For further information or assistance please call 520-405-1688 or 954-495-9867.
The Pilot Program on rescission ends April 14.
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The act of rescission is simple — signing a notice and dropping it in the mail. The only further legal procedure by borrower would be enforcement of the rescission if the “lender” failed to file a challenge within the 20 day window. It is the procedural complexity that makes it necessary to be ready with effective arguments and pleadings to enforce the rescission. But the rescission is effective the moment it is dropped in the mail; that is true by operation of law, which means it is the same thing as a Judge signing a court order canceling the loan. If the Bank wants to change that “order” the Bank must file a challenge in court within the 20 day window. If they don’t challenge the rescission in court the rescission is effective even if there were defects in the fact pattern behind the notice of rescission.
This is the same as the foreclosures. If there were defects in the foreclosure process and orders and judgments are entered anyway, the borrower must challenge those within the time limits provided by law. But if the rescission was sent prior to the entry of those orders and judgments, then everything that happened after the rescission was void because, by operation of law, there was no note or mortgage.
This is why we are offering a though TILA Rescission analysis, report and templates to be used as necessary. What we are providing in our pilot program (ending April 14) is not just the rescission letter which is relatively minor, but the report on which your attorney can rely in filing for quiet title and and other remedies under TILA and state law resulting from the cancellation of the note and mortgage (or deed of trust). While you definitely don’t need a lawyer to send a rescission letter, you DO need a lawyer to enforce it when the Bank stonewalls.
Strategically what is important is that you don’t get drawn into arguments about whether the rescission was within the statute of limitations or other “affirmative defenses” that are based in fact and which SHOULD have been raised within the 20 day window for the Bank’s challenge. The rescission is final as of the day the notice was mailed, same as a court order. As other courts have noted, if the Bank were allowed to bring up a challenge after the 20 day window, then the specific purpose intended by Congress in TILA rescission would be defeated. The borrower’s rescission would mean nothing until after the borrower sued to enforce. The intention is that the rescission is effective WITHOUT a Lawsuit.
Listen to the radio show tonight where I will answer more questions about this. I must say that I don’t expect these procedures to remain undisturbed. The banks are clearly moving to change things so that everyone doesn’t cancel their loan, their note and their mortgage. The time to act is NOW before they change the rules again.
Of course the easy answer would be that a real creditor steps forward within 20 days of the time of rescission and proves that the origination of the loan was completely compliant with TILA disclosures. Then they wouldn’t need to change the rules. The problem for the banks is that they don’t own the loans, they are not authorized to represent anyone who does own the loans, the note and mortgage was defective or void at inception, and the balance due on the loan is unknown because of the number of times the loan was sold and the number of co-obligors who paid down the obligation (borrower, insurer, servicer advances etc).
Filed under: foreclosure | Tagged: Pilot, TILA rescission |
Tried a motion to get judgement on the pleadings pointing out that I rescinded the loan back in 2012 (its part of the pleadings). Since the note and dot were void there would be no holder in due course and the bank would have no standing. The chancery court judge (who looks like he loves the opposing lawyers) denied my motion stating it was a residential loan and it was past 3 years. However he also overturned a court order from the previous (retired now) judge who ordered my admissions admitted. They are corrupt. I’ve been fighting in a rigged game for years. No consummation, still don’t know the lender, Judge won’t compel them to even tell me who the creditor is. Corrupt system used by the too big to fail to step on the little people. LOOKS LIKE THE BANK SMEAR CAMPAIGN IS WORKING HARD ON THIS WEBSITE TO DISCREDIT NEAL GARFIELD. DON’T LET THEM TURN YOU. NEAL WORKS HARD TO BRING YOU THE TRUTH AND IF YOU USE HIS INFO YOU WILL LAST A LOT LONGER THAN IF YOU DO NOT.
johngault, I thought you were going to explain the difference between an affirmative defense and a absolute defense?
You explained exactly what the difference is nothing.
A distinction without a difference is a type of logical fallacy where an author or speaker attempts to describe a distinction between two things although no difference exists. It is particularly used when a word or phrase has connotations associated with it that one party to an argument prefers to avoid.
I should be charging tuition.
I’ve tried to explain how TILA rescission works in the REAL world, and it obviously fell on deaf ears because most people who frequent this site have drank the new Jim Jones’s (Garfield) Kool-Aid and can’t now tell black from white. Well maybe these two decisions, and one from Garfield’s buddy Macklin case, who Garfield constantly quotes as recently as this week, got spanked by the court who called Garfield’s/Macklin’s arguments a “fallacy.”
Moreover, explained as I did the Jesonoski’s holding was very narrow, just that a borrower didn’t have to file a lawsuit within the 3yr. SOL.
I can hear the crackpots and the other legally deficient nitwits screaming now; “these tyrannical courts, this is more evidence of the judges in the bank’s pocket.” Ad nauseum.
IN RE RESIDENTIAL CAPITAL, LLC
Bankr. Court, SD New York, 2015
IN RE MACKLIN
Bankr. Court, ED California, 2015
“The bank’s “cause of action” alleged Dwight breached the contract, therefore allowing the bank to foreclose. Dwight’s affirmative defense was, OK, so what, you violated TILA, therefore the contract is void.”
So can you see – not really? Dwight’s defense is you have nothing to f/c on as you and I no longer have a contract, including a coll instrument. imo. If the loan is rescinded by law, then the rescission is in fact an
absolute (‘complete’ if you must) defense. That’s why the first question the court should be resolving is what I said. imo.
it seems to me a court would have no juris to hear a f/c case when there’s no breach of contract and no collateral to foreclose on. I don’t believe the court has resolved the issue by entertaining the arguments. In other words, I don’t think (but didn’t read the case or transcripts, just dwight’s posts) the fact that the court is entertaining the arguments necessarily means the court answered that question in the negative. think it’s been ignored. What he may be able to do at this point is ask
for clarification. Did the court mean to answer that question and if so, on what did it base it’s conclusion.
But if it’s without juris, it’s without juris. If you believe that, than maybe you can offer him some help in the what to do about it department. I couldn’t possibly say whether this is first impression without doing a ton of research (so maybe it is and maybe it isn’t). Then I might have to go look at the actual pleadings if I could in any case(s) I find. I’m sorry to say to Dwight and at least one other person here that after all the cases I’ve read in the past so many years, pretty sure I’m burned out. I wouldn’t say that here, except I don’t want to hunt for Dwight’s email address in all these posts.
from uslegal.com
absolute defense is a legal concept for a factual circumstance or argument that, if proven, will end the litigation in favor of the defendant. For example: truth of an allegedly libelous statement. Once an absolute defense is pled and proven, it is not subject to mitigation or collateral attack.
from wikipedia:
In law, an absolute defense is a factual circumstance or argument that, if proven, will end the litigation in favor of the defendant. The concept of an absolute defence is not a rigid one. Statutes frequently use the term merely as a synonym to “full” or “complete”. It is more often used, however, as a term of art in both criminal and civil law to refer to an underlying set of facts and laws, not raised by the complaint or indictment, which will require the defendant’s dismissal even if the factual allegations of the complaining pleading are true.
Another characteristic of an absolute defence is that, once it is pled and proven, it is not subject to mitigation or collateral attack.
“You’ve got the wrong defendant. I’m not Sam J. Smith. I’m Sam E. Smith” might be one. “Yes, I called you a lying slimebucket, but since (I’ve proven) you are, it wasn’t slander.”
Both an absolute defense and a complete defense must be distinguished from a partial defense. With a partial defence, the litigant hopes to mitigate the outcome of the litigation, or limit culpability, but the liability is not eliminated.
Black’s may have it under complete defense.
No NPV, I figured I didn’t, you like me are only trying to help.
Because I’m a big stickler on being 100% right with our arguments, most of the time we only get one bite of the apple and we need to make sure our arguments are made cogently and CORRECTLY, if not, our chances of being successful diminish exponentially. You can’t be half right and expect to win.
Rock, I will ask the former Defendant if i can post his case. Pre Answer Motion – was not based on a rescission – based on the mortgage and note invalid (fraud). Court dismissed on jurisdiction. Ever since that time I have rarely seen Plaintiffs annex a copy of mortgage and note to the complaint.
Most seem to submit pleadings and sand-bag on MSJ.
Christine, we are not fighting or debating – we are weighing options that may help. I respect Rock’s opinion and had I not put something out there (albeit a little confusing) the debate would have ended.
This is why homeowners fail. Instead of opening up all ideas to a group theory (like the banks do), most become defensive and attack the folks in the forum for trying to help.
What everyone needs to remember is this is just a forum to express ideas and strategies. Take everything with a grain of salt and than go to a lawyer.
Rock, you did not hurt my feelings – I think we are on the same page – just disagree about what can be done prior to the case being joined.
johngault, there really is no difference between an absolute defense and an affirmative defense. BTW, you won’t even find a definition of “absolute defense” in Black’s. Nonetheless, any defense would be pled as an affirmative defense.
Moreover, how is not Dwight’s TILA claim, the exact definition of an affirmative defense, which is: “An affirmative defense does not deny the allegations but asserts a defense that would negate the legal effect of the Plaintiff’s cause of action.”
The bank’s “cause of action” alleged Dwight breached the contract, therefore allowing the bank to foreclose. Dwight’s affirmative defense was, OK, so what, you violated TILA, therefore the contract is void.
Do you see how this “negates the legal effect of the Plaintiff’s cause of action?”
Clearly, the exact definition of an affirmative defense.
Rock, to answer your question of the other day: source material I read and or posted a week or two ago told me that rescission is an absolute defense, succinctly because there is nothing to foreclose on since the coll instrument was released as a matter of law pursuant to tila and I independently believe that’s tila’s construction.
I’ve read at least one article, one of which I think I also linked recently which says tila is a claim available in recoupment, also, but I don’t know about that and haven’t had time to research it further. By in recoupment, I mean one didn’t rescind earlier but may now as an affirmative (not absolute)* defense. The article said recoupment was available in judicial foreclosure but prob not in non-j, because as some know, non-j is not seen as an “action”, which to me is a load all around. If non-j is not an action to which one may raise aff defenses or claims in recoupment, then I don’t know how non-j isn’t extremely prejudicial.
*prior rescission imo is an absolute defense, but I can’t think “current” rescission under tila would be more than an aff defense in recoupment (one didn’t rescind previously), but don’t know. Other normally time-barred things may be raised in recoupment (as defenses or even in counter-claims as they may disregard the sol) but I wouldn’t agree just now about anything related to tila without further research, and most definitely wouldn’t agree that current rescission is available in recoupment without that further research. Maybe it is, but I don’t know. Maybe you do.
I think what I disagree about with some others here is what is meant in tila when it says that the provisions may be altered ess by court order and possibly about whether or not a lender rescinding is discretionary to the lender. Dwight’s lender obviously decided it had that discretion and didn’t affirmatively rescind or do anything, far as I can tell.
My reading of tila is that rescission happens as a matter of law after
non-performance by the lender, whether it’s doing what tila says a lender must or going to court to challenge the rescission.
Imo, Dwight’s loan was rescinded pursuant to tila, whether or not he had basis under tila to rescind. So that’s the starting point to me. The only real question which arises must be concerned with whether or not a court may alter the rescission when the lender didn’t respond by seeking relief in a court within those 20 days. Some believe, apparently, the time to seek relief by a lender is any time the lender gets around to it or that it’s appropriate for a lender to ignore a notice of rescission. I don’t think the lender may. I believe the rescission happens pretty much as a default by the lender because as I’ve said, tila was written pretty much as if the nod is an action which requires a response / answer in a time certain to avoid the rescission. So in Dwight’s case, that should be the issue before the court, first and foremost, not whether he had grounds to rescind. DOES tila
provide that rescission occurs by lender’ default’? If the answer is the yes I think it is, the next question is may a court alter that ‘default’ for any reason years later or even one month after the nod? If this is not the case, then as Dwight opines, tila is utterly toothless. Reg Z and tila were promulgated to preclude lenders from things like false advertizing and to give consumers meaningful disclosures about the cost of credit so they could shop credit, basically. It isn’t a high bar; lenders must get certain disclosures right. When lenders advertize, if they advertize a rate, they must state the a.pr., also. Listen to car sales pitches on the radio, say – they include the a.p.r. because they must. Home loan lenders who offer an advertized rate of 3.50, say, without a disclosure of the a.p.r. are violating the law. You can get a rate of 3.50 alright, but the a.p.r. may be 4. 29, which means you’re paying thru the nose for the 3.50 by way of fees whether they’re rolled into the loan or paid in cash. It isn’t a high bar to conform to these rules. lmo, tila was not written to be toothless, not at all. It means business. It comes out as a consumer protection, and it is, but I’d say its actual impetus was banks, etc. who didn’t want to be undermined by false advertizing.
I don’t want to be responsible for misleading or even encouraging anyone, esp Dwight. I feel his case is important and wish an attorney would help him. His judge is acting as if his lender had the discretion to not rescind and that the rescission didn’t occur or even if it did, he has the discretion 7 – 8 years later to alter it, and I personally don’t believe that’s the case.
Strictly lay person opinions
Dwight, your “believe” in the last paragraph is wrong. I gave you an opportunity to help you transverse your mess. You didn’t accept it. If you’re willing to listen to what works and not your “believes,” I’m available. If not don’t waste my time.
JG .. I’m in New Jersey .. I posted some of the court transcripts from my case on one of the previous message threads from one of NG’s prior posts , not sure if you saw the transcripts.
Rock … There was definitely TILA disclosure violations in my case, the question is .. who gets to determine that? When can they determine it? How and under what type of hearing is that determination conducted?
The judge in my case was offered my proofs, the closing docs which were missing the Right to Rescind Notices that are required, and the proof of the APR discrepancies between docs, etc. .. on the record I attempted to submit them into the record but was denied when the clerk came over to copy the other correspondence I received from Wells Fargo after rescinding , the clerk said “no I’m not going to make copies of those closing docs, the judge told me to make copies of the correspondence and the statement showing Fannie Mae as owner” .. The Judge was off the bench at this point taking a break .. later I told the judge on the record at the end of the case, that I had attempted to submit the closing docs showing proof of the violations and that the clerk refused to take them .. In his decision, he says that I had shown no proof of any violations ..
