Back to the Future: RESCISSION

543 Responses

Rod Ciferri, on December 26, 2017 at 12:49 pm said:

“it requires courts to allow TILA rescission lawsuits later than 3 years after loan consummation, provided the borrower gave PROPER notice.”

Sorry Bob, but the only notice TILA rescission requires is a writing stating the consumer’s intent to rescind – period. That’s how the statue is worded. Courts may not add “proper” to a statute, especially when it unambiguously states a procedure for determining whether it was proper post-rescission. That is a blatant judicial rewriting of the statute.

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bobhurt, on May 20, 2015 at 2:26 am said:

Rod, you don’t grok rescission at all. The Jesinoski opinion changed only one thing, and only for some Circuits: it requires courts to allow TILA rescission lawsuits later than 3 years after loan consummation, provided the borrower gave PROPER notice. It did not change anything else, including the means by which the parties and the courts must deal with rescission.

Read this holding from JOY IROANYAH v. BANK OF AMERICA, N.A., 851 F.Supp.2d 1115 (2012):

“For the foregoing reasons, all three summary judgment motions are granted in part and denied in part. Green Tree and MERS are granted judgment on the damage claims against them, though they are not dismissed from the case. Plaintiffs are granted judgment on the question whether the Disclosure Statements violated TILA (they did) and on whether their rescission notices were valid (they were). Defendants are granted judgment on their request to modify the rescission procedures — the Iroanyahs must make their tenders ($162,215.30 on the First Loan, and $26,037.10 on the Second Loan) to effectuate rescission, and if they fail to do so by June 14, 2012, judgment on the rescission claims will be granted to Defendants. Plaintiffs are granted judgment on the question whether Defendants failed to properly respond to the rescission notices, and are awarded $8000 in statutory damages and $2800 in actual damages; those sums have been incorporated into the tender amounts set forth above. The summary judgment motions otherwise are denied, though the Iroanyahs’ motion for summary judgment regarding attorney fees and costs under 15 U.S.C. § 1640(a)(3) is denied without prejudice. If the Iroanyahs wish to pursue attorney fees and costs under § 1640(a)(3) in light of the rulings set forth above, they may file a motion under Local Rule 54.3.”

Furthermore, the borrower has a right of damages action against the creditor for failing to act within 20 days after receiving a valid notice of a valid rescission under TILA. Read this introduction to BELINI v. WASHINGTON MUT. BANK, FA, 412 F.3d 17 (2005):

“This Truth in Lending Act (TILA) case raises difficult and rarely seen issues that arise when transactions regulated by a given state — here, Massachusetts — have been exempted by the Federal Reserve from most of the Act’s requirements. See 15 U.S.C. § 1633; see also Bizier v. Globe Fin. Servs., Inc., 654 F.2d 1, 2 (1st Cir.1981). Only five states have received such exemptions. See 12 C.F.R. Pt. 226, Supp. I. In the end, however, this case turns on a narrower issue, one of first impression for this court under TILA. The question is whether TILA permits a damages claim to be stated by the debtor under 15 U.S.C. § 1640 based on the creditor’s alleged failure to respond properly to the debtor’s notice of rescission. We hold that it does. In doing so, we join the approach of four other circuits, and we know of no circuit which has held to the contrary.

“The plaintiffs, Richard and Theresa Belini, alleged that the defendant, Washington Mutual Bank, sold them a high-cost mortgage without making disclosures required by TILA and equivalent Massachusetts law. They sued in federal court, asserting claims for damages for failure to make these disclosures, for rescission, and for damages for Washington Mutual’s alleged failure to respond properly to their notice of rescission, under both TILA and similar Massachusetts law. The district court held that all of the Belinis’ damages claims were time barred, without discussing separately their claim for Washington Mutual’s alleged failure to respond to their notice of rescission. This left the rescission claim itself and the question of whether there was either federal question jurisdiction or diversity jurisdiction. The court found that the amount-in-controversy requirement was not met, so there was no diversity jurisdiction, and that there was no federal question jurisdiction over a claim for rescission (as opposed to a claim for damages) because of the Massachusetts exemption from certain TILA requirements.

“Although it is clear from the Federal Reserve regulations that a debtor’s ability to bring a federal damages action under 15 U.S.C. § 1640 is preserved despite the Massachusetts exemption, see 12 C.F.R. § 226.29(b), it is much murkier, given the current drafting of these regulations, whether a debtor’s right to sue for rescission under federal law is preserved. Similarly, the question of how to measure the amount in controversy in an action for rescission is difficult.

“We reverse. We find it unnecessary to resolve the difficult question of whether the federal court had either federal question jurisdiction or diversity jurisdiction over the rescission claim, because we find that the Belinis have a viable, non-time-barred federal damages claim under TILA based on the defendant’s alleged failure to respond properly to the Belinis’ notice of rescission. This damages claim provides a basis for federal question jurisdiction. That means that the Belinis’ claim for rescission, which has virtually identical elements under TILA and Massachusetts law, is within the court’s supplemental jurisdiction. This case does not fall into a category that would render the district court’s exercise of supplemental jurisdiction discretionary.”

I think you and others seeking a replete explanation of the issues should carefully study the entire opinions in the above cases, and for your full edification, study the cases linked by them.

These opinions are still valid.

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rciferri, on May 19, 2015 at 10:56 am said:

@Rock

You said:

“rciferri’s schizophrenic answer and hallucination is Beukes’s “acted as if GMAC had to agree to his rescission for it to be effective.”

Nowhere in the opinion is there any evidence of any agreement.”

I didn’t say there was an agreement.

I said Beukes acted as if GMAC should have agreed to his rescission and also prayed to the court for rescission.

In other words, Beukes conceded that GMAC had to agree to the rescission for it to be effective or that the court should grant him rescission.

It was part of Beukes’ cause of action FOR rescission.

Check the district court opinion.

It is clear from that opinion, that Beukes bought your theory that TILA rescission did not create an independent remedy unknown at common law.

He framed his case under both legal and equitable common law rescission.

If you buy the Rock BS and plead common law rescission, instead of seeking a declaration confirming that you completed a TILA rescission by your notice, the court may put the burden of proof on you rather than on the lender, will change the procedures under Section 1635(b) and you will probably lose.

You said:

“Moreover, as Garfield and his parrot rciferri have claimed the mortgage and note are void by operation of law.”

TILA says the security interest is void upon notice, not the note. Also, I’ve never said the note becomes void upon a TILA rescission notice.

That’s yet another Rock lie.

Rather than become void, upon TILA rescission notice, the borrower is not liable under the note.

The bottom line is, do not plead common law rescission if you believe your TILA rescission is complete upon notice by operation of law. Doing so allows the court to act in equity to change the procedures under Section 1635(b).

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Rock, on May 19, 2015 at 8:20 am said:

Bob, more lunacy from rciferri.

This case is from the Eighth Circuit where the Jesinoski case came from, so clearly they know what the law is regarding TILA now.

rciferri’s schizophrenic answer and hallucination is Beukes’s “acted as if GMAC had to agree to his rescission for it to be effective.”

Nowhere in the opinion is there any evidence of any agreement. In actuality Beukes filed a TIMELY notice of RIGHT to cancel, and the bank rejected it claiming they had NO RIGHT to cancel.

Moreover, as Garfield and his parrot rciferri have claimed the mortgage and note are void by operation of law. If that were so, the court would have ruled in favor of the Beukes.—PERIOD!!

This is why you can’t debate scammers and hustlers, they always have an answer to back up their lunacy, no matter schizophrenic, or illogical.

Living Lies–The Truth (www.livingliesthetruth.com) is almost finished and should be up and running in the next couple of days, so we can get out of this lunacy and get to helping homeowners that haven’t drunk the Kool-Aid. These scammers and hustler’s can continue to poison their dupes and we’ll just leave them to their own demise.

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rciferri, on May 18, 2015 at 4:29 pm said:

@bobhurt

You said:

“That happens when borrowers and their attorneys (are you reading THIS, Rod?) don’t read or cannot understand the law.”

Yes, Bob, I understand why it didn’t work out for Beukes; not just what you pointed out, but also, what you didn’t point out: That Beukes acted as if GMAC had to agree to his rescission for it to be effective and then prayed for rescission to be ordered by the court, instead of seeking a declaration that rescission already occurred upon his notice.

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bobhurt, on May 18, 2015 at 3:30 pm said:

Right, Rock. I can see how borrowers get confused about TILA rescission. The opinion in BEUKES v. GMAC, LLC. makes that very clear. Beukes sent notice of rescission timely but prior to foreclosure and not after foreclosure. One law (15 U.S.C. § 1605(f)(2)(A)) allows rescission noticed prior to foreclosure for loan cost more than 1/2% of the loan amount, but another law (15 U.S.C. § 1635(i)(2)) allows rescission noticed after initiation of foreclosure for charging more than $35 above actual loan cost.

Since Beukes’ cost fell between those two amounts and they did not give notice of rescission after foreclosure started, they could not rescind at all.

Boo Hoo. That happens when borrowers and their attorneys (are you reading THIS, Rod?) don’t read or cannot understand the law.

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rciferri, on May 18, 2015 at 3:26 pm said:

@bobhurt

You said:

“Rod, obviously you do not know how to read the law, so I’ll explain for the nth time…

Did you see anything in the Jesinoski opinion udo 12 CFR § 1026.15(d)? No? Well, THAT defines rescission as an unwinding process that BEGINS with detection of a relevant TILA violation and ends with both parties returning to their pre-loan condition with respect to the loan.”

First of all, you were the one that encouraged me to give you the law, because you said you weren’t a lawyer.

Second of all, I happen to believe that part of Regulation Z substantively changes the last sentence of Section 1635(b), which clearly states the unwinding procedures happen AFTER the rescission by notice and that the 20 day period SHALL apply UNLESS a court orders otherwise.

You said:

“THAT defines rescission as an unwinding process that BEGINS with detection of a relevant TILA violation” No it doesn’t. It begins and ends with the creditor’s receipt of the borrower’s rescission notice.

The unwinding process unfolds after that – if the creditor avails itself of it. See the oral argument of Mr. Frederick that explains they are two separate discrete procedures, with the latter one (unwinding) resembling equitable restitution.

You said:

” You should have seen that the courts REFUSE to allow rescission UNLESS THE BORROWER CAN TENDER CASH.”

Anyone can tell what the courts do by reading the cases. It takes thinking like a lawyer to discern the value of those opinions. Clearly, they are not always right, like Plessy v. Ferguson.

Believe me, you are going to see cases citing Jesinoski for the proposition that rescission is completed by notice.

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bobhurt, on May 18, 2015 at 2:54 pm said:

Roderick Ciferri:

“Either notice completes the TILA rescission process or it does not.
Jesinoski confirmed that it does. While a court may change that by ultimately setting aside the TILA rescission (if it acts in time) – even in instances where a homeowner gave timely notice – it cannot act AFTER the 20 days, because, in such an instance, the rescission process has been completed (if one were liberally to construe the unwinding process in Section 1635(b) as part of the rescission, which I reject).”

Rod, obviously you do not know how to read the law, so I’ll explain for the nth time…

Did you see anything in the Jesinoski opinion udo 12 CFR § 1026.15(d)? No? Well, THAT defines rescission as an unwinding process that BEGINS with detection of a relevant TILA violation and ends with both parties returning to their pre-loan condition with respect to the loan.

12 CFR §1026.15(d) (1) deals with the security interest and finance charges; (2) deals with lender tender or rebuttal; (3) deals with borrower tender after lender tender, location of tender, and lender failure timely to grab the borrower tender; (4) acknowledges the court’s power to modify (2) and (3) equitably. That constitutes the quintessential definition of TILA rescission and its unwinding.

Clearly, the Supreme Court fully embraces this definition. If you have looked at post-Jesinoski opinions, you should have noticed that NONE of them held that the above CFR section constitutes a nullity. You should have seen that the courts REFUSE to allow rescission UNLESS THE BORROWER CAN TENDER CASH. The borrower cannot tender the real estate. He has to give back what the lender gave him (money). But don’t worry, because the borrower will lose the house in foreclosure, a consequence of foolishly failing to make mortgage payments.

Lesson: Borrowers should NEVER rescind UNLESS they can tender.

Tell me you FINALLY GROK this, Roderick.

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Rock, on May 18, 2015 at 6:40 am said:

Eighth Circuit gives another poor homeowner a TILA education post Jesinoski. BEUKES v. GMAC, LLC.

Again, proving scammers Garfield, rciferri, et al have no clue how TILA works; don’t understand the court cases they read: and generally have no clue what they’re talking about.

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Rock, on May 15, 2015 at 5:57 pm said:

Bob, this is what I’ve been telling you, its a waste of time dealing with these Kool-Aid drinkers that have no clue what they’re talking about.

Several homeowners have lost their homes post Jesinoski, including Sherzer, but rciferri “rejects” their holdings. And this is from someone who’s never tried a case in his life. We must be more delusional then them to think they will ever get it. Matter of fact, they’ll never get it, because when the courts continue to crap all over their arguments, it will be the same old cliche–those tyrannical courts

If you notice I will not address them, I’m just trying to clarify for those that have asked us to.

What rciferri doesn’t realize yet; I’m a pigeon and he’s a statue. I crap all over him, and his ridiculous comments.

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rciferri, on May 15, 2015 at 3:02 pm said:

Regarding my previous statement that the Williams case was wrong concerning its contention that the purpose of TILA rescission is to return the parties to their status quo ante, I post the following.

In support of such a contention, the Williams Court cites the following:

“In this instance, Congress, through its legislative history, has made it quite clear that “the courts, AT ANY TIME DURING THE RESCISSION PROCESS, may impose equitable conditions to insure that the consumer meets his obligations after the creditor has performed his obligations as required by the act.” S.Rep. No. 368, 96th Cong., 2d Sess. 29 (1980) (emphasis added), reprinted in 1980 U.S.C.C.A.N. 236, 265.”

Either notice completes the TILA rescission process or it does not.

Jesinoski confirmed that it does.

While a court may change that by ultimately setting aside the TILA rescission (if it acts in time) – even in instances where a homeowner gave timely notice – it cannot act AFTER the 20 days, because, in such an instance, the rescission process has been completed (if one were liberally to construe the unwinding process in Section 1635(b) as part of the rescission, which I reject).

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rciferri, on May 15, 2015 at 11:14 am said:

@Rock

From the remand and from a prior order on a motion to dismiss, it is clear that Sherzer filed a complaint seeking the court to declare a rescission (allowing the court to act in equity to decide whether it will allow the rescission) and sought damages from its adversary, HSBC “for failure to rescind.”

Thus, despite having a court that recognizes that rescission is complete upon notice, Sherzer opened the door for the court to act in equity to rightfully do what it did.

As to the court’s statement that the goal of TILA rescission is to return the parties to the status quo ante, such a statement is based on the Williams case, which was wrongfully decided.

That point deserves a separate discussion, which I will give in the future. Suffice it to say for now, the Williams decision (as to that issue) is an example of the court abandoning the law in favor of what Bob Hurt calls “common sense”, which is code for bank bias.

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Rock, on May 15, 2015 at 9:42 am said:

Bob, you should have also posted the holding from the remand. Regrettably, just another homeowner getting spanked post Jesinoski, shouldn’t have listened to delusional nitwits like rciferri and Garfield:

“Given the facts of this case, the Court finds that the plaintiffs are UNABLE TO TENDER back the loan amount and that rescission is thus ineffective. Not only did the plaintiffs fail to respond to defendants’ motion for summary judgment — even after the Court gave the plaintiffs ample time to do so (at this point, more than a full year) — but Mr. Sherzer conceded in an on-the-record telephone conference almost five months ago that he’s “out of money” and, in any event, DOES NOT BELIEVE HE WOULD NEED TO RETURN THE MONEY IF THE LOAN IS RESCINDED (Docket No. 134). The Court cannot ignore these facts because one of the “goals of [15 U.S.C.] § 1635 is ‘TO RETURN THE PARTIES MOST NEARLY TO THE POSITION THEY HELD PRIOR TO ENTERING INTO THE TRANSACTION.'” Sherzer, 707 F.3d at 265. Mr. Sherzer’s statements and beliefs contravene this goal (Docket No. 134). For that reason, the Court grants the defendants’ motion. Sherzer v. Homestar Mortg. Servs. (E.D. Pa., 2015).

However, the 3rd cir. was one of the circuits that held the homeowner didn’t have to file their law suit within the SOL. Therefore, because the holding clarified that position, all of the other law is precedent.

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bobhurt, on May 14, 2015 at 8:33 pm said:

Sherzer v. Homestar Mortg. Services, 707 F. 3d 255 – Court of Appeals, 3rd Circuit 2013

Google and study this case to understand rescission noticed within the 3 year limit in a lawsuit filed later outside the 3 year limit

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Trespass Unwanted, on May 14, 2015 at 4:42 pm said:

By courts rule, I mean the judge, an employee of the court rules the courtroom on presumptions and interpretation of facts.

People to people.
Not business to business, but business employees to business employees.
Not business to people, but the people hired to work for the.business to people.
Not people to business, but the people to people who work for.the.business

Trespass Unwanted, Creator, Corporeal, Life

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Trespass Unwanted, on May 14, 2015 at 4:11 pm said:

If it were your servicer, could you stop the change?
One thing I learned is that out here when we speak, we k ow what we are talking about.
I know, for Instance, that when someone states “my servicer” they really mean “the servicer for my lender”. Courts, on the other hand; if the court had hands, have specific words and definitions to describe a time, place event.

So to want someone to take me serious in a complaint; I cannot state PNC hired ABC to be my servicer. A court would call that opinion if they cared to give time to that statement.
Visualize what PNC would look like hiring a servicer for me.
You can’t because its an impossibility.
Now a PNC employee can or did hire a servicer but it was not mine,because for the sake of disclosure a servicer accepts payments on a loan ( in layman’s terms) and I was not being paid for a loan.
Sometimes we are caught up in telling our side of a situation that what we tell cannot be real at this place in this time.
Unknown employees at PNC hired a servicing company called ABC to be their servicer is fact.
PNC hired ABC as their servicer.
It has some truth, but truth is subjective. What I believe is true may not be true to you.
I could see red blue and you could be red blue color blind and see only red. It does not make me a liar nor you a liar. If someone was to decide who told the truth one would lose on the fact someone decided o e was lying.
A fact is harder to dispute because the information that supports it firm.
The only way a servicer would do work for PNC is if hired and the only way it can be hired is if one or many PNC employees did it, and then the servicer has to have employees to accept the contract and do the work.

If we keep communicating in general terms, we cannot expect someone to interpret that we really meant to say something else and rule for us or against us based on their belief of what we said.

Courts rule on technical details and presumption of the facts because we do not speak their language and they do not understand ours.
There is no meeting of the minds, no interpreter to handle our handicap and no valid contract or agreement when we enter or leave.

My opinion
Trespass Unwanted, Creator,Corporeal, Life

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DwightNJ, on May 14, 2015 at 3:11 pm said:

Congratulations Rod Ciferri,

Reminder for you to point out to NG how some courts (like the judge in my case) will refuse to acknowledge the Supreme Court Jesinoski ruling and try to deny justice.

My Answer to the 2014 Foreclosure Complaint included:

– I pleaded that no valid contract was completed at origination.

– Undisclosed third party funding / table-funded, predatory per se.

– Commerce stamped and endorsed “Pay to the order of WaMu” at closing in 2004 refinance.

– Commerce named MERS as Nominee

– Washington Mutual was my servicer and received payments until 2007 when Wells Fargo became servicer.

– Washington Mutual Bank went out of business in 2008. There has never been any proof shown in title chain of how WaMu either received title and ownership by assignment, or how they sold their interest to Wells Fargo. The only proof Wells Fargo submits is a MERS assignment of mortgage from Commerce to Wells Fargo , skipping the gap in the chain where Washington Mutual owned the loan due to it being endorsed to them at closing. MERS should not have been allowed as a nominee for Commerce to assign mortgage from Commerce to Wells Fargo , skipping the owner WaMu in between.

– In 2007 after Wells Fargo became my servicer, they told me that Fannie Mae owned my loan. That is when I mailed a rescission.

– In my Answer, one of my affirmative defenses was that I had already mailed a TILA Rescission letter in 2007, which they ignored.

– I included a counterclaim stating that they had been in violation of TILA for disclosures, APR errors, etc., and that I had rescinded on July 1, 2007 within the extended 3 year window allowed from 2004 loan.

– I included a copy of the letter that I had mailed in 2007, showing that I had hereby rescinded effective on date of letter July 1, 2007.

– I included an affidavit in my opposition to plaintiffs MSJ.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

The judge denied me the TILA Rescission based on :

– Judge said that in my rescission letter, I failed to offer any tender.

– Judge did not agree that a letter alone was sufficient. He said that I would have needed to tender at the time I rescinded for it to be accepted.

– Judge cited Yamommota case law that has been used in the past, requiring that the borrower must first show their tender before the rescission will be acknowledged by the court.

Based on the above reasons, he denied my timely rescission and granted Wells Fargo their motion for summary judgment, which was based on them being mere holders of the note.

Although I submitted QWR replies from Wells Fargo showing that they state that Fannie Mae is the owner of the loan, the judge said that he did not understand why I was arguing the chain of title, how MERS could skip Washington Mutual when WaMu had the note stamped and endorsed to them, how Fannie Mae purchased the loan and became the owner, etc, etc … he said none of that really mattered.

So in essence, any thief can come into a court with a stolen note and foreclose on your property. The court only cares that they are holders of the note. The court does not seem to care about any legalities that pertain to ownership, chain of title, MERS as nominee assigning a mortgage for Commerce Bank, when Washington Mutual owns the loan? None of these issues are relevant in the courts opinion.

And in DENYING my TILA RESCISSION, the judge foreclosed on my note and mortgage that were void by operation of law in 2007.

– the amount refinanced was 230,000

-The lender owed me over 50,000 in payments.

-Which would have left a balance due them of 180,000

-my house right now is valued at 260,000

-The judge was not even being equitable on this point, he is allowing them a windfall of 80,000 of my equity .. he is giving my 260,000 house to the servicer when he says my tender amount was 180,000 ..

But the main points of his errors are :

1) My rescission was effective upon mailing my letter and voided the mortgage, meaning it cannot be foreclosed on. The lender waived its remedies when it chose to ignore the 20 day compliance.

2) he erred in saying my rescission hinged on my offer of tender or lack of tender in my rescission letter.

Interested in how NG will deal with judges like mine, and how he plans on overcoming their attempt to defy the Supreme Court. Will he just wait to appeal to the next higher court? Or is there a strategy in mind on how to win the case at the lower court and make the judge see things our way?

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rciferri, on May 14, 2015 at 2:39 pm said:

@Rock

As I stated before, the rule of statutory interpretation used in Perrin applies when interpreting the word “rescission” as used in TILA, because that particular term is undefined in the statute.

At best, the Community case you cited, means the court may use the common law meaning of a word where that word is found WITHIN A STATUTORY DEFINITION and where the statute otherwise evinces Congress’ intent that the meaning of the word should be construed in accordance with its common law meaning.

In Community, the term “work made for hire” was specifically defined in the statute. Its definition was “work prepared by an employee within the scope of his or her employment”.

So, the language you quoted was from the court’s consideration of the meaning of the term “employee”, which was a term used within a definition contained in the statute.

By contrast, we are not dealing with a term found within a statutory definition when considering the meaning of “rescission” in TILA.

So, I think the cases you provided are not on point.

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Rock, on May 14, 2015 at 11:09 am said:

If anyone doesn’t think that rciferri is delusional, has no clue, and doesn’t understand what he’s reading, here’s more proof :

“Again, Rock, the rule of statutory interpretation taken from the cases you cite apply ONLY in situations where the term being interpreted was defined in the statute under consideration.”

He’s proof he doesn’t understand what he’s reading, or he’s so delusional he just doesn’t comprehend reality:

From the court case I provided:

“‘It is a well-established rule of construction that ‘[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ‘ Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992) (QUOTING Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989)); see Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 59 (1911) (“[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense’).”

“The Act NOWHERE DEFINES the terms “employee” or “scope of employment.” It is, however, well established that “[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” In the past, when Congress has used the term “employee” without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.

Community For Creative v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811, 10 USPQ2d 1985 (1989)

And this barely functional moron is teaming up with the other barely functional moron (Garfield) to scam more homeowners tonight–What a tragedy!

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rciferri, on May 14, 2015 at 10:26 am said:

@Rock

You said:

“rciferri is still delusional; somehow in hs corrupted mind the Sup. Ct. didn’t hold:”

And Rock still doesn’t get that his cases (Nationwide & Community) are each factually distinguishable.

Again, Rock, the rule of statutory interpretation taken from the cases you cite apply ONLY in situations where the term being interpreted was defined in the statute under consideration.

The Perrin rule that I posted applies in cases in which the term being interpreted is from a statute that does not define the term.

TILA does not define the term “rescission.”

Therefore, the latter rule applies and the former rule doesn’t.

Otherwise, SCOTUS would have two inconsistent rules of statutory construction to apply in the same situation.

And no, TILA doesn’t define the term in any way. It should go without saying that a definition is an explicit statement of a words meaning. If it has to be somehow implied from the statute, it is not a definition.

Here’s a definition from TILA: “The term “Board” refers to the Board of Governors of the Federal Reserve System.” See 15 USC 1602(c).

Do you see one for “rescission” anywhere in TILA or Regulation z?

If not, you must use the Perrin rule to determine the term’s meaning, not the rule used in Nationwide & Community.

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Rock, on May 14, 2015 at 7:34 am said:

rciferri is still delusional; somehow in hs corrupted mind the Sup. Ct. didn’t hold:

“It is a well-established rule of construction that ” ‘[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989)); see Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 59 (1911) (“[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense”).

But damn Bob, after banging rciferri over the head enough times, he finally understands rescission is a process of unwinding the transaction.However, he still doesn’t comprehend there’s a difference between the “cancellation” and “rescission” of a contract, even after explaining it to him more than once.

Also, he makes this delusional statement:

” I understand, if the court doesn’t order otherwise before the end of the time limit, that it may not order it thereafter, because that would be in excess of the court’s jurisdiction, since the lender had an adequate remedy at law, precluding the court from acting in equity.”

I provided proof, more than once, that the 20 day time frame is there for the lender to check it’s files to see if in fact there has been an actual TILA violation, not just some fraudulent rescission letter from a crackpot like rciferri.

Like I’ve said numerous occasions, it’s a waste of time trying to educate delusional nitwits.

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Rock, on May 14, 2015 at 7:27 am said:

rciferri is still delusional; somehow in his corrupted mind the Sup. Ct. didn’t hold:

“It is a well-established rule of construction that ” ‘[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989)); see Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 59 (1911) (“[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense”).

But damn Bob, after banging rciferri over the head enough times, he finally understands rescission is a process of unwinding the transaction.However, he still doesn’t comprehend there’s a difference between “cancellation” and “rescission” of a contract after explaining it to him more than once.

Also, he makes this delusional statement:

” I understand, if the court doesn’t order otherwise before the end of the time limit, that it may not order it thereafter, because that would be in excess of the court’s jurisdiction, since the lender had an adequate remedy at law, precluding the court from acting in equity.”

Now, I provided proof, more than once, that the 20 day time frame is there for the lender to check it’s files to see if in fact there has been an actual TILA violation, not just some fraudulent rescission letter from a crackpot like rciferri.

Like I said, it’s a waste of time trying to educate delusional nitwits

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rciferri, on May 13, 2015 at 11:18 pm said:

@bobhurt

Thank you for your usual valuable observations about effective strategies to help distressed homeowners. I’ve mostly discussed TILA rescission here because that is the topic of the blog. That’s certainly not to say I think its the only strategy that can be used for the same purpose.

As to TILA rescission, I understand there is an unwinding process that is required to unfold within 20 days of the creditor’s receipt of the homeowner’s notice.

I understand that unwinding process only unfolds after the loan has already been canceled by the homeowner’s notice.

I understand also that the lender must discharge his obligations in the unwinding process first, before the borrower has to tender the property to the lender.

I understand that process resembles common law equitable restitution, but it is really a legal remedy because it is created by statute.

I understand that both the procedures employed in Section 1635(b), and the time in which they must be completed, are the default procedures and time limits that apply unless the court orders otherwise.

Finally, I understand, if the court doesn’t order otherwise before the end of the time limit, that it may not order it thereafter, because that would be in excess of the court’s jurisdiction, since the lender had an adequate remedy at law, precluding the court from acting in equity.

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bobhurt, on May 13, 2015 at 10:21 pm said:

Trespass:

“3. The lender or creditor must tender back to the borrower all payments the borrower made and all money the lender received in connection with the mortgage loan (WHAT YOU SAY, yes that is what Reg Z says). if true, those who were put in underwater homes, get back what was put to the house that the lender received, and every penny they paid to the home.”

I don’t think you have a clue what’s going on. The loan goes “underwater” because the borrower gets a loan when the house value is high, and waits, then rescinds after the value has gone low. That means he’s a kool-aid-drinking FOOL for waiting because now he typically cannot sell the house or refinance it and thereby raise enough money to tender the full amount back to the lender, even after subtracting what the lender has tendered. In the TILA rescission tender, the lender gives the borrower’s money back first, and then the borrower gives the lender’s money back. And most borrowers cannot raise the cash to do that, so they must work out a settlement of some kind with the lender or through the court.

