read through this thread. people are really confused, angry, stupid, or all three. where’s the moderation from the moderator aka editor? I asked that many years ago when the flood of shit started to appear here. you can’t rescind a loan that was purchase money, over three years, or a modification. I think it was Carlsen in Wisconsin and Chase was the servicer for a loan originated by someone else, and the recission was against the originator. they did win the recission, and it was lost in appeals. I;m working from memory here, but I will find that case in my pile.
You can, however, continue with your crack=pipe dreams of rescinding 4,5, 6 and 7 year-old loans.
and frankly, I don’t know what the answer is to the riddle.
It’s truly a ridiculous situation.
UKG,
You know I personally like and respect you (especially because you, alone, fessed up to having lost even though no one named you personally. It took enormous moral courage to come forward. Very short supply on LL.)
You are posting your case about racketeering and you know what the outcome was: the target your attorney aimed at was the wrong target and for the wrong reasons. Besides, Nora raised the wrong arguments. Study a successful one:
http://www.ca6.uscourts.gov/opinions.pdf/14a0745n-06.pdf
Racketeering Lawsuit over Robo-Signing Can Proceed
Sep 30, 2014 | Posted by aaron | Uncategorized | 0 comments
Yesterday, a federal appeals court ruled that a RICO lawsuit against Bank of America, its law firm, a law firm employee, and MERS could proceed.
The United States Court of Appeals for the Sixth Circuit ruled that a Racketeer Influenced and Corrupt Organizations Act (“RICO”) lawsuit could proceed against Bank of America, NA (“BANA”), Mortgage Electronic Registration Systems, Inc. (“MERS”), the law firm of Lerner Sampson and Rothfuss, and one of the law firm’s paralegals, for illegal robo-signing in an earlier state court foreclosure action.
The homeowner sued the four entities alleging that the law firm submitted a robo-signed mortgage assignment in an earlier foreclosure knowing that document was fraudulent. The lawsuit alleges that the law firm acted for BANA when it used that mortgage assignment to establish BANA’s ability to foreclose on the homeowner’s home, despite knowing the document was false. The lawsuit included multiple examples of this particular paralegal signing mortgage assignments on behalf of defunct companies, in what has become known as “robo-signing.”
During the foreclosure case, judgment had been taken against the homeowner without him realizing the problematic documents. Only after the homeowner retained Doucet & Associates Co., L.P.A., who brought the robo-signing to the court’s attention, did BANA and LSR vacate the judgment and dismiss the foreclosure. Bank of America dismissed on the eve of the paralegal, Shellie Hill, having to appear and give testimony under oath about the mortgage assignment.
After the foreclosure lawsuit was dismissed, the homeowner filed a federal lawsuit alleging several causes of action against all four parties. The district court judge initially dismissed the lawsuit, but today’s landmark decision by the federal court of appeals reinstated the most serious of the allegations. The lawsuit against BANA, MERS, LSR, and Ms. Hill will now continue under the federal racketeering statute, the Racketeer Influenced and Corrupt Organizations Act, a law initially designed to prosecute mob activity.
The case is Slorp v. Lerner, Sampson, and Rothfuss; Bank of America NA, Shellie Hill, and Mortgage Electronic Registration Systems Inc,
Shadowcat,
Please don’t encourage them into discussing cases way over their heads.
The Schiano whistleblower case goes into something so beyond a simple foreclosure, most people on that site don’t even have a grasp.
How do I know? Look at the caliber and the area of expertise of the 3 law firms handling it. Garson Segal Steinmetz Fladgate LLP, Mahany & Ertl and Joseph C. Bird.
You know that I know what I’m talking about and you know how close to that case I have been for several years. None of those law firms handles foreclosure. What they handle is international banking and tax fraud. Nothing bloggers here can use to save their house or their life.
It’s beyond Bill Black level and we already know how effective his three testimonies before Congress were. Actually, Schiano is a criminal case based on the 8/20/14 FCA rules, aka Farm Credit Administration. How does that relate to Joe-six-pack about to lose his house? It doesn’t.
Most people here can’t even find ONE lousy attorney to represent them in a simple foreclosure they shouldn’t be defending in the first place if they studied what works and why attacking first is so important.
They have no business wasting time on Schiano. But… they are absolutely free to discuss it ad nauseam. Won’t help them one bit with saving their house. Yet… I bet Garfield can make an editorial out of it and peddle some mortgage audit on its account. He’s done it before. Garfield is a savvy businessman. He knows where money is and he can squeeze the lemon.
from rogerrinaldi.wordpress.you know the rest
April 4, 2015
EASTERN DISTRICT OF WISCONSIN: STRAIGHT FROM THE HORSES’ MOUTH (Susan Kelley)
Somebody once said something to me about how bad pleadings can result in bad law being rendered. But nobody said anything about clear, concise claims of racketeering, fraud on the court, document fraud, bankruptcy fraud, and failure to follow the PSA would result in a judge taking it upon herself to pull rulings our of her arse in her extrajurisdictional rant to protect the foreclosure-mill attorneys she sits and hob-nobs with on the Bankruptcy CLE panels. This posting should not be construed as a personal or ad-hominem attack on the judge, the appellate judge, the Department of Justice, or the law firms used by Wells Fargo. It should, however, illustrate the lengths that these parties will go to silence and intimidate debtors and their attorneys who bring these acts of fraud to the attention of the court. If we didn’t do that, it would be misprision of a felony. At the outset of the case the judge declared that the claims made were, and I quote, “voluminous and serious”. At that point, the decision was made to violate mine and my spouses’ constitutional right to an evidentiary hearing and make sure that THERE WOULD BE NO JUDGMENT ON THE MERITS. What was deemed to be important is that the bank attorneys would not be held responsible for any of their fraudulent filings.
And back to that bad law thing. In the following quotes that are already being used throughout the 7th Circuit verbatim (just like the phrases used by judges that travel between county courts in a matter of hours) I will try to illustrate the absurdity of what these judges read into pleadings that were actually VERY CLEAR.
In re Rinaldi, 487 BR 516 – Bankr. Court, ED Wisconsin 2013
ReadHow citedSearch
How this document has been cited
—finding that Debtor lacked standing to challenge mortgage assignment because borrower was not party to or third-party beneficiary of pooling and servicing agreement
– in In re Schmid, 2013 and 2 similar citations
Contrast that with the 9th Circuit (Glaski) and the fact that the PSA was cited as evidence of the transfer and ownership of the note and mortgage. The foreclosure was obtained with a note lacking an indorsement of any kind, and still payable to Wells Fargo, although the foreclosure was brought in the name of HSBC BANK, U.S.A., N.A. AS TRUSTEE. The other interesting thing is that this judge had NOT ONE, NOT TWO, BUT THREE ASSIGNMENTS OF MORTGAGE IN FRONT OF HER. Assignment #1 was recorded FOURTEEN MONTHS AFTER THE FILING OF THE FORECLOSURE ACTION (oops, that one’s no good), Assignment #2 showed up for the first time ever in the Proof of Claim #6 alleging to be from 2005, and Assignment #3 was recorded AFTER THE BANKRUPTCY WAS FILED.
Citing recent decisions from the US District Court for the Eastern District of Wisconsin and the Wisconsin Court of Appeals, Bou-Matic contends that Tilstra’s claim for intentional interference with contract is barred by the statute of limitations for intentional torts, Wis. Stat. § 893.57.
– in Tilstra v. Bou-Matic, LLC, 2014 and one similar citation
These decisions HAD TO BE RECENT because they fly in the face of REASONABLE CASE LAW ALREADY ON THE BOOKS. Let me ask a simple question: if the crimes are being committed in the very bankruptcy case before the court, how can the statute of limitations be expired? The horse and the stable master (Stadtmueller) stated that our claims were for the bogus foreclosure action. NO! NO! NO! NO! NO! THE RICO CLAIMS WERE FOR THE DOCUMENTS USED IN THE BANKRUPTCY CASE TOO, DUMMY!
The Rooker-Feldman doctrine has been applied to bar collateral attacks on judgments entered in state-court foreclosure proceedings.
– in In re Schmid, 2013 and one similar citation
“Oh, Suzanna, don’t you cry for me…..” MS. Schmid lost her house to foreclosure because the BANK REFUSED HER PAYMENTS, creating the alleged default. Her case was a sham pleading from the start with another plaintiff and no note. This gal had put $100,000 down (30%) on her purchase transaction. The horse-feather-filled argument in Judge Kelley’s inane ruling against me was that the VACATED FORECLOSURE SOMEHOW CREATED SOME KIND OF RES JUDICATA TO TOTALLY DIFFERENT ISSUES RAISED IN THE BANKRUPTCY ADVERSARY ACTION, unrelated to the foreclosure conducted two years earlier, and yes it’s still vacated!
in In re Rinaldi, a bankruptcy case, the bankruptcy court stated that the debtor’s insinuation (that insinuation was evidenced with the unindorsed note, making two copies that were both deemed authentic by this dummy) that the creditor endorsed the note after the foreclosure proceeding began was irrelevant to that proceeding because there was no requirement that an endorsement be dated.
– in AnchorBANK, FSB v. BOGENSCHNEIDER, 2014 and one similar citation
This was clearly addressed in Dow Family Trust v. PHH Mortgage, which was decided during our case and cited to the 7th Circuit Court of Appeals: ” ¶10 The (Wisconsin) court of appeals, however, found that the circuit court erred in granting summary judgment to PHH because PHH failed to show that it could enforce the note. Dow Family, LLC, 350 Wis. 2d 411, ¶24. Specifically, the court of appeals concluded that PHH’s documentation at summary judgment did not show that it held an authenticated copy of the note in question. Id. Furthermore, the court of appeals held that PHH’s arguments as to whether the note could be considered self-authenticating o. 2013AP221 6 were undeveloped, and it declined to address those arguments. Id., ¶22. Therefore, the court of appeals reversed and remanded for trial on the issue of PHH’s ability to enforce the note in question.3 Id., ¶24.
The point is well taken that an unrecorded mortgage and a note lacking endorsement does not a valid foreclosure make!!! Even the BK Appellate court and the corrupt 7th Circuit ignored Dow.
The only relationship the allegedly fraudulent assignment bears to the Debtors’ bankruptcy case is that the Debtors have filed bankruptcy, and presumably, any money damages awarded would increase the funds in the Debtors’ estate
– in In re Laddusire, 2013 and one similar citation
This poor gal got a raw deal in the Court. But our case involved, again, THREE ASSIGNMENTS OF MORTGAGE before the court. Susan Kelley stated that ONE OF THOSE THREE MUST BE GOOD, SO IT’S A NON-ISSUE. THIS FOLLOWED HER STATEMENT THAT THE TRUST, OR ANY SIMILARLY NAMED TRUST, HAD A RIGHT TO FORECLOSE. WHAT????
Likewise, “Stern reaffirmed that bankruptcy courts have the authority to restructure the debtor-creditor relationship and determine `creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res.’”
– in In re Schmid, 2013 and one similar citation
In other words, she was going to make sure the BANK GOT THE TITLE TO THE HOUSE NO MATTER WHO WAS CLAIMING THE RIGHT TO FORECLOSE!
As long as the injury complained of in federal court is “inextricably intertwined” with the state-court judgment, the doctrine applies.
– in In re Schmid, 2013
THIS IS ANOTHER INTENTION MISCONSTRUCTION OF THE PLEADINGS! THE INJURY WAS THAT THE LAW FIRM WAS FABRICATING AND FORGING DOCUMENTS WILLY-NILLY EVERY TIME AN OBECTION TO THE FIRST=PROFFERED NOTES AND ASSIGNMENTS WERE SHOWN TO BE FRAUDULENT.
Further, the only connection between the State Court Action and the bankruptcy proceeding is the fact the Debtor filed bankruptcy, and if it is determined there was not a partnership, that there may be property of the estate subject to administration.
– in IN RE BECHARD, 2014
THE ONLY CONNECTION TO THE FORECLOSURE AND THE BANKRUPTCY IS THAT ALL THE DOCUMENTS USED IN THE BANKRUPTCY WERE ALTERED TO SUBMIT TO THE BANKRUPTCY COURT!
The claims of forgery or fraud, however, do not stem from the bankruptcy itself, nor will such claims necessarily be resolved in the claims allowance process.
– in In re Schmid, 2013
HOW FREAKING BLIND CAN SHE BE? THREE ASSIGNMENTS OF MORTGAGE AND TWO COPIES OF THE NOTE AND THERE IS NO FORGERY. We specifically objected to the “Joan M. Mills” rubber stamped endorsement in blank, and Judge Kelley stated WE HAD NO RIGHT TO OBJECT TO THE ENDORSEMENT. THAT IS THE BORROWERS ONLY LEGITIMATE DEFENSE TO AN ALTERED OR FORGED NOTE. AND BANKRUPTCY COURT IS THE VENUE FOR A DEBTOR TO DEFEND AGAINST THE NOTE ON THAT PREMISE!!
“The Rooker-Feldman doctrine is jurisdictional in nature; its applicability must be determined before any other affirmative defense, including claim preclusion.”
– in In re Schmid, 2013
AND IN THE END SHE STATES THAT ROOKER-FELDMAN DID NOT APPLY.
SO THE MORAL OF THE STORY IS THAT HERE IN THE EASTERN DISTRICT OF WISCONSIN, YOU DON’T STAND A CHANCE AGAINST THE CRIMINAL ENTERPRISE THAT IS THE NATIONAL BANKS, THE LAW FIRMS, AND THE JUDICIARY OF THE FEDERAL COURTS IN WISCONSIN AND THE 7TH CIRCUIT COURT OF APPEALS.
David…you finally posted a case worthy of conversation.
BUY BUY OCEWN LOAN SERVING.
Revealed: Wells Fargo – Ocwen False Claims Fraud Suit Unsealed
March 31, 2015
The mortgage chicanery spotlight is once again focused on Wells Fargo & Co. and Ocwen Financial Corp. A federal False Claims Act whistleblower complaint unsealed yesterday claims that Ocwen, the nation’s largest mortgage servicer, was double dipping and keeping monies that should have been paid to Fannie Mae.
Revealed: Wells Fargo – Ocwen False Claims Fraud Suit Unsealed
Ocwen Financial Corp. Facing Mortgage Servicer Fraud Case
Ocwen Financial Corp. is a leading mortgage servicer that services an estimated 1 million mortgages, collecting payments of behalf of banks and other entities. Mortgage servicers have taken over this function for many of the major banks and litigation asserting misconduct within the mortgage servicer industry abounds.
According to filers, Mr. and Mrs. Schiano, who filed the False Claims Act complaint in September in the Southern District of New York, Ocwen and Wells Fargo pocketed the payoff money derived from the Schianos refinancing their home mortgage and also reported a default to U.S. government backed Freddie Mac.
Schiano False Claims Act Lawsuit Says False Default Scheme
The Schiano’s complaint focuses on what it labels a “False Default Scheme” where in their own case and others, Wells Fargo and Ocwen defrauded the U.S government, specifically the federal mortgage insurance program.
Ocwen Financial has been the subject of numerous regulatory complaints and actions in recent years. Recently the CEO, Bill Erbey, was forced to step down.
Schiano Lawyer Brian Mahany says Ocwen “Morally Bankrupt”
The suit was filed by attorney Brian Mahany of Mahany & Ertl on behalf of the Schianos. Mahany is one of the lawyers who helped the government recover a record $16.65 billion from Bank of America. That case remains the largest civil settlement against a single defendant in history.
When asked about the Ocwen lawsuit Mahany said, “Ocwen is morally bankrupt. This case is yet another blemish for Wall Street and the banking industry.”