So , if he was conducting an evidentiary hearing on determining if there were truly any violations of TILA (8 yrs after the closing) shouldn’t he have announced it, and requested proof from both sides ?
I had the proof of the violations in my hand and waved them in the air at the beginning of the transcripts when the rescission issue was being debated between myself and the judge, the transcript reflects me saying that I have the documents here and they clearly show the violations, I want to submit these …
Later, the Plaintiff lawyer is shown saying that they have docs that we signed, proving that after the 3 day right to rescind had expired we obviously did not rescind (she was confusing the issue, the point is not that they have proof that we didn’t rescind after 3 days and that we signed a right to rescind notice 3 days earlier .. NO, This is not the point of TILA disclosures .. The point is that the borrowers must be given 2 sets of Right To Cancel Notices that they get to keep in their possession .. the point is not that the lender has a signed doc that they keep showing that you didn’t rescind in 3 days , of course we didn’t rescind in 3 days) ..
So .. the question for an Appeals Court , or for this judge to reconsider is .. did a proper evidentiary hearing really take place? One that could arrive at the truth ? Based on evidence and fact ? Is he allowed to conduct such a hearing 8 years after the fact, after they had ignored it for 8 years? What happened to the 20 day statute that they ignored? Is the 20 day statute just meaningless language that the lawmakers put in the law that could just be ignored without ramifications?
Considering how the judge did not see any evidence from the plaintiff, and yet at the same time rejected my attempt to submit evidence of the TILA violations .. would this be a point to attack ?
The judge based his decision partly on the fact that he did not find any evidence of a violation. But he refused to allow my evidence into the record.
The judge also based his decision partly on the fact that I did not offer a tender at the time I mailed the rescission notice .. but as the record reflects on the transcripts .. I never said that I did not offer a tender, I did offer during the telephone conversation that Wells Fargo’s letter alludes to, the one the clerk copied for the judge, it says that we had a recent phone conversation and the problem is being looked into by Wells Fargo , of course they don’t mention the word rescission or tender, but it supports that we had communicated after they received my rescission letter … mailed on July 2007 .. Letter from WF mailed back to me in August 2007 .. Foreclosure filed Sept 25, 2007.
Could an Appeals Court rule that this judge made in error in how he reached his conclusion? The plaintiff offered no proof, the Defendant tried to submit proof and the judge refused to accept it into the record. Yet the judge based his decision on ” never saw any proof of the TILA violations” .. what kind of hearing and justice system is that?
Rock … I believe the intent of the foreclosure clause is not only limited to being used to determine off-set .. I believe it is also meant to be a bar to foreclosure regardless of off-set if the lender failed to comply with the 20 day rule. That’s why they included it indefinitely for any attempted foreclosures where a lender in violation tries to back-door the TILA rescission right and take the house by other methods even when those violators ignored a rescission letter .. the lawmakers must have thought ahead and figured some lenders might ignore the right to rescind and just try to take the house via foreclosure .. this clause was meant to prevent that from happening for violators who ignored the 20 day rule to object?
BTW Christine, I mean no disrespect to NPV or anyone else, but allowing misinformation to go uncorrected is not helpful to anyone. Its better to hear it from me then from some judge admonishing you,while kicking your case, exactly what happened to Dwight.
However, if anyone really believes they have a legitimate argument, backed with fact and case law, that would survive close scrutiny by a court; they could always allege a FDCPA claim, because a foreclosure complaint meets the broad definition of “debt collection” under the statute. So, all is not lost after all.
Sorry Dwight, it was you who was correct, regarding setoff in a foreclosure action.
JohnGault, you’d be correct. You can use a TILA claim as a defense in a foreclosure action as a setoff to any monies owed, that’s assuming you actually had a TILA claim, which it appears Dwight did not.
Christine, my comments to NPV are for Dwight’s benefit, and are not a matter of semantics. Dwight doesn’t want to waste his time with frivolous and specious arguments in a motion to reconsider, and/or appeal, especially when there’s no question the court had jurisdiction.
I offered to help Dwight, but he would rather listen to what he wishes the law is, rather than what it is and how to apply it. Moreover, it appears from what he’s posted his only possible chance is his argument for SOL in NJ. If it were me, I’d be pounding that argument, because he’s clearly going to lose his TILA claim.
NPV and Rock,
Are you into helping or into fighting over semantics?
As far as I know from everything Dwight has disclosed, his case is beyond fixing in a court setting. Assuming that I’m right, what are his options, if any? The man is in pain. What he really wants and needs is closure or options (other than court he appears to have blown for himself, from what I have read).
Assuming that I’m wrong, the man needs practical info on how to get to the next level. How do we get him there?
Dwight – what state are you in?
Dwight
“Maybe someone can find the TILA Reg Z language clause on when the rescission can be raised “indefinitely” when raised against foreclosure. I know I saw it written, the lawmakers wrote a clause saying there is no limit to when it can be raised when facing a foreclosure action.”
I don’t have time to go find what I found and posted a week or so ago.
But I found this from a yahoo search (in my notes) from The Wilson Law Group:
“The consumer must send a written notice to the creditor to trigger the rescission process. When the notice of rescission has been mailed, the notice is considered given. Reg Z 226.15(a)(2), 226.23(a)(2). When the consumer rescinds, the security interest automatically becomes void. The consumer is relieved of any obligation to pay any charge, including any finance charge. USC 1635(b) Reg Z 226.15(d)(1), 226.23(d)(1). Rescission voids the mortgage and is a complete defense to foreclosure. The creditor has twenty days from receipt of the consumers rescission notice to return any money or property given to anyone and to take appropriate and necessary action to reflect the termination of the security interest. USC 1635(b); Reg Z 226.15(d)(2), 226.23(d)(2). After the creditor has complied with the preceding mandate, the consumer tenders back to the creditor any money or property received. USC 163(b); Reg Z 226.15(d)(3), 226.23(d)(3).”
This law group uses the word “complete” in re: defense to f/c. Others have used the word “absolute”, which I prefer. Please look up
“absolute defense” generically! You might also be interested in this, which I linked before (yahoo search):
“Is the Defense of TILA recoupment available as a Defense to Non judicial Foreclosure in California?” Be wary in your case, though. Vondron thinks it’s available in recoupment (as I recall) in certain f/c actions and I believe in my strictly lay person opinion that in your case, your prior, timely rescission it’s an absolute defense.
I also don’t believe they have a leg to stand on for tender at this date since they neither refunded nor made a timely demand as prescribed. As to the last sentence and tender, beware some more because YOU never that I know of demanded the return of your moolah paid. Maybe you doing so would have been “an act against interest” since had they refunded, you would”ve been compelled to tender. But, again also imo,
this doesn’t mean you didn’t rescind. It’s just about any potential pi$$ing match about who owes who what $$ and if I were the judge, they’d be forfeiting. Btw, if it ever gets to it, you may be entitled to statutory interest (like on judgments) if it gets as far as numbers $$. But I don’t personally think you would owe interest since YOU had no obligation to tender til they performed, certainly as to the refund of your moolah.
lay opinions. good luck getting legal advice. You might even call the
wilson law group and see if this article were more than someone writing a piece, i.e., are they familiar with rescission enough to help? They
may appear pro hac vice as well as telephonically generally. “pro hack veechee” in case you want to broach. Or maybe get a referral in your area?
My Motion to Reconsider the Dismissal of my Rescission Defense and Counterclaim .. I submitted the proof of a copy of the letter I had sent on July 1, 2007 .. which is within the allowed 3 yr extended window.
The letter was signed and dated.
I also submitted the response letter from Wells Fargo, it was dated August 2007 , mentioning that they were aware of “a problem” and would be doing everything possible to keep us satisfied as customers. They don’t mention the word “rescission”, but it is obviously why they are responding because we were current on our payments up to the rescission letter being mailed in.
The attorneys argument to have my rescission dismissed was framed and articulated to make people think I was rescinding in 2014 when I raised it as a defense to their foreclosure complaint.
Their description of the timeline of events is misleading, its clear that I did not wait until 2014 to rescind as they wrote in their motion.
Maybe someone can find the TILA Reg Z language clause on when the rescission can be raised “indefinitely” when raised against foreclosure. I know I saw it written, the lawmakers wrote a clause saying there is no limit to when it can be raised when facing a foreclosure action.
Maybe someone can find that.
But the bottomline … the judge used the tender argument as his big blow to my rescission .. but as you’ll see even in the plaintiffs argument to dismiss, in the section on tender, there is language that leads one to believe that all other remedies of figuring out a way for tender to happen (sale of property, refinance with other lender, etc) only then would a court deny based on tender. None of this is ever done for the borrowers … its the lenders who walk away with the windfall, never having complied with the TILA act ..
The tender issue should not have been an issue in my case because the plaintiff failed to comply within 20 days ..
Now, 8 years after my rescission was mailed, the judge fails to ask how much equity was lost in the past 8 years .. if they had responded and complied in the 20 days, my home was valued at 300,000 in 2007 .. I only needed to tender them 180,000 .
Now they walk away with a windfall of a 270,000 home? When they were only due 180,000 ??
And I walk away with nothing? That’s not equitable or fair.
The judge didn’t seem to be bothered by their unjust enrichment.
Sorry NPV, wrong again. If you were to file a motion to dismiss for lack of jurisdiction in a foreclosure case based on rescission, you’d at best piss off the judge for wasting his time , and worst possibly sanction for such foolishness.
Now, if you wanted to file a demurrer or some other type of responsive pleading, arguing rescission, you could do that, but not that the court doesn’t have personal or subject-matter jurisdiction, that’s laughable.
Wells Fargo immediately substituted counsel after my answer to the complaint .. but the 2nd law firm filed the motion to dismiss my defenses and counterclaim first, AND THEN THEY FILED A SUBSTITUTE OF COUNSEL NOTICE …. not sure if that’s a procedural error on their part that can be argued.
REED SMITH LLP
Formed in the State of Delaware Diane A. Bettino, Esquire
Princeton Forrestal Village 136 Main Street, Suite 250
Princeton, New Jersey 08540
Attorneys for Plaintiff Wells Fargo Bank, N.A.
SUBSTITUTION OF COUNSEL
The undersigned hereby consent to the substitution of Reed Smith LLP as attorneys for Plaintiff Wells Fargo Bank, N.A.
PHELAN HALLINAN & DIAMOND, P.C.
Withdrawing Attorneys
REED SMITH LLP
Superseding Attorneys
Dated: Sept. 3, 2014
MOTION TO DISMISS DEFENDANTS AFFIRMATIVE DEFENSES AND COUNTERCLAIM … Filed : August 29, 2014
VIA JEFIS and COURTESY COPY TO CHAMBERS
Clerk, Chancery Division
Superior Court of New Jersey, Ocean County
Dear Sir/Madam:
This firm represents Plaintiff Wells Fargo Bank, N.A. (“Plaintiff’) in the above-referenced matter. In connection with this matter, enclosed please find the following documents, which are being filed electronically via JEFIS, with a courtesy copy to chambers:
(1) Motion to Dismiss the Counterclaim and Affirmative Defenses 2, 3, 8, 9, 10, 11,13, 14, 15, 17, 18, 20, 21, 22, 23, 25, 26, 29, 30, 31, 32, and 33 with Prejudice;
(2) Memorandum of Law in Support of Plaintiff’s Motion to Dismiss the
Counterclaim and Affirmative Defenses 2, 3, 8, 9, 10, 11, 13, 14, 15, 17,
18, 20, 21, 22, 23, 25, 26, 29, 30, 31, 32, and 33 with Prejudice;
(3) Proposed Order; and
(4) Certification of Service.
POINT I
STANDARD OF REVIEW ON A MOTION TO DISMISS.
R. 4:6-2(e) provides for the dismissal of a claim based on its failure to state a claim upon which relief can be granted. Having accepted the facts in the pleading as true, and giving them all reasonable inferences, the Court must dismiss a Counterclaim where the pleadings lack any cognizable basis in law. See Printing Mart-Morristown y. Sharp Elecs., Inc., 116 N.J. 739 (1989). It is well settled that “dismissal is mandated where the factual allegations are palpably insufficient to support a claim …” Reider v. State Dep’t of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987) . Pleadings that merely state conclusions of law without the inclusion of supporting factual allegations will not be allowed to proceed to discovery. See Glass v. Suburban Restoration Co., Inc., 317 N.J. Super. 574, 582 (App. Div, 1998) (citing Gruccio v. Baxter, 135 N.J. Super. 290, 294-95 (Law Div. 1975) (“Our discovery practice is no more a cure to legally deficient pleadings than aspirin is to cancer.”).
It is clear that the Counterclaim fails to state a claim that may be maintained against Wells Fargo. Defendants’ factual allegations are palpably insufficient to support the claims pled, and Defendants’ pleading lacks any cognizable basis in law. Defendants’ failure to state a claim against Wells Fargo is not simply a matter of inartful pleading that can be corrected with an amendment. Rather, Defendants are incapable of articulating a legally cognizable claim against Wells Fargo. Accordingly, all of the claims asserted against Wells Fargo should be dismissed with prejudice.
POINT II
DEFENDANTS’ CLAIM AND DEFENSES FOR VIOLATION OF THE CONSUMER FRAUD ACT ARE BARRED BY THE STATUTE OF LIMITATION.
Defendants claim that Wells Fargo is liable for violating the New Jersey Consumer Fraud Act (“CFA”). Count I, Defense 22.
A claim under the CFA is governed by a six year statute of limitation. N.J.S.A. §2A:14-1; Dilorio v. Structural Stone & Brick Co., 368 N. J. Super. 134 (App/ Div. 2004) ; D’Angelo v. Miller Yacht Sales,, 261 N.J. Super. 683 (App. Div. 1993) .
The Loan was originated on October 19, 2004, which triggered the running of the statute of limitation on Defendants’ CFA claim. The statute of limitation expired on October 19, 2010, barring any CFA claims brought after that date.
Defendants did not file a claim against Wells Fargo until June 27, 2014 – almost four years after the statute of limitation had expired. Therefore, Defendants’ CFA claim and Defense are necessarily time-barred and must be dismissed with prejudice.