That’s how it works, and you just do not seem to understand it.

I have told you and others repeatedly that a TILA violation constitutes just one of many ways lenders and their associates injure borrowers.

I have repeatedly explained that therefore borrowers must find ALL of the injuries before attacking the mortgage, and then raise those injuries as affirmative defenses or counter/cross claims, or sue for a restraining order to stop the foreclosure pending a hearing on the injury claims.

I have repeatedly explained that borrowers should NEVER go into a foreclosure dispute without FIRST GETTING THE Mortgage examined comprehensively by a competent professional.

And I have explained that borrowers can often settle their dispute out of court by showing the injurious parties the evidence against them. THAT is the purpose of a Notice of Grievance (see §20 of your security instrument).

Otherwise, the borrower will lose the house in foreclosure, period, end of subject. You breach a valid note, you lose the house. It’s that simple.

And as you have seen, if you have read the many court opinion excerpts in this thread, pro se litigants screw their cases up 4 ways to Sunday because of their abysmal ignorance of litigation practice and how courts work. The court usually gives them short shrift and dismisses their actions after explaining what they did wrong. And in “rocket docket” summary judgment courts, judges don’t even give borrowers the courtesy of an explanation.

If a borrower cannot afford a mortgage examination or find a competent attorney to help you negotiate and litigate, he might as well save the money and grief and just walk from the house in a deed in lieu, short sale, or forecosure, then eliminate the deficiency debt in bankruptcy.

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bobhurt, on May 13, 2015 at 10:20 pm said:

> Yet, in Jesinoski, no attempt was made by Congress to define > “rescission”, evincing its intent that the term should be construed in > its ordinary sense, and requiring SCOTUS to follow its previous well > considered precedent that applies in such a case. Rod, Congress presumed the definition, and the Federal Reserve clarified it in 12 CFR §1026.15(d). It perfectly defines the unwinding in the TILA rescision:

(1) deals with the security interest and finance charges; (2) deals with lender tender or rebuttal; (3) deals with borrower tender after lender tender, location of tender, and lender failure timely to grab the borrower tender; (4) acknowledges the court’s power to modify (2) and (3) equitably.

That constitutes the quintessential definition of TILA rescission and its unwinding.

From Regulation Z, 12 CFR §1026.15…

/(d) Effects of rescission. /

/(1) When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void, and the consumer shall not be liable for any amount, including any finance charge./

/(2) Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest./

/(3) If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the consumer shall tender the money or property to the creditor or, where the latter would be impracticable or inequitable, tender its reasonable value./

/At the consumer’s option, tender of property may be made at the location of the property or at the consumer’s residence. Tender of money must be made at the creditor’s designated place of business. If the creditor does not take possession of the money or property within 20 calendar days after the consumer’s tender, the consumer may keep it without further obligation./

/(4) The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order./

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Shadowcat, on May 13, 2015 at 1:50 pm said:

Stay Focused.. He is trying to redirect you.

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rciferri, on May 13, 2015 at 1:08 pm said:

@Rock

You said:

“Rescission is a nominalization, a process word to rescind.”

Well then, according to Jesinoski, the process is initiated and completed by his notice.

Scalia clearly refers to situations like Jesinoski’s, in which a TILA rescission notice was given as “unilaterally RESCINDED.”

Are there any nominalizations you would like to apply to change the tense of “rescinded” to morph it from a completed process that happened in the past to one that was just initiated, but is ongoing? Lol!

Oh, and I’m getting a little lonely here being called nitwit/scammer/criminal/ etc.

Could you please take the time to call these guys (see below) names as well. While you are at it, why don’t you account for your patently ludicrous statement “rciferri has not provided one law firm that disputes what we’ve proven.”

Check it out:

“Supreme Court rules that ONLY WRITTEN NOTICE, not a lawsuit, by a borrower IS SUFFICIENT to rescind a mortgage under the Truth in Lending Act.”

Not much of a process there, Rock.

Also, note this, Rock:

“Similarly, § 1635(g) did not change the result. That section states that “in addition to rescission the court may award relief … not relating to the right to rescind.” THE SUPREME COURT REASONED THAT RESCISSION IS NOT NECESSARILY A CONSEQUENCE OF JUDICIAL ACTION. Put another way, the Supreme Court concluded that while §1635(b) of TILA modified the common-law condition precedent to rescission at law that did not imply TILA codified rescission in equity.”

Since you think I’m crazy for thinking there are two ways to rescind under TILA, I’m sure you must think this lawyer is too.

See more at:

http://www.plunkettcooney.com/blogs-dontbetthebusinessblog,SCOTUS-rules-mortgage-recission-TILA#sthash.OOvU3bbc.dpuf

So, did you outright lie when you said I haven’t provided one law firm that disputes you? Or did you merely “misspeak”? Or is there a nominalization you can apply to say you really meant the opposite? Lol!

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rciferri, on May 13, 2015 at 12:53 pm said:

@Rock

You said:

“Like I said, rciferri hallucinates, doesn’t understand what he’s reading, and generally has no clue what he’s talking about…Right out of the case he says doesn’t say what I posted:”

Rock, I quoted the actual facts of the NATIONWIDE case. You know, the facts that determine whether it is controlling in a case with substantially similar facts.

You quoted the wording from some other case referred to in the Nationwide case.

Big difference.

I’ll save you the embarrassment of making an argument that the case you quoted that was referred to by the Nationwide Court actually supports your proposition. It doesn’t; which you would know, if you actually read the case the quoted language was taken from, which you didn’t, because otherwise you would see in just the second sentence of Justice Marshall’s decision that its facts also show SCOTUS was interpreting a statutory term that WAS DEFINED IN THE STATUTE!

Since you were too lazy or foolhardy to not read the case from which your quote came, I’ll make it easy for you. Here are the facts that distinguish it from a case in which statutory interpretation must be made of a term that is undefined in the statute:

“To resolve this dispute, we must construe the “work made for hire” provisions of the Copyright Act of 1976 (Act or 1976 Act), 17 U. S. C. §§ 101 and 201(b), and in particular, the provision in § 101, WHICH DEFINES as a “work made for hire” a “work prepared by an employee within the scope of his or her employment” (hereinafter § 101(1)).”

It’s just more of the same from you, Rock. Lots of bluster. No real legal argument. To do that, you would have to actually read the cases you cite. Clearly, you don’t do that.

Class dismissed.

Try again, Rock.

And this time read the damn case, instead of spouting off all half cocked.

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rciferri, on May 13, 2015 at 12:25 pm said:

@Shadowcat

You said:

“NO NO NO

Its voided upon completion of the recission process set forth under TILA Turkey!

UNTIL THEN ITS VOIDABLE!”

Please point to the plain meaning of the statute or Regulation Z or a case to support your conclusion.

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Trespass Unwanted, on May 13, 2015 at 12:25 pm said:

What would be funny, well not funny and funny at the same time, is if everyone does their rescission and complaint and force responses, and people stop posting on this blog, we’ll know their job laid them off.

That would be revealing, not funny, right, cause you can put down people who’s home has been stolen and say they lost it without defining lost, but you can’t handle someone getting happy about you losing your job working for pretenders or whoever pays to attorn (turn over the information to make it confusing )

Trespass Unwanted, Creator, Corporeal, Life, Free

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Trespass Unwanted, on May 13, 2015 at 12:02 pm said:

Remember. Remember. Remember.
http://www.youtube.com/watch?v=lhX50kELFL8&index=7&list=PLXpWFxgYemfXSg9X24yv8GbnylgxIeecZ

This is who they are and what they did and do to us.
It is a business and has no heart, no mind, it’ is automated by people who don’t care and have no authority, no power of attorney, no superior rights.

trading notes in the middle of litigation with an injunction in effect
things going on in the backroom

One change in situation can change someone’s plus to a minus

Trespass Unwanted, Creator, Corporeal, Life, Free

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Rock, on May 13, 2015 at 11:48 am said:

Like I said, rciferri hallucinates, doesn’t understand what he’s reading, and generally has no clue what he’s talking about.

I’m not so sure, rciferri really isn’t Garfield. There are those who supposedly evidence that Garfield uses aliases.

Right out of the case he says doesn’t say what I posted:

“Because the Copyright Act NOWHERE DEFINED the term “employee,” we unanimously applied the “WELL ESTABLISHED” principle that “[w]here Congress uses terms that have accumulated settled meaning under . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms. Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318, 322 (1992).

Those educated in the law understand how TILA rescission works, then you have the delusional nitwits

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Shadowcat, on May 13, 2015 at 11:33 am said:

NO NO NO

Its voided upon completion of the recission process set forth under TILA Turkey!

UNTIL THEN ITS VOIDABLE!

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rciferri, on May 13, 2015 at 11:05 am said:

@Rock

You said:

“How delusional is that, according to him the contract is void by “operation of law,” but the court can NOW order, that the contract that has already been voided by “operation of law,” is NOW to be voided by “operation of law.”

Nice try, Rock.

No, it wouldn’t be that the loan is void because the court declares it so (requiring the court’s adjudication of the issue), it would be that the court declares the loan was voided by the borrower’s notice.

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Rock, on May 13, 2015 at 11:02 am said:

Will somebody please tell this delusional nitwit rciferri, that nowhere within the Jesinoski case does Scalia hold that “the contract has been voided by ‘operation of law.’”

What it actually states, and what Scalia makes clear: “Section 1635(a) explains in unequivocal terms how the right to rescind is to be EXERCISED: It provides that a borrower “shall have the RIGHT to rescind . . . by notifying the creditor, in accordance with regulations of the Board, of his INTENTION to do so” (emphasis added). The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his INTENTION to rescind. It follows that, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely. The statute does not also require him to sue within three years.”

Exercised is a nominalization, a process word to exercise.

Intention is a nominalization, a process word to intend.

Effected is a nominalization, a process word to effect (bring about)

Rescission is a nominalization, a process word to rescind.

Nowhere within the quote does Scalia state that rescission has been completed or that the contract has been “voided by operation of law.”

It clearly states that by “notifying the creditor,” the borrower INTENDS to rescind, not that he has rescinded. Now he can rescind unconditionally within the three-day window, which 1635(a) applies to; but under the Jesinoski case facts, there notice was under 1635(f) the three-year window, all he did was to NOTIFY the creditor of his INTENTION to do so.

When read in pari materia with the rest of the statute, more specifically 1635(b), its even clear to Stevie Wonder.

Here you have a delusional nitwit who hallucinates things in statutes and case law that doesn’t exist. And if that’s not the delusions of a sociopath/psychopath, I don’t know what is.

The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), released by the American Psychiatric Association in 2013, lists both sociopathy and psychopathy under the heading of Antisocial Personality Disorders (ASPD). These disorders share many common behavioral traits which lead to the confusion between them. Key traits that sociopaths and psychopaths share include:

A disregard for laws
A disregard for the rights of others
A failure to feel remorse or guilt
A tendency to display violent behavior

Like I’ve said, those of us trying to help homeowners are wasting our time trying to debate with delusional nitwits.

Moreover, I think its pretty clear, I despise these nitwits; all they do is cause homeowners to lose their homes–they belong in jail, but rciferri won’t get jail, he’ll get institutionalized.

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rciferri, on May 13, 2015 at 11:01 am said:

@Rock

You said:

““It is a well-established rule of construction that ” ‘[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989)); see Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 59 (1911) (“[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense”).”

Well done, Rock, at least you cited a federal case construing a federal statute.

However, the Nationwide case and its statutory construction rule that you post, is factually distinguishable from Jesinoski because, in Nationwide the federal statute under consideration (ERISA) DID define the term at issue:

“Thus, Darden’s ERISA claim can succeed only if he was Nationwide’s “employee,” a term the Act defines as “any individual employed by an employer.” § 1002(6).”

Yet, in Jesinoski, no attempt was made by Congress to define “rescission”, evincing its intent that the term should be construed in its ordinary sense, and requiring SCOTUS to follow its previous well considered precedent that applies in such a case.

Nationwide’s rule only applies where a term is defined in a statute, yet the definition employed is inadequate.

In the case of Nationwide, “employee” is basically defined by employer, which is not very helpful in determining what an employee is. Basically, Congress, in giving a definition that is inadequate in the statute, punted the question of what “employee” is to the courts, who correctly resorted to the common law to define the term under authority of previous decisions that had established the rule.

Sorry Rock, SCOTUS’ decision in Perrin applies here, rather than the rule pronounced in Nationwide.

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Shadowcat, on May 13, 2015 at 10:40 am said:

Not True!

The lower courts ruled his RTC was time barred and never heard the TILA claims ..

The Supreme Court ruled his TILA claim was not time bbarred because the borrower didn’t file suit within 3 years.
The remanded it back to the lower court to hear those TILAclaims

**** I predict an unfavorable outcome for the borrower because of his jump to the gun bullshit TILA claim.

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rciferri, on May 13, 2015 at 10:10 am said:

@Rock

You said:

“He contradicts himself, he claims all one needs to do is file a notice of RIGHT to cancel and the contract has been voided by “operation of law.”

Again, you give me too much credit. It’s what SCOTUS itself ruled and is the law of the case upon remand.

If SCOTUS did not rule that Jesinoski’s notice was effective to cancel the loan, it would have had to AFFIRM the Eight Circuit, because, in that event, Jesinoski’s suit would have been time barred.

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rciferri, on May 13, 2015 at 10:06 am said:

@bobhurt

You said:

“Easy, Rod. Jesinoski brought a simple question: Can I sue for rescission later than 3 years after consummation.”

I know that’s what you think.

However, in his opinion, in which every other Justice joined, Justice Scalia seemed to think otherwise, by saying in the second sentence of his opinion:

“The question presented is whether a borrower exercises this right by providing written notice to his lender, OR whether he must ALSO file a lawsuit before the 3-year period elapses.”

So, part of what was explicitly presented to SCOTUS to adjudicate was the question of the effectiveness of rescission by notice (first part of the question presented), which, if answered in the affirmative, necessitates the answering in the negative of the second part of the question. Later in the opinion, Justice Scalia explains his rationale by essentially saying “the notice effected the rescission (statutory TILA loan cancellation) and since the rescission was effected within the three years, he doesn’t have to sue (common law equitable rescission) within three years.

Also, it looks to me like SCOTUS thought it was an “either or” type of question presented to them, necessitating the adoption of one and the rejection of the other in order to fully adjudicate the matter presented. In other words, if there is a holding answering this question at all, then it must be in two parts. That’s one reason why I think the holding of SCOTUS is contained in three consecutive sentences on page three of the decision:

“The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. It follows that, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely. The statute does not also require him to sue within three years.”

That quoted portion above answers both parts of the question, as any proper holding should. Implicit in the statement is that Jesinoski didn’t have to sue at all, so why would he have to sue within a certain time frame?

If that was not the holding in Jesinoski, wouldn’t the action be time barred (suit was filed four years and a day after the loan was consummated)? Of course it would be, due to the three year and one year time periods in TILA.

If SCOTUS adopted any of Countrywide’s arguments, which are really the arguments you and Rock continue to post here, they would have had to affirm the Eighth Circuit, the case would continue to be dismissed, and – bye, bye Jesinoski – you lose.

Another reason I think the quoted language is the holding, is because what follows it is merely four paragraphs that knock down the major arguments presented by Countrywide and a three sentence conclusion and order.

You said:

“The court did not address the validity of Jesinoski’s TILA claim.”

I agree. That’s where, if he’s not careful, Jesinoski could turn into a loser. You know the drill. You’ve presented it well here in the past.

I believe if he presses on with his damages claim upon remand, and if his damages claim is based upon not receiving disclosure notices, then the issue of his receipt of the notice, the very basis of this TILA rescission, will be litigated.

The court, acting in equity on any equitable claims Jesinoski may have or counter claims or defenses Countrywide may have that are equitable in nature, and could use its equitable powers to set aside the now completed TILA rescission by notice, should it be found Jesinoski received the required notices.

Jesinoski might want to consider dismissing the rest of his complaint, because, assuming Countrywide has no equitable defenses to the declaration, the district court would have to be acting only in law and would have no equitable powers to undo Jesinoski’s completed rescission (assuming Countrywide did not interpose an equitable counterclaim to set aside the rescission in the event the court found the notice was a completed rescission).

In that event, if Jesinoski dismisses his claim for damages due to not receiving the required disclosures, whether or not he actually did receive the disclosures would no longer be in issue, because SCOTUS already decided the rescission is complete. Countrywide would then have to seek to set aside the rescission, either by amending its pleading, or by filing suit.

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Rock, on May 13, 2015 at 8:00 am said:

Christine, you’ve hit the bulls eye again.

If it wasn’t for the few people who’ve asked us to clarify all the false legal advice and nonsense posted. You, me, Bob, Shadowcat and a couple of others, wouldn’t waste our time on a blog with a bunch of crackpots.

There are people here that have already lost their homes, I guess misery really does love company.

Then you have people like rciferri who claims to be an attorney, but clearly has never litigated a case, doesn’t understand what he’s reading, doesn’t understand basic doctrines, but wants to interpret everything for us.

Example, anyone with 2 brain cells to rub together knows if a term is not defined in a statute, BUT has been defined by the courts, defined in treatises, defined in legal dictionaries, defined in hornbooks, it is a legal term of art, which the legislatures will rely on when writing a statute.

“It is a well-established rule of construction that ” ‘[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989)); see Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 59 (1911) (“[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense”).

So, we all no rescission, a nominalization, which is a process word, is a process.

He contradicts himself, he claims all one needs to do is file a notice of RIGHT to cancel and the contract has been voided by “operation of law.” But, then claims, after I pointed out the law that that wasn’t so, he now says the court can order rescission.

How delusional is that, according to him the contract is void by “operation of law,” but the court can NOW order, that the contract that has already been voided by “operation of law,” is NOW to be voided by “operation of law.”

Here’s a guy, just like Garfield, thats never won a case, and has not posted one thing that is factually or legally correct. Nevertheless, you have all of these dupe/nitwits waiting for more of their addictive Kool-Aid, which clearly makes them just as delusional. We have an example of where this has happened before– Jonestown.

There’s a sign post up ahead; you’ve just entered Garfieldtown.

Like I said, its a waste of time trying to educate delusional nitwits.

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Trespass Unwanted, on May 13, 2015 at 1:52 am said:

Modification is a new loan number, so don’t think all those years of payments are coming back to you on a mod, it’s the current loan with the lender, or first and second loan if you rescind both, is my guess and opinion.

Trespass Unwanted,

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Trespass Unwanted, on May 13, 2015 at 1:22 am said:

3. The lender or creditor must tender back to the borrower all payments the borrower made and all money the lender received in connection with the mortgage loan (WHAT YOU SAY, yes that is what Reg Z says)

if true, those who were put in underwater homes, get back what was put to the house that the lender received, and every penny they paid to the home.

So it seems, and this is a useless opinion, to save my arse from those that work for the banks who troll and comment here, it seems, again useless opinion, that the banks are not responding to a TILA rescission within 20 days because, because, because, they don’t want to tender, and they are hoping the homeowner will go to court, pay again to ‘do the same thing over and over and expect different results’, so that they get one of those pocket judges (by pocket, meaning they banks have the judge in their pocket), and that judge does some summary judgment for the bank, which is what they have been doing all along.

So, in my opinion, in my opinion, in my opinion, if anyone has issued a rescission, it’s best to lodge the complaint with a regulating agency, OCC (they made them cease and desist and forced a settlement), AG (they made them cease and desist and forced a settlement), Fed Reserve (got somethigg called a settlement agreement without going through all the accounts), add the FTC (because they are a business and are regulated), add the CFPB (they take complaints and compile them for many agencies and the lender has to respond to the complaint and you get the response).

They are not going to honor the supreme court ruling because they are not lawyers and judges, and they are hoping you’ll spend more money (they need you to spend money) and go back into those courts of no justice so they can get a ruling with you as a Plaintiff, where the burden is harsher on you even if you would get tender, the judge can get you on procedure, (it’s administrative, not article III), so it will not be legal decision, it will be a technicality.

That’s what the new people here can learn, Neil sells stuff but he makes no promise or guarantee, and courts decide stuff and there is no guarantee you’ll get what you paid for, in your own expenses, or paying for someone who has to go there every day and work and will not want to burn that bridge, so your options are always to be your own God, and decide your own experience, and study, and research, and use those agencies this prez-ident(ity) created for you to use, so you can make public what’s going on.

If we don’t speak to the agencies and only speak to the people who don’t hear us, Con–con–gress, and the bench/bank/judgester,, or some package remedy that no one will pay attention to, or some template motion that has been used before, you have options, I’m just saying.

No one knows what’s going on with me, and I keep it that way, but when I got pulled into this, I know there are many people that do not know what I know, so I do things like they would do, walking in blind, not knowing that world, and trying to get some part of their world to give me my remedy.

I got into the mortgage settlement and was offered $300.

We are 5 years out from my theft, and that’s more time to dig a bigger hole.

Now that TILA rescission is better explained, in my opinion, the banksters are probably not as happy as they were, cause they have to ‘reflect’ the recall of the security instrument, in my opinion, but reflect does not mean they really pulled it back does it. A reflection , think of a mirror, your image as a reflection it looks like you, and moves like you but it’s not you.

Rescission is a big deal and if you have the option use it, and if you can equitable toll it, (I just discovered this thing I didn’t know before, in my opinion, here is my complaint about what happened to me 5 years ago, 6 years ago…..no statute of limitation on fraud, or murder, that’s why 20 years later people get tried for murder, and in my opinion, theft of property based on the value thereof would be felony in a regular world, but if we don’t make a public record (courts are private records, not public), if we don’t make a public record in our complaints, police, AG, FTC, CFPB, OCC, FED Res, DOJ, those records,in my opinion, make them public and put this out in the open.

No banker went to jail because there are not enough complaints in my opinion, there are not enough evidence fore the number of homes stolen to the number of complaints to tie it in as a federal offense, or act of treason, or insurrection or whatever, in my opinion.

The A Man posted the link in this comment
livinglies.wordpress.com/2015/05/11/rescission-what-will-mbs-rating-agencies-do-now/#comment-401768

When someone rescinds or cancels their mortgage loan under TILA (by sending in the rescission notice) here is what happens:

1. The loan is rescinded upon sending in the letter

2. The borrower is no longer obligated to pay finance charges

3. The lender or creditor must tender back to the borrower all payments the borrower made and all money the lender received in connection with the mortgage loan (WHAT YOU SAY, yes that is what Reg Z says)

4. The creditor must take action to reflect the cancellation of the Security (because the Security interest becomes VOID as a matter of law)

Question: If you not obligated to pay finance charges? Payments made if applied to principal first instead of interest first would have reduced the principal and paid off the loan probably 10 years into a 30 year mortgage note, in my opinion. I didn’t do the math, but wouldn’t it be nice to get your tender back and the money they got too?

While they are purportedly worried about us getting a free home, I think and opinion that they are more worried they have to give back the money they got behind the scenes of the transaction, and I think of those judgments where someone wrongfully foreclosed on got $20 million dollar judgments and stuff.

They have securities, in my opinion, they created who knows how many times off that loan and they have to tender what they made off your signature and promise back to you.

Do we care, in my opinion, when they would make us homeless?

I don’t know legal things, I do not give legal advice.

Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino

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bobhurt, on May 13, 2015 at 12:33 am said:

Rod:

““”Rescission” refers to a mutual agreement that terminates and discharges obligations owed under a contract.” In the context of what that word means in TILA, the United States Supreme Court disagrees with you. Think about it Bob, if you were right about the above assertion, how in the World would Jesinoski have prevailed in the US Supreme Court?”

Easy, Rod. Jesinoski brought a simple question: Can I sue for rescission later than 3 years after consummation. HOLDING: YES.

The court did not address the validity of Jesinoski’s TILA claim. It sent the case back to trial court which had refused to hear that issue because of tolling of the 3-year Statute of Limitations for Notice of Rescission.

Now trial court will hear the rescission validity question, and you know I have predicted that Jesinoski will lose the house because he cannot prove a TILA violation occurred..

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bobhurt, on May 12, 2015 at 11:53 pm said:

Jesinoski did not change TILA, and for most courts it changed nothing other than the time limit for suing for rescission. Rescission has ALWAYS meant mutual tender to revert to status quo ante. And the courts have always required mutual tender to unwind the loan. Regarding the MEANING OF RESCISSION UNDER TILA, READ the REGULATION: 12 CFR 1026.15 and pay attention to item (3). BOTH PARTIES MUST TENDER. Rescission ALWAYS requires mutual tender.

(d) Effects of rescission. (1) When a
consumer rescinds a transaction, the
security interest giving rise to the
right of rescission becomes void, and
the consumer shall not be liable for
any amount, including any finance
charge.
(2) Within 20 calendar days after receipt
of a notice of rescission, the creditor
shall return any money or property
that has been given to anyone in
connection with the transaction and
shall take any action necessary to reflect
the termination of the security
interest.

(3) If the creditor has delivered any
money or property, the consumer may
retain possession until the creditor has
met its obligation under paragraph
(d)(2) of this section. When the creditor
has complied with that paragraph, the
consumer shall tender the money or
property to the creditor or, where the
latter would be impracticable or inequitable,
tender its reasonable value.
At the consumer’s option, tender of
property may be made at the location
of the property or at the consumer’s
residence. Tender of money must be
made at the creditor’s designated place
of business. If the creditor does not
take possession of the money or property
within 20 calendar days after the
consumer’s tender, the consumer may
keep it without further obligation.

(4) The procedures outlined in paragraphs
(d)(2) and (3) of this section may
be modified by court order.

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christine, on May 12, 2015 at 11:08 pm said:

See, schlemiel with hope of winning? E ToLLe himself rested my case for me. Run, Forrest, RUN!!!

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rciferri, on May 12, 2015 at 11:00 pm said:

@E. ToLLe

You said:

“Would those nitwits include the 85 attorneys, licensed in 19 states, at Baird Holms, LLP?

They say this on their website….

“Justice Scalia, writing for a unanimous Supreme Court, held that a borrower may rescind a loan simply by providing notice to the lender within three years of the consummation of the loan. But Justice Scalia went on to hold that the right to rescind does not depend on either the ability of the borrower to return the loan proceeds or on whether the lender failed to make the required disclosures under the Truth in Lending Act.”

Nice find, E. ToLLe!

Baird Holms, hmmm. They have to nitwits, scammers, criminals, Kool-Aid drinking suckers, right Rock?

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christine, on May 12, 2015 at 10:51 pm said:

There’s something so disturbing about this entire blog. There ARE many disturbing things, worth noting for a poor schlemiel coming here for foreclosure help for the first time.

Rciferri: an argumentative nobody in foreclosure defense. So much so, I took him for a well-known argumentative paralegal in SFO with… nothing to show for results other than a Texas-size ego. Scolded by some other nobody posting here all the time, who admonished that rcifferi is a NY attorney, I checked that new-and-improved NY rciferri and… it is still a nobody in foreclosure defense, although argumentative as all hell. The boy posts. Boy, does he ever posts! It made no sense 3 weeks ago. Still makes none today. The boy owns a few condominiums. Couldn’t find ONE case in his name, either as a plaintiff, a defendant or an attorney. Anybody please correct me if I’m wrong.

E ToLLe: argumentative as all hell, lost his house 2 to 3 years ago, idolizes William Butler, himself with a suspended license in MN for co-mingling his own case with that of his clients and trying to wrap up the whole thing under one… would be… never had a chance… class action (enormous breach of fiduciary duty. Low school 101… The judge chewed him to hell and back, as he should have!)

Bobhurt: no skin in the game. Admittedly “a learner”, willing to analyze everything and with connections in the legal world I wish I had. Asks pertinent questions all the time. Directly from Garfield. Garfield never answers his bloggers. Not even the pertinent ones. Ever. A bad case of “Hey, if your right hand makes money, forget about the left one!” Bob asks the right questions. And the connectioooooons! With winning attorneyyyyyyyys!

Rock: no skin in the game. One of the two-finger people on this site to have EVER won any judgment. in Federal court. Oh Jee! He won on… TILA!!! Would you believe it? Attacked ever single time he dares talk about… TILA! Funny, isn’t it? On a site whose owner has never TRIED a TILA case, let alone won one but pretends to know TILA as though he wrote it himself!

Dear Schlemiel with hope:

Don’t stick around here. Garfield has NEVER tried one case. Garfield has NEVER won anything for anyone. And 99% of bloggers have… really, truly, badly… lost their house by playing Garfield’s theories as pro se because Garfield never, ever bothered to teach people how to position themselves to attract solid attorneys.

Save your skin. Shut this link off and never, ever turned back.

Burlesque doesn’t even start to describe the insanity.

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Trespass Unwanted, on May 12, 2015 at 10:23 pm said:

A link the A Man posted in the blog dated May 11.
It states the creditor has to do 4 things when they receive the rescission and number three made my jaw drop.
3. The lender or creditor must tender back to the borrower all payments the borrower made and all money the lender received in connection with the mortgage loan (WHAT YOU SAY, yes that is what Reg Z says)

Since I dont give legal advice itit may prove helpful to see the link.