ML McLaren © Whistleblower News Review
from back in 2008,
FORECLOSURES: TILA RIGHT OF RESCISSION and CONSEQUENCES
Posted on May 7, 2008 by Neil Garfield
Seminars for Layman (Pro Se Litigants) and For Lawyers
TILA RIGHT OF RESCISSION and CONSEQUENCES
TRUTH IN LENDING
FEDERAL CIVIL COURT, FEDERAL BANKRUPTCY, STATE COURT INFORMATION
THIS POST RELATES ONLY TO RESCISSION UNDER TILA. IT SHOULD BE REMEMBERED THAT THERE ARE MULTIPLE GROUNDS FOR RESCISSION AND CANCELLATION OF THESE NOTES AND POSSIBLY TREBLE DAMAGES FOR USURY. SEE HOLDER IN DUE COURSE IN GLOSSARY.
I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context. http://www.rcxloan.com/Civil_Action__BK__Motion_14.htm. As always, we are available to answer questions and direct you to the proper people to get expert help and advice.
MY ANSWER TO OUR READER’S QUESTIONS:
TILA Rescission is self enforcing. It automatically extinguishes the lien and the liability. The time for rescission does not run until you actually knew the full scope of the violation. That is tantamount to it never running out.
YOU CAN ASSERT AND SHOULD ASSERT TILA VIOLATIONS IF YOU CAN BEFORE YOU ARE IN FORECLOSURE OR EVEN IF YOU ARE CURRENT IN YOUR PAYMENTS.
Judge is required to look for authority himself if you are representing yourself without a lawyer (pro se). This provision in effect makes the Judge your lawyer and your Judge. Pretty good combination for you.
Judge has no discretion to deny damages, refunds etc to Borrower once a violation of TILA, no matter how small, is discovered.
TILA Rescission is NOT barred before during or after other proceedings unless those other proceedings specifically mention rescission as an issue to be tried.
Federal Action for injunction against the players to require them to file documents canceling the documents of record and providing judgment for damages and refunds is probably the best action since that is what is contemplated.
If in bankruptcy, it should be pled in an adversary proceeding. But if the bankruptcy is primarily related to the foreclosure the better practice would be to file in the same Federal Court, Civil Division, a complaint for violation of TILA rescission.
A Quiet TItle Action in State Court would probably also be a good idea before, during or after the Federal action. It clears up any doubt whatsoever about the status of title or the lender’s lien or encumbrances.
THIS IS INFORMATION YOU NEED BECAUSE THE LATEST LENDER STRATEGY SEEMS TO BE FOR THE LENDER TO IGNORE THE RESCISSION NOTICE. THE LENDER IS BETTING YOU WON’T KNOW WHAT TO DO.
Suggestion: If you are in Court and you have opted or are ordered to settlement, try to get a paragraph in the mediation order that requires all decision-makers to be present, whether they are parties or not. This would include the holders of securities who are the ultimate owners of the mortgage. (You may get a pleasant surprise. We have reports that the lenders sometimes can’t trace them down, in which case, the foreclosure action or sale is dismissed and you have no mortgage).
TILA & Res Judicata
(Analogous to Mr. Pierre R. Augustin, Pro Se’s situation since he had never litigated fully or raised any TILA claims affirmatively or defensively) –
A rescission action may not be barred by prior or subsequent TIL litigation which did not involve rescission (Smith v. Wells Fargo Credit Corp., 713 F. Supp. 354 (D. Ariz. 1989) (state court action involving, inter alia TIL disclosure violations did not bar a subsequent action based on rescission notice violations in conjunction with same transaction which were not alleged or litigated in prior action) (See also In re Laubach, 77 B.R. 483 (Bankr. E.D. Pa. 1987) (doctrine of merger bars raising state and federal law claims arising from a transaction on which a previous successful federal TILA action was based; merger does not bar, however, rescission-based on the same transaction)).
IX. Timely Notified Lenders/Attorneys of TILA Right of Rescission
Mr. Pierre R. Augustin, Pro Se filed a copy of the notice of rescission letter (See Exhibit 5) in the bankruptcy court notifying the attorneys representing DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance as well as having certified receipt return of proof of delivery to the Lawyers including are proof of notification according to the Official Staff Commentary, 226.2(a)(22)-2 as authorizing service on attorney.
The Truth-in-Lending law empower Mr. Pierre R. Augustin, Pro Se to exercise his right in writing by notifying creditors of his cancellation by mail to rescind the mortgage loan transactions per (Reg. Z §§ 226.15(a)(2), 226.23(a)(2), Official Staff Commentary § 226.23(a)(2)-1) and 15 U.S.C. § 1635(b).
Equitable Tolling
The filing of Bankruptcy tolls or extends the rescission time as Mr. Pierre R. Augustin, Pro Se had filed for bankruptcy on September 26, 2005 and obtained a discharge on September 26, 2006.
Also, the principle of equitable tolling does apply to TILA 3 years period of rescission since despite due diligence, Mr. Pierre R. Augustin, Pro Se could not have reasonably discovered the concealed fact of TILA violations in-depth and explicitly until September 17, 2006 at about 5 a.m. in reading the Truth-in-Lending book by the National Consumer Law Center.
The equitable tolling principles are to be read into every federal statute of limitations unless Congress expressly provides to the contrary in clear and ambiguous language, (See Rotella v. Wood, 528 U.S. 549, 560-61, 120 S. Ct. 1075, 145 L. Ed. 2d 1047 (2000)). Since TILA does not evidence a contrary Congressional intent, its statute of limitations must be read to be subject to equitable tolling, particularly since the act is to be construed liberally in favor of consumers.
Security Interest is Void
The statute and regulation specify that the security interest, promissory note or lien arising by operation of law on the property becomes automatically void. (15 U.S.C. § 1635(b); Reg. Z §§ 226.15(d)(1), 226.23(d)(1).
As noted by the Official Staff Commentary, the creditor’s interest in the property is “automatically negated regardless of its status and whether or not it was recorded or perfected.” (Official Staff Commentary §§ 226.15(d)(1)-1, 226.23(d)(1)-1.).
Also, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification.
This requires DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance to submit canceling documents creating the security interest and filing release or termination statements in the public record. (Official Staff Commentary §§ 226.15(d)(2)-3, 226.23(d)(2)-3.)
Extended Right of Rescission
The statute and Regulation Z make it clear that, if Mr. Pierre R. Augustin, Pro Se has the extended right and chooses to exercise it, the security interest and obligation to pay charges are automatically voided. (Cf. Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704-05 (9th Cir. 1986) (courts do not have equitable discretion to alter substantive provisions of TILA, so cases on equitable modification are irrelevant).
The statute, section 1635(b) states: “When an obligor exercises his right to cancel…, any security interest given by the obligor… becomes void upon such rescission”. Also, it is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1625(b).
The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken.
The statute makes no distinction between the right to rescind in three day or extended in three years for federal and four years under Mass. TILA, as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions.
Since the rescission process was intended to be self-enforcing, failure to comply with the rescission obligations subjects DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance to potential liability.
XIII. Non-Compliance
Non-compliance is a violation of the act which gives rise to a claim for actual and statutory damages under 15 USC 1640. TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the Mr. Pierre R. Augustin, Pro Se to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to Mr. Pierre R. Augustin, Pro Se all finance charges and fees paid.
In case DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance do not respond to this default letter, Mr. Pierre R. Augustin, Pro Se has the option of enforcing the rescission right in the federal, bankruptcy or state court (See S. Rep. No. 368, 96th Cong. 2 Sess. 28 at 32 reprinted in 1980 U.S.C.A.N. 236, 268 (“The bill also makes explicit that a consumer may institute suit under section 130 [15 U.S.C., 1640] to enforce the right of rescission and recover costs and attorney fees”).
TIL rescission does not only cancel a security interest in the property but it also cancels any liability for Mr. Pierre R. Augustin, Pro Se to pay finance and other charges, including accrued interest, points, broker fees, closing costs and the lender must refund to Mr. Pierre R. Augustin, Pro Se all finance charges and fees paid.
Thus, DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance are obligated to return those charges to Mr. Pierre R. Augustin, Pro Se (Pulphus v. Sullivan, 2003 WL 1964333, at *17 (N.D. Apr. 28, 2003) (citing lender’s duty to return consumer’s money as reason for allowing rescission of refinanced loan); McIntosh v. Irwing Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003) (citing borrower’s right to be reimbursed for prepayment penalty as reason for allowing rescission of paid-off loan).
XIV. Sources of Law in Truth in Lending Cases
“These include TILA itself, the Federal Reserve Board’s Regulation Z which implements the Act, the Official Staff Commentary on Regulation Z, and case law. Except where Congress has explicitly relieved lenders of liability for noncompliance, it is a strict liability statute. (Truth-In-Lending, 5th Edition, National Consumer Law Center, 1.4.2.3.2, page 11)
XV. Synopsis of How Rescission Works
The process starts with the consumer’s notice to the creditor that he or she is rescinding the transaction. As the bare bones nature of the FRB model notice demonstrates, it is not necessary to explain why the consumer is canceling. The FRB Model Notice simply says: “I WISH TO CANCEL,” followed by a signature and date line (Arnold v. W.D.L. Invs., Inc., 703 F.2d 848, 850 (5th cir. 1983) (clear intention of TILA and Reg. Z is to make sure that the creditor gets notice of the consumer’s intention to rescind)).
The statute and Regulation Z states that if creditor disputes the consumer’s right to rescind, it should file a declaratory judgment action within the twenty days after receiving the rescission notice, before its deadline to return the consumer’s money or property and record the termination of its security interest (15 USC 1625(b)). Once the lender receives the notice, the statute and Regulation Z mandate 3 steps to be followed.
XVI. Step One of Rescission
First, by operation of law, the security interest and promissory note automatically becomes void and the consumer is relieved of any obligation to pay any finance or other charges (15 USC 1635(b); Reg. Z-226.15(d)(1),226.23(d)(1). . See Official Staff Commentary § 226.23(d)(2)-1. (See Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002) (Once the right to rescind is exercised, the security interest in the Mr. Pierre R. Augustin’s property becomes void ab initio).
Thus, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. (See Family Financial Services v. Spencer, 677 A.2d 479 (Conn. App. 1996) (all that is required is notification of the intent to rescind, and the agreement is automatically rescinded).
It is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1635(b). The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken.
The statute makes no distinction between the right to rescind in 3-day or extended as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Also, after the security interest is voided, secured creditor becomes unsecured. (See Exhibit #6)
XVII. Step Two of Rescission
Second, since Mr. Pierre R. Augustin has legally rescinded the loans transaction, the mortgage holders (DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance) must return any money, including that which may have been passed on to a third party, such as a broker or an appraiser and to take any action necessary to reflect the termination of the security interest within 20 calendar days of receiving the rescission notice which has expired.
The creditor’s other task is to take any necessary or appropriate action to reflect the fact that the security interest was automatically terminated by the rescission within 20 days of the creditor’s receipt of the rescission notice (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2).
XIII. Step Three of Rescission
Mr. Pierre R. Augustin is prepared to discuss a tender obligation, should it arise, and satisfactory ways in which to meet this obligation. The termination of the security interest is required before tendering and step 1 and 2 have to be respected by DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance
XIV. Conclusion
I am requesting an itemized statement of my payment record to DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance. When Mr. Pierre R. Augustin rescinds within the context of a bankruptcy, courts have held that the rescission effectively voids the security interest, rendering the debt, if any, unsecured (See Exhibit #6). (See in re Perkins, 106 B.R. 863, 874 (Bankr. E.D.Pa. 1989); In re Brown, 134 B.R. 134 (Bankr. E.D.Pa. 1991); In re Moore, 117 B.R. 135 (Bankr.E.D. Pa. 1990)).
Once the court finds a violation such as not responding to the TILA rescission letter, no matter how technical, it has no discretion with respect to liability (in re Wright, supra. At 708; In re Porter v. Mid-Penn Consumer Discount Co., 961 F,2d 1066, 1078 (3d. Cir. 1992); Smith v. Fidelity Consumer Discount Co., Supra. At 898. Any misgivings creditors may have about the technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not the courts.
Since DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance have not cancelled the security interest and return all monies paid by Mr. Pierre R. Augustin within the 20 days of receipt of the letter of rescission of September 21, 2006, the lenders named above are responsible for actual and statutory damages pursuant to 15 U.S.C. § 1640(a).
Once again, please send me a copy of my payment history and other document showing the loan disbursements, loan charges and payment made. Also, DanversBank, Ameriquest Mortgage, Commonwealth Land Title Insurance Company, New Century Mortgage and Chase Home Finance are to take any necessary or appropriate action to reflect the fact that the security interest was automatically terminated by the rescission (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2). This requires canceling documents creating the security interest and filing release or termination statements in the public record of FREE and CLEAR TITLE to Mr. Pierre R. Augustin. Thank you (TTTLMG).
May GOD Bless America,
Pierre Richard Augustin, Pro Se, MPA, MBA
28 Cedar Street, Lowell, MA 01852
Tel: 617-202-8069
TILA Pleading
Under the Federal Rules of Civil Procedures, it may be sufficient to plead that the TILA has been violated. (Fed.R. Civ. P. 8(a)).
Specific violations do not necessarily have to be alleged with particularity (Brown v. Mortgagestar, 194 F. Supp. 2d 473 (S.D. W. Va. 2002) (notice pleading is all that is required in TILA case);
Herrara v. North & Kimball Group, Inc., 2002 WL 253019 (N.D. Ill. Feb.. 20, 2002) (notice pleading sufficient; response to motion to dismiss can supplement complaint by alleging facts re specific documents assigned);
Staley v. Americorp. Credit Corp., 164 F. Supp. 2d 578 (D. Md. 2001) (Mr. Pierre R. Augustin,
Pro Se need not specify specific statute or regulations that entitle him to relief; court will examine complaint for relief on any possible legal theory);
Hill v. GFC Loan Co., 2000 U.S. Dist. Lexis 4345 (N.D. Ill. Feb. 15, 2000).
The consumer’s complaint need not plead an error exceeded the applicable tolerance, since this is an affirmative defense (Inge v. Rock Fin. Corp., 281 F.3d 613 (6th cir. 2002)).
In page 2 (See Exhibit 1) of Mr. Pierre R. Augustin, Pro Se’s civil complaint, he stated that TILA was in of the Jurisdiction of all the claims against the creditors or defendants in that civil action.
At #6 of page 14 (See Exhibit 2) of civil complaint, Mr. Pierre R. Augustin, Pro Se explicitly stated that the New Century Mortgage Note which is now assigned to Chase is in violation of TILA and Regulation Z claims.
In page 17 of the civil complaint, Mr. Pierre R. Augustin, Pro Se did mention rescission and statutory damages (See Exhibit 3).
Spread the word
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Home > Bank Resources > Bank Resources Publications > Compliance Corner > 2007 > First Quarter
COMPLIANCE CORNER: FIRST QUARTER 2007
Regulatory Penalties for Violations of the Truth in Lending Act or Regulation Z
by Kenneth J. Benton, Consumer Regulations Specialist
This is the second article in a two-part series addressing a bank’s potential liability for violating the Truth in Lending Act (TILA) or Regulation Z, TILA’s implementing regulation. The first installment, which appeared in the fourth quarter 2006 issue of Compliance Corner, examined a bank’s potential damages to its customers in a private lawsuit for violations of TILA or Regulation Z. This article reviews the circumstances in which a bank’s regulator will order reimbursement to the bank’s customers because of TILA violations.