POINT III
DEFENDANTS’ CLAIMS AND DEFENSES FOR VIOLATION OF THE TRUTH IN LENDING ACT ARE BARRED BY THE STATUTES OF LIMITATION.
Defendants’ claims and Defenses for violation of the Truth in Lending Act fails as a matter of law and must be dismissed with prejudice because (1) Defendants’ claim for monetary damages under TILA is barred by the one-year statute of limitation; and (2) Defendants’ TILA rescission claim is barred by the three-year statute of limitation.
Count II, V, Defense 9. (TILA Rescission)
A. Defendants’ TILA Claim For Damages Is Barred By The One Year Statute Of Limitation. The one-year statute of limitation for bringing a claim for violations of TILA bars the Defendants’ claim for monetary
damages for a violation of the statute. See 15 U.S.C. § 1640(e) (“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”).
In a loan transaction, the one year period for bringing an action for damages under TILA commences on the date the transaction was consummated. Chevalier v. Baird Sav. Ass’n, 371 F.Supp. 1282, 1284 (B.C. Pa. 1974); Thorp Loan & Thrift Co. v. Buckles (In re Buckles) , 189 B.R. 752, 763 (D. Minn. 1995) (“the one-year period for bringing actions for damages under TILA under this provision commences with the consummation of the underlying loan transaction–the date on which the parties’ contract is formed and credit is extended pursuant to it.”)
Here, the statute of limitation began to run when the Loan closed, on October 19, 2004. The statute of limitation expired one year later, on October 19, 2005, barring any claims brought after that date. Defendants did not assert a claim for monetary damages for an alleged TILA violation until June 27, 2014, when they filed the Answer and Counterclaim. Defendants’ Counterclaim was filed nine years beyond the one-year statute of limitation applicable to claims for monetary damages for an alleged TILA violation.- Accordingly, Defendants’ TILA claim and Defense fail as a matter of law and must be dismissed with prejudice.
B. Defendants’ TILA Rescission Claim Is Barred By The Three-Year Statute Of Limitation.
Defendants claim they have some right to rescind the Loan. Wells Fargo disputes Defendants’ allegation, but, for purposes of this Motion only, even if Defendants could hypothetically state a viable TILA violation which would provide an extended right of rescission, any right to rescind has already been “completely extinguished.”
TILA unambiguously provides a three-year statute of
limitation for the right of rescission. See 15 U.S.C. §1635(f)
(“[a]n obligor’s right of rescission shall expire three years
after the date of consummation of the transaction or upon the
sale of the property, whichever occurs first.”).
In a mortgage transaction, a borrower’s right to rescind begins to run on the date the mortgage is executed. See Bartholomew v. Northampton Nat’ 1 Bank of Easton, 584 F.2d 1288, 1296 (3rd Cir. 1978) . Here, the closing on the Loan took place on October 19, 2004, and the statute of limitation began to run that day. Thus, Defendants were required to bring any claim for rescission under TILA by October 19, 2007 – three years after the date the Mortgage was executed. Defendants did not do so.
Defendants did not bring a claim for rescission until they filed the Answer and Counterclaim on .June 27, 2014, almost ten years after the Loan closed, and more than six years after the statute of limitation had expired. Defendants’ claim for rescission was filed far beyond the three-year statute of limitation.
Accordingly, any right Defendants possibly had to rescind the Loan was completely extinguished and this Court no longer has jurisdiction to hear this claim. Beach v. Ocwen Federal Bank, 523 U.S. 410, 412 (1998) (“We [ 3 hold that §1635(f) completely extinguishes the right of rescission at the end of the 3-year period.”).
C. Defendants Have Neither Tendered Nor Offered To Tender The Loan Proceeds.
Even if Defendants’ rescission demand had been timely made, they would still have no right to rescind the Loan under the circumstances presented here. It is well-settled that rescission is a remedy “that restores the status quo ante. If a party has a legal or equitable right to annul a transaction, he may do so, but only upon returning any benefit he has received.” Ray v. Citi financial, Inc., 228 F.Supp.2d 664, 667 (D. Md. 2002). To that end, courts have consistently held that in order for a borrower to obtain rescission under TILA, he must tender a return of the loan proceeds. See U.S. Bank Nat’ 1 Ass’ n. v. Guillaume, 209 N.J. 449, 482-83 (2012); Jobe v. Argent Mortg. Co. , LLC, 373 F.App’x, 260, 262 (3d*Cir. 2010) (per curiam) , quoting Ljepava v. M.L.S.C. Props., Inc., 511 F.2d 935, 944 (9th Cir. 1975) . The equitable goal of rescission under TILA “is to restore the parties to the * status quo ante.'” Am. Mortg. Network, Inc. v. Shelton, 486 F.3d 815, 820 (4th Cir. 2007). Thus, courts have denied rescission where the borrowers were unable to tender payment of the loan amount. See Yamamoto v. Bank of New York, 329 F.3d 1167, 1173 (9th Cir. 2003) (holding unconditional rescission was inappropriate where borrower was unable to tender the loan proceeds); Williams v. Homestake Mortg. Co. , 968 F.2d 1137, 1140 (llth Cir. 1992) (“… another goal of § 1635 (b) is to return the parties most nearly to the position they held prior to entering into the transaction.”).
Where “rescission is attempted under circumstances which would deprive the lender of its legal due, the attempted rescission will not be judicially enforced unless it is so conditioned that the lender will be assured of receiving its legal due.” Powers v. Sims & Levin, 542 F.2d 1216, 1222 (4th Cir. 1976).
In this case, Defendants are in default. In order for equitable principles to apply, Defendants would have to return all monies tendered pursuant to the Note and Mortgage in order to restore the parties to the status quo. 24 C.F.R. § 226.23 (d) . As no payments have been made on the Loan for more than seven years, it appears that Defendants are unable to repay the monies loaned.
In essence, Defendants believe they can just walk away with a windfall, without any further obligation. This scenario not only offends traditional notions of equity, but misinterprets the procedural requirements of section 1635(b). In addition, Regulation Z requires a borrower who has rescinded a transaction to return any money or property that has been delivered by the creditor. 12 C.F.R. § 226.15(d)(3).
POINT IV
DEFENDANTS’ DEFAMATION OF CREDIT CLAIM IS BARRED BY THE LITIGATION PRIVILEGE.
Defendants seeks to assert a claim for “defamation of credit,” alleging that the filing of this lawsuit has damaged their credit as a matter of public record. Count III.
Defendants’ claim is barred by New Jersey’s litigation privilege and as such, must be dismissed.
The litigation privilege has long been embedded in New Jersey’s jurisprudence and precludes litigants from filing subsequent actions based upon the conduct of an attorney or party to a litigation. See Penning v. S.0. Holding Com. , 47 N.J. Super. 110, 117 (App. Div. 1957) (observing that lawyers and litigants must “be permitted to speak and write freely without the restraint of fear of an ensuing defamation action”).
POINT VII
ANY FRAUD CLAIMS OR DEFENSES ARE BARRED.
Claims of fraud are subject to a six year statute of limitations. See N.J.S.A. §2A:14-1. The Loan was originated on October 19, 2004, which triggered the running of the statute of limitation on Defendants’ fraud claims, which expired six years later, on October 19, 2010, barring any fraud claims brought after that date. Defendants did not file their Answer and Counterclaim until June 27, 2014 – almost four years after the statute of limitation had expired. Defendants’ fraud claims and Defenses are time-barred and must be dismissed with prejudice.
POINT VIII
DEFENDANTS’ BREACH OF FIDUCIARY DUTY DEFENSE FAILS AS A MATTER OF LAW AND MUST BE STRICKEN.
Defendants have asserted a defense against Wells Fargo for breach of fiduciary duty. Defense 15. The Defense fails as a matter of fact and law, and must be dismissed with prejudice.
A fiduciary relationship is one in which a person has an equitable duty to act on behalf of, or for the benefit of, another person. The duty arises as a result of a manifestation of an intention to create that type of relationship.
POINT IX
RESPA VIOLATIONS
(” [T] he Court finds that RESPA does not create a private right of action for a violation of § 2603.”); Lamb v. Bank of America, N.A., No. 11-819, 2012 WL 87146, at *4 (E.D.Mo.2012) (“[C]ourts have consistently held that Congress did not create a private right of action for violation of § § 2603 and 2604.”). Accordingly, Defendants’ RESPA Defense must be dismissed with prejudice.
POINT X
WELLS FARGO IS EXEMPT FROM THE FAIR DEBT COLLECTION PRACTICES ACT
Defendants contend that Wells Fargo violated the Fair Debt Collection Practices Act. Defense 8, 14, and 17. These Defenses fail as a matter of law because Wells Fargo is exempt from the FDCPA.
Wells Fargo is a creditor – not a “debt collector” as defined by the statute. The FDCPA applies only to “debt collectors.” 15 U.S.C. § 1692a(6); Pollice v. Nat’l Tax Funding, L.P. , 225 F_._3d 379, 403 (3d Cir. 2000) ; F.T.C. v. Check Investors, Inc., 502 F_._3d 159, 171 (3d Cir. 2007) . The FDCPA defines a “debt collector” as:
[A]ny person who uses any instrumentality of interstate commerce of the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6).
Creditors are not considered to be “debt collectors” under the FDCPA, 15 U.S.C. §1692a(6)(A) (“The term [‘debt collector’] does not include . . . any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor. “).
Wells Fargo is the current holder of the Note and Mortgage at issue in the foreclosure. Wells Fargo was the holder of the subject Note at the time the Notice of Intention to Foreclose was sent and when this foreclosure action was initiated. Wells Fargo is not engaged in the business of collecting debt on behalf of others.
Wells Fargo is a creditor, not a “debt collector” as defined by the FDCPA. Since creditors are not covered by the FDCPA, any FDCPA claim or defense must be dismissed with prejudice.
POINT XI
ANY DEFENSE REGARDING THE “MERS ASSIGNMENT” MUST BE STRICKEN.
Defendants’ allege that there is something improper with the Assignment of Mortgage. There is simply no credence to Defendants’ argument regarding the validity of the publicly recorded Assignment of Mortgage, and all Defenses based on this theory must be stricken,
As a threshold matter, under the Rules of Evidence, the Assignment of Mortgage is a publicly, recorded document affixed with the stamp and seal of the County Clerk. Thus, pursuant to Rule of Evidence 902(a), 902(d) and 902(h), the Assignment of Mortgage is self-authenticating and “extrinsic evidence of authenticity as a condition precedent to admissibility is not required.” N.J. Rule of Evidence 902.
Moreover, it is well settled that borrowers are strangers to the documents by which their Mortgages are assigned, and therefore have no legal standing to challenge its propriety. See Bank of New York v. Raftogianis, 418 N.J. Super. 323, 350 (Ch. Div. 2010) (“litigants generally have no standing to assert the rights of third parties,”); English v. Federal Nat. Mortg. Ass’n, No. 13-2028, 2013 WL 6188572, at *4 (D.N.J. Nov. 26, 2013) (borrower lacks standing to challenge assignment of mortgage). Thus, Defendants’ Defenses regarding an alleged improper Assignment of Mortgage must be stricken.
POINT XIII
THIS COURT HAS PERSONAL JURISDICTION OVER THE DEFENDANTS
Defendants allege that this Court does not have personal jurisdiction over them. Defenses 2, 13, and 25.
The Complaint for Foreclosure was filed on May 9, 2014. Defendants filed an Answer and Counterclaim on June 27, 2014. Therefore, personal jurisdiction was established pursuant to R. 4:4-6.
Defendants’ appearance in this matter and assertion of their own affirmative claims confirms this Court has personal jurisdiction over them. As such, Defenses 2, 13, and 25 must be stricken.
POINT XIV
WELLS FARGO’S COMPLAINT WAS FILED WITHIN THE TWENTY YEAR STATUTE OF LIMITATION.
Defendants allege that the Complaint for Foreclosure is somehow barred by the statute of limitations. Defenses 3 and 26.
The limitation period to institute a mortgage foreclosure suit is 20 years. Security National Partners Limited Partnership v. Mahler, 336 N.J. Super. 101, 108 (App. Div. 2000). Defendants obtained the Loan on October 19, 2004. Defendants failed to make the payment.due on October 1, 2007 and all payments due thereafter. Thus, the limitation period was triggered and would have expired on October 1, 2027.
Wells Fargo filed its Complaint for Foreclosure on May 9, 2014. Wells Fargo filed its Complaint well before the expiration of the 20 year statute of limitation. Accordingly, Defenses 3 and 26 must be stricken.
POINT XV
CONTESTING THE AMOUNT DUE IN NOT A DEFENSE.
Not only have Defendants failed to identify with specificity how even one amount was miscalculated, such contesting of the amount due does not serve as a barrier to the foreclosure. New Jersey law is clear that “a challenge by the mortgagor to the asserted amount due does not constitute a contesting answer for purposes of [R. 4:64-1].” R. 4:64-1, Comment 3,
The Loan is in default. The Loan is due for the October 1, 2007 payment, and no payments have been made since that date. As such, Defendants’ Defense 20, contesting the amount due, is irrelevant to Wells Fargo’s ability to foreclose, and must be stricken.
POINT XVI
DEFENSES 12, 19, AND 24 FAIL AS A “MATTER OF LAW AND MUST BE STRICKEN.
Defendants contend that Plaintiff failed to attach or include all necessary documents to the Complaint. Defenses 12, 19 and 24.
Defendants only vaguely claim that Plaintiff violated “Court Rules” but do not identify a single Rule which was allegedly violated. Id. Plaintiff has fully complied with the requirements of Rules 4:64-1(a) and (b) which set forth the necessary components of a foreclosure complaint.
Plaintiff has attached a certification certifying that it conducted a title search of the property and a certification of diligent inquiry pursuant to Rules 4:64-1(a) (1) and (2) . Further, Plaintiff’s Complaint included all of the information required by Rule 4:64-l(b). Accordingly, Defendants’ Defenses 12, 19 and 24 must be stricken because all documents required by the Court Rules were filed with the Complaint.