Trespass Unwanted, Creator, Corporeal, Life

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rciferri, on May 12, 2015 at 7:34 pm said:

Here’s another lawyer that disagrees with the Jesinoski Deniers:

“Supreme Court rules that only written notice, not a lawsuit, by a borrower is sufficient to rescind a mortgage under the Truth in Lending Act.”

Note this, Rock:

“Similarly, § 1635(g) did not change the result. That section states that “in addition to rescission the court may award relief … not relating to the right to rescind.” THE SUPREME COURT REASONED THAT RESCISSION IS NOT NECESSARILY A CONSEQUENCE OF JUDICIAL ACTION. Put another way, the Supreme Court concluded that while §1635(b) of TILA modified the common-law condition precedent to rescission at law that did not imply TILA codified rescission in equity.”

Since you think I’m crazy for thinking there are two ways to rescind under TILA, I’m sure you must think this lawyer is too.

See more at:

http://www.plunkettcooney.com/blogs-dontbetthebusinessblog,SCOTUS-rules-mortgage-recission-TILA#sthash.OOvU3bbc.dpuf

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rciferri, on May 12, 2015 at 5:58 pm said:

@bobhurt

You said:

“”Rescission” refers to a mutual agreement that terminates and discharges obligations owed under a contract.”

In the context of what that word means in TILA, the United States Supreme Court disagrees with you.

Think about it Bob, if you were right about the above assertion, how in the World would Jesinoski have prevailed in the US Supreme Court?

In my opinion, there’s no way he would have prevailed if SCOTUS applied the legal definition of rescission. The only way he could have prevailed is if SCOTUS used the ordinary meaning of rescission. That’s the only way Jesinoski makes any sense at all.

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rciferri, on May 12, 2015 at 5:54 pm said:

@Rock

You said:

“If by giving notice one would already have rescission, why would the borrower need to file a court action to effect (bring about) rescission?”

If you took a break from your personal attacks long enough to actually study the cases under consideration here you would know that’s an issue that was decided in Jesinoski.

The Jesinoski’s amended complaint sought, inter alia: “a declaration that the mortgage transaction HAD BEEN RESCINDED BY THAT WRITTEN NOTICE…” See Jesinoski’s Pet. for Writ of Certiorari, p. 7.

So, Jesinoski was not a case in which he sued for rescission.

Clearly TILA contemplates such cases in some of its provisions that you have cited.

Also, many of the cases you have cited (if not all) were ones in which the borrowers filed suit SEEKING rescission. At that point, the court had equitable jurisdiction to do what they wanted pursuant to Section 1635(g).

Jesinoski now makes clear that such an action is not needed to complete rescission.

As to the state court opinions you cite to refute my SCOTUS authority that an undefined statutory term is to be taken in its ordinary meaning, I don’t think they are as good authority on the issue as the Perrini case I cited.

In particular, they do not concern interpretation of a federal statute by a federal court. Perrini, by contrast was a decision by a federal court interpreting a federal statute. As such, your cases are distinguishable from any TILA rescission case on their facts.

Also, if you follow the case cited within the Iowa case you gave all the way back to the first case to add the “or an established meaning in the law” language to “absent a statutory definition”, you will find the case State v. Romeo, 542 N.W.2d 543, 548 (Iowa 1996) which involved a interpretation of a statutory term that had the same meaning in ordinary parlance as it did in its legal definition. Perrini dealt with an instance in which the term being defined had both an ordinary and legal meaning that were different from each other. So, the Iowa case is factually distinguishable for that reason as well.

As to rescission, I posted its meaning as “cancellation” in ordinary parlance, as defined in an ordinary dictionary. As in “he cancelled his subscription for the magazine.” In such a case, cancellation is completed upon notice by the cancelling party to the other party.

As you know, from your knowledge of common law rescission, that the meaning of the legal term “rescission” is different from its ordinary meaning.

That’s how it must be defined because it is a undefined term in a federal statute and the federal courts have stated the rule that such undefined terms are defined in their ordinary meaning, not their legal meaning.

I cited the Perrini case to show that rule applies, regardless of whether the term has both ordinary and legal meanings and regardless of whether one differs from the other.

Also, your citation to law regarding the legal definition of cancellation and actions to cancel filed instruments, etc. are of no consequence, because, again, we are dealing with the ordinary meaning of words, not their legal meanings.

You said:

“More proof of rciferri’s delusional and schizophrenic comments:

“Hey, Rock, have you ever considered that TILA contemplates the possibility of a borrower’s court action to effect rescission AND also gives a borrower the right to effect rescission by notice?”

That’s rich, coming from someone who had the ignorance to belittle DwightNJ for correctly pleading inconsistent legal theories in the alternative. Lol!

There’s no doubt now, after Jesinoski, that there are two paths to TILA rescission: 1) statutory rescission by notice and 2) statutory rescission by court order – which is really common law equitable rescission after the suit is filed (because of how the courts have handled it up until now).

Jesinoski’s facts (see his amended complaint) make it clear that SCOTUS has now confirmed the existence of the first type of TILA rescission.

But don’t feel bad, Rock. I believe the pre-Jesinoski cases are still good law where the borrower has not attempted rescission by notice, but, instead, decided to pursue it in court on a cause of action for rescission.

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Rock, on May 12, 2015 at 5:45 pm said:

Etolle, TILA allows for rescission of certain loans secured by a borrower’s principal residence in two circumstances: (1) under § 1635(a), “the obligor shall have the right to rescind the transaction until midnight of the third business day following [the latter of] consummation of the transaction or [delivery of various disclosures and forms required under TILA;]” or (2) if the lender fails to make the required TILA disclosures, “[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.” § 1635(f). The three-day “cooling-off period allows a borrower to rescind for any reason or for no reason; the three-year rescission period allows the borrower to rescind only if the lender failed to make certain TILA-mandated disclosures.

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bobhurt, on May 12, 2015 at 4:40 pm said:

”Rescission” refers to a mutual agreement that terminates and discharges obligations owed under a contract. Mutual assent of the parties and restoration of the status quo is needed to effect rescission. In contrast, a ”cancellation” nullifies a contract and extinguishes the liability of parties with respect to obligations which have yet to be performed. Cancellation is distinguishable from rescission in that rescission restores the parties to the status quo, whereas cancellation terminates liability as of the time that a contract is canceled. As such, if a contract is canceled, the parties remain liable for damages incurred prior to cancellation.

Midwest Transaction Guide

Copyright 2015, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=4-113+Midwest+Transaction+Guide+113.syn&srctype=smi&srcid=2A3B&key=838f0c88e9e27b96f1651cc37694c0c9

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E. ToLLe, on May 12, 2015 at 3:57 pm said:

Rock…..

If a borrower suddenly decides she doesn’t like the loan, for whatever reason, she has three days to rescind, right? Is that much agreed upon? She doesn’t need to go to court….she just up and tells the lender, in writing, that she’s rescinding….no fuss no muss…..and she’s out. Note is returned cancelled and all fees save for anything third party are returned.

Where is it written that the three day rescission period is different from the three year rescission terms?

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Shadowcat, on May 12, 2015 at 2:51 pm said:

Cancellation vs Recission.

Very Good!

Rocks On….

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Rock, on May 12, 2015 at 2:38 pm said:

Bob, every legally literate person knows that the courts follow legal terms of art over the ordinary meaning. So, an undefined statutory term is given its plain and ordinary meaning UNLESS it is a term of art with a unique legal meaning.

“The purpose of statutory interpretation is to determine the legislature’s intent. We give words their ordinary and common meaning by considering the context within which they are used, absent a statutory definition or an ESTABLISHED MEANING IN THE LAW. We also consider the legislative history of a statute, including prior enactments, when ascertaining legislative intent. When we interpret a statute, we assess the statute in its ENTIRETY, not just ISOLATED words or phrases.” Willows v. Estate of Bockwoldt (In re Estate of Bockwoldt), 814 N.W.2d 215 (Iowa, 2012).

As elucidated earlier: “The courts have defined it; there have been treatises written about it; and every law book on remedies and contract have a section on it; therefore its well defined in the law.”

Moreover, just to show you how incompetent rciferri is, he doesn’t understand there is a difference between cancellation (nominalization) and rescission (nominalization) of a contract.

Rescission and cancellation are to some extent similar contract remedies yet there are salient distinctions between them.

First, cancellation is a remedy effectuated only by a court. This means only a court can order an instrument be cancelled.

Second, cancellation of a contract leaves the parties as they are at the time of cancellation. Rescission of the contract require the parties to return any consideration each has received and restore them to when the contract had not been signed or made. §1635(b)

“To ‘cancel’ a contract means to abrogate so much of it as remains unperformed. It differs from ‘rescission,’ which means to restore the parties to their former position. The one refers to the state of things at the time of the cancellation; the other to the state of things existing when the contract was made.” Young v. Flickinger, 75 Cal. App. 171, 174 (1925).

Because of §1635(b), we know the contract has not been cancelled, but may have been conditionally rescinded, if there was a TILA violation, the notice given timely and the consumer can tender.

More proof of rciferri’s delusional and schizophrenic comments:

“Hey, Rock, have you ever considered that TILA contemplates the possibility of a borrower’s court action to effect rescission AND also gives a borrower the right to effect rescission by notice?

If by giving notice one would already have rescission, why would the borrower need to file a court action to effect (bring about) rescission?

Like I said Bob, you’re wasting your time debating legal illiterates, especially delusional ones.

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rciferri, on May 12, 2015 at 11:08 am said:

@Rock

You said

“Legal dictionaries in existence when the TILA was drafted and enacted indicate that “rescission” was commonly understood to be a “party’s unilateral unmaking of a contract.”

Rock, legal definitions of rescission are not relevant to the question of what the meaning of the word “rescission” is in TILA.

There is no specific definition of it in TILA; therefore, SCOTUS precedent must be followed in defining it. That precedent makes it clear it is to be defined in its ordinary sense.

Your continued argument to the contrary, without case law to support your views, is frivolous.

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rciferri, on May 12, 2015 at 11:03 am said:

@Rock

You said

“How do we know other than all of the proof I’ve already provided, that rescission is the completion of the PROCESS, not the start, the Jesinoski court stated:

“Section 1635(g) makes clear that a court may not only AWARD RESCISSION and thereby relieve the borrower of his financial obligation to the lender…” how can the court “AWARD RESCISSION” if its already happened.”

Hey, Rock, have you ever considered that TILA contemplates the possibility of a borrower’s court action to effect rescission AND also gives a borrower the right to effect rescission by notice?

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rciferri, on May 12, 2015 at 11:00 am said:

@Rock

You said:

“Moreover, he’s delusional regarding the definition of rescission.”

I’m just pointing how SCOTUS handles terms undefined in the statute. If I’m delusional about that, it’s only because I share the delusion of SCOTUS, which is the law, no matter how much delusion you ascribe to it.

Feel free to post SCOTUS opinions distinguishing the ones I gave you in that regard.

Failing that, your continued posting of incorrect legal conclusions on that point is getting dogmatic without corresponding case law to support them.

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rciferri, on May 12, 2015 at 10:58 am said:

@Rock

You said:

“So any nonsense that a court would use the ordinary meaning of rescission instead of what is a long known contract remedy is beyond delusional.”

You can call it whatever you want.

Regardless, I provided a case that explains not all dictum is easily dismissed. You have to look at the case and determine, if dicta, is “considered” dicta, meaning, was it truly an aside, or was it the reasoning the court used to arrive at its holding. Obiter dictum (an aside) upon issues not under consideration is entitled to little weight, while dictum that tackles the issues presented by the litigants is authoritative, especially when it is from the United States Supreme Court and corrects the way the inferior courts have decided a point of law. That’s what any dicta in Jesinoski does.

You have not addressed the specific factors separating obiter dictum from the ratio decidendi of the Jesinoski decision. The rationale of Jesinoski was that he didn’t have to sue within 3 years because he had given notice within the 3 years which “effected” the rescission, i.e., cancelled the loan.

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Rock, on May 12, 2015 at 8:07 am said:

Bob, at first we just laughed at rciferri’s incompetence, but its now become clear he’s delusional and making irrational comments.

Everything that he’s posted is factually and legally incorrect, and this is why people hate lawyers, they charge for their incompetence.

His last musings trying to convince everyone that dictum is stare decicis is utter rubbish, everyone that is legally literate knows only the holding is.

I post a law review article and he claims its a “NYU Law Student’s law review article.” He is either so delusional, and/or incompetent he doesn’t even know most law review articles are written by law professors and judges. Matter of fact, the one I posted was from Pierre Nelson Leval a senior judge on the United States Court of Appeals for the Second Circuit, who’s been on a federal bench for almost 40 yrs.–Someone who clearly knows the difference between a holding and dictum.

Moreover, he’s delusional regarding the definition of rescission. Every court that has ever heard a case dealing with rescission knows its the completion of the process of rescinding, the unwinding of a contract.

Again, rescission is a nominalization a noun that describes an ongoing process. And as I elucidated already, “every legally literate person knows rescission is a legal term of art; not an ordinary word when it deals with contracts” as rciferri claims. “The courts have defined it; there have been treatises written about it; and every law book on remedies and contract have a section on it; therefore its well defined in the law–the unmaking of a contract between parties.

Legal dictionaries in existence when the TILA was drafted and enacted indicate that “rescission” was commonly understood to be a “party’s unilateral unmaking of a contract.” See, e.g., Black’s Law Dictionary 1308 (7th ed.) So any nonsense that a court would use the ordinary meaning of rescission instead of what is a long known contract remedy is beyond delusional.

How do we know other than all of the proof I’ve already provided, that rescission is the completion of the PROCESS, not the start, the Jesinoski court stated:

“Section 1635(g) makes clear that a court may not only AWARD RESCISSION and thereby relieve the borrower of his financial obligation to the lender…” how can the court “AWARD RESCISSION” if its already happened.

Also, because everyone legally literate knows that to unwind a common law rescission the party exercising their RIGHT to rescind, had to tender first. “To the extent §1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.”
Because the law under §1635(b) is the opposite of the “common-law practice,” the bank has to tender first, therefore the law “modifies common-law practice.”

Anyone not understanding all of the proof I’ve provided is clearly delusional.

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rciferri, on May 11, 2015 at 8:07 pm said:

@Rock

You said:

“Bob, here’s your answer from # 1 to # 4:

“The Supreme Court’s dicta are NOT law.

The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court’s dictum as dispositive. It must adjudicate.

I am not counseling disrespect for a higher court, least of all the Supreme Court. I am saying only that a lower court has a constitutional responsibility to decide the case in accordance with law.

Dictum is NOT law. The court must decide a previously undecided question.” —Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274–7”

Rock, did you even read the law I posted below?

If so, do you really think some NYU Law Student’s law review article outweighs the law I posted?

Here it is again:

“Dictum…opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determination of the judge himself.”

From review of the briefs of the parties, transcripts of oral arguments and the Jesinoski Court’s statements in the opinion itself, I believe the question of whether or not TILA rescission was effected via Jesinoski’s notice was exhaustively argued and considered, and upon its decision that followed, the Jesinoski Court ruled that Jesinoski’s TILA rescission was effected by notice and that such ruling was the professed deliberate determination of the entirety of SCOTUS.

The Jesinoski Court’s determination that the rescission was effected by Jesinoski’s notice was also necessary to the Court’s holding. If Countrywide’s argument that equitable rescission (which can only be mutual rescission) rules applied were credited, the Court couldn’t have held that, since Jesinoski gave notice within three years, “it follows that” he didn’t have to sue within 3 years. Thus, it was a necessary determination to make to reach its holding.

From Black’s Law Dictionary, 6th Edition:

“Stare decisis…Under doctrine a deliberate and or solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank, in subsequent cases where the very point is again in controversy…”

I believe the question of whether or not TILA rescission is effected via notice was a contested issue, arguments were made and heard on it as a question of law and were necessary to its determination.

I believe this because the Jesinoski Court found Jesinoski didn’t have to sue to effect his TILA rescission within 3 years, even though the lender disputed the notice (remember Scalia’s rejection of equitable rescission and pointing out Jesinoski’s rescission was unilateral), BECAUSE his rescission was complete upon notice given within 3 years (remember the “It follows that” language the Court used?)

As such, under the doctrine of stare decisis, the principle that TILA rescission is effective via notice is now mandatory authority across all jurisdictions and any cases of substantially similar facts in which such principle is not embodied have lost their authority in that regard.

After you are done reading the actual definitions of dictum and stare decisis and my analysis of the same in the context of Jesinoski, can you make a non-frivolous argument that TILA rescission by notice was NOT essential to the court’s opinion?

I mean, you read the briefs, right?

Didn’t Jesinoski argue that his notice completed the rescission?

Didn’t Countrywide argue that notice did not complete rescission?

“Since both parties put TILA rescission in issue and since SCOTUS considered the same and since SCOTUS ruled “The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. It follows that, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely. The statute does not also require him to sue within three years.”

Does the quoted part of Jesinoski above clearly show that SCOTUS’s acceptance of Jesinoski’s TILA rescission by notice argument show that such a determination was necessary to its holding in the last sentence?

Some more law for you to provide a cogent legal argument in rebuttal:

As to dictum, do you realize there are different types of dictum and that only one type of dictum is NOT mandatory authority (obiter dictum)?

Lets start with obiter dictum. From your comments regarding the issue, you seem to believe everything besides the holding of Jesinoski is obiter dictum – an aside, a “by the way” a detour off the main path.

I disagree. In fact, I believe obiter dictum appears not once in the entire Jesinoski opinion. Obiter dictum, by definition is a comment only tangentially related to the issues being decided. By contrast, the entire Jesinoski opinion – every sentence in it – deals squarely with the issues presented by the parties in their briefs.

I’ve got some more law for you about what is dictum (other than obiter dictum) and how dictum should be treated by the courts.

From McCoy v. MIT, 950 F.2d 13, 19 (1991):

“To be sure, footnote 12 in Mackey is dictum — but it is considered dictum. We are, therefore, both unable to ignore it and unwilling to do so. We agree with Professor Wright that, in evaluating dicta, “[m]uch depends on the character of the dictum. Mere obiter may be entitled to little weight, while a carefully considered statement …, though technically dictum, must carry great weight, and may even … be regarded as conclusive.” Charles A. Wright, The Law of Federal Courts § 58, at 374 (4th ed. 1983).”

And, from the same citation, the final nail in your “its only dictum” coffin:

“We think that federal appellate courts are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings, particularly when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement.”

It is clear that NONE of Jesinoski is obiter dictum, that whatever is arguably otherwise dictum was “considered” dictum in the words of the McCoy Court above and that, in any event, if dictum, it is SCOTUS’s considered dictum. See In re McDonald, 205 F.3d 606, 612-13 (2000):

“But even if the discussion of § 506(a) could be accurately characterized as dictum—and we think it cannot be—we should not idly ignore considered statements the Supreme Court makes in dicta. The Supreme Court uses dicta to help control and influence the many issues it cannot decide because of its limited docket. “Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court’s marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”

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Rock, on May 11, 2015 at 6:31 pm said:

Bob, here’s your answer from # 1 to # 4:

“The Supreme Court’s dicta are NOT law.

The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court’s dictum as dispositive. It must adjudicate.

I am not counseling disrespect for a higher court, least of all the Supreme Court. I am saying only that a lower court has a constitutional responsibility to decide the case in accordance with law.

Dictum is NOT law. The court must decide a previously undecided question.” —Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274–7

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E. ToLLe, on May 11, 2015 at 6:27 pm said:

I posted this to the current blog posting by Neil, but since Rock is having such a good time here defending the indefensible, I thought I’d stick it here as well….

Also Rock, you said….

“What the Sup Ct. didn’t realize was that there was so many nitwits that misunderstand the holding. No need for law suit within SOL–PERIOD!!”

Would those nitwits include the 85 attorneys, licensed in 19 states, at Baird Holms, LLP?

They say this on their website….

“Justice Scalia, writing for a unanimous Supreme Court, held that a borrower may rescind a loan simply by providing notice to the lender within three years of the consummation of the loan. But Justice Scalia went on to hold that the right to rescind does not depend on either the ability of the borrower to return the loan proceeds or on whether the lender failed to make the required disclosures under the Truth in Lending Act.”

–PERIOD!!

Since Rock won’t take it upon himself to read any analysis other than what’s published at the American Bankers Association, I’d invite others here to read for themselves this brief analysis….

http://www.bairdholm.com/publications-feed/entry/revisiting-jesinoski-v-countrywide-home-loans-inc-a-poor-outcome-for-lenders.html

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bobhurt, on May 11, 2015 at 6:12 pm said:

Rod, regarding your assertion to Rock about the common dictionary meaning for words not otherwise defined in the law, I don’t think I have read a dispute rescission as a synonym for cancellation. But TILA actually defines rescission by saying the borrower will have no further liability for interest and the lender loses the security. THAT, of course, becomes a byproduct of rescission. TILA discusses another byproduct: tender. The courts refer to these byprodusts as unwinding the loan, for mere cancellation does not unwind anything. It simply triggers the unwinding process. And each step of the unwinding can meet with a hitch, starting at the beginning. Such hitches include the borrower’s lie or mistake about justification for rescission, borrower’s failure to get a proper notice of rescission into the hands of the lender, lender’s failure to initiate court rebuttal within 10 days, lender’s refusal to tender, borrower’s refusal to make house payments, borrower’s refusal to tender, borrower’s insistence on not mitigating his loss such as by waiting 5 years to offer rescission as an affirmative defense in the lender’s foreclosure lawsuit,, borrower’s inability to tender without selling the house, borrower’s breaching the tender workout plan, and borrowers use of bankruptcy to avert tender of the final balance he owes the lender.

Rescission means cancellation, all right. As an equitable remedy, it also requires each party to restore /status quo ante/ of the other party. That almost always requires intervention of the court.

I don’t agree with your assertion about the Supreme Court interpreting rescission in its Jesinoski opinion. The SCOTUS merely held that Jesinoski had not needed to sue within 3 years, and sent the matter back to trial for resoluton. This dispute dealt with the validity of the rescission lawsuit, not of the rescission or its outworkin.

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rciferri, on May 11, 2015 at 5:59 pm said:

@Rock

You said:

“§ 130. Civil liability

(a) INDIVIDUAL OR CLASS ACTION FOR DAMAGES; AMOUNT OF AWARD; FACTORS DETERMINING AMOUNT OF AWARD.–Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this chapter, including any requirement under section 125, subsection (f) or (g) of section 131 or chapter 4 or 5 of this title with respect to any person is liable to such person in an amount equal to the sum of–

…(3) in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a RIGHT of rescission under section 125 or 128(e)(7) under section 125 or 128(e)(7), the costs of the action, together with a reasonable attorney’s fee as determined by the court.”

You also said:

“Its axiomatic there would be no penalty provision if there was an automatic rescission.”

Rock, first of all, that statement makes no sense.

Why couldn’t there be a penalty provision AND automatic rescission?

Is it because you are still confused by your argument that TILA somehow mandates common law rescission, i.e., since common law rescission includes, inter alia, the process of “unwinding”?

This may clear up your confusion:

Think of it like Mr. Frederick stated in his oral argument, that the rescission is the giving of notice and everything that follows (that may support an action for damages under the provision you cited above) is not part of the rescission, but, rather is more like restitution.

TILA rescission is complete upon notice. The “unwinding” process happens afterward.

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bobhurt, on May 11, 2015 at 5:19 pm said:

Rod, you listed a bunch of things which you said I provided no case law to support. Actually, I did provide you with court opinions of some, and Rock did also. Perhaps I’ll get around to compiling some authorities for you. Or maybe you should do it for me, since I admit to status as a student and not an expert in law.

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Rock, on May 11, 2015 at 4:40 pm said:

Sorry, that should have read Section 130(a):

§ 130. Civil liability

(a) INDIVIDUAL OR CLASS ACTION FOR DAMAGES; AMOUNT OF AWARD; FACTORS DETERMINING AMOUNT OF AWARD.–Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this chapter, including any requirement under section 125, subsection (f) or (g) of section 131 or chapter 4 or 5 of this title with respect to any person is liable to such person in an amount equal to the sum of–

(1) any actual damage sustained by such person as a result of the failure;

(2) (A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, (ii) in the case of an individual action relating to a consumer lease under chapter 5 of this title, 25 per centum of the total amount of monthly payments under the lease except that the liability under this subparagraph shall not be less than $200 nor greater than $2,000, or (iii) in the case of an individual action relating to an open end consumer plan that is not secured by real property or a dwelling, twice the amount of any finance charge in connection with the transaction, with a minimum of $500 and a maximum of $5,000 or such higher amount may be appropriate in the case of an established pattern or practice of such failures; or (iv) in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $400 or greater than $4,000.

(3) in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a RIGHT of rescission under section 125 or 128(e)(7), the costs of the action, together with a reasonable attorney’s fee as determined by the court.

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rciferri, on May 11, 2015 at 4:02 pm said:

@Rock

You said:

“Bob, like I told you before you can’t discuss law with legal illiterates!”

I look forward to Bob’s response to my post made at 2:21 p.m. today.

At least he’s shown in the past, in other contexts, that he can make a proper legal argument.

All in all, Rock you are not bad at cutting and pasting what other lawyers and judges have thought. You’re just very, very bad at making cogent legal arguments.

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rciferri, on May 11, 2015 at 3:55 pm said:

@Rock

You said:

“Moreover, section 13(a0 of the TILA states that any creditor who violates § 1635(b) is liable for statutory damages & attorney’s fees, this is the penalty against the creditor if there really is a TILA violation and the creditor fails to act within the 20 days. Its axiomatic there would be no penalty provision if there was an automatic rescission.”

What the heck is “section 13(a0 of the TILA” !

You really should be more careful when cutting and pasting from whatever obsolete manual you are using to make pretend you can post a thoughtful response.

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rciferri, on May 11, 2015 at 3:49 pm said:

@Rock

You said:

“Also, Congress believed that § 1635(b)’s initial 10 day response period was too short for creditors to ascertain the validity of a rescissio notice, and that is one of the reasons why it increased the response period to 20 days. S.REP. NO. 96-368, 96th Cong., 2d Sess. 29.”

That should be plenty of time after they receive the borrower’s notice for them to file a satisfaction of mortgage, cut the borrower a check, and, if they disagree, file suit to set aside the rescission.

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rciferri, on May 11, 2015 at 3:45 pm said:

@Rock

You said:

“Second, this nonsense that rciferri and Garfield are serving in their Kool-Aid that rescission is automatic, and has been completed has been rejected by the courts. It has been rejected because its ridiculous.”

You give Neil Garfield and I too much credit for saying TILA rescission is effected via the borrower’s notice.

First, before us, TILA said so in plain unequivocal terms.

Second, courts that are inferior to the United States Supreme Court disagreed.

Third, the United States Supreme Court said it.

Fourth, Rock disagrees with the United States Supreme Court…

Hmmm, who should I believe, a unanimous United States Supreme Court, or Rock?

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rciferri, on May 11, 2015 at 3:40 pm said:

@Rock

“Rescission “is a process in which the creditor terminates its security interest…”

No, it isn’t. Again, the only “process” involved with TILA rescission is the borrower notifying the creditor of its rescission. That’s what the statute has always meant and that’s what Jesinoski confirmed. Any case saying different that has substantially similar facts as Jesinoski is now no authority at all on such point.

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rciferri, on May 11, 2015 at 3:36 pm said:

@Rock

You said:

“not an ordinary word when it deals with contracts”

A borrower’s unilateral TILA rescission can only be described as statutory rescission, not contract rescission. That’s why the rules of statutory construction apply, rather than contract rules of interpretation.

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rciferri, on May 11, 2015 at 3:33 pm said:

@Rock

TILA doesn’t define the word “rescission.”

Rescission, as a legal term means, more or less, what you think it means.

Rescission, as an ordinary term means simply, cancellation.

Rescission, as used in TILA, means cancellation.

You said:

“First, every legally literate person knows rescission is a legal term of art”

And every “legally literate” person knows that, where a statute does not define a term, the term is to be defined in its ordinary sense, even if the term also has a different legal meaning:

See, Perrin v. United States, 444 U.S. 37 (1979).

Perrin was charged with violating a federal criminal statute prohibiting the bribery of private employees. At issue in Perrin was the meaning of the word “bribery” as used in a federal criminal statute. The government contended that the word should be defined by its common law meaning, which only contemplated bribery of public officials. SCOTUS disagreed, explaining that the federal statute in issue did not define the term “bribery”.

Because of that, SCOTUS turned to the “fundamental canon of statutory construction…that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979).

No doubt mindful of the above rule, it is clear that the Jesinoski Court found he cancelled his loan upon notice to Countrywide.

There, Rock, now you are “legally literate” on that point.

Or, do you somehow disagree with the “fundamental cannon” above that the United States Supreme Court proclaimed?

Also, if the court was interpreting the word in its legal sense, Jesinoski would have lost and Countrywide would have won.

But that didn’t happen, did it, Rock?

Class dismissed.

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Rock, on May 11, 2015 at 2:43 pm said:

Bob I can’t tell if rciferri is just plain stupid, or as he claims he’s been an attorney for 20 yrs. then he’s totally incompetent, or combination of both.

First, every legally literate person knows rescission is a legal term of art; not an ordinary word when it deals with contracts as scammer/nitwit rciferri claims.