The federal banking agencies-the Board of Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Office of Thrift Supervision, the National Credit Union Administration, and the Farm Credit Administration (collectively the agencies)-periodically examine the banks they supervise to verify compliance with applicable federal consumer laws. Regulation Z is one of the laws for which they verify compliance, and section 108 of TILA1 provides the framework for the agencies’ enforcement authority and the protocol they follow when determining whether a violation warrants reimbursement to the customer. Section 108 specifies that each agency must examine the financial institutions they supervise for compliance with TILA and Regulation Z, while authorizing the Federal Trade Commission (FTC) to enforce it for all other creditors.2 It also specifies the circumstances under which the agencies must order the banks they supervise to reimburse their customers for TILA violations.
Violations Triggering Reimbursement: Understated APR or Finance Charge
To implement section 108’s requirements, the agencies published a “Joint Statement of Policy on the Administrative Enforcement of the Truth in Lending Act-Restitution” External Link in 1980. It identifies the procedures the agencies follow for reimbursement and the type of violations that will trigger reimbursement. Because of subsequent amendments to TILA, the agencies revised the guidance (the revised policy statement) in 1998, which is the latest statement from the agencies on this issue.3
As section 108 requires, the revised policy statement states that the only TILA violations subject to reimbursement are an understated annual percentage rate (APR) or an understated finance charge. An understated APR or finance charge occurs when a creditor discloses an APR or finance charge in the TILA disclosure statement that is less than the actual APR or finance charge for the transaction.4 For example, an APR is disclosed as 10 percent when it is actually 15 percent. Or a finance charge is disclosed as $10,000 when it is actually $13,000. The obvious harm here is that the customer is being charged an interest rate or finance charge that is higher than what the creditor disclosed.5
An understated APR or finance charge will always require restitution to the customer if it falls into one of three categories of behavior: 1) a clear and consistent pattern or practice of violations, 2) gross negligence, or 3) a willful violation that was intended to mislead the person to whom the credit was extended. If none of these circumstances are present, the agencies still have the authority to order reimbursement for isolated violations of an understated APR or finance charge, but they are not required to do so.
Tolerances for Errors
Regulation Z contains tolerances for both open- and closed-end credit transactions that must be considered when determining whether an understated APR or finance charge requires restitution. A tolerance provides a small, permissible margin of error for disclosures within which the APR and finance charge are still considered accurate. For open-end transactions, the tolerance for the APR is one-eighth of a percent.6 For example, if the actual APR on a home equity line of credit is 10 percent, the creditor is not in violation for an understated APR if the disclosed APR is between 9.875 percent and 10 percent. For closed-end credit, the tolerance varies depending on whether the loan’s amortization is less than 10 years or more than 10 years. If it is less than 10 years, an APR is accurate if it is within one-quarter of a percent. For loans with repayment greater than 10 years, the tolerance is either one-eighth of a percent for regular loans (in which the amount of the payment always remains the same) or one-quarter of a percent for irregular loans (in which the amount of the payment varies).
To determine the finance charge tolerance, section 108(e)(1) of TILA and the revised policy statement instruct regulators to convert the applicable APR tolerance for the credit transaction into a dollar equivalent for the finance charge. For example, if the amount financed on an open-end loan were $100,000, the applicable APR tolerance of one-eighth would convert to a finance charge tolerance of $125. Note, however, that the tolerances do not apply to violations that are willful and intended to deceive.
A special tolerance rule applies for closed-end credit secured by real estate or a dwelling: even if the understated APR exceeds the applicable tolerance for regular and irregular loans, the APR will be considered accurate if: (1) the finance charge is not understated by more than $100 on loans made on or after September 30, 1995, or $200 for loans made before that date, and (2) the APR is not understated by more than the dollar equivalent of the finance charge error, and the understated APR resulted from the understated finance charge that is still considered accurate.
The revised policy statement provides an example to help clarify the application of the tolerance: “consider a single-payment loan with a one-year maturity that is subject to a one-quarter of one percent APR tolerance. If the amount financed is $5,000 and the finance charge is $912.50, the actual APR will be 18.25 percent. The finance charge generated by an APR of 18 percent (applying the one-quarter of one percent APR tolerance to 18.25 percent) for that loan would be $900. The difference between $912.50 and $900 produces a numerical finance charge tolerance of $12.50. If the disclosed finance charge is not understated by more than $12.50, reimbursement would not be ordered.”
Calculating Restitution
After a banking agency determines that a bank has made a TILA error subject to restitution, the next question is how to calculate the amount the bank must pay. Section 108 specifies that consumers are not obligated to pay amounts in excess of the disclosed APR or finance charge. However, when calculating restitution, the agencies always add the tolerance to the APR the creditor disclosed. For example, if the creditor disclosed the APR on an irregular mortgage transaction as 10 percent, when the actual APR was 14 percent, the regulator would treat the disclosed APR as 10.25 percent because of the tolerance. This reduces the amount of the reimbursement the creditor will have to pay by the amount of the tolerance.
Restitution can be very expensive when the number of violations is significant. For example, Providian National Bank entered into a $300 million settlement with the OCC and the San Francisco District Attorney’s Office in 2000 concerning, among other deceptive practices, its Regulation Z violation for failing to treat the processing fee for credit card applications as a finance charge since it only charged that fee to customers approved for credit. This resulted in an understated finance charge and APR. And in 2004, the Board ordered Citigroup to External Link pay a civil money penalty of $70 million for violating Regulation B and the predatory lending restrictions of Regulation Z by making loans without regard to the borrower’s ability to repay them.7
Failing to disclose the APR or finance charge. The revised policy statement also addresses the situation in which the creditor fails to disclose the APR or finance charge. If the APR is not disclosed, the interest rate specified in the promissory note is treated as the APR. If the note does not specify a rate, consumers do not have to pay an amount greater than the actual APR reduced by one-quarter of one percent for first lien mortgage transactions. For all other loans, the rate is reduced by one percent of the actual rate. If the creditor fails to disclose the finance charge, no adjustment is awarded.
Obvious errors. If an APR is disclosed correctly, but the disclosed finance charge is understated, or if the finance charge is disclosed correctly, but the disclosed APR is understated, the agencies will not require adjustment if the error involved a disclosed value that is 10 percent or less of what should have been disclosed.
Methods of adjusting consumer accounts. When a creditor must reimburse a customer, the revised policy statement allows creditors to select one of two methods for calculating the adjustment: the lump sum method or the lump sum/payment reduction method. Under the lump sum method, the creditor makes a cash payment equal to the total adjustment ordered by the regulator. Under the lump sum/payment reduction method, the total adjustment to the consumer is made in two stages: 1) a cash payment that fully adjusts the consumer’s account up to the time of the cash payment and 2) a reduction of the remaining payment amounts on the loan.
Period subject to reimbursement. Another important issue for creditors facing restitution is the backward time period during which violations are subject to reimbursement. This is known as the “corrective action period” (CAP). Under the Joint Statement, the CAP for open-end credit transactions is the last two years preceding the current examination. For closed-end credit transactions, the CAP applies to transactions containing the violation that were consummated since the date of the immediately-preceding examination.8 However, if the closed-end violation was willful and intended to mislead the consumer, adjustments must be made to all affected consumer transactions since July 1, 1969-TILA’s effective date.
In addition, if an understated APR or finance charge arises out of a practice that was identified during the prior examination and was not corrected by the date of the current examination, loans consummated since the bank received written notice of the violation are subject to reimbursement. For loans that have terminated and have not been previously identified as having an understated APR or finance charge, reimbursement is not required if the loan consummated more than two years prior to the current examination.
Agency discretion to not award restitution. Section 108 authorizes the agencies to waive restitution, even though a violation occurred, if they determine that the disclosure error resulted from unique circumstances that involve a clearly technical and non-substantive disclosure violation that did not affect the information disclosed to the consumer or otherwise mislead the consumer. Statistics from the FDIC suggest that banks are unlikely to obtain a waiver under this provision. In 1997, the FDIC reported that it had received 63 requests for a waiver between 1991 and 1996, only one of which was approved. In that instance, the FDIC determined that Regulation Z was not, in fact, violated.9
Safety and soundness exception. The agencies also have some discretion with reimbursement if requiring an immediate adjustment would adversely affect the safety and soundness of the creditor. In this situation, the agency can order partial adjustment or full adjustment over an extended period of time.
Other Restitution Issues
Following are other issues creditors should be aware of in order to avoid restitution.
Inaccurate credit insurance disclosures. The TILA disclosures that must be used when a credit transaction includes credit insurance have always been problematic for creditors. Section 226.4(a)(7) of Regulation Z requires that charges for credit life, accident, health, or loss-of-income insurance that are written in connection with a credit transaction are considered a finance charge unless the creditor complies with the three requirements of section 226.4(a)(7): 1) the creditor discloses that the insurance is optional, 2) the premium is disclosed, and 3) the customer signs or initials a written request to receive it. If a creditor fails to comply with all three requirements, but nonetheless excludes the premiums for credit insurance from the calculation of the finance charges, its TILA disclosures will understate the APR and finance charge. If either the understated APR or finance charge exceeds the tolerance, the creditor will be ordered to reimburse the customer for the amount of the violation exceeding the tolerance, and the credit insurance will remain in effect for the remainder of its term. This violation has resulted in large penalties from regulators or court settlements in private class actions. For example, in 1997, the FTC ordered the Money Tree to pay up to $1.2 million in restitution because it failed to disclose that credit insurance was optional and therefore should have treated the insurance premiums as a finance charge.
Liability of assignee of a creditor. If a creditor voluntarily assigns a credit transaction to another creditor, and a Regulation Z violation is apparent on the face of the Truth in Lending disclosure statement, the assignee is subject to regulatory penalties. But if the assignment is involuntary, the assignee is not subject to regulatory action.
Conclusion
The revised policy statement provides a roadmap for creditors so they can calculate how much their regulator will order them to reimburse customers for TILA violations involving an understated APR or finance charge. The potential for a large damage award when many customers are affected by a violation is a reminder of the importance of banks maintaining a stringent compliance program and a system of internal and external controls to verify that the program is working properly.
1 15 U.S.C. § 1607. External Link
2 The FTC does not conduct compliance examinations because of the large number of creditors subject to its oversight, but it does conduct investigations in response to consumer complaints.
3 63 Federal Register 47495 (Sept. 8, 1998).
4 The revised policy statement incorporates the tolerance provided in TILA and Regulation Z when determining whether a finance charge or APR is understated. The tolerance is discussed in more detail below.
5 If a creditor overstates an APR or finance charge, no restitution is required because the actual APR or finance charge is less than what the creditor disclosed.
6 12 C.F.R. §226.14(a), which provides: “An annual percentage rate shall be considered accurate if it is not more than 1/8 of 1 percentage point above or below the annual percentage rate determined in accordance with this section.”
7 This penalty did not occur in the context of a compliance examination but during the Board’s consideration of a CitiFinanical application to acquire European American Bank. The point is that violations of TILA and Regulation Z can be very costly. More information can be found at http://www.federalreserve.gov.External Link
8 The term “immediately-preceding examination” is used in section 108. The agencies had originally defined it to refer to the last compliance examination. But as a result of two court decisions holding that examination means any type of bank examination [see First Nat’l Bank of Council Bluffs, Iowa v. Office of the Comptroller of the Currency, 956 F.2d 1456, 1463 (8th Cir.1992) and Consolidated Bank, N.A. v. United States Department of the Treasury External Link, 118 F.3d 1461 (11th Cir. 1997)], the agencies revised the restitution policy to refer to the last examination of any kind. However, “examination” does not include a supervisory visit or an inspection. It also does not include an examination of an affiliate or subsidiary.
9 “Requests for Relief from Reimbursement under the Truth in Lending Act,” FDIC External Link, March 10, 1997.
The views expressed in this article are those of the author and are not necessarily those of this Reserve Bank or the Federal Reserve System.
Shadowcat
I would give anything to be back to where i was before being induced to sign into the deal that took everything i had and anything i hoped to have, like a retirement plan. My money gone my home gone my credit gone my continued education gone and job security with it, the past 6 years of the stress of fighting them, how are they going to put me back those dastards. My part in it all i believed the numbers. I was a full doc loan by the way.
when you say it would but everyone back to were they started , the bank know they cant do it. because they sold your note before you even sign it, and mortgage. get now. this is why they didn’t like what supreme court said.
now all the judges have a out for them now, after being on the pay role for the banks, they can say look the supreme court said sorry, you lose now. hay we made as much as we could for as long as we could.right.
judges now have the cover they needed.
oh by the way shadowcat, puusy cat,
i love kool aid, its all i drink. for real.
shadowcat,
please understand has nothing to do with one putting each other were one was to start with. dont you get it,.
i have securitiy and exchange docs showing my mortgage as bing paid off in full as of the first payment. paid in full. then someone selling the same paid off mortgage . ( mine ) for the inflated appraisel price, of 500,000. now thats to to get started. first of all they took all mortgage notes to fed and exchange them for 20 to 30 times the value of the mortgages. so lets say they use my mortgage note of 350,000 dollars, that would mean they received 12 million dollars, to do what ever they wanted to do with.
then they were so so creed that they wanted to have more money, so they went on selling these fraud . security mortgage trust. until investor caught them with there pants down.
so its not as simple as you think. for them to use my home,my credit, my wealth to make them millions , and then have them say hey we sold it. not our problem now , fight the debt collectors.
so you want to be even. ok yes i do to. so pay me what you made on my mortgage and note all these yrs, and i will gladdly pay you back the 350,000 dollars i borrow from someone other then you that gave me the money.
Recession is a remedy to put each party back where they were as if the transaction never occurred.
Where Kool-aid drinkers get off thinking only one party has to comply is ridiculous.
Attract the Mortgage contract!!!
Irrecoverably Yours,
KC
jd the other question would be put in court is , this. what do they constitute the meaning of the ( consummation ) of the loan transaction. if no one really knew who was givin the real money, right? can’t get money from peter, keep paying peter and one day paul come in and say you owe him the money. right. then marry come down a few yrs later and say hey you owe me money. what the f. right. that is exactly what is happening.
the paper work you did at closing , the closing instrutions say, in big letters. after owner signs mortgage/ and note. you will certify 3 copys on both mortgage and note and fax them asap . as certified. and if you get to it within 6 months send us the originals.
so now there are 3 certifed copys of your note, and mortgage and a original running around the world. for anyone to take it and say . hey you owe me because i have a copy of the note. think about that
jg, just a question, how could someone really am not being argumentative but how could someone , have known, or should of known of all the fraud, until min-2008-2009 when market went south, and all there mishaps started to show up?? and all investors started suing for all the fraud in securization of mortgages??
so anyone that took out a loan back in 2002 thru 2008 everything was fine, then we have wall street investors calling fraud out load, knowing homeowners were getting hurt all along the way. so i cant see how anyone could of know or should of known , back in 2005 lets say, and now in 2013/2014 find out all this crap they did with your home,credit, so on so on.
how could a judge come out and say , look homeowner you had to know this was happen . really judge. i would say to him with all do respect your honor did you know this was going on. hum.
Ron, on March 31, 2015 at 12:18 pm said:
Does anybody have a clear answer to the question of what happens when TILA notices were sent after the 3-year SOL, but that were nonetheless ignored by the ‘lender’ within the 20-day period?
Rock, on March 31, 2015 at 12:51 pm said:
Ron, the answer is you’d be shut out.