————————————————————————————-
Defendant filed an Opposition to the Plaintiff’s Motion and requested oral arguments. Oral arguments hearing was scheduled and when the Defendant attempted to argue, the Judge promptly stopped him and said he was just going to grant the Plaintiff the relief requested in their motion. When Defendant attempted to “Object” to not being allowed to argue any of the points, the judge said “you can’t object”, to which the packed court room of lawyers all laughed out loud.
The Judge did say on the record that he was allowing this to proceed to trial based mainly on the Standing issues , of which he was aware from the first failed FC attempt. He assured me that I will get my chance to argue any points during the trial that might go towards the plaintiff not having standing, he had ordered a trial for May 1, 2015.
In the plaintiffs replies to my Discovery, they objected to my demands for all documents pertaining to the origination and each transfer since then. They said since they were not the originator of the loan, they rely on being the holder of the note, which they state gives them the authority to foreclose.
My trial was supposed to be based in part on my denying the validity of the loan, and denying that a valid transaction was legally completed and consummated. The first Judge was going to allow it to play out in a trial. He retired on March 1, 2015. The new Judge granted WF the MSJ on March 20, 2015 ending the case without ever determining the issues of Standing which concerned the first judge.
Until I can get my scanned docs I’ll just post a few copy & paste portions of my Answer to the Complaint to show how I pleaded …
AS TO THE FIRST COUNT:
Defendants DENY each and every allegation listed in the first count. Defendants do hereby DENY each of the paragraphs numbered 1-10 of the first count.
Paragraph 1 – Defendants deny that any valid or legal financial transaction took place, according to law.
Paragraph 2- Defendants deny that any valid or legal financial transaction took place, according to law.
9- Defendants deny that any valid or legal financial transaction took place, according to law. Paragraph
10- Defendants deny that Plaintiffs Notice was sent out 30 days prior to their filing of Complaint,
Notice also lacks mandated contact information and telephone number required by law, meaning Plaintiff is in clear violation of the Fair Foreclosure Act.
AS TO THE SECOND COUNT:
Defendants deny any and all of plaintiffs repeated allegations in paragraph 1 of Second Count, which were alleged in the First Count, which they have made part hereof, as if repeated at length. Deny based on the fact that plaintiff has been unwilling or unable to prove that a legal financial transaction took place between Defendant and Commerce Bank, NA at origination of the alleged transaction with factual evidence of a documented money trail which would support their allegations. Undisclosed and unnamed third parties involved in the original alleged transaction would need to be revealed and disclosed by the “investor” Fannie Mae as to what part they played in the funding of the alleged transaction in order for a determination of the transactions legality and to establish, if any, the true party of interest to the alleged debt in this complaint.
Defendants deny that plaintiff is entitled to anything mentioned in paragraph 2 due to the lack of any evidence of a legal or valid financial transaction ever taking place, which would be supported by evidence of the money trail to support the alleged paper document trail.
Defendants deny plaintiffs assertions and allegations in paragraph 3 of the Second Count based on the fact that no legal or valid financial transaction had occurred at origination in order to give them any authority, they have failed to establish with any material factual evidence of just how the alleged transaction was funded and by whom, with proper proofs and evidence of any monetary wires or transfers to support their notion that any legal or valid transaction ever took place at all, in accordance to the law.
AFFIRMATIVE DEFENSES : ( Here are a few of the defenses) ..
AFFIRMATIVE DEFENSE AS FOR A FIRST, SEPERATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES:
1. The complaint fails to state a cause of action.
AS FOR A SECOND, SEPERATE AND COMPLETE AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE:
2. This Court lacks personal jurisdiction over this defendant.
AS FOR THIRD AFFIRMATIVE DEFENSE:
3. Statute of Limitations time-bars the plaintiff from bringing this action. The plaintiff accelerated and triggered a new maturity date in 2007, they never de-accelerated and continue to claim the same 2007 date of acceleration in this instant complaint filed on May 9, 2014. The New Jersey statute only allows for 6-yrs from a maturity date to enforce a mortgage through foreclosure. It is now been 7-yrs at the time they filed this complaint, which means they were time-barred when they filed the complaint.
AS FOR A FIFTH AFFIRMATIVE DEFENSE:
5. Upon information and belief, no contract ever existed in accordance with the terms that were set forth in the Complaint.
AS FOR A SEVENTH AFFIRMATIVE DEFENSE:
7. Plaintiff should be estopped from asserting any claim of any kind against the defendant.
AFFIRMATIVE DEFENSE NINE, THE DEFENDANT(S) ALLEGE: (Truth in Lending Act)
9. Plaintiff is in violation of the Truth in Lending Act, 15 U.S.C.A. § 1601 et. seq., since required disclosures were not made at the time of the closing of the loan.
AS AND FOR A TWENTIETH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:
20. ILLEGAL CHARGES ADDED TO BALANCE: Plaintiff has charged and/or collected payments from Defendants for attorney fees, legal fees, foreclosure costs, late charges, property inspection fees, title
search expenses, filing fees, broker price opinions, appraisal fees, and other charges and advances,and predatory lending fees and charges that are not authorized by or in conformity with the terms of the subject note and mortgage or the controlling pooling and servicing agreement which specifies the waiver of late payments and other collection charges as part of the forbearance and loan modification default loan servicing. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance that the Plaintiff claims is due and owing under the subject note and mortgage.
AS AND FOR A TWENTY FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:
21. Plaintiff is in violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et.~ because there were certain facts that were important to the closing of the original loan that were not disclosed
to Defendant by the mortgage originator.
AS AND FOR TWENTY THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:
23. Plaintiff’s claim is barred because the mortgage was procured by fraud and/or duress and/or undue influence. The alleged mortgage is void and unenforceable. Any alleged loss to the Plaintiff is caused by the fraud of the Plaintiff and/or the fraud of third parties over which the Defendant had no control.
COUNTERCLAIMS
(FIRST COUNT)
(New Jersey Consumer Fraud Act)
1. Defendant repeats and re-alleges all paragraphs above as if fully set forth herein.
2. Plaintiff or Plaintiff’s predecessor in interest engaged in unconscionable commercial practices,
deception, fraud, false pretense, false promise and/or misrepresentations with regard to the subject
loan.
3. Alternatively, and/or additionally, Plaintiff or Plaintiffs predecessor in interest engaged in acts of
omission, including but not limited to knowing concealment, suppression and omissions of material facts
in connection with the subject loan.
4. The foregoing acts of Plaintiff constitute violations of New Jersey’s Consumer Fraud Act, et. seq., as a
result of which Defendant suffered ascertainable loss.
(SEE ATTACHMENT “A”)
SECOND COUNT
(Violations of the Truth in Lending Act)
1. Defendant repeats and re alleges all paragraphs above as if fully set forth herein.
2. At all times relevant Plaintiff or Plaintiff’s assignor was a creditor under the federal Truth in Lending
Act, 15 U.S.C.A. § 1601 et, seq. (TILA) that was required to provide notices of the right to rescind the
loan and deliver material disclosures to Defendants.
3. Plaintiff or Plaintiff’s alleged assignor failed to comply with TILA by failing to provide Defendant with
proper and accurate written rescission notices and accurate material disclosures as required by TILA.
4. The TILA violations complained of herein were apparent on the face of the assigned documents,
resulting in assignee liability pursuant to 15 U.S.C. § 1641(e),
5. In light of these violations, Defendant was and is entitled to rescind the loan.
(SEE ATTACHMENT “B”)
THIRD COUNT (Defamation of Credit)
1. Defendants repeats and re alleges all paragraphs above as if fully set forth herein.
2. As a direct result of Plaintiffs filing of this lawsuit against Defendant, it has defamed, ruined and irreparably damaged Defendant’s credit as the lawsuit is a matter of the public record.
FOURTH COUNT (FAIR FORECLOSURE ACT)
SEE ATTACHMENT “C”
FIFTH COUNT (VIOLATIONS OF THE TRUTH IN LENDING ACT)
SEE ATTACHMENT “D”
ATTACHMENT “A” (Consumer Fraud)
1. Defendant repeats and re-alleges all paragraphs above as if fully set forth herein.
2. Plaintiff or Plaintiffs predecessor in interest engaged in unconscionable commercial practices, deception, fraud, false pretense, false promise and/or misrepresentations with regard to the subject mortgage.
3. Alternatively, or in addition, Plaintiff or Plaintiffs predecessor in interest engaged in acts of omission, including but not limited to knowing concealment, suppression and omissions of material facts in connection with the subject mortgage.
4. Specifically: Table funded loan with unknown, undisclosed third parties. Originator intentionally misled and concealed the truth.
5. The foregoing acts of Plaintiff constitute violations of New Jersey’s Consumer Fraud Act, N.J.S.A. 56:8-2 at seq., as a result of which Defendant suffered ascertainable loss. WHEREFORE, Defendant seeks judgment against Plaintiff as follows:
A. Declaratory and injunctive relief declaring the mortgage void and unenforceable;
B. Declaratory and injunctive relief rescinding and/or reforming the mortgage;
C. Awarding actual damages;
D. Awarding treble damages;
E. Awarding costs and attorneys fees; and
F. Granting such other relief as the court deems just and equitable.
ATTACHMENT “B” (TRUTH IN LENDING ACT)
1. The transaction alleged in Plaintiffs Complaint is a consumer transaction that involved a non-purchase money mortgage secured by Defendant’s primary residence.
2. At all times relevant hereto, Plaintiff or Plaintiffs alleged assignor was a creditor under the federal Truth in Lending Act, 15 U.S.C.A. § 1601 et seq. (“TILA”) that was required to provide notices of the right to rescind the mortgage and deliver material disclosures to Defendant.
3. Plaintiff or Plaintiffs alleged assignor failed to comply with TILA by failing to provide Defendant with proper and accurate written rescission notices and accurate material disclosures as required by TILA.
4. The TILA violations complained of herein were apparent on the face of the assigned documents, resulting in assignee liability pursuant to 15 LJ.S.C. § 1641(e),
5. In light of these violations, Defendant was and is entitled to rescind the mortgage.
6. Defendant exercised his/her right to rescind the mortgage on or about 07/01/2007 by sending a notice of rescission of mortgage to the plaintiff by mail.
7. By virtue of the foregoing, the mortgage which is the basis of Plaintiff’s Complaint is rescinded, and Plaintiff’s alleged security interest in Defendant’s primary residence is void by operation of law.
WHEREFORE, Defendant demands judgment dismissing the complaint with prejudice, and awarding actual and statutory damages, attorney fees and costs pursuant 15 U.S.C. 1640(a)(2)(A)(iii).
ATTACHMENT “D”
(Violations of the Truth in Lending Act)
1. Defendant repeats and re-alleges all paragraphs above as if fully set forth herein.
2. The transaction alleged in Plaintiffs Complaint is a consumer transaction that
involved a non-purchase money mortgage secured by Defendant’s primary residence.
3. At all times relevant Plaintiff or Plaintiffs assignor was a creditor under the
federal Truth in Lending Act, 15 U.S.C.A. § 1601 et seq. (“TILA”) that was required to provide
notices of the right to rescind the mortgage and deliver material disclosures to Defendants.
4. Plaintiff or Plaintiffs alleged assignor failed to comply with TILA by failing to
provide Defendant with proper and accurate written rescission notices and accurate material
disclosures as required by TILA.
5. The TILA violations complained of herein were apparent on the face of the
assigned documents, resulting in assignee liability pursuant to 15 U.S.C. § 1641(e).
6. In light of these violations, Defendant was and is entitled to rescind the mortgage.
7. Defendant exercised his/her right to rescind the mortgage on or about July 1, 2007 by sending a Notice of Rescission of Mortgage to
Plaintiff via mail.
8. Plaintiff failed to comply with its rescission obligations under TILA.
WHEREFORE, Defendant seeks a judgment as follows:
A. Declaratory and injunctive relief enforcing rescission of the mortgage, including a declaration that Defendant is not liable for any finance charge or other charge imposed in connection with the transaction;
B. Declaratory and injunctive relief voiding the mortgage;
C. Awarding actual damages;
E. Awarding statutory damages;
F. Awarding attorneys fees and costs.
I’m on my way to the library to see if I can scan the Answer again and post it here from microsoft word … Yesterdays attempt failed . . I want to show that my answer denied the plaintiffs allegations, denied that a valid contract existed, denied that a default existed, denied that they were a real party in interest to the alleged debt .. I thought by denying they would be forced to prove the validity and legality of the actual debt and its origination and transfers because they are the plaintiff. I as the defendant was denying that a valid contract existed. Those denials shouldn’t be construed as affirmative defenses should they? When a defendant in any court case denies, isn’t the burden then placed on the plaintiff to prove up their case ? Yet they still rely on presumptions and are never forced to bear the burden of proving the origination was proper and valid. Now after the denial by defendants, comes the affirmative defenses which defendants bear some burden such as the rescission letter timely mailed in 2007 which bars FC complaint, the acceleration triggered by the plaintiff showing the 6 yr SOL has barred the complaint , failure to state a claim due to the complaint being barred prior to its filing, lack of jurisdiction due to the court not really having a default or even a valid mortgage and note before them on which to adjudicate a foreclosure action, etc. … I’ll post answer today so you can see how it was pled and worded.
Oh yeah, i am not a lawyer or paralegal service. Only an attorney currently licensed and registered in the State of New Jersey can provide legal advice or services to Dwight.
I am just a regular Joe, bantering among the other regular Joe’s on a website that promotes public opinion for information purpose only.
Dwight – I am not sure that a paralegal service can deal direct with the public.
JG – you are certainly allowed to preserve any affirmative defense in your answer.
Rock, the premise is under a pre-answer motion to dismiss, therefore you are testing the Court’s jurisdiction before filing an answer. Court’s can only hear controversy, not heresay. In a foreclosure action, the Court assumes jurisdiction premised on the note, mortgage, default and geography of the property, nothing else.
If you are challenging that the loan was rescinded, the Court would first have to rule on rescission. The Court cannot assume jurisdiction over pleadings, without first determining the validity of the documents, which are the basis of the Complaint.
Finally, any affirmative defense set forth in a pre answer motion can be preserved as an affirmative defense. “Pleadings are to be liberally construed”
Since we are past that stage – the final challenge available must focus on the plaintiff’s cause(s) of action, which now must be accomplished by Dwight’s own motion for dismiss, and not reargue.