The courts have defined it; there have been treatises written about it; and every law book on remedies and contract have a section on it; therefore its well defined in the law–the unmaking of a contract between parties. Rescission is the unwinding of a transaction. This is done to bring the parties, as far as possible, back to the position in which they were before they entered into the contract (the status quo ante). Straight up 1635(b).

Rescission unwinds the rescinded transaction, with each side returning whatever it received from the other to restore the status quo ante. Rescission “is a process in which the creditor terminates its security interest and returns any payments made by the debtor in exchange for the debtor’s return of all funds or property received from the creditor.” Marr v. Bank of Am., N.A., 662 F.3d 963, 966 (7th Cir.2011 966; see also Andrews v. Chevy Chase Bank, 545 F.3d 570, 573 (7th Cir.2008) (describing rescission as “a process in which the creditor terminates its security interest and returns any payments made by the debtor in exchange for the debtor’s return of all funds or property received from the creditor (usually, the loan proceeds)”); Handy v. Anchor Mortg. Corp., 464 F.3d 760, 765–66 (7th Cir.2006); Jefferson v. Sec. Pac. Fin. Servs., Inc., 161 F.R.D. 63, 69 (N.D.Ill.1995).

Section 1635(b), which governs the rescission process under TILA, provides:

When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it. The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.

15 U.S.C. § 1635(b). Put simply, § 1635(b) establishes default procedures that govern TILA rescissions; those procedures require the creditor to release its security interest and to return all of the borrower’s payments before the borrower is required to tender. The statute, however, allows those default procedures to be modified by court order. Regulation Z sets forth the same default procedures and the same proviso allowing a court to modify those procedures:

(d) EFFECTS of rescission.

(1) When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.

(2) Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.

(3) If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the consumer shall tender the money or property to the creditor ….

(4) The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order.12 C.F.R. § 226.23(d).

Second, this nonsense that rciferri and Garfield are serving in their Kool-Aid that rescission is automatic, and has been completed has been rejected by the courts. It has been rejected because its ridiculous.

Neither the statute nor the regulation establishes that a borrower’s mere assertion of the right of rescission has the automatic effect of voiding the contract. Section 1635(b) states that, “[w]hen an obligor exercises his RIGHT to rescind,” the creditor’s security interest “becomes void.” The natural reading of this language is that the security interest becomes void when the obligor exercises a right to rescind that is available in the particular case, either because the creditor acknowledges that the right of rescission is available, or because the appropriate decision maker has so determined. Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 54-55 (1st Cir.2002). Otherwise, “a borrower could rescind a transaction without any statutory justification simply by alleging that the statutory requirements for rescission had been met.” Id. at 55. But this does not mean that the borrower must plead tender to maintain his action; it merely means that if the borrower does not tender, then the lender does not have to release the security interest until a court can determine whether statutory grounds for rescission actually exist.

The sequence of rescission and tender set forth in § 1635(b) is a REORDERING of common law rules governing rescission. Under § 1635(b), all that the borrower needs do is notify the creditor of his INTENT to rescind. The agreement is then automatically rescinded and the creditor must, ordinarily, tender first.

“Rescission under the TILA is `automatic’ in the sense that, in CONTRAST to common law rescission, the borrower need not first return the loan proceeds received under the agreement to effect a rescission.”). Large, 292 F.3d at 55.

Under TILA, therefore, “the tender back of consideration received is not a prerequisite to rescission. Section 1635(a) requires only that the obligor EXERCISE his rRIGHT of rescission by notifying the creditor within the prescribed time limit of his INTENT to rescind.” Rachbach v. Cogswell, 547 F.2d 502, 505 (10th Cir.1976).

Every legally literate person knows this is what Scalia was talking about when he addressed the common law.

It is true that § 1635(b) says that “[w]ithin 20 days after receipt of a notice of rescission, the creditor shall … take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.” 15 U.S.C. § 1635(b). The fact that the creditor quickly must take action to reflect the security interest’s termination does not, however, mean that the security interest is terminated upon the sending of the notice. Instead, it means that the rescission process must commence quickly, which in turn means that the rescission itself does not occur immediately. This is made clear by the Federal Reserve Board’s Official Commentary, which binds the court unless found to be “demonstrably irrational.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980). The relevant portion of the Official Commentary says: “THE 20–DAY PERIOD FOR THE CREDITOR’S ACTION REFERS TO THE TIME WITHIN WHICH THE CREDITOR MUST BEGIN THE PROCESS. IT DOES NOT REQUIRE ALL NECESSARY STEPS TO HAVE BEEN COMPLETED WITHIN THAT TIME, BUT THE CREDITOR IS RESPONSIBLE FOR SEEING THE PROCESS THROUGH TO COMPLETION.” 12 C.F.R. pt. 226, Supp. I, ¶ 23(d)(2). That is the only sensible interpretation of the statute given that it allows a court to modify the default rescission procedures. See15 U.S.C. § 1635(b) (“The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.”). There would be no time for the court to modify those procedures if rescission is completed immediately upon the sending of a rescission notice. As one court explained:

Because § 1635(b) merely prescribes “procedural requirements” that a district court may adapt at its discretion, it is clear that mere notice of intent to rescind does not trigger a lender’s obligation to effect rescission immediately given that a lender cannot know with certainty ex ante whether a court will deny rescission or modify the procedure for effecting rescission. In other words, § 1635(b) cannot, at once, be a set of default procedures a court may equitably alter after a borrower’s notice of intent to rescind and, at the same time, require a lender to effect rescission immediately upon receiving such notice.

Also, Congress believed that § 1635(b)’s initial 10 day response period was too short for creditors to ascertain the validity of a rescissio notice, and that is one of the reasons why it increased the response period to 20 days. S.REP. NO. 96-368, 96th Cong., 2d Sess. 29.

Moreover, section 13(a0 of the TILA states that any creditor who violates § 1635(b) is liable for statutory damages & attorney’s fees, this is the penalty against the creditor if there really is a TILA violation and the creditor fails to act within the 20 days. Its axiomatic there would be no penalty provision if there was an automatic rescission.

Moreover, section 1635 is written with the goal of making the rescission process a private one, worked out between creditor and debtor without the intervention of the courts. The potential for damages (including penalties and attorney’s fees) creates incentives for creditors to rescind mortgages when faced with valid requests without forcing debtors to resort to the courts, for such resort causes substantial delay and expense to debtors. Of course, where the debtor’s notice of rescission is invalid-for example, where the creditor has not actually failed to satisfy a material disclosure requirement that would entitle the debtor to rescind-then no damages can be assessed against the creditor for failing to respond to the notice.

Bob, like I told you before you can’t discuss law with legal illiterates!

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rciferri, on May 11, 2015 at 2:21 pm said:

@bobhurt

You said:

“And if the borrower has not made payments for several years during the foreclosure effort, and the court finds no basis for the rescission, what do you suppose the court will opine about the validity of the foreclosure?”

It depends on whether the lender otherwise can prove his foreclosure case and whether the borrower can otherwise prove any affirmative defenses he may have to it.

You said:

“And if the the lender did not rebut the notice of rescission but court finds a sound basis for the rescission, how will the court deal with the fact that the borrower has lived in the house free for several years?”

If the court finds the TILA rescission was completed by the borrower, the court, if it is following the plain meaning of TILA, will deny any counter claim by the lender seeking payment for the borrower living in the house after his rescission.

If the lender can otherwise prove it has an interest in the loan, the court may order the borrower to pay the lender the value of living in the house prior to the borrower’s TILA rescission of the loan, if he didn’t make payments during that period.

You said:

“Do you have any binding opinions to back up yours?”

That’s what I was going to ask you, Bob.

I’ve given case law to back up much of my opinions here.

Meanwhile, you have not done the same with regard to your opinion on the following issues:

1. Your contention, or necessary implication, that only “holdings” are entitled to be regarded as authority under the doctrine of stare decisis;

2. Your contention, or necessary implication, that only Jesinoski’s holding will be mandatory authority on the inferior courts;

4. Your contention, or necessary implication, that, despite the Jesinoski Court finding that Jesinoski rescinded his loan by his notice, that finding is not now law of the case that the district court will have to follow on remand;

5. Your contention, or necessary implication, that, in the case in which a borrower rescinded under TILA, a court may change the procedures of Section 1635(b) at any time, regardless of whether the lender petitioned the court for such relief before its 20 day period to discharge its TILA obligations expired;

6. Your contention, or necessary implication, that, a lender’s failure to sue within the 20 days does not waive its right in equity to seek further relief;

7. Your contention, or necessary implication, that, the lender remedy given in Section 1635(b) is not an adequate remedy at law;

8. Your contention, or necessary implication, that, a lender failing to seek his remedy under Section 1635(b) can nonetheless invoke the court’s equitable jurisdiction, despite having an adequate remedy at law;

9. Your contention, or necessary implication, that, “common sense”, i.e., bank bias, ultimately trumps actual law dictating the opposite;

10. Your contention, or necessary implication, that ALL of Jesinoski is dicta – except for the holding;

11. Your contention, or necessary implication, that the meaning of the word “rescission” as used in TILA is to be determined from its legal definition, rather than from its common and ordinary definition; and,

12. Your contention, or necessary implication, that the lender will have “standing” to challenge the borrower’s unilateral statutory rescission, despite not being a party to the same.

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bobhurt, on May 11, 2015 at 1:24 pm said:

Dwight:

” You don’t need a seperate signed document when you are performing your duties with integrity. ”

History has proven the wisdom of requiring borrowers to sign that acknowledgment. Borrowers come away from most closings dazzled or confused about the many docs they signed, and don’t remember them well. And borrowers, being human, prevaricate, tergiversate, palter, and outright lie as they deem necessary to achieve their aims, especially when it comes to getting out of an onerous, 30-year loan repayment obligation.

Maybe the CFPB will require numbered documents some day. We’ll see.

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bobhurt, on May 11, 2015 at 1:18 pm said:

Dwight,

” The Act allows for the rescinding borrower to stop making payments since it is void by operation of law upon notice being mailed.No payments will be made on a void contract. You need to try and come to terms with this reality and common-sense logic of the Act.”

I fully understand that. It has remained so since TILA became law, but ONLY if the borrower had a valid reason for rescission and the lender actually received the notice of rescission. Then the borrower and lender have a dispute, and the lender will win, getting the house through foreclosure, usually.

Lenders have implemented a system of requiring borrowers to sign an acknowledgment of receipt of the requisite disclosure of right to cancel. That pretty much constitutes proof that the borrower received the disclosure, and that the borrower will lose a dispute over it.

And then comes the issue of MUTUAL tender. The court will force it, ultimately, in the case of valid rescission.

I don’t envy you for your TILA rescission struggle, Dwight. Every adult has a duty to himself to mitigate his loss. It makes no sense under that maxim to wait years to challenge the refusal of the creditor to accede to the rescission effort. First of all, the borrower has a good chance of having erred. Second, it appears to any judge that the borrower just wanted to live in the house free and thereby obtain unjust enrichment for having not made payments for years. Third, TILA and foreclosures have everything to do with fairness in enforcement of an agreement between the parties within congressionally imposed lender constraints.

Bottom line, a borrower living a house without making payments, and borrower relief from tender simply defy fairness. That’s why the courts generally don’t let borrowers get away with it.

I personally see a problem with the 10-day period for a lender to rebut. That requires a lender who might have done nothing wrong to sue the borrower. An accountant could deal with the dispute over the numbers and disclosures. Congress should have established a means of dealing with the dispute that sidesteps the financial brutality of a lawsuit. The filing fee ($400?), service fees ($50?), hiring a lawyer to craft the complaint and show up in court ($3000 minimum), waiting in line for a hearing. I see about $5000 in cost to the lender, and I consider that an unreasonable expenditure in defense of an often whimsical borrower decision to rescind, often YEARS after consummation of the loan.

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DwightNJ, on May 11, 2015 at 12:53 pm said:

Since lenders are in the position of controlling the financial transaction steps which are supposed to ensure that borrower/consumers TILA protections are provided at closings, the burden will be placed on those lenders to create a better system of proving that the borrowers were truly provided with their disclosures. To have a seperate document signed is the dumbest business model one can imagine. It proves nothing ..if anything, it shows a lack of credibility by lenders. You don’t need a seperate signed document when you are performing your duties with integrity. What will be required in all future closings is that the lender make copies of each mandated disclosure which are numbered in sequence order , the borrower will clearly know what is due him in his closing docs and intitial a checklist form as he receives the copy.

Credible businesses don’t have you sign seperate docs, saying you received “other docs” … Puhleeeese … its not credible, it reeks of something a dime-store hood would do to an old lady . Its the kind of crap that scammers do to innocent victims all the time , especially tricking people in the home improvement rip-off world , the thug criminals get very good at crafting ways to cover their crimes.
The lenders lack credibility. The signed doc is a trick pulled on unsuspecting borrowers who were overwhelmed at closing.

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DwightNJ, on May 11, 2015 at 12:28 pm said:

Bob Hurt. … The Act allows for the rescinding borrower to stop making payments since it is void by operation of law upon notice being mailed.

No payments will be made on a void contract. You need to try and come to terms with this reality and common-sense logic of the Act.

Justice Scalia and the other 8 Justices all agree , the mortgage contract is deemed void upon the mailing date of the letter.

You cannot foreclose on a void mortgage because the was no default due to the rescission superceding the lenders contention of default.

TILA Rescission supercedes the lenders un-timely assertions made after the fact.

Due to the fact that the lower courts have had it wrong for so long, its no surprise that the old caselaw relied upon is wrong too.

Now as the courts go forward after Jesinoski, new caselaw will be created and established that falls in line with the correct interpretation and application of TILA due to the clarity of the 2015 Supreme Court.

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bobhurt, on May 11, 2015 at 11:54 am said:

Rod/Dwight: “So, while you have rebutted the presumption that you received the notices by your testimony, the trier of fact may still believe the lender over your testimony, finding that you didn’t carry your burden of persuasion on the issue.”

And if the borrower has not made payments for several years during the foreclosure effort, and the court finds no basis for the rescission, what do you suppose the court will opine about the validity of the foreclosure?

And if the the lender did not rebut the notice of rescission but court finds a sound basis for the rescission, how will the court deal with the fact that the borrower has lived in the house free for several years?

Do you have any binding opinions to back up yours?

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christine, on May 11, 2015 at 12:38 am said:

That thread started in 4/29. Today is 5/11 and they’re still going at it.

Any wins on rescission on Livinglies theories since”?

Any pro se win thanks to Livinglies since?

Any win tried by Livinglies-approved attorneys since?

Is there some kind of a contest for the bottom going on, that I never knew anything about?

Can it become more surreal?

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Trespass Unwanted, on May 11, 2015 at 12:17 am said:

As people go back and forth on the ruling and meaning, it’s interesting to hear another opinion about what was said and done.

Jesinoski v. Countrywide TILA casebrief
blogtalkradio.com/attorneysteve/2015/02/25/jesinoski-v-countrywide-tila-casebrief
General information, not legal advice, opinions that can change.

Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino

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rciferri, on May 10, 2015 at 9:42 pm said:

@DwightNJ

You said:

“Now in a TILA rescission, I can understand that it is being exercised by the borrower, claiming his documents were incomplete and did not include the right to cancel notices. But how in the world does anyone expect you to prove that your closing docs are missing notices? Its like being asked to prove a negative.”

You prove it the way you tried to prove it, I’m assuming by affidavit in opposition to the summary judgment motion saying you didn’t receive it. An unbiased judge would either believe you or not. A biased judge won’t believe you.

Did you also move for summary judgment? If not, and if the appeals court reverses the trial judge’s ruling on their summary judgment motion, you may want to consider pushing the case to trial as quickly as possible on the TILA rescission issue. Although doing so should be done after cautious deliberation; you have to make a judgment call as to whether doing so may make it less likely you prevail on any other counter claims or defenses you may have (due to not being able to fully pursue discovery).

In my mind, the key is getting the TILA rescission issue before a jury. I believe if you show the jury the same evidence you showed the trial judge, you have a much greater likelihood of prevailing.

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DwightNJ, on May 10, 2015 at 8:40 pm said:

rciferri. … Thank you … I see what you mean and once again it places the borrower back into the position of trying to prove a negative.

Similar to the original foreclosure complaint, where if a defendant denies the allegations, denies that a valid contract exists, etc. , we lay people have been led to believe the burden rests with the plaintiff to prove up their case, prove that a valid contract was consummated. But what we find is that defendants are burdened in court with having to prove negatives in many cases.

Now in a TILA rescission, I can understand that it is being exercised by the borrower, claiming his documents were incomplete and did not include the right to cancel notices. But how in the world does anyone expect you to prove that your closing docs are missing notices? Its like being asked to prove a negative.

I explained in an earlier post how Wells Fargo’s reply to my QWR supported, corroberated the fact when they mailed me copies of my docs, and the notices were missing …now the QWR is backed by the DODD-FRANK Act. that went into effect recently, QWR’s are no joke, and if the lender showed in that reply to the QWR no evidence of the notices being a part of the file ..it should support the borrowers contention and assertion that they were indeed missing. The QWR reply from the lender was submitted by me as an exhibit , so it should be deemed as part of the official record from the trial court. Can I argue it in my Appeal brief? Not sure since the judge never allowed me to get that deep into the argument, he had us so focused on tender ..and then near the end he allowed me to be ambushed by the lender attorney who made assertions about a phantom signed document the allegedly had which had never been submitted or mentioned prior to that day while we’re in court on her motion for summary judgment .. John Gault feels that alone should be a major reason for Appeal ..your thoughts?

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rciferri, on May 10, 2015 at 8:03 pm said:

@DwightNJ

I’m sorry it took me so long to discuss some of the comments you made in your May 8 post at 1:13 p.m.

You said:

“IF the servicer as PETE eventually files an action (but NOT a foreclosure complaint, because the security instrument is already void at the time they file the foreclosure), their action would be based on them showing a evidence of the signed documents from closing, where the borrowers signed a paper stating that they had received their notices of Right To Cancel. But, as TILA explains, such an assertion is a mere Rebuttable Presumption which is rebutted and denied by the borrowers own testimony and/or affidavit.”

If you are the one contending you have an extended right of rescission under TILA, the burden is on you to prove it.

You are right that the presumption that disclosures have been sent is rebutted by your testimony or affidavit that you didn’t receive them.

However, since you are the one who initially had the burden of proof on the issue of whether or not you effected a TILA rescission, you also have the burden of persuasion on that issue and will have that burden until the issue has been finally adjudicated.

In other words, just because your testimony may rebut the TILA presumption, doesn’t mean you will carry your burden of persuasion. It just means the court cannot find against you on the issue solely due to you not carrying your burden of proof to rebut the presumption.

So, while you have rebutted the presumption that you received the notices by your testimony, the trier of fact may still believe the lender over your testimony, finding that you didn’t carry your burden of persuasion on the issue.

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DwightNJ, on May 10, 2015 at 10:30 am said:

Bob Hurt … So you do agree and acknowledge that it is clearly written in the Act , that the borrower may keep the property without further obligation after lender has failed to accept your tender offer in 20 days?
You do see that it is written, agree?

So your argument has now fallen back into a corner of saying “But the courts have never allowed this to happen, there is no case law” …

Exactly … and now you understand why the Supreme Court decision was earth-shattering to the lenders and lower courts, it exposed how they have unfairly applied their own misguided views to the laws, they have unjustly brought harm to untold numbers of past borrowers by twisting the laws into a perversion of justice that benefited lenders.

So for Bob Hurt to point out how “this is how we always denied justice to borrowers in the past”, it is not an excuse to continue the injustice.

Jesinoski proves that the courts have been misapplying and denying the protections created for borrowers. Its called abuse.

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rciferri, on May 10, 2015 at 3:41 am said:

@bobhurt

You said:

“You seem to keep ignoring the GRAND QUALIFIER to rescission – the legal basis for it lies in undisputed TILA violation COUPLED with lender’s receipt of proper notice.”

Bob, you keep ignoring the fact that Jesinoski stated the statute makes no distinction between disputed and undisputed rescissions. In fact, it used a barely contained mocking tone when it described Countrywide’s assertions of such a difference in its brief.

As an aside, as you dismiss most of the Jesinoski opinion, I think you are missing (besides the plain wording in the opinion) the significance of the manner in which it was delivered. That it was so short is a kind of slap in the face of the courts who have had it wrong all these years, because, although not a complex appeal, as appeals go, it could easily have been a much longer opinion.

I mean, when is the last time you read a 7 page SCOTUS opinion? That it was so short underscores the disappointment in the lower courts by SCOTUS, as does the fact that it was unanimous, in a court that decides more 5-4 opinions than unanimous opinions.

As to your second point, I believe you are right that in any proceeding for declaratory relief, the rescinding party must prove that the creditor received the TILA notice and that the content of the notice complied with any requirements of TILA in that regard. In fact, that would be the borrower’s entire case concerning TILA rescission.

You said:

“I have pointed out that in most cases of TILA rescission efforts, the lender disputes it with good reason.”

All the more incentive to pursue its remedy under TILA in a timely manner or change the law.

You said:

“That means cancellation (rescission) did not occur in those cases, in spite of the borrower’s effort to force it to occur.”

Bob, come on now, why must you keep insisting common law legal rescission (contract rescission) has any place in the analysis at all? Jesinoski slammed the door on that contention made by Countrywide. If you haven’t already read the Countrywide brief, please do so. You will see many of the cases that gave you these ideas in the first instance. But, Jesinoski threw the common law into the crapper when it said Jesinoski didn’t have to sue within 3 years BECAUSE Jesinoski rescinded his loan UNILATERALLY upon notice within that time, thereby satisfying the statute of repose.

Bob, if I were a judge and you brought that argument into my court after that issue was ruled upon by SCOTUS I would not sanction you for making such a frivolous contention – but only because I like you.

SCOTUS has spoken on that point. It’s time to move on Bob. It’s precedent. As you know, I don’t believe it is dictum. In fact, I believe there is very little dictum in the entire Jesinoski opinion. However, even it is dictum, it is dictum from the United States Supreme Court for Heaven’s sake!

Enough of your pronouncements regarding the law. You simply state that only the holding of a court is precedent that must be followed by inferior courts. I show you the law in that regard that plainly shows your pronouncement is wrong. You rebut with nothing, save more pronouncements.

Give me some cases! Where are your cases refuting what I say dictum is and refuting what I say the doctrine of stare decisis is? Will you please 1) give me some authority on your assertion that only a holding is accorded stare decisis and everything else is dictum, or 2) admitting that you don’t have any.

Here’s some more law on what is mandatory authority, even if it is dictum – the rule of ratio decidendi – which simply stated is: the rationale for a decision. Clearly, in Jesinoski, the rationale for holding Jesinoski did not have to sue within 3 years to rescind was that he already rescinded upon his notice within 3 years, thereby satisfying the statute of repose. Thus, even if dictum, it was the rationale for a United States Supreme Court opinion and is mandatory authority, not for just some courts in a particular circuit, but for all courts across the United States.

As to dictum, do you realize there are different types of dictum and that only one type of dictum is NOT mandatory authority (obiter dictum)?

Lets start with obiter dictum. From your comments regarding the issue, you seem to believe everything besides the holding of Jesinoski is obiter dictum – an aside, a “by the way” a detour off the main path.

I disagree. In fact, I believe obiter dictum appears not once in the entire Jesinoski opinion. Obiter dictum, by definition is a comment only tangentially related to the issues being decided. By contrast, the entire Jesinoski opinion – every sentence in it – deals squarely with the issues presented by the parties in their briefs.

I’ve got some more law for you about what is dictum (other than obiter dictum) and how dictum should be treated by the courts.

From McCoy v. MIT, 950 F.2d 13, 19 (1991):

“To be sure, footnote 12 in Mackey is dictum — but it is considered dictum. We are, therefore, both unable to ignore it and unwilling to do so. We agree with Professor Wright that, in evaluating dicta, “[m]uch depends on the character of the dictum. Mere obiter may be entitled to little weight, while a carefully considered statement …, though technically dictum, must carry great weight, and may even … be regarded as conclusive.” Charles A. Wright, The Law of Federal Courts § 58, at 374 (4th ed. 1983).”

And, from the same citation, the final nail in your “its only dictum” coffin:

“We think that federal appellate courts are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings, particularly when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement.”

So, what do you think of that dictum now, Bob?

More importantly, if you are right about some of the crucial aspects of Jesinoski being dictum, do you really think the courts will be as dismissive of it as you are? If they are dismissive, how do you think SCOTUS will like that? I believe they will be angry. Perhaps angry enough to grant a writ of mandamus, if a district court judge decides to buck Jesinoski. If that happens, would that be enough authority for you?

You said:

“Then, in some rare instances, the lender does not dispute, and embraces the rescission without court action.”

Those cases are simple. If each party is ok with rescission, they can, by contract, decide how they are going to do it, without regard to any TILA restrictions.

You said:

“Now the matter must go to court because even though the borrower rescinded (canceled) the loan, the borrower and lender still owe each other money.”

I assume you meant “even if” rather than “even though”, unless you’ve finally gotten that TILA rescission is effected by notice. I’ll assume you didn’t concede the point. Unless the lender gets to court, successfully invokes the court’s equitable jurisdiction and successfully obtains a TRO that enjoins the effect of the cancellation while the rescission is considered IN EQUITY, all within 20 days from the creditor’s receipt of the rescission notice, you are probably right.

That might be what Ailito meant by “Houdini” in oral argument.

You said:

“Thus, the security interest might go away, but the lender will refuse to release the lien on the property until the borrower has tendered.”

If the security interest goes away, the lien goes away with it. Of course, that doesn’t cure the cloud on the borrower’s title. But, I understand your point, the borrower will still have to file suit to remove it.

You said:

“It seems to me that the technicalities you like get buried in the equity nature of the matter which the court always works out.”

Well, Bob, it’s all technicalities these days! I mean, how about that UCC for technicalities?

Seriously, I agree with you, but the court must first be able to act in its equitable jurisdiction for the things you say will happen to happen.

For that, it needs a case or controversy, a justiciable issue and must show it has been damaged. I believe the only way the lender can make that happen is if it gets in court within the 20 days and gets the court to issue a TRO and then a preliminary injuction that basically reverses both the cancellation of the security interest and nullifies the provision in TILA that the borrower is not liable on the note, at least during the course of the proceeding. Only that will give the court the kind of equitable jurisdiction to do what you say. Failing that, most lenders will not be able to show they have a case or controversy, a justiciable issue or that they have been damaged.

You said:

“I imagine state and federal appellate records have numerous opinions dealing with how the courts work out lender recalcitrance in responding to actual TILA violations leading to rescission.”

If I do come across any I will certainly get them to you. However, I’m more into TILA rescission these days rather than the damages end.

You said:

“I’d like to know how and to what extent the cours punish such lenders for not tendering and not rebutting within 20 days.”

I think in the future you will see at least some courts punish them by pointing out to them they have knowingly relinquished their right to the borrower’s tender under TILA (waiver). What follows from that will be even more interesting.

When one decides not to take the legal remedy available to them, can it be said that they have no adequate remedy at law, a pre-requisite to equitable jurisdiction in the first place?

If the answer is no, the lender will not be able to get all those goodies the cases you have cited show they can get that will invariably end in the borrower losing his house.

If the answer is no, the lender will be left only with the borrower’s cancellation and the court’s declaration that the loan was cancelled by the borrower (I believe such a declaratory relief action by the borrower is purely legal, not equitable).

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bobhurt, on May 9, 2015 at 11:40 pm said:

Dwight:

“The lender loses the house as a result of one non-compliance. Thats the law, 20 days failure to accept ..bam , its over, they lose.”

I consider myself a student, willing to learn. SHOW ME CASE LAW supporting that contention over the past 20 years.

Quoting Livinglies’s Weblog :

> DwightNJ commented: “Bob Hurt … In order for you to be able to accept > the truth about TILA and Reg Z. … you’re going to have to first come > to terms with the fact that it was written as a protection for borrowers > …yes .. borrowers. Since you show a propensity to worr” > >

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bobhurt, on May 9, 2015 at 11:18 pm said:

Rod:

“However, under any type of rescission, whether it be common law, comprised of legal (contract) or equitable rescission, or statutory rescission, the end result is the same – cancellation, nullification, abrogation, etc., of the contract.”

You seem to keep ignoring the GRAND QUALIFIER to rescission – the legal basis for it lies in undisputed TILA violation COUPLED with lender’s receipt of proper notice. I have pointed out that in most cases of TILA rescission efforts, the lender disputes it with good reason. That means cancellation (rescission) did not occur in those cases, in spite of the borrower’s effort to force it to occur. The borrower might have intended it, but it just didn’t happen. So your arguments do not apply to such instances. And the borrower ends up going to foreclosure and losing the house for having a bozo misunderstanding of the law.

Then, in some rare instances, the lender does not dispute, and embraces the rescission without court action. I don’t know of any such instances, but why would I, since they never go to court? And I imagine those happened early on when the borrower had an abovewater loan and either sold the house or refinanced it in order to tender back to the lender. For you see, both parties must tender after cancellation, and both must do a workout if the borrower cannot tender.