“The Court agrees that Plaintiff’s rescission claim is untimely. Plaintiff alleges in his Complaint that the “closing date” for his mortgage transaction was December 18, 2006. Compl. ¶ 25. Accordingly, pursuant to § 1635(f), Plaintiff was required to exercise his right to rescind by December 18…………….
jg: You may well be “shut out”, but I think the real answer may lay in whether or not you “should’ve known” of the violations within those
three years and whether or not you so stated in your notice. I don’t think we otherwise know whether or not a lender must respond to a clearly late rescission notice with a “not” or if ignoring it is proper, or if you had stated in your notice why you couldn’t have known within the 3 years would it make any difference. My guess on where the last part (you included why you couldn’t have known) would land is if anyone rescinds after three years on the basis of “shouldn’t have known”, he may be the guy who must go to court to prove up the
“shouldn’t have known”. If he does prove it, hopefully by the preponderance standard, since he told the creditor in his notice why he “shouldn’t/ couldn’t have known” any earlier, the court may order rescission and more. Lenders have attorneys. If they receive a late notice of rescission with a plausible explanation of why it’s “late”, imo they’d be well-advised to make use of those attorneys. But you’re prob out of luck any which way unless you offered that plausible explanation. But I can’t even speculate about them ignoring a late notice and not even sending a “not happening” letter.
lol DB i only know what they do in AZ ,
hey deb, what do you think the judge will do when i pull out that mortgage note sign and dated the same day loan was closed, and the trust is showing a mortgage note ( not sign, ) or ( dated ) and in blank.
while mine is sign,dated, and really sign, not a stamp, like they use on all others. and mine is sign without recourse to the real funder of the loan. refi we did. but was not in any paperwork.
DB we are dealing with debt collectors and the bit inbetween is the unclean hands part and they always knew it in my opinion. Fool me once ( offer of mod) shame on you, fool me twice ( up on appeal) shame on me. Fool the irs we will wait and see.remember Al Capone.
deb, i want to see when i go to court is the judge face when i present all the info i have, cant wait. then am going to ask that we don’t do anything your honor, until i see the full complete list of all and every one of the 22 billion mortgages that gmac mortgage , llc charge off in 2009. , why you say your honor, well one of them could be mine, and if is , then it would be unsecured. that’s why your honor, and if it is unsecured, than i will file bk, on that unsecured debt.
Rock is pitching and snaking the rescission along the same crooked wobbly path that the crooked bankers and judges have weaved in years past .. that no matter what happens at any stage, the bankers always win and the borrowers always lose their homes .. its been a rigged game for years, that is why you can cite the unfair examples of days gone by, it was never administered correctly. They took TILA and Reg. Z and they twisted it and deranged it into something that it was never meant to be. The way things were done in the past are wrong.
Justice Scalia threw down the gauntlet and established that the note and mortgage are void. That’s a game-ender for the lenders who sit around relying on “the old ways” of stealing the house through a foreclosure complaint. It will be determined soon that you cannot foreclose on a void note and mortgage. Its coming soon to a court room near you, so get your popcorn ready and watch how the banks try to twist a rescinded, void note and mortgage into something it cannot be, which they will try and argue is a valid, functioning note and mortgage which should now be considered in default. The opposing sides have lined up , the battle is about to begin, either the courts will have to acknowledge a unanimous supreme court that says the note and mortgage were void .. or those courts will have to disobey the supreme court and find in the lenders favor that the note and mortgage were not void by the federal statute , and that a default exists.
At any rate, a foreclosure complaint is not the proper venue for the adjudication .. the lender is barred from claiming default because of the very nature of the federal act, which voids the security instrument and instructs the borrower to cease making any payments. So you can’t claim a foreclosure based on a phantom default which never existed.
In my case the judge never conducted an evidentiary hearing to establish any factual issues , he erred by promoting his own assumptions onto the record without conducting a proper trial where evidence and testimony could be given , so he is way off base to leap from my proper rescission…all the way to his own personal feelings. He personally does not want the borrower to get the house. And he’s not going to let any facts get in the way of doing what he wants to do. This is a violation of the judicial conduct canons that he is required to follow. He is showing a personal bias and ignoring everybody from the Supreme Court Justices to the Canons of judicial conduct.
The facts are clear …
1) We rescinded in a timely manner based on multiple violations which included failure to release or deliver notices of right to cancel, APR, etc, letter mailed on July 1, 2007 (current on pymts thru June).
2) The servicer WF failed to comply within 20 days, ignored it.
3) We spoke to WF and tendered the difference but explained that we needed them to comply with step 1, so that we could refinance and create the tender. The rep ignored our tender offer and said she would send a letter acknowledging our conversation.
4) 20 more days went by where they refused to accept our tender, statute mandates that the borrower retains property with no further obligations.
5) WF mails letter confirming that we had a telephone conversation about “a problem” .. they are hoping things can be worked out, but they are careful not to mention rescission or tender in the Aug. 27, 2007 letter mailed to us and submitted to the court after the judge asked to see it. It corroborated my story and timeline, but he had no comments after he looked at it.
6) WF files a foreclosure complaint on Sept 25, 2007 .. stating that we had defaulted as of July 1, 2007 and each month there after.
7) We spoke to attorneys and they all agreed that the court would require us to tender first if I try to argue the rescission, they talked me out of it and I fought the complaint on lack of standing and fraud.
8) Oct 2011 .. WF asks judge to sign an Order dismissing complaint after judge ordered a plenary hearing based on standing issues, notes getting stamped by WaMu with no dates or records, MERS assignment with forged notary signature and known robo-signors , etc.
9) May 2014 .. WF files a new complaint , citing the same July 2007 default date .. they are now time-barred due to 6 yr SOL … they accelerated the mortgage in July 2007, left it accelerated and never took steps to de-accelerate .. which created a new maturity date. See the case linked on this blog “New Jersey man gets free house” where a NJ Federal Bankruptcy judge reluctantly gives the free house. My case is the same. NJ Courts have rejected this SOL argument because a new law was implemented in 2009 which allows lenders 20 years to bring a foreclosure on a default. But the bankruptcy judge showed how the NJ state courts have been mis-applying the meaning of that, he explains that the 20 year window is meant for BRINGING THE FC complaint, but once you accelerate and call the entire amount due, you have created a new maturity date and you only get 6 yrs to foreclose.
My affirmative defenses asserted these arguments along with other defenses like the rescission, fraud, lack of standing, no valid contract due to unknown undisclosed third parties involved, pretender lender table funded loan, etc.
10) So right now I have a double check-mate on Wells Fargo .. 1)they are time-barred by the 6 yr SOL meaning they were barred at the time they filed this new complaint. 2) I properly pleaded my rescission in my answer to this complaint, stating as an affirmative defense that I had rescinded on July 1, 2007 and have submitted a copy of letter. The letter mentions multiple violations including APR and Notices missing.
11) Original Judge from the first case was allowing this to proceed to trial based on the standing issues (he wanted them testifying last time) but now he retired on March 1st … WF immediately filed MSJ and the new judge who took over this case grants them the summary Judgment.
He ignored all of the defenses and issues of material fact that should have been reasons to deny them a summary judgment. He assumed that I had never tendered, but he never asked me. He allowed WF attorney to imply that they had signed documents showing that we had received our right to cancel notices , but she never produced them and submitted anything .. this was a conversation between her and the judge .. it wasn’t even being conducted as a evidentiary hearing where we were establishing exactly what rescission issues were violated, remember I had raised APR and other violations too which were not addressed by this judge. It was your classic banana republic kangaroo court .. so set up and fake that you wouldn’t even try to pass it off as a real court room hearing taking place in America , but sadly is did.
12) Now I am forced to continue to fight my way thru the system. My two Aces in the hole are the SOL and the rescission. Praying that this ends soon .. my daughter was 2 when this started, she is 10 now , it took many hours of my life away from enjoying my family while I tried to read and research on all of this .. I would talk to attorneys hoping one could fight the good fight and argue these points .. I was not impressed with what I found out there .. many seem to be intimidated by trying to fight for “the free house” , and worry about their own reputation among the inner circle of the good ol boys club in the foreclosure rodeo.
recently after I argued a motion based on the SOL and accelerated maturity date .. a bunch of lawyers came up to me in the lobby and congratulated me on putting up a great argument .. one bankruptcy lawyer said he is a personal friend of the federal bankruptcy judge whose free house decision I was using during my argument , he said that judge is ultra conservative and would never have granted the house if he wasn’t sure of the NJ Statutes that allow it .. he felt I could eventually win but would have to appeal my way up. I asked him if he would represent me, I met in his office he charged me 100 dollars for the consultation and when he was done looking at all of the work in my case, he gave my hundred dollars back and said he would have to work on my case all day everyday because it was so involved and had so many issues .. he apologized and said he basically just files BK for people and doesn’t really get into arguing these types of issues like rescission, statute of limitations, etc. .. this is how all my attorney meetings seem to go over the years , where are the fighters ??
Now I hired a paralegal type of service that specializes in FC defense to help me set up my procedural aspects in order to be acceptable for an Appeal .. They’re going to try and clean up my paperwork and make it more presentable .. procedural stuff wasn’t correct in my motions and papers .. I was basically trying to argue my case , but they tell me that the procedural stuff needs to be acceptable in my paperwork, and that’s where they will start .. by filing new motions for reconsideration but while doing it they will be correcting some sloppiness so that it can be ready for appeal later.
And Dulpeck please consider the word used by Rock – ” instrumental” please do your due diligent research on that claim dulpeck.
DB – ditto
dwight – well written. thumbs up.
DEB, i know, am trying to see if rock and christene can show me if the contract was consummated?? in 2005. with the real party , as i would say no. tat i still do not have any required disclosures from real party, even as today in 2015.
this is why i sent out rescission letter to all party from start to now, all in securited mortgage trust anyone name in the psa, anyone in the registry of deeds. etc,etc,
now going to file all copy of the letters i sent to all party , that they sign for rescission letter, with copy of return receipt , they sign for them,
it was put in mail 4 march 2015.
Dulpeck, send me an email (justadummie@gmail.com) with the particulars; I was instrumental in helping Gilbert overturn 4th Cir. case law, which originally stated, borrower had to file suit within 3yr. statute of repose.
I rescinded my loan in 2008 and listed same as unsecured in a chapter 7 two years later. Debt was discharged and property abandoned after twenty two months by trustee. Two years later Ocwen assume the servicing of the rescinded and discharged loan from the bankrupt GMAC. I sent Ocwen debt validation letters with copy of rescission letter and discharge order which they ignored while transferring the servicing rights to another servicer. The same procedure was duplicated which they ignored as well. The servicer filed foreclosure which was once again stopped by a chapter 13 . I survived a motion to lift stay because of Gilbert vs Residential funding and subsequently filed an adversary proceeding . Survived a motion to dismiss in December as the judge stated one of the reasons is the anticipated ruling from the US Suprem Court. Need advice on how to proceed considering that my attorney is not willing to play hard ball with the pretend lenders. Need help in Maryland.
Excuse for chippin in here DavidB
But you send to servicer and its rescinded effect is to the True creditor that is obvious. There is a duty of the servicer to make sure they took ordunary care to comply with the laws governing, and they have that 20 day window to do so.
My non lawyer opinion but i invite any one to critique, isnt this what the blog is about? For me it is, not about who likes koolaid – and thats now a worn out cliche anyway.
Read more closely- I threw the word “indignorant” in there. Made that one up myself. They act so indignorant at times. It’s very insulating.
OH AND I DIDN’T FIND THIS ALL OUT , UNTIL I GOT A FULL AND COMPLETE CLOSING FILE BY CLOSING ATTORNEY , IN NOV 2013. SO 3 YRS IS STILL IN AFFECT.
I FORGOT TO ALSO ASK , YOU ROCK AND CHRISTENE . WHO SHOULD I HAVE SENT THE RESCISSION LETTERS TO????
Is it Rock or Tnharry?
ok ROCK, CHRISTENE have a question,
1/ i have a sign mortgage note, sign and dated same day as our closing, payed to the order WITHOUT RECOURSE ,FROM GMAC MORTGAGE CORP, TO IT IS NOT A STAMP/ ITS A REAL SIGNATURE. FROM SOMEONE AT GMAC MORTGAGE CORP. , as it turn out TO BE the real fundeR of money AT CLOSING TABLE, DESCHER/BANK TRUST AMERICAS.
2/ HAVE copy of THE BANK WIRE TRANSFER FROM DESCH/BANK TRUST AMERICAS, TO CLOSING ATTORNEY BANK ACCOUNT.
3/ NOW MORTGAGE AND NOTE IS TO PRETENDER LENDER, IE. GMAC MORTGAGE CORP. AS YOU KNOW CORPORATION CAN NOT BY A BANK LENDER.
4/ ANYWAYS, closing was on 8 nov, 2005, now on same day as closing. mortgage and note assign without recourse to this unknown party at closing that funded the money, now 6 days later, closing attorney files mortgage with county register of deeds, showing gmac mortgage corp,mers, as mortgagee’s.
5/ as of may 2006, gmac mortgage corp, is now non-exsisitent, so now new enitiy is born, called gmac mortgage ,llc,
6/ as of 2009, gmac mortgage ,llc/ res-cap/ alli/ put out that they have just became one with alli bank, and that they just CHARGE OFF- 22 BILLION IN MORTGAGES. as you know once a company charges off a debt, that debt is NOW UNSECURED DEBT. RIGHT. RIGHT. so how many people did gmac mortgage /res-cap/alli . steal there homes.
because of CHARING OFF THE MORTGAGE DEBT, AND NOT TELLING ANYONE OF THE OWNER OF THE HOMES THAT WE JUST MADE YOUR MORTGAGE UNSECURED. DEBT BY CHARGING THE DEBT OFF. ????????????????????
7/ NOW COMES MAY, 2012, the biggest bankrupcty in history. the RES-CAP BK, INCLUDING 5 OTHER BANKS, AND OVER 500 SECURITIZED MORTGAGE TRUSTS. AND ALL INSURANCE COMPANYS INSURING ALL THIS CRAP.
8/ NOW comes first ASSIGNMENT on record AT REGISTRY OF DEEDS , FROM MERS TO SECURITIZED TRUST, LOOK AT DATE.
AUGUST 2012!!!!!!!!!!!!!!, SIGN BY AUTHORIZE REPS AT GMAC MORTGAGE CORPORATION, ( REALLY IT’S BEEN NON EXISTENT COMPANY FOR OVER 6YRS. )
9/ PURCHASE AND SALE OF MORTGAGES IN TRUST FROM GMAC MORTGAGE TO RESIDENTIAL ASSET MORTGTAGE. 2 FEB 2006. GMAC MORTGAGE CORP, SELLING ALL RIGHTS,TITLE ,INTERSET IN ALL LOANS AND NOTES.
10/ CLOSING DATE. OF TRUST. 27 FEB 2006.
11/ AS OF AUGUST 2012, UNDER THE WELLS FARGO TRUST SERVICES , FOR GMAC MORTGAGE LOAN TRUST 2006 JI, ALL COLL ACTUAL FILE IS PAYED IN FULL. PER , TRUSTEE SEVICES.
12/ OCWEN BUYS ALL UNSECURED DEBT/UNSECURED MORTGAGE TRUSTS/ FOR .00002 CENTS ON THE DOLLARS.
BUT SAY THEY ARE NOW THE SERVICER, FOR THIS UNSERCURED MORTGAGE TRUST, NON-EXSISITENT MORTGAGE TRUST. AND IS SAYING THEY ARE NOW GOING TO FORECLOSE ON YOU, IN THE NAME OF THE TRUST, AND YOUR DEBT OWED TO US IS, MORE THEN ORIGINAL MORTGAGE AMOUNT.
1/ SO the big question is this. who owe us TILA/RESPA REQUIRED DISCLOSURES???? AT CLOSING???
2/ WHO IS LENDER??
3/ WHO OWNS THE NOTE AND MORTGAGE???