JohnGault, that’s a new one on me, please explain why you believe there’s a difference between an affirmative and absolute defense in Dwight’s case. A foreclosure is an allegation the borrower breached the contract. Dwight’s defense was he had a TILA violation.
An affirmative defense does not deny the allegations but asserts a defense that would negate the legal effect of the Plaintiff’s cause of action. How is Dwight’s defense not an affirmative defense.
Sorry NPV, that still wouldn’t work, it was a foreclosure action, and the court had jurisdiction to hear THAT matter.
iwantmynpv- good reasoning, but maybe (key word) one flaw. Lack of subject matter jurisdiction can’t be waived. Since it can’t be waived,
one probably needn’t assert it in any responsive pleading. I’m not a computer; I can’t remember each of the hundreds if not more cases and issues I’ve looked at, but I think it’s like this: there’s juris or there isn’t and unlike many things, the law doesn’t demand an allegation of
lack of juris for there to be none.
Rescission isn’t an affirmative defense – take 5 – it’s an ‘absolute defense’ imo (there’s a diff) and it’s the one which also imo removes juris to hear a f/c action out of the alleged lender. l think Dwight’s case is critical and hope he gets some good help. I really haven’t had time to
read everything here about it, His time for a rule 59 is likely up, but even barring lack of juris, he’s still got a rule 60 (but must meet one or more of the bars for recon under the rule). I don’t know if his judge had a bent or was mistaken or did a good job for not having read the case.
We here by and large don’t know how to appeal or else we just don’t and that’s obviously detrimental when we have truly bad decisions.
PS to believe that rescission is an absolute defense, one has to believe that rescission isn’t discretionary on the part of the lender and that was the intent of tila. It’s a rather harsh punishment for violation, but on the other side, the tender rule, which all together are intended to put everyone back to where they were before the loan, is just as hard and fast with the exception of the “inequitable” (as to the amt of tender).
I will posit / acknowledge the homeowner has a defense to the tender amt in the form of offset. But why not if the lender violated tila?
The lender had 20 days to dispute the rescission and didn’t. In that regard, tila has likened a rescission notice to a complaint in a court. The lender has a limited amt of time to respond. I obviously disagree with some here about the powers of a court to deviate from tila’s statutory scheme or what that scheme is. I don’t actually enjoy putting all this time into this issue fwiw, and I don’t do it to hear myself that’s for sure, but while I believe a court may deviate from that statutory scheme, it’s because tila says so – when the lender goes to court within the 20 days, just like a response to a lawsuit.
Dwight, for instance, is currently seeing the sharp end of statutory schemes in the form of the time allotted him to file a rule 59 or appeal.
NPV .. All of my papers were scanned into the files of a paralegal service that I hired a couple weeks ago, they were closed today, so Monday I’ll call and have one of the girls figure out how I can have access to all the scanned docs, email, flashdrive, ? I’m not real adept at computer tech, I’m a union construction worker who built most of the casinos in Atlantic City, etc. ..so bear with me on figuring out how to get all my docs to fit into an email, maybe someone can give some tech advice , I was at the library today and scanned my Answer with my affirmative defenses and counterclaim that I’ll post right now just so people can see if my answer wasn’t properly pleading the issues. After my answer was sent in , the FC mill lawfirm was immediately sent away and replaced by Wells Fargo’s main lead firm for litigation, the same office and female attorney who argued for WF when the state of NJ had threatened to throw out all of their fc cases due to faulty docs and robo-signors … REED SMITH law firm from Princeton immediately motioned to dismiss most of my affirmative defenses and all of my counterclaims .. I opposed and requested oral arguments, during the oral argument hearing the judge didn’t allow me to argue anything, he simply read their motion on the record and granted it, when I objected he said “youre not allowed to object”. So to allow some people here the chance to see my answer to the complaint I’ll post it now, and sunday i’ll post their motion to dismiss my defenses .. The paralegal guy who specializes in foreclosure defense is who i hired 2 weeks ago after i lost the SJ ..he says the WF motion to dismiss my defenses was not presented correctly and it should not have been granted, but he said that they attempted to correct their own procedural mistakes when they filed the MSJ … He says he needs to try and clean up my mess to make it acceptable for an appeals court to even take .. But i’m not sure what his gameplan is, he seemed to not trust the tender issue and thought my best target would be the 6 yr statute of limitations barring the complaint. But he wants to keep all options open..he’s not a lawyer but seems to understand the correct procedural tactics to defend and only does foreclosure defense. He has an office full of paralegals who prepare the paperwork, but then the defendant signs them and acts pro se. I paid him 1750 up front and will pay 500 a month thereafter for as long as i need the service. Mortgage Litigation Services ..google them, i wish i knew about them earlier, just discovered them after the SJ. But if your friend finds holes to attack, at least i have the people who can write the papers correctly and cite the caselaw, etc.
Rock, what I was trying to point out – the process that should have been pursued was to file a pre-answer motion challenging the court’s jurisdiction. If you rescinded within the proper time frame, regardless of the SCOTUS decision, and you really believe that after 20 days your note and mortgage were void – there is nothing else for the Court to weigh, a pre-answer motion for dismiss would have been the route. Pretty tough to challenge jurisdiction after filing an answer.
You submitted to the jurisdiction.
Legal maxim
The certainty of a thing arises only from making a thing certain.
Trespass Unwanted
Opinion, no under penalty of perjury, discernment advised, no legal advice given.
That shut up statement is from Eddie Craig, rule of law, tao of law, who teaches people how to protect their right to travel even though they have a driver’s license.
Driving is commercial activity and travel is not and when one is not driving for work and not in commerce, one has freedom of movement without being pulled back into commerce when using the road and when a driver’s license is demanded of them at a traffic arrest (if you can’t leave, you are under arrest)
Anyway, he doesn’t challenge jurisdiction, he teaches people to prepare their initial case for appeal when they go into the corrupt lower courts..
But challenge to the jurisdiction has never worked when people challenge and then get tricked by the pretending to be friendly judge into speaking to the judge or speaking within the court as the judge tries to gain and prove he has the thing challenged.
You can help them hurt you if you speak before they come to a determination. Silence is golden if you stay mute until they make the determination.
It’s corrupt, don’t speak once you challenge, you will be tricked into giving them the thing they lack if you do.
Trespass Unwanted
This is a strong opinion but is not to be considered that I know anything because I’m not stating it under penalty of perjury now and never will, so discretion is advised.
The well studied know courts lack subject matter jurisdiction.
The Plaintiff has written in a jurisdiction statement, but for those well studied in definitions of codes, and constitution provisions of the state you live in, challenge to subject matter jurisdiction can be made at any time.
The court must determine whether it has it, and they cannot proceed until they determine they have it.
In this case, once you challenge it, you must go MUTE.
You will be asked questions, and given the impression they need your help to go forward, and they do, they need you to speak after challenging it so they can go forward.
You shut up, keep shutting up, and shut up some more, pretend you have no tongue and can’t talk once those words pass your mouth.
Have a piece of paper close by in case you are uncertain the determination, because you do not talk to people who do not have jurisdiction.
Trespass Unwanted, Creator, Corporeal, Life, Free, People, State, Independent, In Jure Proprio, Jure Divino
No immunity for the judge if he or she acts outside the scope of his/her authority.
for 10 dollars and other consideration.
is the amount I’ve seen on many transfer of property, and 35 dollars is all that has to be incorrect on the HUD-1 to show financial injury.
So if there is monetary damages and property then 35 dollars and the return of the property, or 35 dollars and the satisfaction of mortgage
In a world where all things are possible, anything in possible.
Do not let anyone show you a narrow hole when there is an open door.
Trespass Unwanted
iwantmynpv, this is the first bad advise you’ve given Dwight. “you should be telling the Court that they do not have jurisdiction to hear the case because the Court lacks subject matter jurisdiction.”
Of course the court has jurisdiction, its a foreclosure action. So all he has is his affirmative defenses, which the burden is on him to prove, which regrettably, he can’t.
Forget about the Judge imposing penalties – from reading what the Judge was saying in that transcript – He is going to sign the order for SJ.
Dwight, failure to state a claim – is done at the time of pleading. It is my understanding that this is a defense that is never waived – in any jurisdiction. Failure to honor a notice of rescission is not in of itself a claim – it is a defense used to challenge the opponents ability to prove its claims.
For example, you are not saying; “Judge, please rule on my rescission letter” Your argument should theoretically be; “Judge, the lender has no business in this courtroom” because the mortgage upon which they sue has not existed since xx/xx/xxxx.
A lender can only plead a cause for which they ultimately can establish damages / injury.
You should not be bringing an argument for the Judge to establish if the loan was rescinded – you should be telling the Court that they do not have jurisdiction to hear the case because the Court lacks subject matter jurisdiction. The Judge should have that single motion argument to decide if the lender can move forward – not “what else would you like to add sir”
That’s why you should seriously consider getting an attorney, or at a minimum, proceed ex parte.
Dwight, this is for you and everyone else who misunderstands TILA rescission.
What penalty, if any, do you think a court is going to impose on a bank for failing to act within 20 days pursuant to 1635 (b), when it was in receipt of a frivolous rescission letter?
What penalty, if any, do you think a court is going impose on a bank for failing to act within 20 days pursuant to 1635 (b), if the homeowner cannot tender?
If you actually believe a court will impose any penalty, you’re in for a rude awakening.
And Dwight, if that argument is in your motion to reconsider and/or appeal, get ready to get smacked in the face twice more.
Point proven beyond any reasonable doubt. The system does work.
DwightNJ,
To win a case the plaintiff must state a valid claim.
Valid claim has elements to support the claim
Plaintiff allege facts and proves all alleged facts
(all you need is one valid claim, supported by allege facts that are proven)
Cause of action like Breach of Contract
has three elements
existence of a contract or agreement
an act by the defendant cause the breach
monetary damages resulting from the breach
Could stating the first two but not the third result in a 12B6 ruling.
Failure to state a claim for which relief can be granted
Trespass Unwanted, Creator, Corporeal, Life, Free, People, State, In Jure Proprio, Jure Divino
christine, please tell us one case where anyone followed anything I’ve had to say and found it a losing argument. Anyone attack the assignment because the person executing it is an employee of the assignee? Even if that person is an alleged officer of mers courtesy of a Hultman alleged corp resolution, it’s still a conflict of interest. That person takes its orders from its employer, not ‘mers’, and even if ‘mers’ did say squat, merscorp has admitted it gets no authorization from anyone to assign anything. This was when the assgts were being done to the servicers, before they got the gall to assign to trusts. Anyone argue that assignments require acceptance and where’s the evidence of that acceptance?
Anyone rely on the language in the note v the default law UCC? Anyone argue that poss of a bearer note doesn’t entitle that party to an assgt of its collateral (executed by its own employee / mers signing officer?) Anyone argue injury v poss of a bearer note for jurisdiction? Anyone rent her home, file 13, cram it down to value? Anyone try to avoid an unrecorded interest in bk and / or make a deal with a bk trustee?
When you find one, let me know. In the meantime, be proud, like any other over-grown snivilling brat: you’ve finally gotten my goat. Since I suspect that’s been a long-awaited goal of yours, (took you long enough) I’d say you’re not very good at that, either. But do be careful – you’ll give me a fat head (you’ll get there).
Alzheimers? Seriously? What an affront to those who actually suffer from that awful disease. You bandy it about as if it’s avoidable and as if it’s a fault.
At least I have some ideas. You have exactly zilch.
MERS HAS TO GO
Dwight,
Be very careful. Dens of thieves always get found out. Smarten up before you waste you time and energy.
dwight, fwiw, as to pro se’s and what you’ve filed already, courts are to
“take up the strongest argument suggested” by what they file. So if what you’ve filed actually says ‘hey, I rescinded and blah blah”, there it is. So maybe take a bit of your time finding case law which supports that your (pro se) argument is already there, no matter how inartfully framed. IF it would help. You may also have insinuated that you have a cause of action for the failure to rescind. Looks like you’ve got a good one to look at your stuff. Hope he comes up with some help. Recon mtns (60) are generally held to one year, but that is not black letter imo. Also, I thought I’d seen a frcp which allows a new suit without reference to older adjudications/judgments, but I can’t find it.
Johngault,
You’ve been posting here since 2008 and have accomplished nothing except ramble and paralyze people in non-action. In the world of doers who really help people get weaned from LL and into smart action territory, you’re done.
Anyone following you can only come to one of two conclusions: Garfield pays very well (the AZ connection) or someone else does pay you both very well.
The idea of having you post insane rambling at the end of every single blog, especially when contentious questions have been debated, is telltale. LL has never been meant to help anyone. Hence the lack of winners from his and your end. Time’s up.
Okay, Neil. Sorry, I see reading further you amended that first errant
stmt.
NG: ” If you send a notice of rescission and you are incorrect about your ability to cancel the loan, then the bank can file an action within 20 days of receipt of the notice to file an action saying that the rescission should be blocked.”
Neil, darn it. You know details matter. The lender may file an action asking for this or that even if the rescission is appropriate. That’s what the last sentence (RockO referred to) means imo. Even if rescission is merited, the lender could still ask the court to stay it obligations pursuant to the NOR pending who knows what – AS LONG AS the lender does so within the 20 days. What the lender would likely holler about is the issue of the ability to tender. If the lender does that, the homeowner better dance fast and have reasons to offset the amt of tender*. i’ve already pointed to tila’s “inequitable” as to the amt one must tender, even if there is no off-setting claim out of the homeowner.
*for instance, if the a.p.r. is off (low), one might have gotten a lower cost loan had they known the true a.p.r.
May one rescind based on tila violations as well as based on violations of a state’s anti-predatory statutes as an alternative (if you find yourself in court, that is(?) I don’t know why not. I think one could rescind under tila and claim additional damages under state law.
You know I love you all and I hate to say this
an opinion will only survive scrutiny of the opposition if the opinion comes from one qualified to give one under expert witness criterion in and whether it is allowed under the rules of evidence, and with the playing field thAt we have so far, it better be perfectly presented, the opinion, the methodology of obtaining the evidence and authority/ credibility thereto, the experts credentials and experience and appropriate disclosures.