Remaining cases have a valid rescission effort, where the borrower did everything right, but the lender ignores it OR the borrower cannot tender and cannot work it out with the lender. Now the matter must go to court because even though the borrower rescinded (canceled) the loan, the borrower and lender still owe each other money. The court can order the lender to tender, but once the lender tenders (through the court or an attorney), now the court will order the borrower to tender, and if the borrower cannot or will not do it, and cannot sell or refinance the house to raise the tender money, the court will order a workout between the parties. In such a case, the borrower will nearly always lose the house because of inability to sell it for enough cash to tender, and the lender will end up with it, leaving the borrower with a deficiency judgment.

Thus, the security interest might go away, but the lender will refuse to release the lien on the property until the borrower has tendered. The court will have involvement and determine how everything works out.

It seems to me that the technicalities you like get buried in the equity nature of the matter which the court always works out. I imagine state and federal appellate records have numerous opinions dealing with how the courts work out lender recalcitrance in responding to actual TILA violations leading to rescission. I shall appreciate any you dig up. I’d like to know how and to what extent the cours punish such lenders for not tendering and not rebutting within 20 days.

Quoting Livinglies’s Weblog :

> rciferri commented: “@bobhurt You said: “Rescission has a LEGAL meaning > in CONTRACT LAW and TILA LAW and REGULATIONS, particularly with respect > to the unwinding process.” Bob, I understand that your position, and > that of Rock, is that common law rescission as inextri” > >

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DwightNJ, on May 9, 2015 at 4:46 pm said:

**** ATTENTION ** BREAKING NEWS ** ATTENTION ****

MEMORIAL DAY WEEKEND *** WRESTLING MATCH

STEEL CAGE “RESCISSION MATCH” TAG-TEAM CHAMPIONSHIP

THE ROCK. & BOB HURT
(SPONSORED BY WELLS FARGO BANK, N.A.)

VS.

RCIFERRI & DWIGHT
(BORROWERS CHAMPIONS)

MEMORIAL DAY BEACH BASH AT THE JERSEY SHORE

PROFESSIONAL WRESTLING STEEL CAGE MATCH

SPECIAL RULES: RESCISSION MATCH
(A TABLE WILL BE SET UP NEXT TO RING, A RESCISSION NOTICE AND A PEN WILL BE PLACED ON THE TABLE … LOSING TEAM MUST SIGN THE RESCISSION NOTICE AND ASK THAT THE MATCH BE STOPPED. EXAMPLE: IF ROCK OR BOB HURT SIGNS THE RESCISSION NOTICE, THEY LOSE THE MATCH UPON SIGNING THE NOTICE .. THE SLAP DOWN AND SPANKING THEY ARE RECIEVING MUST STOP AND A CAB WILL BE CALLED WITHIN 20 MINS TO RETURN THEM TO THEIR MOTEL.

SPECIAL GUEST REFEREE – JUSTICE SCALIA

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DwightNJ, on May 9, 2015 at 3:56 pm said:

Bob Hurt … In order for you to be able to accept the truth about TILA and Reg Z. … you’re going to have to first come to terms with the fact that it was written as a protection for borrowers …yes .. borrowers.

Since you show a propensity to worry about the lenders plight in all of your posts , this could point out why you’re having a hard time with the spirit and harshness of TILA Rescission as it pertains to lenders. The lawmakers were not concerned with the lenders plight when they wrote the plain language of the Act .. They wrote what they meant, and they meant what they wrote. This was in response to the criminal behavior shown by the lenders in prior circumstances.

So when you lament over “the poor lenders” getting taken advantage of by “all you big bad lying dishonest borrowers looking for free houses” you’re cries of “foul” .. “not fair” .. “The sky is falling on the lenders” .. you are only showing that you fail to comprehend the spirit of the Act.

Yes the Act deals harshly towards lenders …the Act mandates that the borrower retain the property with no further obligations ..yes, the Act gives the borrower the free house ..its written in black letters of the law. If it gives a free house after the lender fails to accept your offer ..why is it such a stretch to believe the lender loses its remedies if they fail to respond to the rescission notice in the first 20 days?

The lender loses the house as a result of one non-compliance.
Thats the law, 20 days failure to accept ..bam , its over, they lose.

So it shows they weren’t messing around, they didn’t feel bad about the lender needing to respond within 20 day time periods ..they either act within the 20 day periods, or the lose. The plain language is clear and its tough on lenders ..because it was written as a protection for borrowers. I can’t break it down in simpler form for you to understand.

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DwightNJ, on May 9, 2015 at 9:36 am said:

Bob Hurt … Justice Scalia shot down your theory that the 20 days has no meaning and is irrelevant when he addressed that argument that was put forth by the lender during oral arguments … Scalia wrote that the effectiveness of rescission has nothing to do with whether the parties agree or disagree , he points out that the statute is clear in its plain language that the rescission happens with the mailing of the notice , there is nothing in the language of the statute that leaves any doubts. He dismissed the contention that if the lender disagrees it thereby makes the rescission ineffective. Didn’t you read that part?

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rciferri, on May 9, 2015 at 2:49 am said:

@bobhurt

You said:

“Rescission has a LEGAL meaning in CONTRACT LAW and TILA LAW and REGULATIONS, particularly with respect to the unwinding process.”

Bob, I understand that your position, and that of Rock, is that common law rescission as inextricably entwined with TILA rescission and, most particularly, so is the process that must be taken in order to complete rescission.

However, under any type of rescission, whether it be common law, comprised of legal (contract) or equitable rescission, or statutory rescission, the end result is the same – cancellation, nullification, abrogation, etc., of the contract.

The words describing that end result of cancellation also happen to be the words from the ordinary dictionary meaning of rescission.

It is that ordinary dictionary meaning that is the meaning of the word “rescission”, as used in TILA. Smith v. United States, 508 U.S. 223, 228 (1993) (“When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.”)

I notice you don’t mention my citation to the Smith case, however, if you haven’t already, I suggest you read it. Or, if you have read it, maybe it didn’t impress you very much.

How about this one: Perrin v. United States, 444 U.S. 37 (1979).

Perrin was charged with violating a federal criminal statute prohibiting the bribery of private employees. At issue in Perrin was the meaning of the word “bribery” as used in a federal criminal statute. The government contended that the word should be defined by its common law meaning, which only contemplated bribery of public officials. SCOTUS disagreed, explaining that the federal statute in issue did not define the term “bribery”.

Because of that, SCOTUS turned to the “fundamental canon of statutory construction…that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). That’s how SCOTUS deals with arguments that contend the common law applies unless the statute says otherwise.

I gave you the cases, I gave you the definitions, so why do you still insist that the “rescission” as used in TILA should have a common law meaning? I haven’t found a definition anywhere in TILA or Regulation z of the word “rescission” (if I’ve overlooked it, please point out where it is).

When the statute doesn’t define the term used, the ordinary meaning of the word must be used – even if the term has a legal meaning, like rescission or bribery. That’s mandatory authority from SCOTUS. EVERY court must follow it, not just some circuits, as you suggest with regard to the authoritative effect of Jesinoski.

If your definition of rescission was the one intended by Congress in TILA, SCOTUS wouldn’t have decided Jesinoski the way it did. It would have agreed with you and the other courts.

I understand you don’t believe Jesinoski is mandatory authority that TILA rescission is effected by notice because you think its dicta. I’ve given my arguments about why I don’t think it’s dicta, so I won’t re-state them here. However, even if it’s dicta, lower courts should shake in their boots about it, because (as you may know from case law) its entitled to great deference.

You said:

“The trial and appellate courts ALL use Black’s Law Dictionary whenever it suits them; you betray your and your clients’ interests when you make excuses about not using it.”

See above.

I believe I’m betraying my client’s interests when I refuse to follow SCOTUS precedent requiring a word that is not defined in a statute to be defined in its ordinary meaning by nonetheless defining it in its legal meaning, as you suggest.

You said:

“TILA rescission – that it doesn’t get over with till both parties have made one another whole, as their condition before the loan.”

The end result of any type of rescission of a loan is cancellation of the loan. Because TILA rescission is not common law rescission, the made whole rule doesn’t apply as part of the TILA rescission process itself which starts and ends with the borrower’s notice.

Sorry, Bob, I know that offends certain principles you hold dear, but, nonetheless, it is the law. It is the law because TILA rescission is not common law rescission, rather, it is a statutory rescission of a particular kind. It is a particular statutory rescission that cancels the loan immediately upon notice without requiring the simultaneous tender by the borrower.

The very purpose of a statute is to abrogate the common law or to fill a void in the common law. That’s what TILA rescission did to common law rescission – it abrogated it. That’s what Jesinoski said. Thats why lenders lawyers are telling their clients rescission is completed by notice in the wake of Jesinoski. Talk about a disservice to clients, I believe it would be malpractice for lenders attorneys to not so advise their clients of that import of Jesinoski.

You said:

“Thus, borrowers who wait 3 years to rescind generally intend to flimflam the lender, and their subsequent failure to make payments confirms that fact because NOBODY with common sense will throw caution to the wind and quit paying on the OFF chance a bogus rescission will stick.”

It’s not common sense that governs TILA rescission, as you no doubt can tell from the oral arguments; it is the considered decisions of the courts that govern what TILA rescission is or is not. And the highest court that EVERY court must follow has simply disagreed with the great majority of the inferior courts about the matter.

You said:

“They want to cheat the bank and get a free house, or as free a house as possible.”

Well, if Congress views that as undesirable, they should change the law and the courts will change accordingly.

You said:

“Rock has shown you the TILA AND Regulation Z discussion of court involvement in the rescission effort. Why do you continue to resist it?”

What Rock posted still applies in certain situations post-Jesinoski. It really just codifies the powers that a court of equitable jurisdiction has if it proceeds under the last sentence of Section 1635(b).

Why do you still resist that “except when otherwise ordered by a court” is preceded by “The procedures prescribed by this subsection shall apply”? That’s the 20 day time limit that applies, unless the lender gets to court in time to get a TRO.

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bobhurt, on May 9, 2015 at 12:25 am said:

“The lawmakers clearly wrote 20 days for the lender to comply.”

Dwight:

That only applies IF THE LENDER CANNOT PROVE the violation did not occur or that he did not receive a proper notice of rescission. MOST of the time the lender CAN prove he did not violate TILA because he has proof in the form of a receipt from the borrower for the requisite TILA disclosures, or he has a letter from the borrower that does not constitute a proper notice of rescission. And therefore the 20 days has no relevance.

Furthermore, NO LAW penalizes failure to rebut within 20 days. Also, it makes no sense for the lender to waste money in a legal action that he does not need to take.

Here’s what I consider REALLY STUPID. Sending a TILA Rescission Notice without mentioning rescission in it or after the 3 year limit, or without obtaining proof of the lender having received it, or after having received a COPY of the signed acknowledgment of receipt of the TILA Disclosures, or after having received the requisite disclosures, and failing to continue to make mortgage payments. ALL OF THOSE seem STUPID because they will cause the TILA Rescission effort to fail. And of course, the lender will foreclose.

Quoting Livinglies’s Weblog :

> DwightNJ commented: “The transcripts of the Jesinoski oral arguments are > misleading because the hypothetical question put forth was answered by > people without full knowledge of what the correct answer should have > been, it was full of conjecture and assumptions. I belive it wa” > >

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bobhurt, on May 9, 2015 at 12:17 am said:

Dwight:

“Since the security instrument is effectively void upon the mailing of the rescission notice … and combined with the running of the 20 days for lender to comply and seek the tender relief prescribed in the Act …It leaves the lender choosing a different path to remedy outside of the Act…Foreclosure should be barred due to the fact the instrument is void …”

You keep ignoring the reality that mANY if not MOST borrowers who try to rescind have lied about not receiving the requisite disclosures, or cannot tender, for a variety of reasons. You keep pretending that the borrower need not tender, and that the lender must tender even though the lender does not agree with the borrower’s claim that a TILA violation occurred.

Also, even though TILA relieves the borrower of certain constraints in a VALID rescission effort, that does not void the note or mortgage, both of which have numerous other provisions and functions regarding the relationship of the parties. And WHO DO YOU SUPPOSE will resolve any dispute between the parties as to enforcement of provisions, or applicability of law to the contract? The COURT, of course.

INEVITABILITY, the court must become involved in order to manage such issues as the borrower’s inability to tender, the necessity of selling or refinancing the house to raise the tender money, the amount each party must tender, costs of the action, and most importantly, whether or not the lender violated TILA and timely received a VALID corresponding RESCISSION NOTICE from the borrower.

Furthermore, if the borrower stops paying and the lender disagrees with the TILA violation allegation in the rescission letter, the lender will foreclose, and that will take the parties to court, whereupon the borrower will raise TILA rescission as an affirmative defense, or wherein the borrower will seek a TOR to stop the foreclosure and work out a setoff or mutual tender for the violation.

Eventually, Dwight, you will realize that your TILA rescission did not constitute an excercise in prudence, and your misunderstanding of the law and how rescission works has opened a Pandora’s Box of troubles that you could have avoided had you hired a competent professional litigation consultant to examine your mortgage, find ALL the causes of action, and then had you mounted a proper mortgage attack in which you demanded setoffs for the TILA violation, among other things.

You should have hired a competent contract attorney or tort attorney to help you beat up the bank, but you didn’t. Now you face the distinct possiblity of losing your home.

ARGUING AGAINST what the law and regulations and case law plainly say will not help you, Dwight. Have you bothered reading the MortgageAttack.com web site? YOu might find it instructive.

Quoting Livinglies’s Weblog :

> DwightNJ commented: “Since the security instrument is effectively void > upon the mailing of the rescission notice … and combined with the > running of the 20 days for lender to comply and seek the tender relief > prescribed in the Act … It leaves the lender choosing a diffe” > >

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bobhurt, on May 8, 2015 at 11:59 pm said:

Dwight:

Nothing prevents the borrower from demanding copies of the documents at closing, or from demanding preparation of triplicate signing documents prior to closing, as a condition of closing. Nothing prevents the borrower from requiring a contract to borrow and lend, detailing all of these points at the time of applying for a loan, and refusing to go to closing till the lender has signed that contract. In fact, that’s the way people do real estate financing agreements in the UK.

It just seems to save so much time doing it the American way, but of course, the American way was designed for borrowers with common sense and a modicum of knowledge of financing and contracts. It isn’t the lender’s fault that borrowers go into the transaction like rank amateurs.

Rod:

Rescission has a LEGAL meaning in CONTRACT LAW and TILA LAW and REGULATIONS, particularly with respect to the unwinding process. When neither party has performed an action under a contract, then rescission becomes a simple matter of cancelation and walk away. But you don’t walk away when you owe money to the other party. You unwind.

You look up legal terms in Black’s Law Dictionary BECAUSE it cites binding court rulings, where possible, about the meaning of the terms. The trial and appellate courts ALL use Black’s Law Dictionary whenever it suits them; you betray your and your clients’ interests when you make excuses about not using it.

Throughout our discussion, you seem to keep wiggling and squirming to avoid the obvious realities of TILA rescission – that it doesn’t get over with till both parties have made one another whole, as their condition before the loan. Eventually you will conclude that inability to tender, along with unwillingness of the lender to accept the house as tender, will drive the borrower into foreclosure and bankruptcy and loss of the house. Why? Because a loan CANNOT BE CANCELED unless the parties return one another’s money. At best the borrower who cannot tender can hope for the court to order setoffs in the loan consistent with the injuries to the borrower for failure of the lender to tender upon receipt of the valid notice of rescission. But if that notice lacks validity, the lender rightly should reject it and not waste his money initiating an action to rebut it.

Remember that FEW borrowers rescind at the three year limit out of rank ignorance about not having received requisite disclosures. They generally figure that out about the time they decide to stop making mortgage payments. And most of them have received disclosures in spite of their insistence that they did not.

Thus, borrowers who wait 3 years to rescind generally intend to flimflam the lender, and their subsequent failure to make payments confirms that fact because NOBODY with common sense will throw caution to the wind and quit paying on the OFF chance a bogus rescission will stick. And FEW borrowers have the money to rescind. And FEW borrowers have an abovewater loan at the time they decide to sue for rescission, so they cannot sell or refi to get the money for a rescission. In other words, borrowers who sleep on their rights generally have flimflam in mind, IMO. They want to cheat the bank and get a free house, or as free a house as possible.

But hey, who can blame them with all the predatory lending, lies about house values, mortgage fraud, etc going around?

I just mean to point out that the borrower’s crookedness usually comes back to blow up in his face.

Rock has shown you the TILA AND Regulation Z discussion of court involvement in the rescission effort. Why do you continue to resist it?

Quoting Livinglies’s Weblog :

> DwightNJ commented: “Regarding rciferri’s last comment … IF the > servicer as PETE eventually files an action (but NOT a foreclosure > complaint, because the security instrument is already void at the time > they file the foreclosure), their action would be based on them showing ” > >

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DwightNJ, on May 8, 2015 at 6:20 pm said:

The transcripts of the Jesinoski oral arguments are misleading because the hypothetical question put forth was answered by people without full knowledge of what the correct answer should have been, it was full of conjecture and assumptions. I belive it was Kennedy who proposed the “What if ..” scenario when he asked what if the lender didn’t believe there really was any TILA violation, they could just sit back and do nothing? …. The 2 people responding obviously did not know the correct answer to his question, so they just agreed with him saying “thats right” .. Lol. … You see how people are apt to say things without really knowing the correct answer?

The lawmakers clearly wrote 20 days for the lender to comply.

So the correct response to Kennedy’s question should have been …
“Well that’s a good question that might require some more clarity in light of the years of misunderstanding of the way this Act has been wrongly perceived thus far .. and Justice Kennedy, I would draw your attention to the Acts stipulation that the lender comply within 20 days, so in order for them to either challenge the rescission, or for them to seek the relief of the tender , either way it might be construed that their remedies are time-barred after the 20 days written into the statute.”

The 20 days must have some meaning and force behind it, otherwise it is meaningless and irrelevant.

There are only 4 definitive time references mentioned in the Act.

1) 3 days or 3 years to rescind.

2) 20 days for lender to comply, return money, note, mortgage.

3) 20 days for lender to accept your offer, or they lose everything.

4) 1 year for borrower to file suit seeking to enforce rescission. This is not pertaining to the actual rescission effect that voided the mortgage. This is regarding the borrower wanting to collect their monies and the possible monetary damages for violations.
This is all about the borrower / consumer taking advantage of his right to collect the payments and/or damages due to him.

If the borrower waives this 1-year right to file suit, they end up with only the void contract and no monies returned. They retain the property but cannot sue to collect the payments or damages after 1-year.

The lender clearly has been given only 20 days to either challenge or comply in order to seek relief or remedies.

Remember …this was written to favor the consumers.

If the lawmakers thought that it would be okay for lenders to sit back and ignore the rescission , they would have stipulated a time-frame for those lenders to act, by requiring they too need to file in 1-year to challenge a rescission …but the act does not state such a thing. It clearly states a 20 day window for the lenders. That is it, in black and white, easy to understand. Lender gets 20 days, period.

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DwightNJ, on May 8, 2015 at 4:26 pm said:

Since the security instrument is effectively void upon the mailing of the rescission notice … and combined with the running of the 20 days for lender to comply and seek the tender relief prescribed in the Act …

It leaves the lender choosing a different path to remedy outside of the Act…

Foreclosure should be barred due to the fact the instrument is void ..

The Purpose of working within the prescribed steps of the Act was to put both parties back AS CLOSE AS POSSIBLE to their original positions….

“As close as possible” …means the homeowner should not lose his house due to a short-fall of tender .. if the house is underwater then the amount it can be refinanced for should suffice , the lender needs to bear the brunt of the short-fall …

Or … If the borrower is agreeable to trading the property back to the lender and walking away with the extra equity paid by the lender to the borrower ..it can be offered …if after 20 days the lender fails to accept your offer , you may keep the property with no further obligation.

The lawmakers did not seem to be worried about the plight of the lenders ..their first priority seemed to be that of the consumer. Which leads me to believe when they wrote “as close as possible” they knew the lenders could come out on the short end of the stick.

But there is no way those lawmakers ever dreamed the lenders and courts would later conspire to steal the property thru foreclosure, and leave the borrowers with nothing.

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DwightNJ, on May 8, 2015 at 1:13 pm said:

Regarding rciferri’s last comment … IF the servicer as PETE eventually files an action (but NOT a foreclosure complaint, because the security instrument is already void at the time they file the foreclosure), their action would be based on them showing a evidence of the signed documents from closing, where the borrowers signed a paper stating that they had received their notices of Right To Cancel. But, as TILA explains, such an assertion is a mere Rebuttable Presumption which is rebutted and denied by the borrowers own testimony and/or affidavit. Meaning that the purported signed document alone does not establish if the borrowers did actually receive their 2 filled-out copies of the notices for their own records. It is not enough that the lender has a copy of anything in their own records, the law states that the borrowers must have 2 sets of copies given to them by the lender, and that those copies must be filled-out by the lender with the dates.

So a different document in the lenders file does not really prove that the lender or its mobile notary they used for closing, did, if in fact give the borrowers their copies. Since a borrower at closing is instructed to sign and initial multiple pages of many documents, the borrower is at the mercy of the lender or mobile notary to then go make copies at a copy machine outside of their presence and return to the room where the borrowers are waiting for their copies, and the borrower would have no way of knowing or controlling exactly what copies were due them. The borrowers rely on the lender or mobile notary to sort through the pile of documents and put together “the closing documents” that the borrower walks away with. The lender or mobile notary can easily exclude giving the proper Right to Cancel forms and the borrower would never know it, yet they were tricked into signing a form earlier that stated they had received them. This shows the lack of a real professional business model used by lenders, where they first ask you to sign documents while telling you that “you will receive copies of all of these things you are signing” , it’s bush league and leaves open the room for abuses by those controlling the documents.

When I purchased a king sized mattress and boxspring set of bedding at a retailer, the cost being under 2,000.00 , the transaction was done in a professional way. Since there was a contract which included a warranty and other customer rights pertaining to cancellation and or returns and exchanges, the forms we signed were in triple carbon, where the top original was the white copy with the wet ink signature and on the bottom of the page said “original store copy”, the 2nd page of the triple form was pink and showed “Customer copy of original document”, and the 3rd copy was yellow and showed “Delivery/warehouse copy of original document” … the triple carbon copy form document is the only way to ensure that both parties are getting the same exact document.

But here, where the borrowers are making a 250,000 transaction and signing documents that are out of their control, relying on the honesty and integrity of the lender or notary, it opens up the door for abuse. Why would a lender even ask you to sign a document stating that you had received some other document? This alone raises red flags, its as if they know they are building a layer of cover that protects them from some accusation of wrong-doing in the future. They only do this with the TILA mandated disclosure regarding Notice of Right to Rescind?

Why are they only asking you to sign a separate document for that? Why not put a proper business model into practice that guarantees that the proof exists that the borrowers received their 2 copies each?

It appears that the lenders deliberately kept the disclosures out of the closing papers given to the borrowers. And the lenders knew they had the signed docs that stated the borrowers had received the docs. It very simple to pull off when so many papers are being shuffled across a closing table, and then the lender walks away with the papers telling you that they “need to go make copies” , the borrower has no way of knowing what copies are due to them.

There should be a mandated “check list” that is required at all closings, where both parties have to sign as each required document is given to the borrower. As the borrower receives his copies, he signs next to that designated step of the check list.

So the banks will now come to court showing that they had the borrower sign a doc which states the borrower received his Right To Rescind Notice … but that doesn’t really prove that the borrower was actually given those notices. It’s a bush league tactic, something that isn’t even used in buying a used car or a mattress set , nobody in business uses such a stupid, backwards, sneaky model of showing that the customer received their proper paperwork. Leave it to the banks to use such a low level, underhanded tactic. 99.9% of consumers are at the mercy of the lenders and rely on them to be honest in regards to giving all the proper disclosures. Consumers are not sure of what they are due , they are easy marks for abuse and trickery at the closing table. Having them sign a form saying that they “received some other form” is unheard of in normal business practice. There are ways in which to guarantee the borrower has received their copies , but the lenders don’t use these methods. They don’t want the borrowers going home with a “Right To Rescind” form in their possession .. the lender does not want the borrower to get cold feet and cancel … most sales professionals will tell you that a large percentage of customers of big ticket items go home and think their way out of the deal .. customers get nervous and kill deals all the time for no reason ..other than just being nervous about making big money decisions. The lenders know this, and they don’t want the borrower laying awake in bed reading his “Right To Rescind” notice. This is why they probably “forget” to include it in your documents, and it explains why they have you sign a different document stating you received it. There is no reason to have a separate document saying you received it, its not even a normal way of doing business .. but it does show that the lender is up to no good, it shows bad intent, trickery .. to even have such a document .. its their “cover” for violating TILA.

So when there’s a stand-off like this .. “he said – she said” … the courts are most likely to side with the lender, what else is new? But it’s a bush league tactic and shows bad intent on the lenders part, having you sign documents that say “you received other documents” .. what kind of game are we playing here? This isn’t how you conduct business. The real way to conduct business is to have a check list on the closing table where each item gets signed as it is delivered to the borrower. The borrower and the lender both have to sign on the check list next to each item as it is delivered to the borrower. The banks are full of abuse and trickery , and during the height of the abuse they were cattle calling the borrowers thru their pens one after the other , committing all kinds of violations ..changing applications incomes .. appraisals … APR … closing costs … pretender lender table funded closings that were happening so fast and at such a massive pace and abuse .. so much money to be made .. they had no time for nervous borrowers going home reading rescission rights notices .. the lenders most likely instructed all closing agents to “forget” to include the Notices in the package handed to the “stupid borrowers”.

So how does all this lead to “Discovery” ??? Does this argument by the borrower lead to issues of material fact that need to be tried? Does this open the door for the borrower to challenge whether a valid closing ever really took place ? If the lender resorted to trickery and deception in giving you simple copies of your required docs , did the lender also trick you in regards to who actually funded the loan? Who actually owns the loan now? All we have right now is somebody in court waving around a “Note” saying they are the “Holder” .. and they as Holder is entitled to enforce it .. and they have a document signed by borrower that states “they received some other document” … ???

Will this be enough?

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rciferri, on May 8, 2015 at 10:54 am said:

@Rock

You give a definition of rescission from a legal dictionary. You ignore the law that, where a statute does not define a term, the common meaning of the term is intended. Smith v. United States, 508 U.S. 223, 228 (1993) (“When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.”)

The common meaning of the term is found in a common dictionary, not a legal dictionary.

From the Oxford Advanced Learner’s Dictionary (“King’s English”):

Rescission “The revocation, cancellation, or repeal of a law, order, or agreement…”

In a unilateral rescission, the above describes, what can only be, in the context of TILA, a completed act.

The Jesinoski Court said: “To the extent § 1635(b) alters the traditional process for unwinding such a UNILATERALLY RESCINDED transaction, this is simply a case in which statutory law modifies common-law practice.”

It is clear from the sentence above that SCOTUS believes the rescission has already happened in Jesinoski’s case. That shows how TILA rescission is different from common law unilateral legal rescission, which requires the rescinding party to simultaneously tender for the completed rescission to be effective. In changing common law unilateral legal rescission thus, Congress eliminated the need for simultaneous tender and all we are left with upon the rescinding party’s notice is cancellation of the loan.

At that point, the burden is on the non-rescinding party to either start the process of unwinding described in Section 1635(b) or to sue in equity to set aside the already completed rescission.

Technically, they cannot use the mortgage/deed of trust to establish their standing to sue, because the rescission has been completed and the same is now void under Section 1635(b). If they are a PETE in relation to the note, they are entitled to enforce it. However, how can they enforce the note against the borrower if, by the terms of the statute, no charge is then due and owing from the borrower under the note?

To do that, I believe they must produce some evidence unrelated to the mortgage/deed of trust and the note that shows a debt is owed to them.

If they produce such evidence, they can successfully invoke the court’s equitable jurisdiction, and, if they prove the borrower received all required notices, the court may determine that the borrower never had the right to TILA rescission in the first instance and may then set it aside.

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Shadowcat, on May 8, 2015 at 10:34 am said:

I Love a Good Debate!

Rocks On.
Many Blessings to All!

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Rock, on May 8, 2015 at 6:55 am said:

“In contract law, rescission has been defined as the unmaking of a contract between parties. Rescission is the unwinding of a transaction. This is done to bring the parties, as far as possible, back to the position in which they were before they entered into a contract.”

This is why the law mandates unwinding procedures in the second, third, and fourth sentences of section 1635(b).

“The definition of rescission in the dictionary is the ACT of rescinding. Other definition of rescission is the right to have a contract set aside if it has been entered into mistakenly, as a result of misrepresentation, undue influence, etc.” http://lexbook.net/en/rescission

Come on dupes, how many different ways does it need to be explained before these scammers give up trying to mislead you?

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Shadowcat, on May 7, 2015 at 9:40 pm said:

Drum Roll Please!
Rocks on a Roll

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Rock, on May 7, 2015 at 5:24 pm said:

12 CFR Part 1026 (Regulation Z)

Paragraph 23(d)(4)

1. MODIFICATIONS.The procedures outlined in § 1026.23(d)(2) and (3) may be modified by a court. For example, when a consumer is in bankruptcy proceedings and prohibited from returning anything to the creditor, or when the equities dictate, a modification might be made. The sequence of procedures under § 1026.23(d)(2) and (3), or a court’s modification of those procedures under § 1026.23(d)(4), does not affect a consumer’s substantive right to rescind and to have the loan amount adjusted accordingly. WHERE THE CONSUMER’S RIGHT TO RESCIND IS CONTESTED BY THE CREDITOR, A COURT WOULD NORMALLY DETERMINE WHETHER THE CONSUMER HAS A RIGHT TO RESCIND AND DETERMINE THE AMOUNTS OWED BEFORE ESTABLISHING THE PROCEDURES FOR THE PARTIES TO TENDER ANY MONEY OR PROPERTY.