JUST WONDERING THATS ALL.
And further reading –
https://www.law.cornell.edu/ucc/3/3-305
As follows
“(c) Except as stated in subsection (d), in an action to enforce the obligation of a party to pay the instrument, the obligor may not assert against the person entitled to enforce the instrument a defense, claim in recoupment, or claim to the instrument (Section 3-306) of another person, but the other person’s claim to the instrument may be asserted by the obligor if the other person is joined in the action and personally asserts the claim against the person entitled to enforce the instrument. An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument”
And this is where i donate
https://www.law.cornell.edu/lii/help_out/donate
By the wAy Dweight,
cornell law legal info institute is a good place to research too.
Just google your question and cornell comes up.
More on rescission usc, which is important to understand. Cornell law
https://www.law.cornell.edu/uscode/text/15/1635
christine
My case is like a baby to me, it needs protecting, those who i entrusted it had almost killed it, and that was not my fault but i believe my path and i took up the gauntlet, because, i had no money or trust left in me to retain another attorney, and it was not because of what NG profers though it has lead me to research for myself. when you start having a go on here its in total ignorance, you do not know my cases or the course i have navigated with a lot of pain, and that has to apply to others that blog on here, and again you misunderstand, i do believe i am not the exeption that is one main reason why i fight on because i can, many cant. Suing is not fun. I am hopeful that this US supreme Court decision can help my case, im researching it with vigor, i will see where it leads me, because that is my right, i never drank from the cup of koolaid either tell your friend. done.
Rock Cyber Bullying is a serious crime. Dont say I didnt warn you.
NEVER AGAIN
Dwight, you’re almost understanding how rescission works. Nonetheless, this will be my last comment on the subject because I can’t waste anymore time on a subject that everyone in the legal community understands, the only exception is the Kool-Aid drinkers and legal illiterates on this blog.
First, nowhere in the holding does Scalia say as you stated: “tender is not an issue that could bar a rescission. This case dealt with one issue, and one issue only, does the borrower ALSO have to file a lawsuit within the 3yr, statute of repose and the answer was in the negative. I’ve argued since day one, that under the “plain meaning rule” the courts have to follow the statute as written; and the court agreed with me. BTW,I gave that argument to the CFPB years ago, who began to argue it in their amicus briefs.
Second, the lender does not have to file anything. If the borrower claims there’s a TILA violation, and files a TIMELY rescission notice, the lender can accept it, or deny it. If it turns out, and the only way it can “turn out” would be through litigation, the lender is wrong they would be liable to return all monies paid by the borrower and the rescission process would commence.
Third this is how it works in the REAL world: The bank takes its 20 days, and investigates the loan file and it comes to the conclusion that the borrower has improperly sent a notice of rescission, it does what the bank did in the Jesinowski case, which was to write a letter back and say: We dispute your rescission.
In a nonjudicial state, a bank doesn’t need to go to court to foreclose on the borrower. It simply does the notices provided under state law and has the sheriff provide a notice saying we’re going to sell your house. The burden then shifts to the BORROWER to go to court to get a temporary restraining order or preliminary injunction to say, I sent my rescission notice, the bank is ignoring it.
In the judicial foreclosure states, the bank would go to state court and file a foreclosure action, the borrower would assert the rescission as an affirmative defense, at which point the validity of the rescission notice would be the first issue that would be decided by the court in determining whether or not the foreclosure was proper to begin with.
Therefore, there really is no rescission, there’s just a start to the rescission process when a timely notice is sent. Again, if it turns out the borrower is right the unwinding begins with both sides tendering, statutorily, the bank tenders first.
Based on the scenario you gave about your case, it seems eerily similar to the Jesinowski case. You claimed there was a TILA violation, the bank claimed there wasn’t, the court found there wasn’t, and you lost. Now, the same thing will happen that Jesinowski has been remanded back, the court will decide who’s right the bank or Jesinowski. If its Jesinowski, the transaction will be unwound by the bank tendering back all monies, however if the Jesinowskis can’t tender, there will be no rescission, that’s the “plain meaning” of the statute and the Reg Z.
@ Ian , you said “The supremes said that the creditor
Has to tender.
If we are dealing w someone who we KNOW isn’t the creditor, arent we guilty of fraud on the court?”
*****************************************
Not I , Not you .. the banksters are guilty of the fraud and it will be demonstrated by their lack of standing when a TILA rescission forces them into the position of plaintiff , an intolerable position for them… Rock and Christine both refuse to acknowledge that this is the goal of the rest of us , I don’t need a magic silver bullet to win ,, I need the courts to do their job, and that simply means making the banksters come to the table in a court of equity with a logically ordered explaination of how they are the HiDC and why I must surrender the colatteral… IF they can do that they win… SIMPLE. That’s how it’s always been in the past and the way it is now … if you want it. To a bank that isn’t involved in fraud TILA means nothing… HELL , TILA means they own their competition in the mortgage market.
To top off the hilarity , Shadowcat in her 03:25pm 04/01 post says “You were not listening to Rock….None will go up against them… Its remanded back to State.” apparently she thinks TILA is not a federal law governing all lenders , most of which reside and conduct business in multiple states , but rather a state law… that it is somehow “compliance optional” or that a unanimous Supreme Court is something that local judge Billy Bob will not honor… Maybe shadowcat is one of those people that think that the federal Income tax laws being federal don’t apply to her ,, or maybe she thinks that she can hunt an endangered species because it’s on land in her state and not on “federal” land… I can’t wait to hear her reasoning. I agree that the bench will need to be educated but this gives them all front row home plate seats to a game where the NY Yankees will in 100% of the cases concede to the little league East Podunk Bullfrogs before the first pitch is thrown… and it will make them collectively go “HMMMMM” and rub their chinny chin chins…
Deb,
I did not particularly refer to you, individually: people who spent that kind of money to get nowhere over the course of 5, 6 or 7 years are a dime a dozen. And people with a very convoluted case with several actions going on at the same time in different jurisdictions are also a dime a dozen. They all come here to get their legal advice. Of course they all end up with twisted cases!
The fact that I quoted you doesn’t mean that I am singularizing you in any way. And that’s an other thing: people need to get out of that “I am exceptional and my case is exceptional” mentality: foreclosure is foreclosure. It is a pretty straightforward affair, as far as homeowners are concerned. All the intricacies with securitization and MERS, completely irrelevant to homeowners’ defenses or offense strategies but heavily peddled here, are what caused all those “twisted” cases.
Yours is no exception.
Let me tell you all something, i think for myself, as all of us do.
Get that Christine, fundamentally you do not get THAT.
Christine
There you go mouthing off as usual, get back under your bridge, ive not lost yet, now by all means , hold your breath.
One more thing… “My case is very twisted…” Yes, I believe it. Following Garfield leads people into court for years, with no end in sight until homeowners have been completely and thoroughly wiped out of everything they ever owned.
Let’s look at it for what it is: a willful and voluntary transfer of wealth from the “have barely enough” to the “want more”. No victims here. Just active participants. A perfectly symbiotic relationship between parasite and host.
Anyone who forked up over $60K, still lost a house, is still fighting in court and hasn’t learned not to come to LL for legal advice chose the path of poverty. Free will at work.
Garfield is a rich man. He loves you all.
Just on that one blog, Garfield made out very well. Not one blogger not yet foreclosed upon has a prayer. And those long evicted have no clue how to get compensation, nor do they want to do the necessary homework.
They deserve what they get. Anyone with a brain, get out of LL and stop feeding mediocrity. That’s all you will find here.
Good point Ian … When the federal government jumped in and stopped the 50 states attorney general from prosecuting and exposing the fraud in open court, they settled for 25 billion or so, and they floated the notion that “if the homeowners want to raise these issues, they can, but we’re not going to say anything more about this because the thief gave us a cut of the money they stole” … So we have a federal government who is in on the crime and made a profit from it …we have a Supreme Court who knows of this crime and yet plays dumb , putting on a front by asking stupid questions as if we have all forgotten that no validity exists and these transactions were based on crimes .. The Justices sit there worrying about “how will the lender get their money back?” ….Yes, Ian is correct, the whole thing is a total joke when you step back and look at the bigger picture … The Justices are full of crap too, they know damn well that the Ponzi scheme was built to conceal the truth from the borrower victims .. and they sit up there splitting hairs over the TILA right to rescind, worrying if the law is too tough on the criminal bank? The whole purposeeand intent of TILA and rescission was to be tough on the criminal thugs who prey on the citizens.
Consider the meaning of ” tender minus equitable set- off
Gets me “curiouser and curiouser”
The supremes said that the creditor
Has to tender.
If we are dealing w someone who we KNOW isn’t the creditor, arent we guilty of fraud on the court? What did they say about that? If they are going to sit there with their heads bobbing, drooling and rubbing their knuckles, couldn’t they have just cut to the chase and spit it out? Why are they so obtuse in their logic? It’s exasperating, and indignorant.
“
The transcripts of the argument only reflect the confusion caused by years of prior caselaw implementing common law principals AFTER THE RESCISSION WAS TIMELY AND PROPERLY CHALLENGED IN A COURT OF LAW. But the Scalia written decision supercedes any transcript where a lawyer is giving his own personal opinion to the questions being thrown around during arguments. The lawyers personal opinion where he offered conjecture and speculation as to why prior courts adjudicated the tendering between parties is not legally binding. Justice Scalia and what he wrote is legally binding, and he was clear that tender is not an issue that could bar a rescission. At best, the discussion was referring to a hypothetical question put forth asking what would happen if … the lawyer erred in his reply by not clearly establishing the fact that it could only end up in front of a court if the lender files an action within 20 days to bring it to court , the lawyer failed to make that point. That whole discussion was based on the two parties already being in court and how a judge would remedy the dispute by asking both sides if they were prepared to tender. The problem with citing these old cases is that those judges failed to allow the borrowers time to go refinance with a new lender, or to sell the house and keep the profit equity after tender , there is bad caselaw on the books and that lawyers response was awful, he screwed up. But there is other caselaw that shows judges allowing a borrower to make payments towards tender, etc. ..the important thing is that these are all old cases when the courts had no clarity on TILA rescission, they were out of control and mostly favoring the lenders, so most old caselaw needs to be taken with a grain of salt , and the first step is to make everyone understand that the lender must first comply with the 20 day statute .. this is the main point everyone is missing. You want a judge to help adjudicate your challenge to rescission Mr. Banker ?? Then you had better get your ass in gear and file an action in court in 20 days. There is a second 20 day window that nobody is talking about, when the lender fails to accept your tender, the law states the borrower may keep the property without further obligation. So when they fail to comply with the first 20 day instruction, the borrower then should call them or write another letter offering to refinance with another lender and will then tender the balance owed back, but we need the note cancelled and the mortgage lein released to do that, and a correct balance determined after disgorgement of our payments..after this second 20 day gets ignored or rejected , the law says borrower may keep the property without further obligation. Rock is desperately hanging onto old caselaw, hoping that it will still be the way, but the banks would need to act within 20 days and go to court to have a judge help facilitate the exchange between the two parties, and he could still allow for a borrower to go refinance or sell the home, or make pymts to the rescinded lender, etc .. If the lender acts within 20 days. Otherwise it appears that Justice Scalia clearly tells the courts to stop applying tender requirements as a reason to deny rescission effectiveness. What this will boil down to is ..a lender cannot come in late after ignoring the rescission for years, and then try to get a judge to help them collect tender ..the court is not there to perform clerical duties for the lender who chose to ignore and not comply with a federal statute. The 20 day window was put in there for a reason, just like in the non-judicial foreclosure states ..if the homeowner fails to respond in the 20 days stated, they lose their home. TILA has a 20 day window, and there is a price to be paid for ignoring that 20 days, otherwise the lawmakers would never had added it if they thought it was ok for a bank to ignore and litigate 8 years later ..that notion is ridiculous.
I think Rock is Christine’s Pimp daddy.
I am a comedian.
Rock-
Where is someone supposed to find a true creditor in a securitized loan trust?
The 2009 FRB TILA amendment states that “a servicer is never the creditor”. So they’re out. The trusts are empty, none of the trusts having been established according to IRS rules and NY and Del Trust laws. So they’re out. A letter to the “Trustee” for the “trust” guarantees a return letter which lstates that “we are not the investor. Please contact your loan servicer”. So they’re out.
Here’s my theory: the investor or creditor for every single trust ever created is somebody named “Eddie”.
I know it sounds crazy, but hey, these are crazy times.
The ruling just came out for heavens sake,
The 20 day window they have is plenty if they have nothing to hide
I tried to get a modification in 2009 they could not give a straight answer to questions innthe qwr and the investor and owner of my loan was a lie that entity was the master servicer according to edgar and that ” trust” my loan was supposedly in, so with no mod i rescinded to the creditor to the true holder of the note, so the way i will be using this new decision will be interesting, stop arguing, use it or loose it.
Not legal advice not an attorney please research and/ or get council if possible.
Calling people names voids the import of the conversation.The foreclosure mess was created deliberately by the banks for massive profit and bailouts.I rescinded, saying I will give you back this house,you give me back the $80,000 I put in.They said no no no, we want it all.Yeah? Fuck you Wells Fargo, and I am still here after 8 years and I caused much of the blowback with 5 state and Federal Qui Tam lawsuits filed by me, I mn with a high school education and most importantly, an Irishman. [all lawyers are agents of Britian] and we Irish just want to kill them all.
E.Tolle, for you and the rest of you Kool-Aid Drinkers.
From the Jesinowski transcript:
“Justice Antonin Scalia: Well, wait, wait, wait, wait.
By notifying in accordance with regulations, it seems to me that speaks to the manner of notifying, not to the consequence of notifying.
And Regulation Z may indeed say what the consequence is, but I don’t think that the statute authorizes Regulation Z to say that.
David C. Frederick: –Well, the statute actually does say that in the (b) provision, Justice Scalia.
We’ll get to that in a moment.
But the point here is that nowhere in 1635(a) did Congress say you had to file a lawsuit, and nowhere in Regulation Z is there a provision that a borrower has to file a lawsuit in order to rescind.
And remember, the definition of rescission is a UNILATERAL cancellation of the transaction.
Justice Antonin Scalia: Yes, but — but in common law you had to give back in what you had received, and you have — you — you are urging that the statute creates a system in which a — a creditor who has a secured interest, simply because somebody comes up almost 3 years later and says, you didn’t give me two copies of this particular document, I got only one copy, and even if that’s not true, immediately the secured interest is converted into an unsecured interest.
That is a huge difference.
And I find it difficult to believe that that’s what Congress intended.
David C. Frederick: Well, the language of the statute actually makes that very clear, and so do the regulations.
And notably, Justice Scalia, in three places in three successive sentences in 1635(a), Congress said the manner of rescission is going to be done in accordance with regulations, the disclosures that need to be done have to be done in accordance with regulations, and there have to be appropriate forums for the obligor to exercise his right to rescind.
And that is also set forth in the regulations.
So I don’t think 1635(a) could be any clearer that it is notification by writing in accordance with the regulations set forth by the Federal agency.
Again–
Justice Samuel Alito: Could you just explain how you — how you think this would play out?
So the obligor sends a letter and says: I’m rescinding, and then the creditor fulfills its obligations, and then the OBLIGOR IS REQUIRED TO TENDER THE PROPERTY?
David C. Frederick: –CORRECT.
Justice Samuel Alito: And what if the obligor says at that point, I don’t have it, I’ve spent it.
David C. Frederick: Okay.
So–
Justice Samuel Alito: Then what happens?
So the rescission is rescinded?
David C. Frederick: –The statute answers that question, Justice Alito, in 1635(b), and that’s the second page of the addendum to our blue brief.