I did not always understand this but I do now – thousands of dollars later, I now do.
NPV,
I bet Dwight has the telltale horror story of a bad contract and bad everything but he plaid the wrong cards, compliments of LL. What I am seriously interested in is this:
Once a case (originally meritorious) has been very badly handled and pleaded in every direction, every jurisdiction, even in BK; once so many judges have ruled upon it and homeowner has lost every single cause of action; once homeowners has exhausted all his financial means, are you actually saying that it can still be salvaged?
If you recall Marilyn Lane… there is a point where going farther can truly create serious backlash to the homeowner not willing to call it quits (psychological implosion is one and being sued in defamation by a judge is another). We have a slew of them here. We even have those whose own moronic attorneys either lost their license or got fined after trying to extirpate themselves from stupid moves they made and backfired.
You and I know and respect each other. Answer this, very honestly. When do you tell someone who played every card extremely poorly and lost every time: “You tried, you followed bad advice, you didn’t win at any step. Time to regroup. Stay in the house while you can, stop wasting money, start saving while waiting for the other shoe to drop as it only can, and prepare to move out.”
The reason I have so much respect for Mark Stopa is that that is exactly what he advises his clients and helps them accomplish.
http://www.stayinmyhome.com/file-bankruptcy-save-money-buy-a-home-cash/
At some point, people have to separate themselves from the house and start looking forward to something. Otherwise, this country is in a deeper shit than anyone can even fathom! Refusing to take responsibility for a bad loss and refusing to move on is one thing. Helping it is another. Are we looking ahead of reheating noodles?
Ian, resecuritizing a reperforming note I own is not a refinance. It is simply a continuation of kicking the can down the road. Held to maturity!!!
Dwight, aside from your answer and the motion papers (all of them) including any BK’s you filed and do not forget to send the summons and complaint, proof of service, acceleration letter , if any, all statutorily required notice, i.e. your state foreclosure requirements, etc… basically anything you have received since the action was commenced. Also send me the origination docs and the name of each loan service agent from origination forward ( I can do that part).
Who wants to bet 50 bucks there is at least one defect in the case?
Storm and Neal – it is time to align.
Dwight, your first mistake is stepping out of your element. If the case is ex parte, why go be further intimidated in a courtroom. Second, it is my understanding as your average lay/guy – that you can call the opposing counsel and get a 30 day adjournment stipulated between the both of you.
Any smart lawyer will allow it because they do not want to appear as bullying a pro se defendant. Second, if they do deny you – you can file a one page motion with the court seeking a 30 day adjournment, which must cover why, the return date and opposing papers to be served by the Plaintiff. If you check your court’s website they may have the forms available.
Now, you do not have to be a lawyer, but you have to base your case on law, much of which is precedent case law. It takes a little time but you can google in the terms, and you will find prior cases to support your argument – most recent appellate decisions prevail.
Do not go to the Court again. You are a sure loser because your opponent is there every day, understands procedure and is a lawyer. Start calling pro bono agencies on Monday morning – there are many of them funded by State grants and quite a few of the law schools offer these services through grants the schools receive.
Nothing will help you more than your hard work. You are going to get a free (private) analysis of your case by a super-qualified attorney that has won over a billion dollars in consumer class action suits. He does not deal with this type stuff, but he knows the law because he used to do commercial foreclosure work for hedge funds.
I am begging you to make a list of 10 local attorneys in your area that specialize in BK or Foreclosure Defense. Avoid the guy that advertises modifications, most produce shit work that literally just goes through the motions.
Please contact an attorney down there. i used an attorney for my case, and although the firm sucked and knew nothing about my case – i won because I was able to leverage their superior knowledge of the court, the time frames and procedure.
I fed them just enough information to keep the case going, and when the lender finally hung themselves I showed them how to win.
So, no guarantees – just a fair analysis of your current position and any ideas he may have to get you back on track. My friends (I only have one), and he’s probably more of an acquaintance, tell me that I lack empathy. Maybe, but I am super competitive and I love to see the underdog win.
Keep your head up, there’s no shame in losing – just quitting and laying on the couch seeking pity. i will keep an eye out for your docs this weekend and you will ship it down on Sunday. My one friend is playing golf in the morning (probably with temp greens) and he will take a look at it by noon.
Get ready to work hard.
Dwight, I don’t agree. Here’s the 1st scenario, I send my rescission letter within the SOL. I really don’t have a TILA violation or TILA doesn’t apply to my loan. Now what’s the bank going to do. They’ll send me a letter telling me I’m full of it. They proceed to foreclose. My affirmative defense is my TILA violation, the court rules there’s no violation. I lose my home.
2nd scenario, I actually have a TILA violation. The bank does nothing. They proceed to foreclose. My affirmative defense is my TILA violation, the court finds there is a violation. The court can ask you pursuant to the last sentence of 1635(b) if I can tender, if the court finds I can’t–no rescission. That’s what happened in your case.
I can’t stress this enough, everything other than the holding in the Jesinoski case is dicta, which means nothing!
Rock … Yes, that appears to be the loop-hole that the courts and lenders will focus their arguments on if challenged .. The way I would argue against that would be to assert that its intent was meant for those cases that were either challenged in court within 20 days by the lender, and the court was thereby adjudicating a remedy where they could use some discretion on how the exchange would happen, or .. where the borrowers had filed an action to collect damages for the violations in conjunction with their rescission letter and was therefore being adjudicated in a court… But I do not agree that sentence was put there so that lenders could ignore the 20 day statute and then later have a judge rule the rescission was not acknowledged as having been effective because no tender was offered with the rescinding letter. That would make the 20 day rule meaningless ..and it would make the supreme court ruling meaningless if the lender could simply ignore the rescission and years later during a foreclosure argue that the tender should have been offered before the rescission was effective. Do you see the conflict with the purpose of the 20 day rule? The sentence you are highlighting is meant for cases that end up in court within the proper time frames for bringing such actions. Otherwise it encourages the lenders to ignore all rescission letters and simply say the tender money was never offered. That couldn’t have been the intent, agree?
Dwight, the court ruled correctly, and until you understand what the last sentence of the statute means, you’ll write a frivolous motion, which will denied, and then waste your time appealing, where the court will rule that the court had the discretion to change the “procedures” of subsection 1635(b).
I was under pressure to keep trying to motion oppositions to the banks motions within 20days (10 days if requesting oral arguments) that my head was spinning , I wasn’t even citing caselaw in my papers, I was just asserting my positions and arguments .. For example, how do I cite caselaw on a rescission argument when all the caselaw was wrong in the eyes of the supreme court? I submitted the Jesinowski decision with my motion thinking it would support my assertion that the note and mortgage were void. But like NPV pointed out, I allowed the judge to reel me into a debate and discussion over tender and other issues. Less talking on my part would have been the better strategy. Make him rule on one issue first, did my letter of rescission void the security instrument? Yes or No? I did file a seperate motion to dismiss based on the rescission alone, he denied me the relief on the rescission motion to dismiss the complaint. He apparently denied me based on his opinion that I did not tender at the time I sent the rescission letter, although I never stated that I had not tendered, he assumed I didn’t because he did not accept the argument that if I had the property clear title I could have refinanced with a new lender and raised the tender needed by refinancing. He wanted to hear me say that I had money, 180,000 cash to tender back, I kept saying I had the property which wss worth 300,000 if they had complied and removed their lein. The judge didn’t think that was an acceptable remedy and said other caselaw always demanded the borrower have the tender ready before the bank has to comply. But the supreme court seems to say thats wrong. Now in the interest of justice would an appeals court overlook some of the procedural errors of a pro se litigant in order to arrive at a just decision? Maybe not, they are pretty tough ..so I do need some help and advice on how I might be able to repair my case before final judgment is entered. I’m just disappointed that the system isn’t based on what is right, and what is wrong .. Its basically unavailable to the common citizen who represents themselves .. then maybe they should not allow any pro se citizens to argue cases, make it mandatory that every state provide legal assistance to citizens facing foreclosure since its the equivalent of the death penalty in civil chancery division cases. New Jersey is one of the few states not offering help in foreclosures. Most states who received money from the 25 billion settlement said they would give some crumbs towards foreclosure help for their citizens, New Jersey gave zero dollars towards helping citizens in foreclosure. The state legal aid service doesnt help foreclsure victims. Yet the settlement money arises out of those banks facing criminal charges stemming from mortgage fraud, etc.
Dwight, that’s a class act on NPV’s part.
Again, you need to understand the last sentence of 15 USC 1635(b) “The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.” Before you write any briefs, it will be fatal to your case not understanding it!
Npv
Yes a Task force.
Opinion, I don’t know anything, but I heard people that used jurisdictionary learned procedure watching some videos and reading some docs, but the advert says in 24 hours you’ll comprehend court procedure and know how to be a good pro se, but 24 hours is a lot of time to dedicate to learning this, and even at 6 hours a day you’ll take 4 days of strict focus to learn it.
If it’s important, maybe getting the procedures from a bar attorney through jurisdictionary will help.
As I heard, the people suing the debt collectors are learning it and writing their own cases that stand up to the procedural loop hole these courts like to toss things out for, and of course the 12B6 for not properly stating specific elements and causes.
I’m no legal idiot. I know no thing.
Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino.
NPV … I apologize for aking your points the wrong way, everything you said was true and it pissed me off to realize my best efforts fell short. And I do agree and now realize that my procedural mess can hurt my chances for Appeal. I appreciate your offer to help and will send my answer and the motions from both sides asap. And yes, your post hit the nail on the head about why the competing sides in foreclosure defense strategy should consider working together incorporating both strategies together in a more affordable way to the homeowners who are frustrated and looking for help. Most lawyers shy away from the real defense strategies and arguments so its a needed service that could be beneficial to everyone concerned. One lawyer I had tried to hire has even had max gardner appear with him on a case, when I spoke to him about my case he wasnt aware of the bankruptcy case in NJ regarding the statute of limitations free house, he asked for all my paperwork to review , weeks went by and each time I called to ask if I could retain him he would say he never had time to look at my docs, eventually before the MSJ hearing I asked if he would at least come on-board with me so that I don’t get steam-rolled on procedural issues in court prior to the March 20, 2015 MSJ hearing and cross motions, he wasn’t even aware of the supreme court rescission matter , he bowed out and said he wasn’t interested after dragging me along for several months. A different lawyer who had complemented me after court one day charged me 100 dollars consultation fee after i asked if i could hire him to help me ..after the consultation he said my case was so deep with tough issues to be argued, he would need to focus too much of his time on the case … I really was trying but just couldnt find a lawyer who was willing to argue these points. I knew the procedural crap would be my downfall, and sure enough ..it just hurts to know I had a case with merits but the system makes it near impossible for pro se litigants. You sound like a heck of a nice person to offer a lending hand, and i’m sorry i took out my frustrations in response to your honest post.
Reblogged this on Deadly Clear and commented:
Thoughts or comments?
Dwight, send me all of the pleadings, motions and reply docs along with any decisions. I am going to pay an attorney friend a couple bucks to review everything for you. He is smarter than I, which probably isn’t saying much. Send it to tenbips@yahoo.com.
Dwight, just as a head’s up – if you shit the bed at this level – your appeal becomes more difficult, if not impossible. You can’t appeal something that was not properly before the lower court, and that includes procedure, which is where they always get us pro se guys / gals.
More important, did you bother to read the rest of the post, and what are your feelings about everyone working together with one common product that is affordable and thus available to more homeonwers, and both of the smart guys can make more money?
Dwight, I have not worked on Wall Street for some time – that would have been the last time I unintentionally caused someone harm. I am not trying to quarterback your case. You are your own team, and i simply made an observation. I am not critiquing your legal skills because you are not a lawyer, therefore you are not expected to have any skill.
Now, lighten up FF. I am trying to help you – it is my understanding from reading the transcript you posted – that you asking the judge to review new information on a motion to re-argue. If not, then how you are presenting the facts to the Judge are confusing. If it were me, I would not be asking the Judge to consider my rescission – I would be filing a motion to take leave to amend the complaint, setting forth the affirmative defenses under TILA, and clearly informing the court that the lender has no cause of action – because the note and mortgage upon which they sue have been invalidated as a result of the rescission, which took effect upon notice to the lender on xx/xx/xxxx
if you rescinded the loan he cannot rule on anything until it is allowed that the loan was properly rescinded. This horse shit about simply dropping it in the mail is not going to work with the lower court judges.
You must show how, what, why and where the loan was rescinded. I believe that you rescinded the loan from what I read, but that should have been a single issue motion, and when they bait you with the term; is there anything else you would like to add” your response is always yes your honor, but first i need a ruling on the motion to leave and amend. I am not a lawyer – but I know that less is more. less leaves no room for the judge to use language like not well plead etc.. in their decision.
Finally, I was not trying to hurt your feelings and do understand the difficulty in finding a lawyer who gets it. Call your local BAR and ask for attorneys that do BK’s. they are much smarter that the state jerk-offs that were doing closings for the same loans they are now defending.
I do admit that procedurally I was lost in the weeds, and that was definitely my weakness. Even though my pleadings were strong, my affirmative defenses were solid, I denied that a valid contract had been completed at origination, I denied I was in default, I asserted that my rescission had effectively voided the note and mortgage prior to the FC complaint being filed which should have barred the complaint due to an unenforcable mortgage contract at the time of complaint, etc. .. Nothing was accepted by the 2nd judge who took over after the 1st judge ruled we will go to trial , I don’t know what procedure could have made the 2nd judge change his mind…which iis why I question was it really me who caused this, or the judge who refused to consider that the rescission effectively voided the note and mortgage? I will keep fighting in hopes that the Appellate Division finds errors with this judges ruling.
Dulpeck, stop parroting misinformation; no cases have been reversed or remanded other than Jesinoski, and that is to determine if in fact he actually had a TILA violation.
The courts are not allowed any discretion after the statutory 20 day window. That’s why previous erroneous rulings are being reversed and remanded. End of story.