A consumer’s RIGHT to rescind is not a rescission! This is the law–deal with it!

Dupes keep listening to the scammers and take their senseless arguments to court, and get spanked just like Dwight and Leah, and everyone else who’ve argued their nonsense, post Jesinoski.

OH, almost forgot, corrupt judges are just stealing homes.

But, homeowners who attack the mortgage transaction are getting free homes, every conceivable settlement offer; and the same corrupt judges are awarding millions to some homeowners who attack the contract. Those are the facts–deal with it!

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rciferri, on May 7, 2015 at 2:22 pm said:

@Rock

Just keep pounding the table, Rock!

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Shadowcat, on May 7, 2015 at 2:19 pm said:

hahahaha
I hope she had her big girl pants on…shit gets deep here.

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Rock, on May 7, 2015 at 2:10 pm said:

rciferri, one of our secretaries just wet her pants, kinda like you do everytime you’re proven wrong, and start to contradict yourself.

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rciferri, on May 7, 2015 at 12:50 pm said:

@Rock

You said:

“Bob, here is an exchange at oral argument:”

First of all, the 20 day period under Section 1635 was not under review in Jesinoski and is not relevant to your primary contention regarding TILA rescission – that the notice itself doesn’t cancel the loan.

Second, you continue to post oral argument that essentially means nothing except that it explains the reasoning process leading up to the Jesinoski decision. The decision is the law. The oral argument isn’t.

Yet, with that said, if you want to play that game, I’m in.

Goldenberg also said this at oral argument:

“I don’t think the unwinding procedures are rescission. What follows from rescission is a common law process of restitution under this statute, the restitutionary procedures of Section 1635(b), but I think THE EXERCISE OF THE RIGHT TO RESCISSION AMOUNTS TO RESCISSION. I agree with what Mr. Frederick said, that the definition of rescission is annulment, abrogation, cancellation of the contract…Section 1635(b) says in its first sentence: “When an obligor exercises his right to rescind under Subsection (a), then the security interest becomes void upon such a rescission.” SO IT’S TREATING THE EXERCISE OF THE RIGHT TO RESCIND AS THE RESCISSION.”

Ms. Goldenberg understands that, since TILA provides no definition of the word “rescission”, the word should be given its ordinary or common meaning by the courts (unilateral cancellation), rather than a purely legal definition (common law mutual equitable rescission).

Neither you, nor the rest of the Jesinoski Deniers understand that.

Now, that’s a far cry from the contention you’ve been making that ALL counsels participating in Jesinoski at the Supreme Court agree with your view that the actual cancellation doesn’t occur until the end of a common law like process of determination of whether or not the rescission right was properly executed, tender, etc.

You said:

“Then you have Jesinoski’s appellate counsel explaining how the process works in a judicial and nonjudicial states; exactly the way we’ve been explaining it.”

Which also wasn’t an issue brought to the court for its determination and ends this way:

“JUSTICE SOTOMAYOR: Mr. Frederick, does your
argument depend on us agreeing with the proposition that
the rescission is completed at the time the notice is set?

MR. FREDERICK: I think that it no, but it does depend on accepting the idea that rescission is just cancellation. And then if restitution occurs, which are all the (b) procedures, those are going to happen after the cancellation.”

Like Goldenberg’s comment on the 20 day period that you like to repeatedly post, Frederick’s commentary about how things would shake out AFTER rescission was not a point raised or considered by SCOTUS in its Jesinoski decision.

You said:

“I’ll make it easy, anyone who is hurting homeowners by posting false legal advice and misinformation that causes homeowners to lose their homes belong in jail, and if I can make that happen I will!”

I just assume people are intelligent enough here that they will run a mile away from your bogus TILA rescission analysis, so I can’t say the feeling is mutual.

Also, Rock, there is no crime for stubbornly refusing to give up on your stupid legal arguments. If there were, you would have been in jail by now.

Lastly, this is just another example of your consistent modus operandi of bullying to win an argument, due to the fact that you can’t win it based on your comprehension, reasoning and writing skills.

You said:

“BTW Bob, you have my permission to explain to scammer/nitwit rciferri, why he really wouldn’t want to meet me “face to face and toe to toe.”

As if it weren’t crystal clear that you are a coward (people who talk big and can’t back it up), you hide behind Bob instead of confronting me directly. I told you before that I will give you the opportunity to make good on your veiled threats. You didn’t take the opportunity. The offer is still there. If you want to settle this like a man, I’ll be happy to accommodate you. I think it would be a lot of fun!

Unfortunately, you and I both know you won’t. Because cowards don’t do things like that. Instead, they talk all big and puffed out, yell and scream in the hopes that the person they direct their vitriol at won’t see through the bravado and determine they are a coward.

It didn’t work with me Rock.

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E. ToLLe, on May 7, 2015 at 10:11 am said:

“I’ll make it easy, anyone who is hurting homeowners by posting false legal advice and misinformation that causes homeowners to lose their homes belong in jail, and if I can make that happen I will!”

Boy you are one huge swinging dick, aren’t you? Legal advice? None. Interesting debate? Yes.

And then there’s you. What I’d give for an ignore feature on LL.

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Rock, on May 7, 2015 at 7:39 am said:

Bob, here is an exchange at oral argument:

Justice Anthony Kennedy: Suppose the bank — suppose the bank thinks that the notice of rescission is just completely baseless.

Does it still have to respond within 20 days?

Elaine J. Goldenberg: –No.

Here is the attorney for the CFPB explaining the law. The same agency who writes the Regs.

Then you have Jesinoski’s appellate counsel explaining how the process works in a judicial and nonjudicial states; exactly the way we’ve been explaining it.

Then, you have these scammer/nitwits telling their dupe/nitwits, these esteemed attorneys and the govt. agency don’t understand how rescission works.

Maybe not in Garfieldtown, but actually EVERYONE literate in the law does. And when we prove it time and time again, the scammers attack us calling us bank shills etc., etc., but when we call them what they are, scammers, legal illiterates, nitwits and dupes they’re offended.

I’ll make it easy, anyone who is hurting homeowners by posting false legal advice and misinformation that causes homeowners to lose their homes belong in jail, and if I can make that happen I will!

BTW Bob, you have my permission to explain to scammer/nitwit rciferri, why he really wouldn’t want to meet me “face to face and toe to toe.” Is there any doubt in your mind, what I’d say to him would be a hell of a lot worse in person.

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rciferri, on May 7, 2015 at 3:07 am said:

@bobhurt

Believe me, I’ve read Large. Then I read it again after Countrywide cited it several times in its losing Jesinoski brief to support a losing contention (that TILA rescission cannot be effected through notice) that was soundly, clearly and succinctly rejected by the Jesinoski Court. Then I read it again after you suggested me to.

It reads the same as it ever did: wrong about its notion that somehow TILA rescission can exist only if it is agreeable to the common law and wrong about how TILA rescission is effectuated. Its wrong on those counts because, as to those points, Jesinoski is mandatory authority to the contrary of Large’s determinations with regard to the effectiveness of TILA rescission by notice.

However, the issue of the arbitration clause is quite interesting. I believe the court got it right on that one. Even if a borrower’s notice results in the immediate cancellation of the security interest, if the loan contract is otherwise valid, the arbitration clause should bind the parties and may trump the statute regarding how the rescission can play out. The powers of the arbitrator can be akin to a court’s equitable powers, so the rules of common law equitable rescission would govern.

Yet, if the clause is being used as a path around TILA rescission, a law meant for the protection of consumers, by a party with greater bargaining power who drafted the contract, I believe the arbitration clause is voidable by the consumer as against public policy.

However, Large did not appear to have made this argument; at one point the court remarked: “In sum, “[t]he teaching of Prima Paint is that a federal court must not remove from the arbitrator consideration of a substantive challenge to a contract UNLESS there has been an independent challenge to the making of the arbitration clause itself…The Larges do not allege that Conseco engaged in illegal conduct with respect to the arbitration clause itself.”

So, I think the Large Court decided this one correctly and I envision Large’s TILA rescission occurring within the arbitration and resembling common law equitable rescission. The arbitrator would probably deny rescission to the borrower for failure to first make tender and would be right to do so.

“I promise that it will clear up much of your confusion.”

No confusion here, Bob. I admit I doubted myself in the face of cases like Large in the past. But, it always came back to the fact that TILA rescission as written is about as simple as it gets. Of course, the view I’ve held for many years has finally been vindicated by US Supreme Court. What is surprising to me, because you are such an intelligent man, is that YOUR confusion is not cleared up by reading Large, then Jesinoski, then taking note of the differences between them with regard to how TILA rescission actually was intended by Congress to operate.

Until SCOTUS overrules Jesinoski, cases that stand for the proposition that the borrower’s TILA rescission effected solely through his notice is really only the first step in a common law rescission PROCESS have NO authority.

“I hope you take your spanking by Rock gracefully, like MEN, and don’t whine about it or denigrate him.”

I don’t know Rock. I only started taking note of the blog section in Garfield’s articles recently and only started posting about a month ago. So, I don’t know what kind of contributions Rock has made on other threads; perhaps he contributed something of value there.

However, on the two threads I’ve posted to, his positive posts are greatly outnumbered by his negative posts. I understand, that internet discussions, by the nature of their remoteness to those who propound therein, brings out a kind of bravado, foolhardiness and general demeaning verbal combat that its participants would hardly do if they were face to face and toe to toe with each other. Here, on an internet forum, wearing a cloak of anonymity, Rock regularly steps over the line.

He calls some participants here hurtful names, demeans those struggling to learn, kicks those who are down, tries to win his arguments by being the bigger bully, thinks an ad hominum abusive attack is a substitute for sound legal argument and will refuse to answer questions when he knows the only answer he can give will constitute the proof that he is wrong.

Face it, Bob, “Rock of Ages” has been a bad boy. So, excuse me if your entreaty to not “denigrate” Rock may seem to have fallen on deaf ears, but it is Rock for whom it is a major challenge to write just one post that doesn’t denigrate at least one person.

Actually I’m not denigrating Rock here, I’m just describing how he behaves. Ultimately, he denigrates himself just fine; he doesn’t need any help from me in that regard. As for me, I’m actually enjoying my self sparring with Rock, so I’m certainly not whining here. However, his antics may be hurtful for others who are more sensitive than me and definitely detract from the TILA rescission discussion we are having here.

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bobhurt, on May 7, 2015 at 2:48 am said:

Rod:

I say only the holding constitutes stare decisis, and then it binds lower courts only in similar cases with similar relevant facts. The rest of the opinion constitutes /obiter dicta/ – “by the way” advisory, non-binding comments which would not have affected the holding had the court omitted it. The full opinion, including /dicta/, might bind Jesinoski’s circuit and trial courts, however.

In practice, other lower courts nearly always cede their common law power by obeying dicta, in spite of its advisory nature, for they can also obey /semble/, and they can obey /dicta/ of dissenting opinions. I consider that practice as an invitation to tyranny because of the exceedingly political nature of the higher courts and the tendency of /dicta/ to become public policy.

The holding binds all US courts dealing with the same question: Must the borrower with a qualified rescission sue within 3 years? The answer: No. That naturally gives rise as to when, then, such as “Could the borrower sue 30 years after consummation of the loan?” I answer that at the end of this comment.

We have let the conversation disintegrate to this point because of a general refusal by some to develop common sense from seeing some of the many opinions courts have already rendered about TILA and common law rescissions.

I think you want to serve the interests of mortgagors who want to bail out of a loan, without regard to the intention of the parties in their loan agreement. The intention: borrower makes timely payments in repayment of loan or forfeits the house.

I see Jesinoski as a tiny little bump. Look at the opinions in all the circuits regarding TILA rescission lawsuits within 3 years after consummation. Those have the same validity today as they had then because the Jesinosky court had only one question certified to it: must the borrower sue for rescission within 3 years? Answer: NO, for the reason given.

In all those TILA rescissions appealed, how did the circuits and the SCOTUS opine? How did the state supreme courts opine? Would they change their opinions in light of Jesinoski? I think not.

I see your dilemma as unwillingness to see bilateral tender as an essential element in any rescission, regardless of who must tender first. I have raised the issues with you several times to make the point that the court will ALWAYS require bilateral tender, and if the borrower cannot do it, which he almost always cannot after 2 or 3 years (or longer), the court will send the borrower packing, right into the arms of foreclosure (because almost all such borrowers have stopped making mortgage payments). And this remains true EVEN IF the lender actually failed to give requisite disclosures and received proper notice of rescission, with one exception:

setoffs.

When the court finds justification for the TILA rescission for which the creditor has not tendered or sued, the court can, if the borrower pleads the case properly, provide substantial setoffs from the debt, especially if the collateral house plummeted in value since the notice and the lender balked in rebutting the notice.

Example injury argument: BUT for the intransigent refusal of the lender to tender, and BUT for the lender’s insistence on foreclosing, the borrower could have tendered by selling or refinancing the property to raise the tender cash.

Now the court will probably hammer the lender with setoffs because the lender could have and should have mitigated his loss, but instead used trickery to the borrower into an impossible tender position by refusing to act within 20 days of receiving the notice of rescission.

As you have by now learned, both foreclosure and rescission have equitable natures. For that reason, no competent judge will allow a litigant to deploy the ruse of technicality or statute to perpetrate fraud, obtain unjust enrichment, or otherwise defeat an equitable outcome in an equity proceeding.

Bob Hurt

Quoting Livinglies’s Weblog :

> rciferri commented: “@bobhurt Yes. Jesinoski only had one holding. > However, as I discussed regarding dictum and stare decisis, a holding is > not the only part of an opinion that is authoritative in cases with > facts that are substantially similar. Do you disagree with t” > >

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johngault, on May 7, 2015 at 12:13 am said:

bobhurt, please do not misquote me. I never said if a lender fails to act pursuant to a borrower’s “NOTICE of rescission” (which unbelievably some here try to turn into ‘notice of intent to rescind’) that a borrower gets a free home. Disagree all you want, of course, but don’t make me defend junk I didn’t say.
I have said, and will say again since I’m here, that I believe a lender receiving a Notice of rescission who does nothing stands a big fat chance of losing the interest from the date of rescission, fair grounds for the rescission or not. As to the principal owed after rescission, courts may yet net it out squarely unless they want to punish the lender for its inaction by reducing the amt of tender of that net amt or unless a court finds it inequitable for a borrower to have to tender the amt the lender wants (the balance at the time of rescission).
But now that I think of it head on, of course the lender should have to tender first, that is, no netting of monies between each other. People calling themselves the creditor today would chew off their arms before they’d do their own ‘tender obligation’ first. imo. Well, like a rolling stone, they may have to get used to it (bd).

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bobhurt, on May 6, 2015 at 10:40 pm said:

rciferri, johngault, dwight, and others who wish a TILA rescission effort voids the contract and the borrower gets a free house:

That Hard Rock, the Rock of Ages, the Rock Star, wrote a masterful indictment of your ignorance in his commentary that began “Bob, more nonsense from scammer nitwit rcifferi. Everyone learned in the law knows rescission is a contract remedy.”

He meant all of you, not just Rod. PLEASE do as he suggested and READ the 1st Circuit’s “Large” opinion here:

https://scholar.google.com/scholar_case?case=2327017283998433197

I promise that it will clear up much of your confusion. Take special note of this:

“the power of the court to impose additional conditions, beyond those stipulated in the TILA, on the borrower’s acknowledged right to rescind. See Quenzer, 266 B.R. at 763 (“[the lender argues] that the Court has the power to … condition the voiding of the security interest on the debtors’ repayment of the loan”); Whitley, 177 B.R. at 152 (“[t]his Court can conceive of circumstances where the statutory right to rescind might be conditioned upon an obligor’s tender”). Thus, the language in these cases suggesting that rescission under the TILA is automatic does not apply where the lender disputes the borrower’s claim that rescission is warranted under the TILA in the first place.”

I hope you take your spanking by Rock gracefully, like MEN, and don’t whine about it or denigrate him. Try to understand that he refers to you as “nitwit scammers” because he has given you sufficient case law to educate you in this issue of TILA rescission over the past few days, and you seem to have ignored it or given it attention inadequate for relieving your ignorance. What would YOU call a person who knows the truth, but still propounds old falsehoods? I feel sorry for Dwight because he could have called Rock before he got himself into trouble. He could have learned about TILA rescission, and he might not now face loss of his home.

I hope you will take your new education and share it with others, particularly with Garfield’s network of kool-aid-drinking foreclosure pretense defense attorneys who “get it,” and any other ignorami who troll Living Lies.

I hope you will become ROCKSTERS and convert permanently to your new understanding of TILA Rescission.

Bob Hurt

Quoting Livinglies’s Weblog :

> Rock commented: “Bob, more nonsense from scammer nitwit rcifferi. > Everyone learned in the law knows rescission is a contract remedy. > Because scammer/nitwits don’t understand this, and don’t understand the > difference between common law rescission and TILA rescission, t” > >

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DwightNJ, on May 6, 2015 at 7:43 pm said:

*Within 20 days the lender shall return the monies, note and release the mortgage lien … STEP 1

*During this 20 day period nothing else in the universe matters. Nothing else is required of the borrower.

The rescission has automatically voided the loan contract UNLESS the lender responds by filing an action within the 20 days, if so ..then the court can become involved in adjudicating the rescission and the potential settlement of a tender agreement.

*Once the 20 days has expired and the lender has failed to act, the debt is now and forever deemed un-secured, meaning the lender has lost its ability to foreclose. If by chance the lender files late, an untimely action or money judgment and can prove the rescission violations never existed ..maybe they can win an un-secured judgment ? They lost their right to contest the rescissions effect (that it voids the mortgage) by failing to act within the Acts prescribed 20 day window.

Anything that the lender attempts to do outside of the 20 day window will have no effect on the rescinded mortgage which is void and can never be turned back into a secured valid mortgage again. It already happened. Nobody can turn back the clock and undo it.

This is why it is critical for the lender to respond within 20 days.

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Shadowcat, on May 6, 2015 at 6:54 pm said:

Absolutely Bob!
100% Correct!

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rciferri, on May 6, 2015 at 6:18 pm said:

@bobhurt

Yes. Jesinoski only had one holding. However, as I discussed regarding dictum and stare decisis, a holding is not the only part of an opinion that is authoritative in cases with facts that are substantially similar.

Do you disagree with the definitions of dictum and stare decisis I posted?

Or, do you agree that dictum and stare decisis are as defined, but that only the holding in Jesinoski is entitled to authority under the doctrine of stare decisis and the rest is dictum?

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rciferri, on May 6, 2015 at 6:11 pm said:

@bobhurt

You said:

“We have discussed PETE (person entitled to enforce the note) in the past. You seem to have forgotten that a person in wrongful possession of a note may enforce it.”

Right, that’s true, I did say that.

I think Dwight said somewhere that the note the forecloser had was payable to bearer (please correct me if I’m wrong). So, if Dwight’s lender has authenticated the note, proved the note is the original note and asserted the right to enforce it as a holder, it may enforce it against Dwight (subject to any defenses Dwight may have, such as duress, illegality, fraud, or alteration or forgery of the instrument [real defenses) or other contract defenses (personal defenses)].

If the lender is asserting the right to enforce it as a non-holder in possession of the instrument with the rights of a holder, the lender would have to prove the above and would also have to prove its predecessor’s status as a holder or that its predecessor had the rights of a holder and transferred those rights to it (subject to defenses).

You said:

“But you will not have the opportunity to dispute the rights of any prior owner of beneficial interest.”

Maybe not, but he can assert defenses to the original note, which may, by operation of law, effect what interest(s) someone in the chain may have acquired, and, thus, what interest the last in the chain of assignments has (forecloser).

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bobhurt, on May 6, 2015 at 6:02 pm said:

Rod:

Regarding your response starting with “s I told you before, I would not be surprised if a court rules in accordance with what you have laid out. However, I believe a non-frivolous argument may be made that would lead to a very different result.”

You know, of course, that the Jesinoski opinion had only one holding.

The syllabus says this:

Held: A borrower exercising his right to rescind under the Act need only provide written notice to his lender within the 3-year period, not file suit within that period. Section 1635(a)’s unequivocal terms—a borrower “shall have the right to rescind . . . by notifying the creditor . . . of his intention to do so” (emphasis added)—leave no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. This conclusion is not altered by §1635(f), which states when the right to rescind must be exercised, but says nothing about how that right is exercised. Nor does §1635(g)—which states that “in addition to rescission the court may award relief . . . not relating to the right to rescind”—support respondents’ view that rescission is necessarily a consequence of judicial action. And the fact that the Act modified the common-law condition precedent to rescission at law, see §1635(b), hardly implies that the Act thereby codified rescission in equity. Pp. 2–5. 729 F. 3d 1092, reversed and remanded.

The end of the actual opinion by Scalia says this:

The Jesinoskis mailed respondents written notice of their intention to rescind within three years of their loan’s consummation. Because this is all that a borrower must do in order to exercise his right to rescind under the Act, the court below erred in dismissing the complaint. Accordingly, we reverse the judgment of the Eighth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.

Regardless of the discussion of the issues surrounding the opinion, the holding only answered the question before the court: must the borrower sue for rescission within 3 years of consummation. Answer: NO. It did not issue any final ruling on the nitpicking meanings and practical outworkings of the tendering process. Thus, rescission only means cancellation of the note. The practical outworking requires MUTUAL tender. The court made it clear that TILA made only one change in common law rescission: the lender must tender first. But BOTH must tender, and that always requires some arithmetic, and the court must do that arithmetic if the parties do not agree upon it between them. So, as I have said, I don’t agree with your theory of the import of Jesinoski.

Nevertheless, assuming future courts opine according to your theory of Jesinoski that the lender must tender,

* In the tender mechanism, must the lender hand the funds to the borrower, or simply make it available through an intermediary bank with orders to release the funds upon receipt of suitable tender from the borrower? * Must the creditor tender actual money to the borrower, or must the creditor tender the balance the lender owes after subtracting money the lender gave from money the borrower gave? * If the must tender actual money to the borrower before any arithmetic:

* Must the lender trust the borrower to make a proper return tender, and if so, within what time frame? * Must the lender accept the security realty in lieu of cash if the borrower does not have the cash needed for a return tender? * What happens when the borrower cannot tender such as because the borrower owes more than the value of the security realty has a value worth less than the value of money the lender gave the borrower at the inception of the loan?

The lender has legitimate questions about this to raise within the 20 days, and the lender will suffer no penalty if the borrower cannot prove a TILA violation that warrants rescission, and cannot prove receipt of notice by the creditor.

I do not believe courts will punish lenders in nearly all cases for refusing to make tender or sue within 20 days because judges know that borrowers lie about TILA violations, lie about having sent notice of rescission, don’t have the tender money, and typically have an underwater loan such that even a sale or forfeiture of the property would leave the borrower owing money.

Quoting Livinglies’s Weblog :

> rciferri commented: “@bobhurt As I told you before, I would not be > surprised if a court rules in accordance with what you have laid out. > However, I believe a non-frivolous argument may be made that would lead > to a very different result. I’m sorry about not giving the c” > >

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Shadowcat, on May 6, 2015 at 5:59 pm said:

It merely means the borrower who validly rescinded did not tender and they seek declatory judgment on that tender?

Or was it a tax sale joined together with whoever?
Who is paying your Real Estate Taxes?

They don’t hide behind Corlodgic here anymore…anymore than they do MERS.

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E. ToLLe, on May 6, 2015 at 5:44 pm said:

Rock how’s about stopping with the cherry-picking and straw-manning for one minute and address this one quote that I posted….

Courts in the past had the freedom to require
proof of ability to tender loan proceeds prior to
effecting the actual rescission. But there is no such
freedom in the new Wild West: Any suit relating to
a TILA rescission in which notice was already
provided is merely a suit for a declaratory judgment
on a rescission that was already had.

That’s exactly what the “nitwits” have been saying here. You just fail to get that one point, as your ship sinks ever deeper into the icy cold waters. If the bank wants to refute it, FILE A SUIT! But the rescission has already happened.

Otherwise, get yourself a way back machine, because there’s no longer a loan at that point….IF UNCONTESTED in the 20 day period.

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Shadowcat, on May 6, 2015 at 5:44 pm said:

When a homeowners Attorney sends legal things…
These is no question as to the validity of what the document said and requested or when and if it were mailed.

Invisible Contracts. (Law of Slavery)

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Dulpeck, on May 6, 2015 at 5:39 pm said:

@Shadowcat, your lack of comprehension of what the Supreme Court did on a Jesinoski is very troubling to say the least. Even more troubling is your determination and that of Rock to practice what Lenin taught his followers so well ” the lie is sacred and deception is our weapon.”

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Shadowcat, on May 6, 2015 at 5:33 pm said:

Via their attorney.
Homeowners Attorney.

Why pound your head into a wall.
Why not protect yourself?

Hire an Attorney to pound the rule of law on that brick wall.

I should clean my touchscreen now. Roar!

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Shadowcat, on May 6, 2015 at 5:24 pm said:

Rock, saving savintsavinthem one at a time is all you can do.
You can’t save the. All.

Duplec. .. Your reading comprehension skills leave much to be desired.

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Rock, on May 6, 2015 at 4:28 pm said:

Shadowcat, I know its pounding your head against a brick wall, but I’ve been encouraged by homeowners contacting me off blog, thanking me for clarifying matters, and pointing them toward a resolution of their foreclosure; something they haven’t found on this blog.

So all is not for naught.

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Dulpeck, on May 6, 2015 at 4:20 pm said:

@Shadowcat, your act is running its course . At first, you claimed that borrowers had 20 days to act, now you’re claiming that borrowers with half a brain should send any letter regarding matters to the lenders attorneys. Really ?

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Shadowcat, on May 6, 2015 at 3:58 pm said:

Bob… Anyone with half a brain knows that any written communication of a legal matter should always be sent via their Attorney.

Rock, Stop pounding your head into a brick wall.
Time to move forward.

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Rock, on May 6, 2015 at 3:46 pm said:

E Tolle, you don’t understand what you’re reading either, thereby taking out of context portions of the article. I can somewhat forgive you’re incompetence because you’re just a dupe/nitwit.

From the same article:

“‘rescind’ means to abrogate or cancel unilaterally or by agreement, and to ‘eff􏰁ect’ means to bring about or to make happen. Although the
Court does not say as much, contextually this mandate is LIMITED to those notices upon which the condition precedent (invalid disclosures) is satisfi􏰂ed.”

This is what we’ve been saying all along!

“So, when a creditor receives a communication of a borrower’s INTENT to rescind, his status as a secured creditor hangs upon whether the TILA notice (as the CONDITION PRECEDENT) was inadequate at the time of transaction funding.”

Again, what we’ve been saying all along!

“Post-Jesinoski, a creditor that has received a rescission notice that it considers invalid must either live with the risk that it is unsecured or litigate the issue by way of a declaratory judgment seeking a statement that the condition precedent to a borrower’s right of rescis- sion (defi􏰂cient disclosures) has not been met.”

Again, what we’ve been saying all along. The creditor has two choices, foreclose or declaratory judgement action.

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bobhurt, on May 6, 2015 at 3:40 pm said:

JG: “Whaddup”? You have tried to argue, it seems, that full blown tender has become a fait accompli once the borrower has sent notice of rescission. It has not, as courts have said repeatedly.

If the lender fails to act, the borrower must sue for a TRO to stop foreclosure (because, you know, the borrower nearly always fails to make mortgage payments after sending that notice), or use rescission as affirmative defense in the foreclosure action.

Then and only then will the court look into the matter. Typically the court finds all kinds of borrower stupidity, such as not mentioning rescission in the letter he asserted constituted a notice of rescission, failing to mail it, failing to mail it to the right address, failing to get proof that the lender received it, failing to have any valid reason for rescinding, and flat out lying about the reason for rescinding after having signed a receipt for requisite disclosures.

Sometimes the borrower doesn’t GROK the regulation and law, such as by thinking the lender owes each borrower two copies of the disclosure notice instead of one for each borrower named on the note, or by thinking that the borrower gets a free house if the lender doesn’t act to rebut the notice within 20 days.

I have explained this REALITY numerous times in this thread, for one purpose only: to correct any misapprehension people might have after reading Garfield’s glowing praise for the Jesinoski opinion and his prediction that the courts will become clogged with people who will now get the rescissions they deserve. THAT simply won’t happen. For some inexplicable reason (aside possibly from your ingesting Garfield’s brain scrambling kool aid), YOU keep trying to tangle with me and challenge my integrity. What’s YOUR motive? Do you actually NOT understand these areas of TILA and Regulation Z?

I don’t mean to propound empty theory. Court opinions around the nation support the position I have taken, and that is WHY I have taken the position. They do not support the Jesinoski position of Neil Garfield, that untold thousands of mortgage victims will benefit from the opinion.