Justice Samuel Alito: How does it answer it?
David C. Frederick: It answers the question by making clear that the process that you set forth is what’s supposed to happen automatically, but then the very last sentence, which reads,
“The procedures prescribed by this subsection shall apply except when otherwise ordered by a court. ”
That sentence was added in 1980, 12 years after the Truth in Lending Act was originally promulgated.
And the reason why Congress added that sentence was because there had been case law that raised the problem that you are identifying.
So what that sentence is intended to do is to give courts the flexibility to reorder the various provisions or slow things down so that THE TENDER BACK actually happens in a way that does — is not unfair to the lender.”
I RESCINDED ON NOV 14,2007, THE RESPONSE ON DEC 7,2007 WAS NOT THE LENDER/PAYEE ON THE NOTE, IT WAS WELLS FARGO NON-TRUSTEE OF EMPTY TRUST, WHO DID NOT HAVE A NOTE OR MORTGAGE OR ASSIGNMENT UNTIL A YEAR LATER, AND 2 MONTHS AFTER BANK OF AMERICA BOUGHT ALL OF COUNTRYWIDE’S BULL SHIT [INCLUDING MY NOTE]. I RESCINDED DUE TO $20,000 STOLEN AT THE CLOSING TABLE [YIELD SPREAD PREMIUM] AN APPRAISAL OF $465,000 FOR A $265,000 NOTE [HMMM] AND FORCED PLACED INSURANCE [BREACH OF CONTRACT] SO I SUED AS PRO SE, BEEN IN THE HOUSE SINCE JULY 2007 WITH NO PAYMENTS, AND THE SUPREME COURT’S ORDER AFFECTS ME. LSO THE FL. SUPREME COURT CHANGED THE FORELOSURE RULE, BECAUSE OF ME ND MY BIG MOUTH, WHO WHISTLEBLEW THE WHOLE THING ON JAN 12, 2009. LOOK INTO FL. MIDDLE DISTRICT COURT OR PACER, MY NAME IS PATRICK FARRELL. I AM THE GUY WHO BANKRUPTED ISKCON, GMAC AND OCWEN. I AM SOVEREIGN IRISH AND AN ASSHOLE OF THE BEST KIND.FUCK ALL LAWYERS AND JUDGES ON THEIR KNEEWS SUCKING AND SWALLOWING BANKS JIZZ.
Rock, you’re either an “legal illiterate” as you mentioned earlier, or, and I think this hard to believe at this late stage, you haven’t actually read Judge Scalia’s words. Either way, you’re just plain wrong, and no amount of attacking folks on this blog will change that fact.
Read this simple, easy to understand commentary on the issue
. It’s short and sweet. I’ve posted it before as a rebuttal toy your ill-informed views, to no avail.
Practice hint: If you find yourself twirling your hair or dreaming of riding ponies and eating cookies, just pull your awareness back in for a little while….it’ll be worth it, and you can retreat from this blog knowing that although you made a complete and utter fool of yourself, at least you still have your bookmark delete function….all is not lost.
Remember, you may be a great fit for the PetSmart groomer training program.
Once again; as per NY trust law, all mortgages must be evidence 2 “true sales” in order to become bankruptcy remote and be in the trust. The mortgages all must bear these endorsements/indorsements; originator to sponsor, sponsor to depositor, depositor to trust. ( too tired to remeber the other one)
If your note is not done in this manner, the it is not in a trust. Because if it was In the trust, it would be done this way.
The assets (mortgages) in the trust must be established prior to the closing date. Otherwise, the “sophisticated investors” who bought these things wouldn’t have any idea at all what they were buying when they put their money up, and they would lose trillions.
It’s like having déjà vu and amnesia at the se time.
Dwight, because you have no legal acumen, you don’t understand WHAT Scalia meant. Common law rescission requires the rescinder to tender first. Because there is no federal common law things are statutized. When congress created TILA they changed how common law rescission works to where the creditor had to make the first move. Nowhere in the decision by Scalia did he say that the borrower did not have to tender, he just said the borrower doesn’t have to tender first. Moreover, there was only one question before the court, whether or not a lawsuit had to be filed within the 3yr statute of repose.
Matter of fact, the court during oral argument made this point very clear, and it was acknowledged by the Jesinowski’s counsel.
Anyone with any legal acumen whatsoever knows the borrower must be able to tender, or there is know rescission.
Just keeping listening to the new Jim Jones and lose your home. I’m going to take my own advise and stop wasting anymore of my time with you Kool-Aid drinkers.
Okay Rock, riddle me this;
By “money lent”, are we to infer that this includes all charges on the settlement sheet? This would include yield spread premium, etc?
I dont answer questions I just ask them.
Christine out on the streets looking for tricks?
A Man,
What if the servicer does respond and simply says we had nothing to do with actions of the originator. Then what?
The originators are long gone sued and liquidated by the investor class actions and the SEC. There’s nothing left to collect in damages unless you’re still in the home.
TWIGHTNJ, A BIG AAAAAAMMMMMAAAAANNNN!!!!!!!!!!!!!!!!!!!!!!!!!!
Rock … You’re mis-representing what Justice Scalia said about the courts applying common law rescission principals to the TILA Act .. he said “it was wrong”.
Now granted, he used some tricky language to articulate that message, but that is what he meant. Go back and read it again, it’s a paragraph where he talks about the tendering issue and why the courts were wrong to apply the old common law way that you are speaking of on this comments section, where the court has ignored the clear language of the Act and rejected the rescission that was already in effect, all because the court wanted to make the borrower jump through hoops and perform an impossible and unfair act of making money appear out of thin air.. in order for the court to finally acknowledge that rescission had indeed taken place.
Justice Scalia was being kind in using his fancy language, but what he was saying was “BULLSHIT” !! YOU DON’T MAKE BORROWERS JUMP THROUGH HOOPS AND PERFORM MAGIC TRICKS IN ORDER TO ACKNOWLEDGE THE EFFECT OF RESCISSION .. ITS ALREADY IN EFFECT UPON THE MAILING. END OF STORY.
He remanded it back so that the jerkoff judge whose been sleeping in bed with the banker can be made to sit in the corner like a bad little school-boy and learn to behave … Scalia is making the bad judge write it on the chalk board …”THE LOAN WAS RESCINDED”
Make the judge clean his own mess up , the Supreme Court isn’t there to clean up for the judge .. they remand the mess right back to be placed on his own filthy bench so he can possibly learn something by being made to clean it up and correct his own errors . This is how we deal with bad people, we rub their nose in it and make them see the error of their ways.
Go read Scalia’s paragraph again about tendering, and get back to us.
Hint: Read between the lines.
Produce the note won with TILA
I pity the Fool that goes against the Supreme Court of the United States.
Let My People Go
What if they dont answer within 20 days. Game over. I am not an attorney.
LET MY PEOPLE GO.
Hey Shadowcat Rock and Christine you guys must be smoking some good shit.
I am thinking that the attorney who took all that money from the home owners for this false flag case to keep people distracted from what the truth is a….never mind.
MASTER OF REDIRECTING. … ?
Talking about having to defend your title…..
Master of Redirection Out
Re: I pity the fool who goes up against the Supreme court of the United States.
You were not listening to Rock….None will go up against them… Its remanded back to State.
Always consult an attorney in the jurisdiction the property is located.
STATE LAWS VARY
Just Saying….
No E.Tolle, it works this way. Let’s say there is a legitimate TILA violation. Borrower files TIMELY rescission notice, if the bank sees there’s a valid violation, they then must pay back any monies spent by borrower. Once that takes place, the borrower then must pay back the money lent. That is staus quo ante. If the borrower can’t tender, there can not be status quo ante, therefore no rescission. What most courts will do, as they’ve done in the past, is make a determination if in fact the borrower can tender, because it doesn’t make a whole lot of sense to have the bank cut the borrower a check, just to have the borrower return it if they can’t tender.
The supremes remanded back to the lower court the Jesinowski case, where it will be determined if in fact there really was a TILA violation. Bank of America is claiming the couple received the required forms, because the Jesinoskis allegedly signed an acknowledgment that they were provided with the disclosures. If it is what you and others believe it to be, why did the supremes remand it back?
I’m on your side, but rescission is no great shake, but attacking the contract is!
I pity the fool that goes against the Supreme court of the United States.
MR T
NEVER AGAIN
LET MY PEOPLE GO
Let me get this straight Rock….you say that the fact that the Supreme Court ruled unanimously for the borrower’s side; that it isn’t a prerequisite that the borrower return what he borrowed prior to rescission, and that it isn’t the case that a court must decree it a rescission, and that a letter of written notice of rescission from the lowly borrower is in fact itself enough to establish concretely that rescission has taken place, and that the Jesinoski case should be remanded back to rule accordingly means….
That it will simply mean more tender demands, court decrees for the creditor, and no rescissions?
Bizarro world for sure.
Shadowcat, be silent. Keep your forked tongue behind your teeth. I did not pass through fire and death to bandy crooked words with a witless worm.
Spell Checker Please
KC Out
SRCATCH
Good Advice Rock. But E-Tolle lost his case and his home along time ago. You will not need to come back and tell E-Tolle I told you so.
E-Trollee. .. When you get a court order Granting You Summery Judgment like I did…. You would be so lucky to join my ranks of Village Idiot….. otherwise you are just another Greedy Incompetent Moron who sets a Fine Example of a SoreLoser!
Those who Laugh 1st don’t Laugh LAST….ENOUGH SAID!!!!
E.Tolle, here’s what you don’t understand. The decision from the supremes is not for legal illiterates, and I don’t mean that derogatorily. It is written for the lower courts, to give guidance for their rulings, not for the man on the street with no legal acumen whatsoever. Those learned in the law know rescission is returning the parties to status quo ante. The supremes never explain things fully because they know their readers understand basic premises, when the man on the street doesn’t.
If you really understood the decision, you would know that the Jesinoski case now returns to a lower court, where Bank of America will have a chance to argue that the couple received the required forms. Bank of America claims the Jesinoskis signed an acknowledgment that they were provided with the disclosures. If that turns out to be factual, good bye home.
So just like all of the scammers and legal illiterates jumping on a case thinking its a win, it is in fact about to turn out as a loser for the Jesinowskis, just like Ibanez who lost their home to foreclosure after their so-called win, and all of the other cases that turned out to be losers. Don’t make me come back and say I told you so.
Again, attacking the contract is the ONLY methodology that works.
Ok et
Im smiling. Well no , ill be honest i laughed.
Its good not to get too serious because laughing saves ,
Rock, I’d like to thank you for the continued posts, but our minds are made up. Although you did make it an awfully tough go. Your insistence on continually pushing the point that the borrower still needs to tender, in conjunction with your posting of 2009 court decisions in an attempt to counter the SCOTUS ruling, made our job incredibly difficult. But I’d be dragging this out if I didn’t tell you that although we feel you worked very hard for the position, the job of Village Idiot will remain in the very capable hands of Shadowcat.
Her sincere belief that every single thought bubble she sees on her minds eye should be posted on this blog has cemented her as the epitome of shallow lunacy. She and her delusions of adequacy would be nearly impossible to dislodge from this high position. But again, thank you for your efforts. Would you like to try for the jester position?
No offense taken A Man.
My case is very twisted and im not sure my case is unique by the very fact that the 9 th circuit in their decisions re rights of rescission have been WRONG per the SUPREME court decision, well i say we live to fight another day and litigation continues. We will have to wait and see, one thing is to be anticipated, the ” banks” will fight us hard, keep your crash helmets on and use the ruling as best you can is my non lawyer opinion, but study it well and anticipate their side according to the posture if your cases and pleadings. Good luck to all and god speed, he will have the final say and im ok with that.
I don’t look at my credit report every year.
I don’t use credit.
So I disputed PNC showing up on my credit report as if I owed them, when I specifically stated in the dispute that they stole my home and why are they claiming a debt owed, double dipping perhaps? In so many words.
Well I got a response to the dispute.
PNC took over NCM Bank in 2008 and NCM Servicer in Nov, 2009, and stole my home in 8, 2010 under PNC servicer.
Never an assignment of mortgage, and someone claiming to be trustee with the right to accelerate, posts notice of acceleration 10 days before becoming substitute trustee, which means they did an act they had no power to do and it stood even though I gave exhibits to the court, that were entered as exhibits to the claim.
If someone is peaceful, you can’t compel them to argue or fight you to preserve their right to property and their right to be peaceful.
Anyway.
Credit report shows the PNC account closed as of 2007 never late (of course I was never late, I gave pure energy to paying for that property that was stolen).
So since PNC was sending their stupid $300 check to cover their theft and I would not cash it, is this their way of clearing their account of the theft by claiming it is clean as of 2007, not the 2010 theft they did?
It still sits on my report for 10 years after closed, so 2017 is when it drops off.
These ‘astards’ get away with all kinds of stuff, and since I have no time to give my life energy to war, I guess they will continue to do so, but there is enough evidence in the public to their criminal activity.
Interesting enough the credit report has some portion now showing ‘original creditor’, I never saw that before, and there is some claiming to not be able to ‘find me’ and even to the point that the disputed item is not updated….well if you could not find me and I dispute your claim, you know where I am now, why still show can’t find me?
I stopped using credit a loooooooooooonnnnnnnng time ago.
If I didn’t have the funds, I didn’t have it, and it was around the time I made a major purchase for property without knowing by full disclosure that it can be stolen by the tax man, HOA man, or some company claiming an interest in the property but not having a note or a mortgage assignment to support their interest.
I plan to remain in peace and let the universe sort this out.
I sometimes wish things like that movie ‘The Happening’ really comes true and clears out the people who are against the natural flow of life and nature and natural law of no trespass and thou shalt not steal, and do unto others as you would have them do unto you.
Back in the day, you steal someone’s property, knowing it’s not yours, they hung ya, or in other words, you steal their property, the judgment was your property, your life, was stolen from you.
We thought those days were too wild, well today it’s worse, it’s not cattle rustling, it’s property rustling with the support of the sheriff and judge and lawyers. There is no where to run them out of.
I sometimes wish by their energy, they are marked and nature will clear them out for the rest of us to live in peace.
Sometimes I wish that.
Since energy cannot be created nor destroyed, let them go back to the original source of their creation, their spirit/soul creation, and be reloaded with the original/pure information; and then come back here and try it again.
Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino
ROCK,
AS YOU CAN SEE YOURSELF, THE REASON, THE BORROWER WANTS THE BANKS TO BE PLAINTIFFS, IT CHANGES EVERYTHING AS YOU SHOULD KNOW.
THE BANKS DONT WANT TO BE PLAINTIFFS. GET IT..NOW WHY
LOOK AT WHAT YOU WROTE, SWITCH IT AROUND, BANK IS NOW ASKING THE COURT TO AMEND COMPLAIN THAT THEY DIDNT RESPOND TO THE RESCISSION LETTER, IN THE REQUIRED 20 DAYS. JUDGE WOULD SAY BUY BUY. YOU LOSE BANK. .
Shadowcat, like of admonished Christine, Gene, et al, you’re wasting your time trying to educate these Kool-Aid drinkers. They worship at the feet of a new Jim Jones, who is leading them to their demise.
I posted two cases that have just come down in the last two weeks, where the courts made it clear, if the rescission letter is not mailed within three yrs. of consummation, your rescission claim is toast!