How do you do it –
You stop watching stupid tv you buy the books you find help you go to the law library and hang out with students uou dedicate yourself and never take your eye off the timeline and you say your prayers for divine intervention
Mr Rock
“Dwight, in defense of iwantmynpv he did provide you good advise. Those bank attorneys will beat a pro se almost every time. Why? Because even if the law and facts are on your side, they know how to beat you procedurally.”
I want to say – they mess up because they are that arrogant you will not be able to – so DONT take that to ” the bank”
Dwight, in defense of iwantmynpv he did provide you good advise. Those bank attorneys will beat a pro se almost every time. Why? Because even if the law and facts are on your side, they know how to beat you procedurally.
Moreover, I gave you multiple explanations of how rescission works in the real world, but you’d rather listen to the crackpots and legal illiterates.
Now for the last time, because I won’t waste anymore of time on this; I would like you to answer this question. What do you think the “plain meaning” of the last sentence of 15 USC 1635(b) means? “The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.”
johngault
Yeah they admit some payments may be difficult to make because more debt is created than money.
The design of the system is for those who pay first can stay in and those who can’t pay cause there is no money supply, fall into bankruptcy.
If the first $100 created required $101 to pay it back, the first borrower could not pay off the loan.
Basic money mechanics.
Some folks by religion refuse to pay usury.
Trespass Unwanted.
Leah Dean,
Head’s up!
I should mention you will get a series of certified mail sent to your home to support the court case to evict you.
They have to show service of process delivering the mortgage documents and some other nonsense to you by mail.
I can’t remember what was sent, but I think they do multiple mailings of the same document one by regular mail and one certified.
If you were to go to court part of their process of getting the judge to see they had standing would be to get you to acknowledge receiving it by regular mail by probably asking you in court if you saw the documents they show you, or showing you signed for it by certified mail ensuring the court know it was delivered to someone who was authorized to receive mail at that address.
The post office would not put their name on the pink slip letting you know you have a certified letter you would sign for to receive.
I’ll tell you most people are robots. If they get mail they think they have to receive it. Well I learned it can be rejected by not going to get it.
The post office will do due diligence and pink slip you a few times and even tell you some nonsense that it will get returned to the sender if you don’t pick it up, and a whole month later, a postal worker will be knocking on your door trying to get you to sign for that document.
You do not have to accept mail from anyone you do not want to do business with. If they can’t show delivery they can’t move forward.
So there are many pitfalls and traps.
If you want it, go get it, or let someone in your household get the pink slip, feel important, and go get it…….or you make it clear you aren’t doing business with anyone that has to send you anything certified, and you don’t go get it, and if a postal worker knocks on your door to get you to sign for it, deny wanting it.
A simple, I don’t know them and I’m not accepting that is as good as any refusal. They can’t ‘make’ you take it, except a sheriff will put that paper in anyone’s hands who’ll take it…he may wait until someone comes home from work and put it in your hands before you get in the door, or scope out the home or speak to neighbors who will tell them everything they know about you and your patterns of being home or way, and if you have children, he’ll wait for them to come home from school and get them to take it on your behalf.
Just saying, this is a critical time for them to move toward eviction.
I have seen cases where the sheriff could never deliver and finally send it back to the law firm as undeliverable, but I don’t know if they reattempt. But if you receive mail, the post office will ask you to sign the back of the slip to receive it sometimes before showing you who it’s from. You can always ask them, IF I GET A PINK SLIP, can I find out who it’s from before you ask me to sign for it, and they should have no problem telling you yes.
I know of no law that makes you receive mail from people you don’t want to receive it from.
I am known for writing refused on any mail I can’t verify. I’ll stand at the mailbox, and if I get a mail from a address with no name, uh, who the heck are you to not put your name on the envelope? if I’m not waiting on a refund check from something I purchased and used the receipt to get the refund, then I’ll write Refused on it’s face and drop it back in the mailbox right there.
Refused mail is not delivered mail, and no one can claim the contents of the mail has been reviewed if it’s Refused. Notice how close that word is to the word trash (refuse)
The right to refuse mail from people you don’t want to do business with is in the mail manual found at usps.com, just look for their manual and search for refuse mail, and I think it’s like provision or rule 604 or something. similar.
We have power and we have rights our lack of knowledge is used against us but we are the creators of this mess and we’ll collectively figure it out.
On a side note, open opinion time for real
Just shut out the voices that don’t speak the words that lift you to your next level.
Voices that push you down, do not have an interest in you being lifted up regardless of what the voice says. If you want to help, you don’t beat me over the head with a hammer telling me I’m trying to help you, just listen to what I have to say. The pain from the hammer beating will keep me from hearing you. I’ll know there is no one else close for you to beat with a hammer, that’s why you directed your attention to me. Beat me, and say you care about me at the same time? Sound familiar?
Trespass Unwanted
Trespass Unwanted,
Jg- there is a similar set of parameters for loan mods; I think it is a short, 2-3 page list, which differentiates between a loan mod and a refinancing. Borrowers think they are getting a mod, yet it turns out that it is definitely a refinancing. Not legal under HAMP.
Jg- as I recall, if all the fees, yield spread premium etc total more than 7% of the amount being refinanced, then the loan is predatory. There is no net benefit to the borrower.
“Adjustable mortgage rates can cause payment increases that some borrowers may find difficult to make.”
So they admit it, and yet they made those teaser rate pieces of (*(#@! anyway.
More evidence they’re not capable of self-governance. I see the ads have started again for ‘got a pulse loans’. Unstinkingbelievable.
“The characteristics of the Mortgage Loans comprising or underlying the Primary Assets for a series may vary if credit support is provided in levels satisfactory to the Rating Agencies that rate a series of Securities. Generally, the following selection criteria apply to Mortgage Loans included in the Primary Assets:……………..
o no Mortgage Loan may be included that, as of the Cut-off Date, is
more than 59 days delinquent as to payment of principal or
interest…………….”
“The Trust Funds
General
The Notes will be secured by a pledge of the assets of the trust fund (jg: huh?), or an individual Asset Group, and the Certificates will represent beneficial ownership interests in the assets of the trust fund, or an individual Asset Group, each as specified in the prospectus supplement.
The Securities will be non-recourse obligations of the trust fund. Holders of the Notes (?) may only proceed against the assets of the trust fund as collateral in the case of a default, and then only to the extent provided in the indenture, and may not proceed against any assets of the depositor or its affiliates, or assets of the trust fund not pledged to secure the Notes.
The trust fund for each series of Securities will be held by the trustee for the benefit of the related security holders, and will consist of:
o amounts due and payable with respect to the Primary Assets as of the cut-off date designated in the prospectus supplement (the “Cut-off Date”);
o amounts held from time to time in the Collection Account, the
Securities Administration Account and the Distribution Account
established for a series of Securities;
o Mortgaged Properties that secured a Mortgage Loan and that are acquired
**on behalf of ** (by ? using a credit bid)
the security holders by foreclosure, deed in lieu of foreclosure or repossession;
o any Reserve Fund established pursuant to the Agreement for a series of Securities, if specified in the prospectus supplement;
o any Servicing Agreements relating to Mortgage Loans in the trust fund, to the extent that these agreements are assigned to the trustee;
o any primary mortgage insurance policies, FHA insurance, or VA
guarantee relating to Mortgage Loans in the trust fund;
o any pool insurance policy, special hazard insurance policy,
bankruptcy bond or other credit support relating to the series;
o any interest rate swap agreement, interest rate cap agreement,
currency swap or currency option, market value swap or similar
derivative instrument;
o investments held in any fund or account or any guaranteed investment contract and income from the reinvestment of these funds, if
specified in the prospectus supplement; and
o any other asset, instrument or agreement relating to the trust fund and specified in the prospectus supplement.
The prospectus supplement may specify that a certain amount or percentage of a Primary Asset will not be sold by the depositor or seller of the Primary Asset, but will be retained by that party (the “Retained Interest”).
Therefore,amounts received with respect to a Retained Interest in an Agency Certificate, a Private Mortgage-Backed Security or a Loan comprising the Primary Assets for a series will not be included in the trust fund but will be payable to the seller of the respective asset, or to the master servicer (if any), servicer, depositor or another party, free and clear of the interest of security holders under the Agreements.”
“Bankruptcy or Insolvency Proceedings
Could Delay or Reduce Payments
on the Securities ……………… Each transfer of a mortgage loan to
the Seller herein (or to
such other seller specified in the
related prospectus supplement), from
the seller to the depositor and, in
connection with the issuance of any
asset-backed notes, from the depositor
to the issuing entity, will be intended
to be an absolute and unconditional
sale of that mortgage loan and will be
reflected as such in the applicable
documents.
However, in the event of the
bankruptcy or insolvency of a prior
owner of a mortgage loan,
*a trustee in
bankruptcy or a receiver or creditor of
the insolvent party (seller – sic) could attempt to
recharacterize the sale of that
mortgage loan by the insolvent party as
a borrowing secured by a pledge of the
mortgage loan. *
jg: do tell. How’s that? Non-delivery? Failure
to adhere to the letter of the trust agreement? So it seems the other parties to the trust are warning the investors that third parties (seller bk trustees, seller creditors, seller receiver) may make claims relevant to the trust agreements. And yet, banksters and courts scream that a borrower, another third party, has zero standing to argue the same trust agreement(s). How would they recharacterize the sale as a loan (disguised by the words “a borrowing”) made by the trust v a sale? Not sure how all, but using the default law UCC, non delivery and non endorsement could in fact find the trusts with nothing more than pledged assets (our loans) for a loan made to the seller. But the point is, the banksters knew that third parties might argue about what actually happened, but ‘prefer’ that homeowners aren’t peoples who may (despite the benefits to borrowers touted by merscorp creators and securitization advocates, i.e., third party beneficiaries, unlike the others whom they recognize could sqauwk) advance any arguments regarding the agreements.
“Such an attempt, even if
unsuccessful, could result in delays in
payments on the securities. If such an
attempt were successful, it is possible
that the affected mortgage loans could
be sold in order to liquidate the
assets of the insolvent entity. In the
case of the bankruptcy or insolvency of
the applicable seller, there can be no
assurance that the proceeds of such a
liquidation would be sufficient to
repay the securities in full.”
“Predatory Lending Laws/High
Cost Loans ….
Various federal, state and local laws
have been enacted that are designed to
discourage predatory lending practices.
The federal Home Ownership and Equity
Protection Act of 1994, commonly known
as HOEPA, prohibits inclusion of
certain provisions in mortgage loans
that have mortgage rates or origination
costs in excess of prescribed levels,
and requires that borrowers be given
certain disclosures prior to the
origination of mortgage loans. Some
states have enacted, or may enact,
similar laws or regulations, which in
some cases impose restrictions and
requirements greater than those in
HOEPA.
In addition, under the anti-predatory
lending laws of some states, the
origination of certain mortgage loans
(including loans that are NOT
classified as “high cost” loans under
applicable law) must satisfy a net
tangible benefits test with respect to
the related borrower. This test may be
highly subjective and open to
interpretation. As a result, a court
may determine that a mortgage loan does
not meet the test even if the related
originator reasonably believed that the
test was satisfied.
Failure to comply with these laws, to
the extent applicable to any of the
mortgage loans, could subject the trust
fund, as an assignee of the related
mortgage loans, to monetary penalties
and could result in the borrowers
rescinding the affected mortgage loans.
Lawsuits have been brought in various
states making claims against assignees
of high cost loans for violations of
state law. Named defendants in these
cases have included numerous
participants within the secondary
mortgage market, including some
securitization trusts.
The seller will represent that the
trust fund does not include any
mortgage loans that are subject to
HOEPA or that would be classified as
“high cost” loans under any similar
state or local predatory or abusive
lending law. There may be mortgage
loans in the trust fund that are
subject to the state or local
requirement that the loan provide a net tangible benefit (however denominated)
to the borrower; the seller will
represent that these mortgage loans are
in compliance with applicable
requirements. If it is determined that
the trust fund includes loans subject
to HOEPA or otherwise classified as
high cost loans, or which do not comply
with applicable net tangible benefit
requirements, the seller will be
required to repurchase the affected
loans and to pay any liabilities
incurred by the trust fund due to any
violations of these laws. If the loans
are found to have been originated in
violation of predatory or abusive
lending laws and the seller does not
repurchase the affected loans and pay
any related liabilities,
security holders could incur losses.”
jg: imo a loan would not have a net tangible benefit if a borrower, say, spent, in cash or equity (equity if loan costs rolled into loan) 10k to save 13.00 a months or if she had 19 years to go on her loan with payments of 689 and will now have 30 years at 621.00.
I’ve always used a certain yard stick: if it takes one more than 2 years to recover the loan costs by virtue of lower payments, don’t do it unless maybe you know you are Never moving. In other words or by way of example, if it costs you 7k to refi and you’ll save 100 a month, clearly it’ll take you more than 2 years to recover the 7k (you’d only realize 2400.00 in those 2 years – 24 mos. x 100)
from free writing prospectus (aka info to trust investors):
“Violation of Various Federal, State
and Local Laws May Result in
Losses on the Mortgage Loans ……. Applicable state laws generally
regulate interest rates and other
charges, require certain disclosure,
and require licensing of brokers and
lenders. In addition, other state laws,
public policy and general principles of
equity relating to the protection of
consumers, unfair and deceptive
practices and debt collection practices
may apply to the origination, servicing
and collection of mortgage loans.
Mortgage loans are also subject to
various federal laws, including:
o the federal Truth-in-Lending Act and
Regulation Z promulgated thereunder,
which require certain disclosures to
borrowers regarding the terms of
their mortgage loans;
o the Equal Credit Opportunity Act and
Regulation B promulgated thereunder,
which prohibit discrimination on the
basis of age, race, color, sex,
religion, marital status, national
origin, receipt of public assistance
or the exercise of any right under
the Consumer Credit Protection Act,
in the extension of credit; and
o the Fair Credit Reporting Act, which
regulates the use and reporting of
information related to the
borrower’s credit experience.
Violations of certain provisions of
these federal laws may limit the
ability of the servicers to collect all
or part of the principal of or interest
on the related mortgage loans and in
addition could subject the trust fund
to damages and administrative
enforcement…..”