Quoting Livinglies’s Weblog :

> johngault commented: “bob hunt: “The Dorsey & Whitney quotation > indicates that the proper delivery of a rescission notice makes the > written NOTICE complete. But QUITE OBVIOUSLY, because rescission > requires both parties making the other party whole, the notice does not > acc” > >

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Rock, on May 6, 2015 at 3:29 pm said:

These scammer/nitwits, continually repeating 1635(a) and the first sentence of 1635(b) and misquoting others ad nauseum, doesn’t take away the “plain meaning” of the statute. I guess Hitler was right, tell yourself a lie long enough and you’ll believe it.

Everyone outside of Garfieldtown knows rescission (nominalization) is a process; and a condition precedent to rescission is a valid TILA violation; a proper notice of RIGHT to cancel sent within the SOL; and the borrowers ability to tender; even if the first two prongs are met.

Straight up, second, third, and fourth sentences of section 1635(b) and its regulations.

It really takes a scammer to misrepresent statements from lawyers that had nothing to do with Jesinoski’s case.

Moreover, even if their comments were not taken out of context, what moron would rely on those opinions, over the lawyers that litigated for the Jesinoskis; who admitted to the justices the creditor doesn’t have to do anything within twenty days.

The CFPB lawyer made clear the position of the agency.

The CFPB is tasked with writing the regs., they will undoubtedly clear up any misunderstanding with revised regs. in short order.

Remember where you heard it first.

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Shadowcat, on May 6, 2015 at 3:13 pm said:

Its about bankrupting an Estate to collect on their bets!!!!
The know dam well filing a satisfaction of mortgage does not dissolve the trust the Estate is held in irrevocably never giving us the benefit of profit from our own assets.

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Shadowcat, on May 6, 2015 at 3:09 pm said:

Enough on the subject! Its irrealavent!!!

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Shadowcat, on May 6, 2015 at 3:06 pm said:

Dwight it also says clearly what a borrower must do to.

What’s a Judge to do?

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E. ToLLe, on May 6, 2015 at 2:54 pm said:

Rock, I’m not sure of the others, but the analysis that I posted a little while ago makes your thoughts on the subject look like banker wet-dreams…

The import of Justice Scalia’s statement cannot be
overstated. By stating that the rescission is “effected”
upon notice, and not merely “exercised,” Justice Scalia
turned 40 years of TILA rescission jurisprudence
into a scene which is now as clear as mud.

Courts in the past had the freedom to require
proof of ability to tender loan proceeds prior to
effecting the actual rescission. But there is no such
freedom in the new Wild West: Any suit relating to
a TILA rescission in which notice was already
provided is merely a suit for a declaratory judgment
on a rescission that was already had. And
alas, any hope that Justice Scalia’s word choice
was flippant was shot full of holes when he expressly
disclaimed any influence that the common law
principles of rescission at law and rescission in
equity might have on a question of TILA rescission.

The very first paragraph of the article says….

“….the brevity of Justice Antonin
Scalia’s opinion belies the complexity of the new
TILA rescission landscape now littered with
tumbleweeds, prickly cactus, and more Rocks than
ever before.

I took the liberty of doing a cap….seemed fitting.

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rciferri, on May 6, 2015 at 2:46 pm said:

Here’s another one, Rock. From the National Law Review:

“The question before the Supreme Court then became whether written notice was sufficient under the Truth in Lending Act as the Third and Fourth Circuits held (and the Consumer Financial Protection Bureau agreed), or whether the borrower must also file suit, as the Eighth, Ninth and Tenth Circuits held. The Court decided that the language of the statute makes clear that written notice alone is sufficient to fulfill the terms of the statute. The Court rejected Countrywide’s argument that there was a legitimate dispute over the adequacy of the disclosures that required the borrower to file suit to settle.”

Link:

http://www.natlawreview.com/article/truth-lending-act-and-rescission-lessons-learned-lenders-jesinoski-v-countrywide

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DwightNJ, on May 6, 2015 at 2:44 pm said:

Shadowcat … Why are you twisting and changing what the Act actually says?

It clearly states what the lender needs to do in 20 days. .. So why are you changing the language to make it mean something else?

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bobhurt, on May 6, 2015 at 2:44 pm said:

Rod, you wrote “Since you denied the validity of the loan, they have to show their assignor had a valid interest in the loan, and the assignor before it, and so on, all the way back to the origination of the loan. It has to do this because, as an assignee, it can only have the interest that was transferred to it – no more; no less.”

I believe in practice the opposing counsel and judge will drag you to a screeching halt in ferreting out the chain of assignment because the borrower has no standing to challenge or enforce the assignment in court, as courts have ruled in the past, because the borrower is not a party to, beneficiary of, or injuree of the assignment. If the present owner of beneficial interest in the note owns it validly, and nobody disputes it but you, he will show his proof and you will have to disprove it. But you will not have the opportunity to dispute the rights of any prior owner of beneficial interest. We have discussed PETE (person entitled to enforce the note) in the past. You seem to have forgotten that a person in wrongful possession of a note may enforce it.

Quoting Livinglies’s Weblog :

> rciferri commented: “@DwightNJ Thank you for our kind comments. You > said: “In my answer to the complaint I denied that a valid contract > existed and I raised the fact that I had effected a TILA Rescission by > mailing it…He basically mocked it and mused out loud on ” > >

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rciferri, on May 6, 2015 at 2:30 pm said:

Hey, Rock! Keep pounding the table.

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Dulpeck, on May 6, 2015 at 2:27 pm said:

@Rock , I can’t believe you are trying this hard to insult our intelligence. Where is it stated in the statute that borrowers should do anything within 20 days? Why are trying so hard to deny borrowers an opportunity to fight back ? This is getting very annoying, seriously. If you think Justice Scalia and his colleagues were wrong, please seek a lender who just received a rescission letter and advise them to ignore it.

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Rock, on May 6, 2015 at 2:25 pm said:

rciferri has not provided one law firm that disputes what we’ve proven.

Here again, scammer/nitwit rciferri doesn’t understand what he’s reading. This is what was prefaced to the nominalization “effectuated”:

“The Supreme Court analyzed the plain language of the statute and held that § 1635(a) clearly designates the PROCESS under which a consumer may EXERCISE his RIGHT to rescind. This provision states that a consumer “shall have the RIGHT to rescind the transaction until midnight of the third business day following the consummation of the transaction . . . by notifying the creditor, in accordance with regulations of the Board, of his INTENTION to do so. (emphasis added)”

Again, another law firm talking about the “PROCESS” of rescission (nominalization), wherein the “consumer may EXERCISE (verb) his RIGHT to rescind (verb)..by notifying the creditor, in accordance with regulations of the Board, of his INTENTION (nominalization) to do so. The definition of “INTENTION”–“what one intends(verb) to do or bring about.” Not what he’s already done.

Where have we seen the phrase “bring about.” It is the definition of “effect.” The scammer/nitwit clearly doesn’t understand linguistics, that’s why he doesn’t understand what he’s reading, or does he?

Again why does rciferri keep lying. Is it because he’s just incompetent, or is their some nefarious reason. That is the question the authorities will soon be answering. All of rciferri’s and Garfield’s misinformation and false legal advice is here as evidence.

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Shadowcat, on May 6, 2015 at 2:18 pm said:

Yeah… Its easy …ok?
Show me one borrower who can pull together the recission tender in 20 days.

Surreal

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Shadowcat, on May 6, 2015 at 2:15 pm said:

No!! The Creditor must respond within 20days of Receipt of your Recission Request andacknowledge receipt of it. Usually the response is they acknowledged receiving it and will investigate your claims .

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rciferri, on May 6, 2015 at 2:14 pm said:

@EtoLLe

You said:

“so what’s the big deal?”

Exactly, 20 days is plenty of time to file a satisfaction of mortgage, cut a check for everything the borrower paid to them and file a declaratory relief action.

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E. ToLLe, on May 6, 2015 at 2:10 pm said:

The majority of Jesinoski analysis sites are white shoe firms and therefore pro-mortgage industry, and as would be expected make it out like the sky is falling due to this unfair ruling. I’d like to believe so, but we all know that these guys will reshape heaven and earth to get what they want, and thus, what’s ours.

But the playing field, at present, would seem to me to be fairly self-explanatory…either the banks have, or do not have, proof of proper TILA disclosures, so what’s the big deal? Of course they’ve been involved in rescissions a gazillion times before, so they have templates that even someone like Rock could fill out. Maybe. They respond with a declaratory action within 20 days, asking for a ruling on the only question of pertinence, did they disclose, and if not, can they discuss with the borrower, some sort of reasonable move forward.

Anything other than that would seem to be a thumb in the face of SCOTUS and wishful thinking on their part.

Here’s a site that does a great job of explaining what is happening on the ground now and what’s likely, in their opinion, to unfold shortly and in the future. Not to mention that it’s very well written.

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rciferri, on May 6, 2015 at 1:07 pm said:

@Rock

Another law firm that disagrees with you contention, that, despite Jesinoski, rescission is not effected by mere notice:

“Thus, the court concluded that rescission is
effectuated by mere notice.” – Hunton & Wiliams

Link to article here:

https://www.hunton.com/files/News/46545865-5298-41ce-9370-6cba71cd593e/Presentation/NewsAttachment/37402691-6edf-4184-8c2c-6d0aae5cabe9/sup-court-rules-adequacy-notice-rescission-under-tila-jan2015.pdf

Rock, the list of attorneys that disagree with you and your professor friends keeps growing by the day…

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rciferri, on May 6, 2015 at 1:02 pm said:

@Rock

Keep pounding that table, Rock.

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rciferri, on May 6, 2015 at 12:44 pm said:

@DwightNJ

You said:

“Once they disregard the first step of the remedy, they waive the remedy and are time-barred from raising it later.”

I agree, that in such instance, they have waived (or forfeited) their remedy, because the procedures (20 day limit) apply, unless otherwise ordered by the court.

However, in order for it to be ordered otherwise by the court, the lender has to bring it to the court’s attention within the 20 days. Otherwise, the 20 days and other provisions of 1635(b) apply.

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Rock, on May 6, 2015 at 12:08 pm said:

BTW Dwight, rciferri continues to take others quotes regarding Jesinoski out of context.

If you read from the link he provided, the lawyer went on to say:

“If the lender OBJECTS to the VALIDITY of a rescission notice, then the lender should send a letter to the borrower that details its compliance with TILA’s disclosure requirements. At that point, EITHER the lender or the borrower may file a declaratory judgment action to determine the VALIDITY OF THE RESCISSION. Alternatively, THE LENDER MAY FILE A FORECLOSURE ACTION WITH THE RECOGNITION THAT THE BORROWER WILL LIKELY RAISE RESCISSION AS AN AFFIRMATIVE DEFENSE.”

This is exactly what you did. When they foreclosed (nominalization), obviously not the past tense, they “effected” foreclosure, not actually foreclosing because it was before the court with your affirmative defenses.

I hope this makes it clear for you, I’ve tried explaining it a dozen different ways.

Again, everyone outside of Garfieldtown understands this, but these scammer/nitwits keep throwing mud in clear water. Have you ever asked yourself the reason why?

I’ve tried to help you, as well as Bob Hurt, Christine, Shadowcat, et al., but we’re drowned out by the scammer/nitwits and their dupes.

BTW, I belong to a group of law professors, real estate professors, and those that practice property law. Everyone is in agreement on Jesinoski’s holding–the borrower doesn’t have to file a lawsuit within the 3yr. SOL. The rest was just Scalia quoting the statute under 1635(a) and the first sentence of (b), which everyone understands the notice of RIGHT to cancel “effects” (verb); the notice just “brings about” the rescission process, it doesn’t end it.

Only a moron doesn’t understand this, or someone duped into believing otherwise. Stop being a dupe.

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Rock, on May 6, 2015 at 11:38 am said:

Dwight, I shall answer in seriatim:

Dwight: “The borrower mailed his Rescission letter within the 3 years raising multiple reasons including; disclosure violations, copies of right to cancel notices not given to the borrowers, APR discrepencies, invalid and incompleted loan contract due to undisclosed third parties funding never disclosed at origination, etc.”

Rock: Because your argument is an affirmative defense, the burden is on you to prove you sent a valid notice of right to cancel–timely. Moreover, you can’t rescind a non-contract. Therefore, I’m allowing the bank to take your home.

Dwight: “The lender ignored the rescission letter and 3 months later filed a foreclosure complaint.”

Rock: OK, straight up 1635(b).

Dwight: “During the foreclosure case, you as the judge sees evidence that the originator lender failed to provide the notices to the borrower based on the documents in the lenders reply to the QWR.”

Rock: I doubt seriously the bank admitted, they didn’t send the notices in the QWR. Sounds more like a legal conclusion on your part.

Dwight: “The foreclosure case has dragged on for a few years due to the lender requesting adjournments and a voluntary dismissal.”

Rock: So what? How are you damaged?

Dwight: “Now that it is finally back before you ..the borrower contends that their home had more equity 3 years ago when they rescinded than it has today, due to the lender dragging their feet and ignoring the rescission letter in the first 20 days. The borrower contends that the lender should be held to the point of the rescission time period which would have provided the borrower a huge equity to work with in regards to a potential tender arrangment if the lender had responded timely in the 20 day period by complying and releasing the mortgage lien.”

Rock: Because properties values have risen from “3 years ago,” you should have more equity than less.

Dwight: “So here it is in front of you ..the borrower refinanced 200,000 …and when he rescinded the value was at 300,000 … and now it has dropped down to under 200,000 going on 4 years after the fact due to the lender dragging it out.”

Rock: See last answer.

Dwight: “As the judge ruling on this, would you …
a) Rule in favor of the borrower that they retain their house, and give the lender nothing due to evidence of the TILA violations as evidenced in the lenders reply to the QWR, showing they were missing. And ruling the lender waived their rights to the tender provisions by not complying with the 20 day statute to avail themselves of the statutory remedy.
b) Disregard all of these factors and just ask the borrower if they have 200,000 dollars cash to put up front as tender ..and if not, you rule against them and give the lender the house.

Rock: a) The bank does NOT have to do a thing within twenty days. The second, third, and fourth sentences of section 1635(b), and its regulations are clear on this point. Even counsel for the Jesinoskis admitted this to the justices. And everyone outside of Garfieldtown understands this.

b) If you can tender you get to keep your home if not, as a matter of law, because this foreclosure is based on a contract, I have to uphold the contract and allow the bank to take your home.

Now, you didn’t contact me to give you possible ways to win. Nonetheless, I told you that if it were me, knowing how rescission works and its basically a losing argument for you; I told you that to have any chance of saving your home, outside of other arguments, I could have given you, I would be beating the judge over the head with your SOL argument. You at least had a NJ case to back you up, which you have none to back up your TILA and rescission defenses, in spite of what these scammer/nitwits would have you believe.

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DwightNJ, on May 6, 2015 at 11:11 am said:

rciferri … I agree with your analysis , that says ….

1) The mortgage becomes void upon the borowers rescission.

2) The lenders available remedies lay within their compliance of the 20 day window which would in turn trigger the final steps of remedy which could make them whole via a tender work-out plan.

I believe all of the future cases will eventually rest on these 2 points.

Once the lender waives the available remedies by not complying with the 20 day window … they cannot prevail in a foreclosure action, regardless of their assertions that they have proof of the signed notices being received .. because it goes outside of the prescribed, mandated steps that the Act provides for them to recover any tender.

The only way for the Acts remedy to be triggered is by the lender first complying with step #1 of the process. Once they disregard the first step of the remedy, they waive the remedy and are time-barred from raising it later.

If the lender disagrees with the rescission, they still should act within the 20 days by filing an action contesting the rescission. But a foreclosure action is not the correct way for a lender to proceed due to the mortgage being void by operation of law. First they should be required to win a declatory action filed within 20 days, and if and when they prevail in that action, they may then file a subsequent foreclosure after first prevailing over the borrowers rescission. But the response from the lender must come within the 20 day time-frame either way.

The courts are eventually going to have to acknowledge that the remedy and the tender issues are only the result of a trigger that comes from the lenders compliance to the step #1 requirement that says they must act in some way within 20 days. Thats where I see this fight heading.

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rciferri, on May 6, 2015 at 11:04 am said:

@Rock

Here’s another lawyer that agrees with me and the US Supreme Court and disagrees with you:

http://www.floridabankinglawblog.com/2015/03/31/u-s-supreme-court-rules-borrowers-may-rescind-residential-mortgage-loans-by-written-notice/

Quote:

“The Court also noted that TILA eliminates the common-law rule that a borrower must tender the proceeds received in a transaction before rescission may occur. In other words, a mortgage is canceled the moment the borrower notifies the lender in writing of the rescission.”

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rciferri, on May 6, 2015 at 10:55 am said:

@Rock

“Everyone learned in the law knows rescission is a contract remedy.”

Very good professor Rock. Yes, there is a contract remedy called rescission. Then there is a statute called TILA, in which Congress created something different: TILA rescission.

You are utterly incapable of understanding that Congress created a statute, that abrogated the common law – as the Jesinoski Court made clear and as most lender attorneys are now advising their clients.

Just keep pounding the table, Rock. What more can you do until Congress changes the law or SCOTUS reverses itself?

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DwightNJ, on May 6, 2015 at 10:37 am said:

Rock …. Since you, like the judge in my case, keeps citing older caselaw that was relied on prior to Jesinoski … Let me propose a question for you to answer as though you were the judge in the case , how would you rule on the following scenario if you were the judge ….

Providing that the following facts were true ….

1) The borrower mailed his Rescission letter within the 3 years raising multiple reasons including; disclosure violations, copies of right to cancel notices not given to the borrowers, APR discrepencies, invalid and incompleted loan contract due to undisclosed third parties funding never disclosed at origination, etc.

2) The lender ignored the rescission letter and 3 months later filed a foreclosure complaint.

3) During the foreclosure case, you as the judge sees evidence that the originator lender failed to provide the notices to the borrower based on the documents in the lenders reply to the QWR.

4) The foreclosure case has dragged on for a few years due to the lender requesting adjournments and a voluntary dismissal.

5) Now that it is finally back before you ..the borrower contends that their home had more equity 3 years ago when they rescinded than it has today, due to the lender dragging their feet and ignoring the rescission letter in the first 20 days. The borrower contends that the lender should be held to the point of the rescission time period which would have provided the borrower a huge equity to work with in regards to a potential tender arrangment if the lender had responded timely in the 20 day period by complying and releasing the mortgage lien.

6) So here it is in front of you ..the borrower refinanced 200,000 …and when he rescinded the value was at 300,000 … and now it has dropped down to under 200,000 going on 4 years after the fact due to the lender dragging it out.

7) As the judge ruling on this, would you …

a) Rule in favor of the borrower that they retain their house, and give the lender nothing due to evidence of the TILA violations as evidenced in the lenders reply to the QWR, showing they were missing. And ruling the lender waived their rights to the tender provisions by not complying with the 20 day statute to avail themselves of the statutory remedy.

b) Disregard all of these factors and just ask the borrower if they have 200,000 dollars cash to put up front as tender ..and if not, you rule against them and give the lender the house.

As the judge, how would you handle this scenario ?

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rciferri, on May 6, 2015 at 10:35 am said:

@Rock

You said:

“Why would Congress have established a procedure for restoring the status quo ante if a debtor could avoid the obligations the procedure imposes upon him simply by asserting that his notice of rescission under section 1635(a) voided the creditor’s security interest and eviscerated any rights that it might have other than as an unsecured creditor?”

I don’t know, I’m not Congress. I do know, that, while TILA rescission is tough medicine, but the lender has its remedy right there in Section 1635(b) – even if I’m right about Jesinoski.

You said:

“The courts must follow the “plain meaning rule,” which they did in Jesinoski.”

No they didn’t. They couldn’t have; otherwise they wouldn’t have grafted common law rescission onto TILA – which SCOTUS slapped them on the nose for doing.

I’ll grant you this, Rock: Jesinoski did not rule that the lender’s security interest is voided immediately upon the borrower’s notice.

However, we know that is what happens under TILA. How? Plain meaning of the statute, quoted thus: “When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission.”

After the Jesinoski Court made clear the plain meaning of the statute is that rescission is complete upon notice, I think the other courts may not be so cavalier about re-writing it now that SCOTUS has spoken and established they will interpret the statute, as written by Congress – not the courts. If they don’t want to be reversed by SCOTUS, when presented with the question of whether the security interest is voided upon the borrower’s rescission, they will heed the plain language of the statute in that regard: “security interest is voided immediately.”

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Rock, on May 6, 2015 at 8:39 am said:

Bob, more nonsense from scammer nitwit rcifferi. Everyone learned in the law knows rescission is a contract remedy.

Because scammer/nitwits don’t understand this, and don’t understand the difference between common law rescission and TILA rescission, they make stupid comments like rciferri’s: “Common law rescission requires the parties to be restored to the status quo ante. TILA rescission does not;” “Before, the courts were treating it as a mutual rescission.”

Rescission under the TILA differs from common law rescission in that the order of performance is reversed. Under the common law, the borrower would first need to return the loan proceeds to effect a rescission. In contrast, under the TILA, the creditor must perform first and terminate any security interest it has as a result of the transaction before the borrower is required to return any loan proceeds. See generally Large v. Conseco Fin. Serv. Corp., 292 F.3d 49, 55-56 (1st Cir.2002). This is what Scalia was talking about.

The federal circuit courts addressing this issue have concluded that rescission does not flow automatically from the borrower’s mailing of a notice of rescission. See, e.g., Large, 292 F.3d at 54 (“Neither [TILA] nor [Regulation Z] establishes that a borrower’s mere assertion of the right of rescission has the automatic effect of voiding the contract.”). The First Circuit continued: “If a lender disputes a borrower’s purported right to rescind, the designated decision maker … must decide whether the conditions for rescission have been met. Until such a decision is made, the [borrowers] have only ADVANCED A CLAIM SEEKING RESCISSION.” Id. at 54-55. See also Thompson v. Irwin Home Equity Corp., 300 F.3d 88, 90 (1st Cir.2002) (demand for rescission does not automatically void the loan agreement); Yamamoto v. Bank of New York, 329 F.3d 1167, 1172 (9th Cir.2003) (argument that notice of rescission constitutes rescission “makes no sense when, as here, the lender contests the ground upon which the borrower rescinds”). Because the security interest does not automatically become void when borrowers seek rescission, the court are entitled to determine whether they have met (or can meet) all of the conditions for rescission as part of its inquiry into whether rescission is available. See Yamamoto, 329 F.3d at 1172-73; In re Ramirez, 329 B.R. 727, 735-37 (D.Kan.2005).

These scammer/nitwits argue that the sending of a notice of RIGHT to cancel completes the contract remedy, not begins it. The Court of Appeals for the Ninth Circuit lucidly discussed and rejected this argument in Yamamoto. As that court noted, Debtors’ argument “begs the question of when a transaction is `rescinded.'” 329 F.3d at 1172. For Debtors to prevail, rescission must occur automatically upon notice of rescission without regard to whether the law permits rescission, a notion that has been rejected because it does not comport with the underlying purposes of the statute. Id.

Section 1635(a) and the first sentence of section 1635(b), upon which these scammer/nitwits rely, must be read in conjunction with the second, third, and fourth sentences of section 1635(b). Those three sentences modify conventional rescission doctrine (that contemplates a simultaneous restoration of the status quo ante) by requiring a creditor to take certain actions before becoming entitled to a tender from the debtor. However, if Congress had not contemplated that a court has the power to condition annulment of the transaction upon a debtor’s return of that which he has received, its enactment of the sequencing provisions of section 1635(b), would have been nonsensical. Why would Congress have established a procedure for restoring the status quo ante if a debtor could avoid the obligations the procedure imposes upon him simply by asserting that his notice of rescission under section 1635(a) voided the creditor’s security interest and eviscerated any rights that it might have other than as an unsecured creditor?

“Surely, Congress’s establishment in the second, third, and fourth sentences of section 1635(b) of a procedure for restoring the status quo ante was not intended to be an empty gesture. Just as surely, Congress did not intend that if faced with a debtor’s refusal to return the benefit he had received in defiance of the statutory mandate, a court of equity would be powerless to grant an effective remedy. Since these are the implications of [the debtor’s] interpretation of the language of section 1635(a) and the first sentence of section 1635(b), his interpretation must fail.” Ray v. Citifinancial, Inc. 228 F.Supp.2d 664, 668 (D.Md.2002).

The circuit courts to consider the issue agree that courts have the equitable power to condition rescission on tender by the borrower. See, e.g., Am. Mortg. Network, Inc. v. Shelton, 486 F.3d 815, 820-21 (4th Cir.2007); Yamamoto, 329 F.3d at 1172-73; Williams v. Homestake Mortg. Co., 968 F.2d 1137, 1140 (11th Cir. 1992); FDIC v. Hughes Dev. Co., 938 F.2d 889, 890 (8th Cir.1991); Brown v. Nat’l Perm. Fed. Sav. and Loan Ass’n, 683 F.2d 444, 447 (D.C.Cir.1982); Rudisell v. Fifth Third Bank, 622 F.2d 243, 254 (6th Cir. 1980); Rachbach v. Cogswell, 547 F.2d 502, 505 (10th Cir.1976). As Yamamoto and Williams both noted, leaving courts free to exercise equitable discretion to modify rescission procedures comports with congressional intent:

“Upon application by the consumer or the creditor, a court is authorized to modify this section’s procedures where appropriate. For example, a court might use this discretion in a situation where a consumer in bankruptcy or wage earner proceedings is prohibited from returning the property. The committee expects that the courts, at any time during the rescission process, may impose equitable conditions to insure that the consumer meets his obligations after the creditor has performed his obligations as required under the Act.” S.Rep. No. 368, 96th Cong., 2d Sess. 29 (1980), reprinted in 1980 U.S.C.C.A.N. 236, 264-65 (emphasis added), as quoted in Yamamoto, 329 F.3d at 1173, and Williams, 968 F.2d at 1140 (noting that the addition of statutory language providing that procedures “shall apply except when otherwise ordered by a court” was added as a reflection of TILA’s equitable goal to “return the parties most nearly to the position they held prior to entering into the transaction”). See also Brown v. Nat’l Permanent Fed. Sav. & Loan Ass’n, 683 F.2d 444, 447 (D.C.Cir.1982) (“[a]lthough the right to rescind is [statutory], it remains an equitable doctrine subject to equitable considerations”).

The courts must follow the “plain meaning rule,” which they did in Jesinoski. The plain meaning of the statute is that there is no rescission, if, and until there is proof of a violation, notice was sent timely, and the borrower can tender–PERIOD!!!!!!

These scammer/nitwits argue out of both sides of their mouths. The transcripts of the oral hearing are clear, both attorneys arguing for the Jesinoskis agreed with our explanations of how rescission works.

Moreover, Dorsey & Whitney gave a webinar discussing Jesinoski. and made it clear that rescission works the way we have explained it.

Nonetheless, these cultists are so indoctrinated with utter nonsense, they continue to obfuscate what is actually written and stated by legal experts outside of Garfieldtown. Truly pathetic!

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neidermeyer, on May 6, 2015 at 6:39 am said:

@ Rock ,

Shaver v. Barrett Daffin Frappier Turner & Engel, L. L.P. (5th Cir., 2014),

Stuck in the past , 2014…

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rciferri, on May 6, 2015 at 3:45 am said:

@bobhurt

As I told you before, I would not be surprised if a court rules in accordance with what you have laid out. However, I believe a non-frivolous argument may be made that would lead to a very different result.

I’m sorry about not giving the context of the law firm quotes. They were just commentaries by the firms about what they think Jesinoski means.

You said:

“The Dorsey & Whitney quotation indicates that the proper delivery of a rescission notice makes the written NOTICE complete.”But QUITE OBVIOUSLY, because rescission requires both parties making the other party whole…”

You are right; a strict reading of the Dorsey & Whitney quote says the notice is what is effective upon notice! I think it is implied from the article that they mean the notice effectuates the rescission. The full paragraph is this:

“As an important corollary to its principal determination, the Supreme Court also noted that TILA expressly rejects the common law rule that a rescinding party must return what he/she received before rescission can be effective—which in the case of a mortgage loan is the money lent. The Supreme Court noted that Section 1635(b) of TILA was a statutory right that did not adopt common law equitable requirements, thereby potentially weakening several remedies frequently employed by creditors following the receipt of rescission notices. It now appears that a borrower’s written notice of the intent to rescind is complete and effective solely upon the proper delivery of a rescission notice.”

The full article can be found here:

http://www.dorsey.com/eu-banking-supreme-court-jesinoski-ruling/

As to the article from the law firm Alston & Bird, it can be found here:

http://www.alston.com/Files/Publication/ed22dc33-62b5-4a03-8a6c-9b8bba621ef1/Presentation/PublicationAttachment/e660a742-06ce-42b1-9020-5868dc1cf53c/HIRSCH%20LIFE.pdf

You said:

“But QUITE OBVIOUSLY, because rescission requires both parties making the other party whole”

Common law rescission requires the parties to be restored to the status quo ante. TILA rescission does not. TILA rescission is a unilateral rescission that is effective on notice. Whether the unwinding process under Section 1635 requires the parties to be restored to the status quo ante is another discussion, but it depends on how the lender responds to the TILA notice of rescission. If the lender disagrees, I believe it must respond by filing a declaratory judgment lawsuit within 20 days of the creditor’s receipt of the notice.