Here’s another dealing with a prior rescission claim, where the borrower is toast:
“At oral argument, the Plaintiff orally moved to amend the Complaint based on the impact of Jesinoski v. Countrywide Home Loans, Inc. The Plaintiff wants to amend the Complaint to add counts related to the purported rescission of the Note, which would affect the enforceability of the Mortgage Documents. To allow the Plaintiff to amend the Complaint is futile because the Plaintiff is also precluded from re-litigating a claim arising from the alleged rescission…
…Because the doctrine of res judicata prevents the Plaintiff from re-litigating the effectiveness of the rescission in this Court, any attempt to amend the Complaint to add a count related to rescission is futile and should be denied. Foman v. Davis, 371 U.S. 178, 182 (1962).
Based on the foregoing, Deutsche Bank’s Motion to Dismiss is granted and this adversary proceeding is dismissed. The Plaintiff’s oral request to amend the Complaint is also denied. A separate order will be entered contemporaneously herewith.” IN RE HAFFEY, Bankr. Court, ED Kentucky 2015.
Quite frankly, no other blog would put up with the insanity these Kool-Aid drinkers exhibit. What does that tell you?
E- Tollee. … What Threat?
***No question in my mind why you lost.
You only read and interpret things the way you want to hear them.
Oh Well…..
David…..You let us know how that works for you.
If you disappear without doing so… we will assume it didn’t work because it doesn’t.
Oh Well…….
Might I suggest Depends for your peeing your pants issue David?
Rock and Christine… Remember..you can’t save them all.
Save those you can and don’t blame yourselves for their losses.
Shadowcat, on April 1, 2015 at 10:26 am said:
Forget reccission….. Attack the Mortgage!!!!!!!!!!!!!!!! AGAIN LESSON,
101, ONCE RESCISSION IS DONE, IN MAIL. THERE IS NO MORE MORTGAGE OR NOTE.
THEY HAVE TO FILE SUIT, TO SAY TO COURT, YES COURT THERE IS A MORTGAGE AND NOTE, AND I OWN IT, AND THIS IS MY PROOF OF OWNING IT, ( MORTGAGE? NOTE ).. IF IF THEY DONT DO IT IN 20 DAYS, AS REQUIRE BY THE COURT OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA, SAID HAS TO BE DONE, THEY LOSE. END OF STORY. END OF YOUR MORTGAGE AND NOTE.
AND BY THE WAY , ALL MORTGAGE / NOTE ARE UNSECURED NOW, BECAUSE THE TRUST NEVER HAD THEM, AND ALL SERVICER ARE DEBT COLLECTORS. THAT IS ALL THEY ARE.
Have you ever tried to enforce a non enforceable mortgage?
Until you have…you will never know how the debt became unsecured.
We will see Judges who legislated from the bench understand that there is no “Free Lunch”.
NEVER AGAIN
A threat followed by a blessing. Now that’s 21st Century America for you.
Bomb ‘em, for Christ’ Sakes!
David….. Before Long I will be chanting again…….
Another one Bites the Dust.
And I will not be referring to a Bankster. … But a former homeowner.
Many Blessings to All….
christine, on March 31, 2015 at 11:23 pm said:
Steve,
Nothing is considered “an attempt at rescission” unless it followed the format originally prescribed by Congress.
Courts don’t work on guess or assumption. ARE YOU F-ING KIDDING ME THAT YOU ACTUALLY BELIEVE THAT STATEMENT???
THAT IS WHAT THEY HAVE BEEN DOING FOR 10 YRS.
They work on evidence. AGAIN REALLY?????
Either your letter complied and constituted a demand for rescission or it didn’t.
Judges are not appointed to sorta-kinda follow the rules. Make a compelling case and you get a straightforward ruling. HAHAHAHAHA
STOP JUST STOP AM PISSING MYSELF, HAHAHAHAHAHA
If you don’t, that’s what appeals court are for and the system works.
In law, there is no try out. Do or don’t, get the result and move up or out..
YOU MUST OF HIT YOUR HEAD HARD TO BELIEVE WHAT YOU WROTE.
Forget reccission….. Attack the Mortgage!!!!!!!!!!!!!!!!
Have you ever tried to enforce a non enforceable mortgage?
Until you have…you will never know how the debt became unsecured.
Deborah Wynn I just wanted a professionals opinion.
Be Strong and courageous and good luck.
NEVER AGAIN
Christine if thats the truth then power to you but the Supreme Court ruling will be tested i assure you.
christene said this,
“There is no burden of proof for the borrower to make the rescission effective.” Really? How about timeliness? Proof required right there and then. How do you reconcile that with not needing to “sue”? Damn! That’s what motion for summary judgment is all about. Oops! Need a judge! Deal with it.
ok christene lets look at this AGAIN i will go as so as i can for you, to maybe comprehend.
They became void by operation of law (i.e., the same as if a court order was entered) the moment the notice of rescission was dropped in the mail.
The issue of when or whether the rescission is effective is OVER by operation of law. It’s done. Stick a fork in it.
There is no burden of proof for the borrower to make the rescission effective
. And if the Borrower does sue to enforce compliance with TILA that is an enforcement action,
the same as one would seek to enforce a judgment or order that has already been entered.
At that point, unless the servicer or bank ( had ) filed a lawsuit challenging the rescission
as a creditor (because the note and mortgage no longer exist) WITHIN THE 20 DAY WINDOW
measured from the date of notice, the creditor has no right or standing to challenge the rescission itself or whether it should be considered effective.
ok now do you understand, this is the same that the bank were useing on us for the past 10 yrs, and getting away with it. that is why the banks are fighting this matter.
the supreme court turn it up RIGHT SIDE UP, AS IT SHOULD OF BEEN FOR THE PAST 10 YRS. this is why the banks dont know what to do.
we the borrower do not have to prove anything in court, IT WAS EFFECTIVE, BY OPERATION OF LAW, COURT ORDER.
THE BANKS MUST FILE SUIT TO ARGUE THE EFFACTIVENESS OF THE RESCISSION AND TIMELENESS OF THE RESCISSION, BUT ONLY HAVE 20 DAYS TO DO IT.
IF THEY DO NOT FILE SUIT.
THEY ARE ADMITTING TO THE TRUTH OF THE RESCISSION..
COME ON. IS THIS SO HARD FOR YOU TO UNDERSTAND BASIC LAW.
1+1= 2
Steve,
Got to get to bed.
Write me directly. cbrightlife@aol.com
Deb,
I’m not into last word. Couldn’t care less. I’m into real help people can grasp and work from. I’m into empowering people into taking action. Not just ANY action. Actions that truly help them get results.
Christine,
What is the format originally prescribed by Congress? What should it read.
My complaint covered several topics – deceptive lending practices, truth in lending, Real estate settlement procedures, etc…
When the lender replied with rejection to affiliation of the originator, then sent me over to the originators defunct address, I could only forwarded that evidence to the AG.
So even if the format originally prescribed by Congress ( whatever that format is) was sent and servicer denied affiliation. Where did or does that leave the borrower being able to rescind within that three year statue.
Christine, you can have the last word. Matters not.
Steve,
Nothing is considered “an attempt at rescission” unless it followed the format originally prescribed by Congress. Courts don’t work on guess or assumption. They work on evidence. Either your letter complied and constituted a demand for rescission or it didn’t.
Judges are not appointed to sorta-kinda follow the rules. Make a compelling case and you get a straightforward ruling. If you don’t, that’s what appeals court are for and the system works.
In law, there is no try out. Do or don’t, get the result and move up or out..
Deb,
Nobody can sue me for defamation: truth is truth. NG makes money and that’s all he does. Never tried ONE case in his entire career. That is a very well known fact in the legal community.
And Group Therapy on his Worldpress website makes him… money! You indulge it by posting, you’re part of the problem.
Winners on LL, please let’s have a show of hands. Winners thanks to LL, please let’s have a show of hands.
Until then, numbers speak for themselves. Zero is a number.
What if the borrower sent notices to the servicer about disclosures well within the three year period but the servicer replied stating they had nothing to do with the origination and to contact the originator at a defunct address.
Would that be considered an attempt at rescission since the servicer most likely knew that the originator was no longer in business?
Oh in non judicial foreclosure state,My Lis Pendens did not stop the foreclosure, though frankly i should still be in my house, and no one dare comment the story is long and windy – you know asin ” until you have walked in my shoes kinda thing) anyhoo, they got the judge to remive it after they got ” trustees deed upon sale” all still being litigated.
And Christine, good lord this chit is very very hard to do, people simply try to stay strong throughout the YEARS of trying to get their piece of justice, and if blogging helps who are you to knock it, your doing it! Blogging that is, why cant you knock off the high horse attitude. NG could probably sue you for defamation, but then again, he has to prove harm.
I understand recission can only be done within three years but what about all the people who are 5-6 years late and strangers pretenders lenders acting like they have the right to enforce come in and foreclose. Should be able to recend those old deeds of trust?
Soorry “the a man,”i just bounced off what you had said, i posted what i thought might be worth looking at.
Dwight,
consult council before doing what i did, ( and i maintain i had the right and i plead that in my appeal – ANY lis pendens). Please definitely do your research.
Just like I have been saying the irony of all this is that we are back to Produce the Note with TILA. Anything but produce the note figure of speech is alleged corruption, Discrimination or Apartheid.
I have the backing of the Supreme Court of the United States now.
Christine you are irrelevant, You are nothing but a Bully. But somebody else might think different. You can still save your soul by coming out and become a whistleblower.
NEVER AGAIN
The A Man,
Get the ball rolling and have me indicted.
Cyber bullying is a serious Crime Christine. If you cant do the time dont do the crime.
NEVER AGAIN
Garfield states:
“I am hearing reports…” from which he is actually able to write an editorial that is sure to keep dozens from using whatever brain they have left between their ears, and will assure that he makes money from them just visiting his website and posting their insanity, all day long, every day. There’s a reason he boasts millions of visitors: he gets money every time. Do you?
Reports? From whom? Based on what source(s)? Anyone I know and respect for having won anything? Any attorney I would trust to fight for me?
Garfield then goes on:
“There is no burden of proof for the borrower to make the rescission effective.” Really? How about timeliness? Proof required right there and then. How do you reconcile that with not needing to “sue”? Damn! That’s what motion for summary judgment is all about. Oops! Need a judge! Deal with it.
“The borrower may [no, not “may”. Will.] be obligated on the debt (after deductions for unpaid amounts from the creditor) but ONLY AFTER the creditor has complied with the three elements of mandatory compliance — return of the canceled note, satisfaction of the mortgage in the county records, and return of all money paid by borrower starting with the origination of the loan and continuing up to the date of rescission. [No. Factually so untrue, anyone reading this should immediately enlist to be sent to Yemen or any of the 7 ongoing wars, to put a stop to his own misery really, really fast. In fact, states have to decide, one by one and case by case, whether recordation is even a prerequisite to anything, let alone TILA!]
Know what? Garfield makes money just from stupid people flocking to his site: wordpress works that way: he signs up, pays his monthly fee, creates a blog with them, with the promise it will be profitable. It is. From both ends. Parasitic relation at its best. Just needs peons and there is no limit to the supply.
Garfield never tried ONE case in his entire life (up to him to prove otherwise. I’ll eat my word if he ever does. He may kick me out for saying so. He will never sue me: he can’t: he cannot refute it with ONE case. Otherwise, I’m dancing to court!) Every serious attorney knows it. None comes here, for a good reason.
Garfield peddles useless securitization audits no court has considered to date, many have chastised homeowners on, and he makes money. Serious attorneys won’t take a look at those “audits”. Garfield makes a ton of money. Homeowners? Here? A joke! Suckers with money.
Peons visiting this site are Garfield bread-and-butter. They visit: money flows. They ask for his help: money flows. He refers them to attorneys “nationwide” while doing nothing: money flows. (His referral scam is typical. Sokolove invented it. Under so much pressure to account for every cent, his entire system has been spent proving he does provide help. Despite legal malpractice on many of his “referrals”.
Peons flock. And generate revenue for Garfield.
NOT ONE serious attorney with ethics and proven record comes to LL. NOT ONE.
Peons with a few bucks to spare flock. Victims? Nah.
With all due respect the question was for Neil Garfield or a qualified attorney.
In a non judicial state common sense says that after 20 days I do not need a Judge. but I am not an attoney. Just like the banksters dont need a judge to file a NOD OR Notice of Trustee sale or a sale.
NEVER AGAIN
Deb, . you raise a good point, maybe I should record something in my county clerks land records stating that I have rescinded and alleged mortgage lien against my property is null and void , as a backup safety move to protect my property against any foreclosure sale until I can eventually find justice in the kangaroo court.
Aman
I HAD to file suit so with THAT , i place notice of the suit on the property record to protect title. Whilst i believed in 09 the recission was valid i had other issues to litigate and was not holding my breath at that time , i had been sold a pack of lies re owner/ investor of my loan and being the ” modification fest era, ( and before this US supreme case decided the exact rights)
Christine, the modification should have had a principal reduction from Fannie, who refused to give one at the time. I believe that has now changed.
In a non judicial state how do you record the resission. Or when you want to sell property?
bottom line
And for what was submitted into evidence, its clear there was non disclosure
Did anyone cite the notice of rescission in their lis pendens ( if you placed one on the land record) and the fact that the security instrument was void as a matter of law.?
LISTEN ALL, courts cant say anything is wrong, or you rescission is no good. period. cant you all read. UNLESS THE BANKS FILE A SUIT IN 20 DAYS, SAYING THEY DISAGREE IN THE RESCISSION LETTER, AND THIS IS WHY WE DISAGREE. THE BANK CANT BRING IT UP AS A DEFENSE.
ALL YOU SAY IS WE NEVER GOT ALL DISCLOSURES AS TO WHAT IS REQUIRED BY TILA LAW.
THE BANK CANT SAY ANYTHING. ITS BAR FROM IT. IT CAN NOT SAY YOUR HONOR HERE ARE THE COPYS OF THE REQUIRED DISCLOSURES. BECAUSE THEY DID NOT FILE SUIT IN THE 20 DAYS, THEY LOSE ALL DEFENSE , THAT YOU CAN BRING UP.
THEY CANT SAY YOUR HONOR THIS WAS A DEAL THAT WAS COMSUMATED 5YRS AGO , 8 YRS AGO. AND HERE IS THE PROOF. AGAIN. SORRY CANT BRING THAT UP EITHER.
THEY CANT BRING UP ANYTHING TO JUDGES. NOTHING UNLESS THEY FILE SUIT IN 20 DAYS. END OF STORY.
HERE ROCK, FROM HORSES MOUTH, THE OCC.
Comptroller of the Currency
Administrator of National Banks
Asset Securitization
Comptroller’s Handbook
A look at the roles played
by the primary participants in the securitization process will help to illustrate
the benefits.
Asset Securitization 8 Comptroller’s Handbook
Exhibit 1: Parties Involved in Structuring Asset-Backed Securities
Borrower. The borrower is responsible for payment on the underlying loans
and therefore the ultimate performance of the asset-backed security. Because
borrowers often do not realize that their loans have been sold, the originating
bank is often able to maintain the customer relationship.
Parties to the Transaction, as in the PSA, by order of importance, is as follow’s.
first. BORROWER
second . ORIGINATOR/SERVICER
third. SPECIAL PURPOSE ENTITY/TRUSTEE
forth. RATING AGANCY AND CREDIT ENHANCER
fifth. UNDERWRITER
sixth. INVESTORS
THESE ARE ALL PARTIE’S TO ALL PSA, IN MORTGAGE SECURITIZATION OF MORTGAGES.
Java,
What would you be rescinding? The 7 year old original loan (too late for that) or the mod (rescission doesn’t apply to mods).