“Rights of a NIMS Insurer May
Affect Securities
If specified in the related prospectus
supplement, it may be anticipated that
one or more insurance companies,
referred to as the “NIMS Insurer,” may
issue a financial guaranty insurance
policy covering certain payments to be
made on any net interest margin
securities to be issued by a separate
trust or other special purpose entity
and to be all or a portion of the securities
specified in the related prospectus
supplement.
If such an insurance policy
is issued, the trust agreement and the
servicing agreements for this
transaction will provide that, unless
there exists a continuance of any
failure by the NIMS Insurer to make a
required payment under the policy
insuring the net interest margin
securities or there exists an
insolvency proceeding by or against the
NIMS Insurer, the NIMS Insurer, if any,
will be entitled to exercise, among
others, the following rights, without
the consent of the holders of the
securities, and the holders of the
securities may exercise these rights
only with the prior written consent of
the NIMS Insurer:
(1) the right to
provide notices of servicer or master
servicer defaults and the right to
direct the trustee and the master
servicer to terminate the rights and
obligations of the master servicer and
the servicers, respectively, under the
trust agreement and the servicing
agreements in the event of a default by
any master servicer or servicer, (2)
the right to remove the trustee or any
co-trustee pursuant to the trust
agreement and (3) the right to direct
the trustee to make investigations and
take actions pursuant to the trust
agreement. In addition, unless the NIMS
Insurer defaults or there exists an
insolvency proceeding as described
above, the NIMS Insurer’s consent will
be required prior to, among other
things, (1) the waiver of any default
by any master servicer, any servicer* or
the trustee, (2) the appointment of any
successor trustee or any co-trustee or
(3) any amendment to the trust
agreement or any servicing agreement.
*jg: the only default I think a servicer could
waive is the borrower’s and is this then
saying that waiver requires the NIMS Insurers’ approval and if so, are servicers urging default for mod and then being told no by the nims insurer, deliberately putting consumers in harm’s way? If so, does it matter that 1) there’s another party whose approval is needed to, say, waive a month’s payment or modify or ? and 2) that the borrower is not told?
“The NIMS Insurer will also have
additional rights under the trust
agreement and in each the servicing
agreement.
” Investors in the related securities
should note that any insurance policy
issued by the NIMS Insurer will not
cover, and will not benefit in any
manner whatsoever, those securities.
Furthermore, the rights granted to the
NIMS Insurer, if any, may be extensive
and the interests of the NIMS Insurer
may be inconsistent with, and adverse
to, the interests of the holders of
those securities.(!!) The NIMS Insurer has
no obligation or duty to consider the
interests of the holders of the
securities in connection with the
exercise or non-exercise of the NIMS
Insurer’s rights.”
jg: say what? Was AIG a “NIMS Insurer” and if
so and such an insurer is so powerful, why
did AIG
waive subrogation? Did it? Didn’t need to?? But the bigger question: for whom then is a Nims Insurer insuring??
“The NIMS Insurer’s exercise of the
rights and consents set forth above may
negatively affect the securities and
the existence of the NIMS Insurer’s
rights, whether or not exercised, may
adversely affect the liquidity of the
securities, relative to other
asset-backed securities backed by
comparable mortgage loans and with
comparable payment priorities and
ratings.”
Dwight,
Typical reaction from someone who probably didn’t know what he was doing, in all likelihood had never been in court even as an observer before tacking on his own defense as a pro se, didn’t know how to address a judge and didn’t present the proper issues relative to his case but, instead, went on some inadmissible tangent, unrelated to the issues at hand. That would the great majority of bloggers coming here. Odd how difficult for people to admit that they didn’t know what they were doing. The sign of immaturity…
Good attorneys exist. Takes real homework to position yourself so that your case is attractive enough for them. And good attorneys will work with you if you don’t have money. I know from experience. You won’t find them when the foreclosure is so far along that it is too late to properly defend it or when so many bad pleadings were filed that the case is no longer salvageable.
Yes, bad judges do exist. They are not the rule. In fact, most of them try damn hard to analyze the defenses presented by the homeowner in the context of the existing laws and statutes. Not their fault if homeowners keep getting their inspiration and legal advice from sites such as this one.
I’m sorry couldn’t stop myself
No Ian, they were checking for something. Cold or not ain’t gonna have any.
NPV … That was my Pro se transcript that you’re monday morning quarterbacking with 20/20 hindsight vision, a whole lot easier to do from the comfort of your armchair and keyboard. But the truth of the matter is that I had the unfortunate bad luck of being before a bad judge who was defiant and unaccepting of rescission and the Supreme Courts unanimous decision. So I think you’re taking cheap shots at me and trying to blame the judges intentional disregard for the law on the first pro se litigant to try to argue the recent decision in court. My argument was not the problem, the problem was having a judge who doesn’t agree with the Supreme Court. My answer to the complaint properly pleaded everything you point out in your post, I did raise the fact that the court has no jurisdiction, that the plaintiff has no standing, that the rescission effectively voided the note and mortgage by operation of law, etc. … You should be commending me instead of blaming me. Blame the injust system and biased judges if you want to blame anyone, they refuse to follow the laws and its been this way for a long time as the rescission issue proves. You say “shoulda hired a lawyer” ..well if there were any competent lawyers to hire regarding real foreclosure defense I might agree with you. I spoke with many lawyers who advertised and none of them knew anything about this stuff, I actually got further than any attorney would have taken me. And my case is still going to be appealed after I motion for several reconsiderations in order to clean up a few details before appeal. Since you have all the answers why don’t you post something useful that might help instead of just being critical of the fact that I acted pro se.
It was so cold in DC today, the politicians had their hands in their own pockets.
And personally – im audited out.
Agree on proceed with caution
Rock is right at 9:35
And by the way, $3500 for a Garfield recission letter template and analysis of your loan documents does not (I think) a good deal make.
Just sayin……
A ONE AND A HALF BILLION DOLLAR OOPS
United States: Second Circuit Decision Reminds Us To Double-Check Documents
Last Updated: April 8 2015
Article by Purvi Shah and Michelle McMahon
Bryan Cave LLP
Official Committee of Unsecured Creditors v. JPMorgan Chase Bank, N.A. (In re Motors Liquidation Co.), Appeal No. 13-2187 (2nd Cir. Jan. 21, 2013)
In a decision that sent a shiver down the spine of attorneys and lenders alike, on January 21, 2015, the U.S. Court of Appeals for the Second Circuit (the “Second Circuit”) ruled that JPMorgan Chase Bank, N.A. (“JPMorgan”) had released its security interest on a $1.5 billion loan to General Motors (“GM”) by the inadvertent filing of a UCC-3 termination statement. The Second Circuit held that although JP Morgan and GM did not intend to terminate the security interest at issue, the termination was effective because JP Morgan authorized the filing of the UCC-3 termination statement.
In October 2001, GM entered into a synthetic lease financing transaction (“Synthetic Lease”), by which it obtained approximately $300 million in financing from a syndicate of lenders (the “Lenders”) including JPMorgan who served as the administrative agent. The Synthetic Lease was secured by mortgages on several pieces of real estate, which were perfected by the proper filing of two UCC-1 financing statements by JPMorgan (the “Synthetic Lease UCC-1s”). Separately, GM entered into an unrelated term loan facility (the “Term Loan”). JPMorgan also served as the administrative agent on this loan. The Term Loan was secured by security interests in a variety of GM’s assets, including equipment and fixtures at forty-two facilities throughout the United States. JPMorgan properly filed UCC-1 financing statements to perfect its security interest in the various assets, including one such statement filed in Delaware covering all GM’s equipment and fixtures at 42 of the facilities (the “Term Loan UCC-1”).
In September 2008, as the Synthetic Lease was nearing maturity, GM decided to pay-off the loan and contacted its counsel to prepare the necessary documentation, including documents to release the Lender’s security interests. In order to prepare the documents necessary to terminate the Lender’s security interests, GM’s counsel ordered a search for UCC-1 statements that had been recorded against GM in Delaware. This search yielded three UCC-1s: the Synthetic Lease UCC-1s and the Term Loan UCC-1. As part of the transaction, GM’s counsel prepared a closing checklist and UCC-3 termination statements to terminate all three security interests, mistakenly including the Term Loan UCC-1. Although all parties and their counsel reviewed the checklist and the draft documentation, no one caught the error. In October 2008, GM paid off the Synthetic Lease and the three UCC-3 termination statements were filed with the Delaware Secretary of State.
The mistake went unnoticed until 2009 when GM filed its Chapter 11 bankruptcy. JPMorgan became aware of the inadvertent filing of the UCC-3 statement relating to the Term Loan. JPMorgan advised the Official Committee of Unsecured Creditors (the “Committee”) appointed in GM’s bankruptcy of this filing mistake and asserted that the Term Loan was secured nonetheless because the filing was ineffective because it was unauthorized. The Committee commenced the underlying action against JPMorgan seeking a determination that, despite the error, the UCC-3 statement with respect to the Term Loan was effective and the Term Loan was unsecured. JPMorgan opposed this determination on the basis that under UCC §9-509(d)(1) because it did not intend to terminate the security interest related to the Term Loan, the filing was not authorized and therefore not effective. The United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) agreed with JPMorgan and held that the mistaken UCC-3 statement was unauthorized and therefore not effective to terminate a secured lender’s interest in a debtor’s property. The Committee filed a direct appeal of the Bankruptcy Court’s decision to the Second Circuit.
The Second Circuit certified the question related to interpretation of UCC §9-509(d)(1) to the Delaware Supreme Court because it presented a significant issue of Delaware state law. The Delaware Supreme Court held that under UCC §9-509(d)(1) if the secured party of record authorized the filing of the UCC-3 statement, that statement is effective regardless of whether the secured party subjectively intended or understood the effect of filing the statement. The Second Circuit then held that although JP Morgan never intended to terminate the Term Loan UCC-1, it clearly authorized the filing by counsel of the UCC-3 statement with respect thereto. Accordingly, the Second Circuit held that the UCC-3 with respect to the Term Loan was effective, reversing the Bankruptcy Court’s decision, and thereby rendering the Term Loan unsecured.
This decision provides a terrifyingly simple, and for parties involved costly, reminder to always double check your documents.
Originally published March 13, 2015.
Agree right to rescission does not last forever but tolling might be at issue for arguing – get your head into that Supreme Court decision and ride it into your cases if you think you can, otherwise you will miss a chance. If you end up going all the way to US Supreme Court then that’s the final word, don’t you want to know you did all you could to get justice, being your right. I’m prepared to do that.
Appear to Apply?
Washing eye glasses.
N1 Christine!
The link that is ……. Kicking Gr’ass!
Blogs work like stock trading. Some agree with the analyst / editor – some do not. Either way, when enough people are blogging about a company’s stock – the rest of us get to see the good and bad about the Company’s stock with very little research, and the competing parties provide liquidity – regardless of the stocks trading direction.
If anyone decides to buy the stock or sell the stock based on what others believe they are foolish. There is enough information available on the web to do research. You can also ask the analyst / editor to provide past results to support their argument. Likewise, if another person is blogging about the Company’s product, and makes claims that a competing stock exists that yields far better results – it should also be investigated before you make the decision.
I’m at this a long time, (25 years), and if all the parties truly wanted to help the people, instead of taking the capitalist pig approach, they would work together to develop a product that encompasses both strategies being presented.
I have seen Christine’s side of the argument and Neil’s side of the argument both work and lose in Court. Therefore, both strategies have merits and shortcomings, and yes: most of it depends on how it is explained to the Judge.
I have never seen NG say that other strategies do not work, he sells a product and he certainly believes that he has something that works. Storm Bradford has a product and Christine, Rock and Bob believe that this product works, from what I can see – for at least 7 people at this point.
Reviewing many cases it shows that the Securitization argument primarily provides or attacks a cause of action or standing, while the other sides argument adds causes or the affirmative defenses of fraud violations, etc..
So, since I am clearly the TSMIMITW, and can only understand situations by first seeking the resolution – it is my opinion that both parties should make a little less money on their product and incorporate both services into one “Total Defense” (c), and make more money by appealing to more of the market through an affordable strategy. Companies that see synergies do it all the time, and the stock price of both companies will typically benefit in the long term by streamlining the coefficients created through the merger.
Ultimately, the people lose because we are always divided on the approach. Banks share their resources, ideas and legal strategies and work together as an industry to win foreclosure cases, and the win the majority of the time because of that simple premise.
Finally, if you can afford it – hire a lawyer. The individual that posted their pro se motion to reargue should have had an attorney. The transcript shows that the rescission argument was not properly put before the Judge. A lawyer may have made a motion to amend the answer and challenge the court’s jurisdiction to hear the case.
No Note, No Mortgage means no cause of action. If the bank party is standing on these documents they must first prove that they exist by an operation of law, and that was not how that hearing went.
Finally, this will be my last long winded rant. As many of you know… I have thorough knowledge of both strategies being deployed in Court. I am willing to work with both sides to develop a product that can be shared among the people. It includes posting outcomes of all cases to see were we fail and were we prevail as an organized consumer industry.
If you purchased a home and thought the bank was a portfolio lender and then at closing its a MERS loan and want to rescind later dto you get another loan? This is where I am confused. If the seller was paid and you rescind how does that all work out in the end.? Is the house free and clear?
Push that ideal through the floor boards hard
I picked up “on” it…
“TILA rescission procedures appear to apply to all loans.” I picked up it right away too. Amazing: first sentence is pure BS. Didn’t give me the incentive to read further.
As I understand it, TILA doesn’t apply to anything purchased in the context of a business: a semi by a truck driver, medical equipment by a clinic, real estate used as place of work, examples abound. And the status of the lender matters (credit institution v. other).
Rather than read this, read the entire statute. You’ll be better off!.
http://www.federalreserve.gov/boarddocs/supmanual/cch/til.pdf
Did not have TILA in our loan as house did not qualify as a primary residence. Bank responded that it did not qualify for that reason.
All loans ?????
Including….
1. Purchase mortgage (not refinance)
2. Fraudclosed loan.
3. Modification loan.
??????????????
This statement: “TILA rescission procedures appear to apply to all loans,” is factually and legally incorrect; and anyone who follows such nonsense will suffer the consequences if the they’re transaction was one where TILA didn’t apply!.