To clarify … My point to Ron was that if a borrower waits beyond the 3 year window to mail his notice, the courts are saying no good. It must be mailed within the 3 years from consummation. But, if you have not done it you can still try filing notice after 3 years and argue for the doctrine of equitable tolling to be applied. The other argument is to claim that no valid legal consummation really took place because the true parties were not disclosed , meaning it was never a valid contract. Thats just another argument to consider if you missed the 3 yr window. But yes David, I mailed notice in the 3 yr window, and we are now in the 8th year since it was mailed and ignored. I agree, even 8 yrs after the mailing it is still effective and a done deal by operation of law. Just because they ignored it for 8 years doesn’t change the fact that it was rescinded .. and its too late now to hold a trial over the merits of whether it was for good cause , they missed the 20 day window , just like when the little struggling pro se citizens are in court fighting for justice and the mean judge tells them that they are time-barred from raising certain defenses .. Nobody cries or feels sorry for citizens, well now the shoe is on the other foot …the lender is time-barred from challenging the validity of an old rescission that they ignored. Or at least they should be barred ..this could get ugly ..the judges are going to stomp their feet and continue to be defiant because of their deep seated hatred for the homeowners facing foreclosure.
RON , AS ROCK MIGHT SAY HE KNOWS, BUT KNOWS NOTHING,
I HAVENT PAYED IN 5 YRS, AND I WILL SWEAR TO ANY COURT THAT PAYMENTS HAVE BEEN MADE ON THIS MORTGAGE/NOTE,
AND I CAN PROVE IT.
THE CONTRACT THE BANKS SAY WE ARE NOT A PARTY TO, IS THE PSA.WELL THE OCC, THAT GOVERNS THE BANKS SAY DIFFERENT. IN THERE REGS. SO BIGHT ME ROCK.
AS PER ALL PSA, THE SERVICER IS TO PAY ANY AMOUNT OF THE MORTGAGE AMOUNT, EVEN IF THE MORTGAGOR ISNT MAKING PAYMENTS. IN NO WAY SHAPE OR FORM , ALL PAYMENTS MUST BE MADE. BY SERVICER.
DOESN’T MATTER IF YOU ,MAKE PAYMENTS OR NOT. AND JUST AS THEY DO, ROCK. I WOULD MAKE COPYS OF ALL MY CHECK RIGHT UP TO THE DAY THEY SAY I HAVEN’T BEEN MAKEING PAYMENTS, AND TELL SHOW JUDGE SEE HERE ARE ALL MY COPYS OF CHECK I SENT THEM. AND IF THEY SAY , WAIT THESE ARE NOT CANCELED CHECKS , YOUR HONOR, WERE ARE THE CANCELLED CHECK. , I WILL SAY YOUR HONOR YOU ARE ALLOWING THIS BANK TO GIVE YOU COPYS . WHAT IS THERE A DOUBLE STANDARD HERE? THE BANK CAN GIVE YOU COPYS BUT I CAN NOT. HUM SOMETHING WRONG HERE YOUR HONOR.
Could a homeowner in good standing, with a 2 years ago modification with Original servicer from original mortgage closing of 7 years ago, be able to Seneca rescission letter , based that modification was only 2 years ago ?????
Ron, do yourself a favor and listen to Shadowcat’s advice, with one caveat–think things out as well. Because if you listen to these Kool-Aid drinkers or Garfield, you’re guaranteed to lose your home.
Here’s the scenario, you’ve missed payments, breaching the contract consummated in 2006. You somehow discover a TILA violation today and send in a rescission letter. The bank doesn’t respond, but moves forward with foreclosure. You’re defense is rescission based on the newly discovered TILA violation. It will be your burden to prove you sent in the rescission letter within 3 yrs, 2009. Because you didn’t, you can’t–goodbye home!
I’m now leaving Jonestown, leaving the Kool-Aid drinkers to their own demise once again.
DWIGHTNJ,
the issue of 3 yrs, is also over for banks. the judge has to say to them you didnt file suit to DISAGREE WITH THE RESCISSION.
SO YOU CANT NOW COME INTO COURT AND SAY LOOK THEIS LOAN WAS 5 YRS AGO, 8 YRS AGO,10 YRS AGO. YOU CAN NOT SAY ANYTHING ABOUT THE STATUE OF LIMITAIONS IS OVER. YOU DIDNT FILE A SUIT IN 20 DAYS SAY YOU DISAGREE, AS TO THE RESCISSION LETTER YOU GOT.
STRIKE 3 YOUR OUT. END OF GAME.
RON, YOUR RIGHT. IF THEY DONT FILE SUIT TO SAY THE RESCISSION ID NOT GOOD FOR ANY REASON. A LAW SUIT MUST BE FILED IN 20 DAYS. IF NOT. THEY CAN NO LONGER SAY ANYTHING . ABOUT THE TIME,STATUE OF LIMITATION,, ANYTHING. THEY CANT SAY A WORD TO DEFEND THEM SELF. K UNDER STAND NOW.
D-DAY IS 20 DAYS OR NOTHING. ITS THERE CHOICE. NOT OUR . EITHER DEFEND IT OR GO HOME. 20 DAYS
RON, PLEASE READ CAREFULLY. THE LAST STATEMENT SAY IT ALL.
I am hearing reports that Judges are entering rulings based upon the “note holder” and other spurious premises in connection with the application of the rescission rules under the Truth in Lending Act (TILA). It is obvious that the Judges still don’t get it or don’t want to, both of which are perfectly understandable because the rules under TILA are VERY different from the the rules governing common law rescission.
Any ruling predicated on the note or mortgage after rescission is wrong unless it recognizes that there is no note or mortgage anymore. They became void by operation of law (i.e., the same as if a court order was entered) the moment the notice of rescission was dropped in the mail.
The issue of when or whether the rescission is effective is OVER by operation of law. It’s done. Stick a fork in it.
There is no burden of proof for the borrower to make the rescission effective. And if the Borrower does sue to enforce compliance with TILA that is an enforcement action, the same as one would seek to enforce a judgment or order that has already been entered. At that point, unless the servicer or bank had filed a lawsuit challenging the rescission as a creditor (because the note and mortgage no longer exist) WITHIN THE 20 DAY WINDOW measured from the date of notice, the creditor has no right or standing to challenge the rescission itself or whether it should be considered effective.
ATTORNEY PRACTICE HINT: I think it is very important to say something to the effect “Judge, I understand your thinking on this and hundreds, perhaps thousands of judges agreed with you — until the US Supreme Court said otherwise a few weeks ago. This is not common law rescission. The note and mortgage cease to exist when the notice of rescission is dropped in the mail.”
The only way for an alleged lender or creditor to prevent an enforcement order being entered against them is to file a lawsuit contesting the notice of rescission within 20 days of the notice and to ask for an injunction. But in order to do that they would have to say that they are in fact the creditor — i.e., prove the actual debt due without the note and without the mortgage — because the note and mortgage ceased to exist by operation of law.
When that borrower drops the notice into a mailbox it is the same thing as a Judge entering an order. There is nothing left for the borrower to do and nothing left that the borrower can do to make the rescission effective. Most courts held that the borrower had to file a lawsuit or tender payment or both before the notice of rescission could be effective.
The unanimous decision of the Supreme Court of the UNITED STATES OF AMERICA
, in Jesinowski was that all those judges were wrong…
. And of course this court lacks jurisdiction or authority under the US Constitution to countermand a Supreme Court decision.
There is no requirement of a lawsuit —the rescission is effective upon notice and notice is effective when it is dropped into a mailbox. There is no requirement of tender either.
The borrower may be obligated on the debt (after deductions for unpaid amounts from the creditor) but ONLY AFTER the creditor has complied with the three elements of mandatory compliance — return of the canceled note, satisfaction of the mortgage in the county records, and return of all money paid by borrower starting with the origination of the loan and continuing up to the date of rescission. Assuming a creditor has complied with TILA and now wishes to collect on the debt, THEN the creditor steps forward alleges the debt by showing proof of payment, not self-serving documents like assignments and endorsements. And if the creditor proves the debt, the debt is unsecured.
The purpose of TILA rescission was intentionally to provide consumers with a quick easy remedy that didn’t require a lawyer to cancel the loan.
The Supreme Court ruling is that the statute means what it says. And the statute says that the note and mortgage are immediately nullified by operation of law (same as a court order) when dropped in the mailbox.
And the reason for that is the whole reason behind the Truth in Lending Act — to level the playing field between tricky sophisticated banks and unsophisticated borrowers who didn’t and don’t receive the information they needed to choose lenders or make a decision about which loan they would choose to take from which lender.
It was recognized by the framers of this law that in order for the old lender to get paid (assuming they could prove the debt without the note or the mortgage which no longer exist) the existing note (even if still held by anyone) and the existing mortgage of record (even if recorded in the county records) MUST be void in order for the borrower to get a new loan to pay off the old debt. Otherwise it would be impossible fro the borrower to go out and get a substitute loan.
And since it was obvious that the banks would ordinarily stonewall the rescission if they had the chance, Congress gave them no chance to stonewall. And that is why they made it such that the rescission becomes legally effective, voiding the note and mortgage the moment it is dropped into a mailbox.
The only way out for the banks is (1) after full compliance with the requirements of TILA (return of note, satisfaction of mortgage and disgorgement of all money received and paid in connection with the loan) to either ask for payment of the debt (once they prove it) or (2) to file an action in Court within 20 days of the notice alleging that they are the creditor (but they can’t rely on the now nonexistent note and mortgage) and alleging that the rescission should be set aside.
The lawsuit by the bank is akin to a motion to set aside judgment. That is where Judges are making errors and continuing to issue rulings that are wrong. The rescission is already effective if it was sent. There is NOTHING left for the borrower to do to make that rescission effective.
Hence even if the lender wants to challenge whether the rescission was sent, they would have to do so in their own lawsuit brought within the 20 day window.
Dwight, I’m inclined to agree with you based on the plain meaning of the law, which is the point Scalia was making. In other words, at the moment the notice is dropped in the mail, the note and mortgage is void, period.
The mailbox is of course unable to determine that the letter was sent more than 3 years after loan consummation, so as a matter of law, the note and mortgage is dead UNTIL the ‘lender’ puts it back in play with the timely filing of a lawsuit explaining who they are, when the loan was consummated, and then arguing the SOL had expired prior to the filing.
But it seems clear that the ‘lender’ would need to make those points within 20 days, otherwise they’re are completely without authority to make it later. If they didn’t do that within the 20 days, who else can? Logic suggest nobody can since there is no loan or mortgage left to ‘discuss’. Even if you then filed a quite title action some time later, the lender can’t object because they are clearly no longer a party to the action.
I’m aware of the ‘absolute statutory requirement’ to file it within 3 years, but it seems on the surface that would only apply IF the lender had PROPERLY raised that issue within 20 days, (assuming that equitable tolling was not granted), right?
Actually Rock is Factually correct.
People dont learn when they think they are always right.
Nothing is Free….get off your butt and computer and get a life.
Sheesh…….
Equitable tolling has not yet been tested and appealed to know if it will be accepted or not. Right now the courts don’t recognize it, but you can still attempt to argue why equitable tolling should apply and appeal it up through the courts based on your argument that federal laws usually do allow equitable tolling unless they state otherwise. Watch the videos from the other post steve vanderer law firm posted, visit that site to look up case law where equitable tolling has applied in cases of concealment and fraud. But right now they only recognize 3 yrs.
NG corroborated all of my theories and arguments, now I need to keep fighting in order to overcome my judges errors and orders.
Rock is not a loser he/she/it is a Cyber Bully who preys on the weak homeowner. Rock my blood pressure is going up.
NEVER AGAIN
ROCK LIKE TO USE OLD EXPIRED COURT CASES. LOSER
RON, first of all ,
once you send a letter of rescission to all partys, its all over but the crying at the banks. UNLESS THEY FILE IN THE 20 DAYS, THEY HAVE TO FILE A SUIT IN 20 DAYS , ASKING A JUDGE TO NULLIFIE THE RESCISSION. IF THEY DO NOT FILE SUIT, THEY LOSE. ITS THAT SIMPLE.
BY THE BANKS NOT FILLING A SUIT, THEY ARE AGREEING TO THE FACTS, OF THE RESCISSION IS GOOD. NO MATTER HOW LONG ITS BEEN,
IF THEY DO NOT FILE A SUIT, ASKING FOR THE COURT TO NULLIFY THE RESCISSION, AND STATING THAT THIS IS WHY YOUR HONOR THAT YOU MUST NULLIYFY THIS RESCISSION, AND WE ARE SAYING THAT ITS TIME BAR, STATUE OF LIMMITATION IS WELL OVER THE 3YRS, 3DAYS.
IT THEY DO NOT DO THIS IN 20 DAYS ITS ALL OVER , ITS THAT SIMPLE.
ROCK IS A LITTLE SICK RIGHT NOW. HAHAHA. OVER HIS BELOVED BANKS HE CRY HIMSELF TO SLEEP EVERY NIGHT.
Ron, the answer is you’d be shut out.
“The Court agrees that Plaintiff’s rescission claim is untimely. Plaintiff alleges in his Complaint that the “closing date” for his mortgage transaction was December 18, 2006. Compl. ¶ 25. Accordingly, pursuant to § 1635(f), Plaintiff was required to exercise his right to rescind by December 18, 2009. Although Plaintiff acknowledges in his Complaint that “[t]he Truth in Lending Act . . . extends Plaintiff’s right to rescind a loan to three years from the date of closing if the borrower received false or incomplete disclosure of either the loan[‘]s terms or Borrower’s right to rescind,” Compl. ¶ 126 (emphasis added), Plaintiff does not allege any facts remotely suggesting that he provided notice of rescission to his borrower before the three-year period elapsed. Instead, Plaintiff appears to be seeking rescission for the first time with the filing of the Complaint presently before the Court. However, as there is “no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run,” Jesinoski 135 S.Ct. at 792 (quoting Beach v. Ocwen Fed. Bank, 523 U.S. 410, 417 (1998)), Plaintiff is time-barred from seeking to rescind his loan under TILA. Accordingly, the Court shall dismiss with prejudice Count X of Plaintiff’s Complaint.” HAROLD J. TAYLOR v. WELLS FARGO BANK, N.A., et al. Civil Action No. 14-617 (CKK). United States District Court, District of Columbia. March 25, 2015. Also see, LaGRANT v. US BANK, Civil Action No. 3:14-cv-809-HEH. United States District Court, E.D. Virginia, Richmond Division. March 16, 2015.
Forgot this part!
Do I send the notice to the “bank” that foreclosed on me? There were 5 or 6 “reassignments AFTER I was foreclosed on WITHIN A 6 MONTH PERIOD.. ha!
I was foreclosed on just over two years ago…
Is it to late to file? What are my chances?
Do I Send a certified, return receipt, notarized letter of rescission? My loan was assigned 4.5 years AFTER I received the “loan”. By all accounts, it was a table funded loan. I am in California.
Your comments are all welcome! Thank you!
Does anybody have a clear answer to the question of what happens when TILA notices were sent after the 3-year SOL, but that were nonetheless ignored by the ‘lender’ within the 20-day period?
In other words, does the late notice automatically nullify the TILA notice, or would the date of consummation and if equitable tolling applied be considered as issues that the lender should raised/litigated within their lawsuit that should have been filed within 20 days? Further, assuming they forfeited forever their right to litigate the notice, would the judge also be prevented from raising SOL issues on their behalf claiming the notice was ‘untimely filed’?
can’t WAIT to here FROM our best and brightest, ROCK AND CHRISTINE.
WAITING!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
if my refi was washington mutual to washington mutual, i dont qualify for rescission? i sent rescission to chase in 2010 in a QWR – ignored…
Neil Garfield and company
Be Strong and Courageous.
NEVER AGAIN