If the lender does that and successfully invokes the court’s equitable jurisdiction, I believe the court may do some of the things that you say it can do, and certainly has in other cases, such as re-order the tender, etc.

My statements however are based upon my view that TILA rescission is completed upon notice. I know you don’t agree with that, for many reasons, not the least of which is that my view is based upon the language used in Jesinoski (and the plain wording of the statute) that you contend is dicta. I disagree with your view in that regard and will discuss it more fully below.

You said:

“The Alston & Bird quotation makes that fact obvious by declaring Scalia’s words clear as mud.”

Actually, it wasn’t Scalia’s words he said were as clear as mud, it was the “40 years of jurisprudence” that led up to it. And he’s right.

For 40 years, courts have been re-writing Section 1635 at whim by conflating it with common law rescission. The author understands Jesinosky has made it clear that TILA rescission is effected via notice. All those other cases that couldn’t have been decided the way they were – if they followed the Jesinoski view of TILA rescission – are now as good as mud, when it comes to their authority for the proposition that the notice commences a common law rescission process, in which a court, acting within its equitable jurisdiction may re-order tender, etc.

Before, the courts were treating it as a mutual rescission. Now, its a unilateral rescission, with the entire process, from notice to cancellation, occurring upon the creditor’s receipt of the notice.

I don’t believe Scalia’s statement referring to Jesinoski’s rescission as a “unilateral rescission” was dictum either, since the point was fully argued and considered, in light of the exhaustive treatment of equitable mutual rescission by Countrywide in its brief for the proposition that Jesinoski’s notice only started the common law rescission process and that, consequently, Jesinoski had to sue within 3 years.

It is now clear that TILA rescission is a unilateral one completed by notice, with the “unwinding process” and tender becoming a subsequent event, bifurcated from the rescission (cancellation) itself. Any case contrary to that, is mud because, now, the cart is clearly before the horse, in that the cancellation happens first, and, if the lender discharges its obligations under Section 1635, the tender, making whole, etc., come later.

“I know you dearly wish the Jesinoski DICTA meant a rescission becomes totally complete with proper delivery of the borrower’s notice of rescission, but your wish cannot come true, for several reasons:”

Most of what you write that follows this sentence deal with the pre-Jesinoski law. When law firms that represent the financial industry are saying TILA rescission is effective upon notice and brainstorming ways to deal with it, you can be sure its not just “nitwit” Rod who believes this. I don’t think they would be saying it if they thought it was dicta. I agree with them.

From Black’s Law Dictionary, 6th Edition:

“Dictum…opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determination of the judge himself.”

From review of the briefs of the parties, transcripts of oral arguments and the Jesinoski Court’s statements in the opinion itself, I believe the question of whether or not TILA rescission was effected via Jesinoski’s notice was exhaustively argued and considered, and upon its decision that followed, the Jesinoski Court ruled that Jesinoski’s TILA rescission was effected by notice and that such ruling was the professed deliberate determination of the entirety of SCOTUS.

The Jesinoski Court’s determination that the rescission was effected by Jesinoski’s notice was also necessary to the Court’s holding. If Countrywide’s argument that equitable rescission (which can only be mutual rescission) rules applied were credited, the Court couldn’t have held that, since Jesinoski gave notice within three years, “it follows that” he didn’t have to sue within 3 years. Thus, it was a necessary determination to make to reach its holding.

From Black’s Law Dictionary, 6th Edition:

“Stare decisis…Under doctrine a deliberate and or solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank, in subsequent cases where the very point is again in controversy…”

I believe the question of whether or not TILA rescission is effected via notice was a contested issue, arguments were made and heard on it as a question of law and were necessary to its determination.

I believe this because the Jesinoski Court found Jesinoski didn’t have to sue to effect his TILA rescission within 3 years, even though the lender disputed the notice (remember Scalia’s rejection of equitable rescission and pointing out Jesinoski’s rescission was unilateral), BECAUSE his rescission was complete upon notice given within 3 years (remember the “It follows that” language the Court used?)

As such, under the doctrine of stare decisis, the principle that TILA rescission is effective via notice is now mandatory authority across all jurisdictions and any cases of substantially similar facts in which such principle is not embodied have lost their authority in that regard.

“That might require a judge’s intervention.”

Well, then, if the lender doesn’t want to be left with nothing, it better discharge its obligations under Section 1635 within 20 days (or agree with the borrower within the 20 days to do something different), or, as you suggest, sue within those 20 days and properly invoke the court’s equitable jurisdiction. From there, it may, in some instances, proceed just like the old days (pre-Jesinoski).

I’m not saying that the statute is necessarily fair to bona fide lenders and their assignees, I’m just saying that’s the law.

“I suggest you look to them for an understanding of how the courts dealt with the foregoing matters.”

I’ve looked at quite a few of them. It’s clear to me they informed what you say here.

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johngault, on May 6, 2015 at 1:56 am said:

Courtesy of Rock:

From the Jesinoski transcript:

“Justice Anthony Kennedy: Suppose the bank — suppose the bank thinks that the notice of rescission is just completely baseless.

Does it still have to respond within 20 days?

Elaine J. Goldenberg: –No.

jg: Ms Goldenberg is not a SC justice.

Justice Anthony Kennedy: It can — it can just sit there and wait and be sued.

Elaine J. Goldenberg: That’s right, Your Honor.

jg: same thing: an opinion

EG: In our view, an invalid notice of rescission that’s not timely has no effect in the world.

jg: no kidding? (A nor that’s not timely has no effect in the world? You mean one can’t do it 15 years after the closing? Damm.
(These are carefully chosen words, straight out of a white paper imo. I looked up Missie a couple weeks ago. She’s defended at least one munitions supplier against the red, white, and blue, so I’m thinking anything out of her mouth is educated and well-planned).
Opinions are just as they say – like belly buttons: everyone has one. PS: she’s still not the decision-maker.

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johngault, on May 6, 2015 at 1:35 am said:

Dwight: “In my answer to the complaint I denied that a valid contract existed and I raised the fact that I had effected a TILA Rescission by mailing it…He basically mocked it and mused out loud on the record “Well if there was no valid contract, what are you trying to rescind?” …hahahahaaa. He thought it was so funny.”

Without the laughter, he’s right. You can’t rescind a non-existant contract. But what one may do is list these issues as alternatives for relief. “There was no binding contract (because x,y,z), or alternatively, if there were, I rescinded it.” Whether or not the court should have taken them as alternative arguments from a lay person, I couldn’t say, but at any rate, your judge didn’t. Since he was rude and laughed, you might have corrected his grammar: ‘were’ is used with if, not ‘was’: “Don’t you mean ‘Well, IF there WERE no contract….?”) No, don’t do that! You’d be lunch.
lay opinions

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johngault, on May 6, 2015 at 1:04 am said:

But, bob, i’ll give you this: “The judge might find creative ways to punish the borrower for willfully sending the creditor a fraudulent notice of rescission,, then refusing to make payments…”

That’s certainly a possibility IF the court finds bad faith in the rescission (not an honest mistake – bad faith imo). To the extent possible, on a finding of bad faith, a court might hit the h.o. with att fees (?)

“and failing to file suit for several years”.

Jury’s not in on this one. Your comment presupposes a borrower
should file suit instead of doing nothing other than rescinding. After all, it’s the lender who must act next after the NOR. Any lender who sat on its laurels after receiving a NOR can hardly be seen to come into court with its own clean hands and or a lack of laches. I think your position would be that the lender found no rescinding infraction and that was the basis for doing nothing. I don’t believe the lender has that luxury.

“Courts do not smile on borrowers who try to steal from creditors, who pull flim-flams on the court, or who stupidly fail to mitigate their own loss.”

Do tell. What if the borrower were right and the lender was wrong and did nothing? The lender will eat the interest lost while it did nothing, as it should, speaking of failing to mitigate a loss. As to flim-flams, they’re in fact smiled on on occasion (in fact, given what I think of the mers m.o., I’d say a lot). Just depends on who’s doing it, it appears. But, yeah, if the court found bad faith on the part of a borrower, even a judge without a lender-bent or otherwise wearing blinders wouldn’t be amused.

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johngault, on May 6, 2015 at 12:44 am said:

bob hunt: “The Dorsey & Whitney quotation indicates that the proper delivery of a rescission notice makes the written NOTICE complete. But QUITE OBVIOUSLY, because rescission requires both parties making the other party whole, the notice does not accomplish making the parties whole.”
Come on, Bob. Whaddup with that? I sign a contract to buy your house. It’s not a done deal, but there’s a binding agreement for future performance. I guess you just don’t like the unilateral-ness of rescission. How can you say the notice doesn’t make the parties whole as if the notice must to effect the rescission of the contract? That’s just an absurd argument imo. I care about this issue for Dwight and all the Dwights out there. I have no dog in this hunt and nothing to gain, unlike some readers here. To the extent that a loan analysis would turn up other infractions, maybe some people should get them, but I can’t see why if that’s your goal, you feel compelled (and you appear to do so with such equanimity to boot) to argue the untenable.

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bobhurt, on May 5, 2015 at 11:54 pm said:

Dwight, Rod, et al:

I suggest you read this Florida Supreme Court case from 1997 about the issues we have discussed. I believe you’ll find it instructive.

http://archive.law.fsu.edu/library/flsupct/87835/op-87835.pdf

Quoting Livinglies’s Weblog :

> DwightNJ commented: “Neidermeyer …. Although I agree with you , I’m > living proof of how the judge dealt with that argument by rejecting it. > We all agree my judge was wrong to reject my defenses, but I just want > to point out the uphill battle we face. In my answer to the ” > >

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bobhurt, on May 5, 2015 at 11:12 pm said:

Rod:

You did not provide the context of those quotations, but I’ll comment on what they have in common.

The Dorsey & Whitney quotation indicates that the proper delivery of a rescission notice makes the written NOTICE complete. But QUITE OBVIOUSLY, because rescission requires both parties making the other party whole, the notice does not accomplish making the parties whole.

The Alston & Bird quotation makes that fact obvious by declaring Scalia’s words clear as mud.

I know you dearly wish the Jesinoski DICTA meant a rescission becomes totally complete with proper delivery of the borrower’s notice of rescission, but your wish cannot come true, for several reasons:

* The notice itself must have “proper” attributes. That means a rescissionable TILA violation must have occurred, and the borrower must have drafted and signed a “proper” notice of rescission within 3 years after the violation, and the creditor must have received that notice within short order thereafter. * Uner the most ideal of circumstances, in which the creditor agrees to having violated TILA as described in the notice,

* The creditor, in order to COMPLETE THE RESCISSION PROCESS, must do an accounting of the funds the creditor gave to the borrower, and the funds the borrower gave to the creditor. That might require a judge’s intervention. * The parties must determine what, if anything, to do about any money the borrower paid for taxes, insurance, Home Owner Association dues, special assessments, costs of maintenance, depreciation/appreciation of the real estate. That might require a judge’s intervention. * The parties must determine whether they will do the necessary arithmetic to effect the mutual tender of the net amount they owe to each other. Generally, the borrower ends up owing a lot of money to the creditor because of not having retired much of the principle through monthly payments since taking out the loan. * The creditor must tender to the borrower the amount owed to the borrower, and that typically will come to ZERO because the calculation will result in an amount the borrower owes to the creditor. * The borrower must tender to the creditor the amount owed to the creditor after deducting the money the the borrower gave to the creditor. * The parties must reach some agreement as to how the borrower can return payment to the creditor if the borrower does not have the cash for his tender * The borrower might try to allege that he waited to the edge of the 3 year limit before sending notice of rescission to the lender, and then waited another 3 years before suing, meanwhile refusing to make payments and running up a mountain of accrued interest debt to the creditor. He might say that the creditor should have rebutted the attempted rescission within 20 days as TILA requires, and failure to do so means the lender must eat any accrued interest and other charges built up since that time. The Creditor might prove that no TILA violation occurred, with the result that the borrower will owe all that much more in accrued interest and escrow costs to the creditor. * The parties will need time to discuss how the borrower will tender, such as by selling the house or giving it to the creditor, or working out a payment scheme. * In an underwater loan situation, the borrower cannot sell the house for enough to tender to the creditor, and the typical borrower does not have the cash to tender. In either case, the court will NOT ORDER A RESCISSION UNLESS the lender agrees to take the house in lieu of the borrower’s debt.

* The judge might find creative ways to punish the borrower for willfully sending the creditor a fraudulent notice of rescission, then refusing to make payments, and failing to file suit for several years. Courts do not smile on borrowers who try to steal from creditors, who pull flim-flams on the court, or who stupidly fail to mitigate their own loss.

Whatever federal circuits made pre-jesinoski jesinoski-compatible opinions have dealt with numerous TILA rescission disputes. I suggest you look to them for an understanding of how the courts dealt with the foregoing matters. I imagine you have far better research tools than I do. Please let me know what you find out.

Bob Hurt

Quoting Livinglies’s Weblog :

> rciferri commented: “What do these two law firms have in common? Dorsey > & Whitney – “It now appears that a borrower’s written notice of the > intent to rescind is COMPLETE and effective SOLELY upon the proper > delivery of a rescission notice.” Alston & Bird -” > >

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rciferri, on May 5, 2015 at 10:36 pm said:

@DwightNJ

Thank you for our kind comments.

You said:

“In my answer to the complaint I denied that a valid contract existed and I raised the fact that I had effected a TILA Rescission by mailing it…He basically mocked it and mused out loud on the record “Well if there was no valid contract, what are you trying to rescind?” …hahahahaaa. He thought it was so funny.”

I’m sorry you got such a biased Judge. If you thought you could prove both arguments, you did the right thing pleading both. It’s what you’re supposed to do, plead in the alternative – even if the arguments are inconsistent with each other. Every lawyer knows that – even Rock. That’s why I said you got a biased Judge. A real Judge wouldn’t mock someone for pleading in the alternative. He would understand that is perfectly acceptable in a pleading.

You also said:

“how do you overcome the problem of the judges not wanting to hear about your assertions that no valid contract exists?”

A Judge is always going to do what a Judge is going to do. The best you can do in such an instance is make your record every time you have the opportunity and then appeal.

“…everything else they objected to , everything.”

In my experience, lawyers for well financed litigants almost always object to everything in your first go at discovery. Then you move to compel. Then they give you a little bit. Then you move to compel again. And so on. If you actually responded in good faith to their discovery and they are forcing you to repeatedly move to compel, at some point the music stops, because they start to look bad to the Judge and know they will lose if they push it much further. At that point they give the discovery, or, if it kills their case, they will, for the first time, make real settlement overtures. Sad, but true. The primary strategy for these types of litigants is to make you poor, time deprived and insane. It usually works.

” they repated over and over that they OBJECT to me asking questions about the origination of the loan, they repeatedly respond by claiming they did not originate the loan and that they feel my questions are out of line because they did not originate the loan.”

That’s just a bunch of BS, because they presumably were transferred the note from the person who it was first indorsed to. Since you denied the validity of the loan, the chain of assignments of the note to them is fair game for discovery. Since you denied the validity of the loan, they have to show their assignor had a valid interest in the loan, and the assignor before it, and so on, all the way back to the origination of the loan. It has to do this because, as an assignee, it can only have the interest that was transferred to it – no more; no less.

I know the foregoing is quite general. How it applies or doesn’t apply to your case depends upon how you worded your pleading and exactly what you admitted or denied.

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DwightNJ, on May 5, 2015 at 8:39 pm said:

rciferri … Thanks for the reply and nice comments, appreciate it. I was just venting some frustrations off , everything is good. Keep fighting and keep the faith.

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DwightNJ, on May 5, 2015 at 8:36 pm said:

Neidermeyer …. Although I agree with you , I’m living proof of how the judge dealt with that argument by rejecting it. We all agree my judge was wrong to reject my defenses, but I just want to point out the uphill battle we face.

In my answer to the complaint I denied that a valid contract existed and I raised the fact that I had effected a TILA Rescission by mailing it.

Now you are saying it’s stupid to claim there were violations of the 2 notices of cancellation not being included and given to each of the borrowers, which was one of my claims, but keep in mind .. the TILA 3 year extension for rescission is only allowed for certain violations. Failure to provide the right to cancel copies is one of the violations that allows you thru the door to rescind. So its not really stupid to include a valid reason to get your foot in the door, since claiming that there was no closing or consummation of the loan is not a recognized reason to write a rescission letter.

Now in my case I was arguing both of your points, I asserted that the loan was not a valid, legal, completed contract , and I argued that I had rescinded inside the 3 year extended window allowed for violations.

The judge dealt with the rescission argument first and basically said that I had never tendered at the time I rescinded, his dismissal of my rescission really rested on the tender issue and he cited Yamamoto caselaw in explaining why he has discretion to deny rescission based on borrowers lack of offering tender.

When he finished twisting and shredding the Supreme Court saying that they only dealt with the issue of whether a borrower must file a lawsuit when they rescind …he then took on my assertion that the origination contract was not a valid, complete, legal mortgage loan as stated in my defenses …. He basically mocked it and mused out loud on the record “Well if there was no valid contract, what are you trying to rescind?” …hahahahaaa. He thought it was so funny.

The point isn’t that I disagree with you Neidermeyer, the point is that you seem to think it gets you to discovery ..thats where I thought it would lead too ..but the judge didn’t allow the case to proceed to trial.

I did try to argue that there was no valid loan, I denied it in the answer.
But the judge based his reasoning on the fact that they show papers , the note, mortgage, payments and an affidavit from an employee who says they reviewed the business records …and thats all he needs according to the precedence laid out over the last 8 years.

He had no desire to understand why there was no valid loan, no completed contract, etc. … So the 60,000 dollar question is, how do you overcome the problem of the judges not wanting to hear about your assertions that no valid contract exists?

Tila rescission doesn’t appear to allow that assertion as a reason to rescind, so I’m not sure how that would fly, but I do get where youre going with this ..discovery …but I wish I could say it worked for me, I did try claiming that same argument and defense. The first judge I had was going to allow it to go to trial , the issue of standing and the validity of the contract from origination, he was an old judge who used to throw me compliments for my tenacity , unfortunately he retired in March , and 20 days later the new young judge granted summary judgment for the lender , dismissing the defenses that the old judge had allowed to remain for trial that was supposed to be held on May 1, 2015.

As for discovery ..the old judge ordered discovery for our trial, and I sent my demands for documents and my interoggs ..Wells Fargo in their replies basically only admitted to the note, mortgage and the MERS assignment …everything else they objected to , everything. In their reply papers to my discovery , they repated over and over that they OBJECT to me asking questions about the origination of the loan, they repeatedly respond by claiming they did not originate the loan and that they feel my questions are out of line because they did not originate the loan. So I never received anything useful in discovery and when I motioned to compel as part of my opposition to the MSJ , the judge threw all of my arguments out, including the discovery issue.

If I had been represented by a decent lawyer who understood these arguargumentsit would have helped my procedural deficiencies, but as far as overcoming a biased judge ..not sure an attorney could have gotten past this judge and onto a trial and discovery about valid loan.

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rciferri, on May 5, 2015 at 7:41 pm said:

Keep pounding the table Rock.

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Rock, on May 5, 2015 at 7:36 pm said:

Neidermyer, you’re as big a moron as rciferri. You had better read Shaver v. Barrett Daffin Frappier Turner & Engel, L. L.P. (5th Cir., 2014), it shoots down every argument you’ve just made about loans.

Also, you seemed to have missed what I posted, when you all you nitwits said Frederick didn’t understand rescission:

“And in nonjudicial foreclosure States, where — to go back to your hypothetical, Justice Kennedy, there’s — there’s a harder wrinkle on this.

A bank would not need to go to court to foreclose on the borrower.
It simply do the notices provided under State law and have the sheriff, you know, send a — provide a notice saying we’re going to sell your house.

And then in that case, the burden really shifts to the borrower to go to court to get a temporary restraining order or preliminary injunction to say, hey, I sent my rescission notice, the bank is ignoring it.
Please don’t sell my house out from under me.

And — and that kind of procedure makes a lot of sense in the real world, where these kinds of written notifications provided by the expert agency charged with administering it create a simple process by which the rights of both sides can fairly be determined.

That’s been the way this statute has been understood up until very recently when the circuit conflict developed, really, in response to this Court’s decision in Beach.

In Beach, simply reading the plain language of 1635(f), and if I could turn to that, it’s on page 4.

Justice Ruth Bader Ginsburg: Before — before you do, Mr. Frederick, you are recognizing that the only recourse the lender has if the borrower is — is claiming something that is baseless, the only recourse is to bring a declaratory judgment action?

David C. Frederick: No.

Actually, I don’t agree with that, Justice Ginsburg.

The borrow — lender has several recourses.

First, it notifies the lend — the borrower that it doesn’t agree with its position about the rescission.

And then it depends really on whether we’re in a judicial foreclosure State or a nonjudicial foreclosure State.

In the judicial foreclosure States, the next thing that’s likely to happen is that the bank would go to State court and file a foreclosure action, at which point the validity of the rescission notice would be the first issue that would be decided by the court in determining whether or not the foreclosure was proper to begin with.

But if we’re in a nonjudicial disclosure State, and we’re roughly 50/50 among the States in terms of which are which, then we have the problem that I was identifying with Justice Sotomayor, where the buyer is going to have to take the initiative to go to court to get a declaratory judgment that it had — he or she had properly rescinded the loan.”

Exactly how I explained it, Bob Hurt, Shadowcat, and Chritine explained it.

Moreover, CFPB’s counsel Elaine J. Goldenberg stated:

“In our view, an invalid notice of rescission that’s not timely has no effect in the world.

It has no — it puts no requirement on the lender to do anything and you can see that from the language of Section 1635(b).”

And who writes the regulations interpreting the statute–CFPB

EVERYONE outside of Garfieldtown understands the law and the Sup. Ct. decision,except for morons like rciferri, you, E Tolle et al.

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rciferri, on May 5, 2015 at 7:05 pm said:

@neidermeyer

You said:

“MR. FREDERICK: I think that it no, but
3
it does depend on accepting the idea that rescission is
4
just cancellation. And then if restitution occurs,
5
which are all the (b) procedures, those are going to
6
happen after the cancellation.
7
If I could save the balance of my time for
8
rebuttal.”

Thanks for that.

Veteran Supreme Court litigator Frederick says: “rescission = cancellation.”

Rock must think Frederick drank the Kool-Aid, is a moron, must have fallen off his meds, is a criminal, etc.

I mean, my God, how can he have the same position as rciferri and NG?

Christine can stand by her man (Rock) and say its like neither Frederick nor Scalia ever set foot in a law school…

Yet, in truth, it doesn’t really matter what any of these lawyers said in oral argument – including what Jesinoski’s counsel Frederick said. It is axiomatic that arguments of counsel are not law.

Of course, it matters greatly that SCOTUS agreed with that contention of Jesinoski in a decision that is mandatory authority for courts across the nation on this issue.

Excuse me. Let me take cover while Rock pounds the table.

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neidermeyer, on May 5, 2015 at 6:44 pm said:

@ Rock ,

You’re stuck on stupid… and it’s plainly because not understanding makes you money..

I’m going with rciferri and THE ENTIRE SUPREME COURT… You refuse to see that one way or another , whether the bank thinks there is any merit in the rescission or not we get to DISCOVERY ,,, it’s necessary to unwind the deal … It’s necessary to determine if a claim outside the 3 year window is valid ,, and yes it can be … ANYONE HERE can make a valid claim that the loan never closed as stated in the note and therefore they are at DAY 0 ,,, not year 7.

Try validating the note without bringing up the actual source of funds or who bought the note prior to it being signed into existance,, the banksters standard procedures are indefensible…

You really think anyone here is lame enough to use the “I didn’t get 2 copies” argument… I’d throw that out in a minute… By not stating the grounds or claiming the note didn’t match reality WE WIN. WE GET DISCOVERY

Rock ,,, Why don’t you address Alito’s decision?

*********************
Here’s more of the transcript ,, you quoting the transcript is a pointless ruse ,, parties argue in favor and against , judges ask questions looking for clues to the truth playing both sides ,, the questions and the answers are not the truth ,,, that comes in the end when we get the unanimous ruling with the decision spelled out clear as day and with your argument shot down (EXPLICITLY) in flames.

8
MR. FREDERICK: That’s right. And,
9
Justice Alito, if you read the cases and I would I
10
would point you to Footnotes 9 and 10 of the State’s
11
amicus brief, they set forth in one a long list of State
12
cases and in the other a long list of Federal cases.
13
The way I read them is that these are like
14
mini bankruptcy proceedings the where the where
15
the lender and the borrower are going into court and 16
and they are they’re making arguments about the
17
propriety of the rescission. They’re making arguments
18
about how much is owed. They’re making arguments about
19
what claims need to go back and forth, and that the
20
Court ultimately is making a decision that tallies up
21
based on the loan proceeds and all the back and forth,
22
who’s going to owe what to whom.
23
JUSTICE SOTOMAYOR: Mr. Frederick, does your
24
argument depend on us agreeing with the proposition that
25
the rescission is completed at the time the notice is
Alderson Reporting Company
16
Official Subject
to Final Review
1
set?
2
MR. FREDERICK: I think that it no, but
3
it does depend on accepting the idea that rescission is
4
just cancellation. And then if restitution occurs,
5
which are all the (b) procedures, those are going to
6
happen after the cancellation.
7
If I could save the balance of my time for
8
rebuttal.
9
CHIEF JUSTICE ROBERTS: Thank you, counsel.
10
Ms. Goldenberg.
11

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rciferri, on May 5, 2015 at 6:42 pm said:

@Rock

Keep pounding the table, Rock.

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Rock, on May 5, 2015 at 5:40 pm said:

Rciferri is such a moron, every time he opens his mouth, he makes himself look even more stupid.

From Dorsey & Whitney’s webinar on The Jesinoski decision:

– Pre- and Post Jesinoski status has not changed – if a
defense is valid, NO ACTION IS REQUIRED.
• The mortgage lien remains valid.

From the Jesinoski transcript:

“Justice Anthony Kennedy: Suppose the bank — suppose the bank thinks that the notice of rescission is just completely baseless.

Does it still have to respond within 20 days?

Elaine J. Goldenberg: –No.

Justice Anthony Kennedy: It can — it can just sit there and wait and be sued.

Elaine J. Goldenberg: That’s right, Your Honor.

In our view, an invalid notice of rescission that’s not timely has no effect in the world.

It has no — it puts no requirement on the lender to do anything and you can see that from the language of Section 1635(b).”

Its clear from the CFPB’s counsel that banks don’t have to do a thing, if a rescission notice is not valid!

Keep listening to these morons and lose your home and end up like bag lady–E Tolle.

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Shadowcat, on May 5, 2015 at 5:35 pm said:

RE: seemed to indicate

Was the 2nd clue

Sorry..I lost my train of thought there for a second.

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Shadowcat, on May 5, 2015 at 5:33 pm said:

2nd Clue..
RE: It appears……

Hogwash..Bullshit..

Objection!

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Shadowcat, on May 5, 2015 at 5:31 pm said:

1st clue….
RE: It now appears……

Opinion..Conjecture ..

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Shadowcat, on May 5, 2015 at 5:28 pm said:

What do these two law fires have in common ?

Answer…they neither one know how to interpret the word “effected”.

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rciferri, on May 5, 2015 at 4:51 pm said:

What do these two law firms have in common?

Dorsey & Whitney –

“It now appears that a borrower’s written notice of the intent to rescind is COMPLETE and effective SOLELY upon the proper delivery of a rescission notice.”

Alston & Bird –

“Despite a hefty dose of questions at oral argument that seemed to indicate the automatic rescission interpretation was balderdash, Justice Scalia decided otherwise—and was joined by a unanimous
court:“ The language [ofTILA] leaves no doubt that rescission is effected (“effected” is emphasized with italics in the original article) when the borrower notifies the creditor of his intention to rescind.”

“The import of Justice Scalia’s statement cannot be overstated. By stating that the rescission is “effected (again italics)” upon notice, and not merely “exercised,” Justice Scalia turned 40 years of TILA rescission jurisprudence into a scene which is now as clear as mud.”

Answer:

They disagree with Rock, who apparently thinks any attorney who believes rescission is initiated AND completed by the borrower’s notice is “incompetent” and in need of “medication.” Lol!

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E. ToLLe, on May 5, 2015 at 4:24 pm said:

“Nonetheless, you should get an acct., its very cheap….”

Yeah, I know Rock….but you don’t understand. I’ve already been foreclosed on, that means I spend my days pushing a shopping cart around going through garbage bins and re-chewing gum from under park benches.

I have to go now, Walmart fills their dumpsters at 5….wouldn’t want to miss that….

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Rock, on May 5, 2015 at 4:04 pm said:

Sorry E Tolle, I see it didn’t show up the way it did on my computer.

Nonetheless, you should get an acct., its very cheap, and with the RECAP extension you can get most docs for free.

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Rock, on May 5, 2015 at 3:58 pm said:

E Tolle, you should be able to retrieve it by hitting view document.

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E. ToLLe, on May 5, 2015 at 3:39 pm said:

Thanks Rock, but I no longer have Pacer….

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Rock, on May 5, 2015 at 3:18 pm said:

E Tolle, ask and you shall receive: https://ecf.mnd.uscourts.gov/doc1/10115682981

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E. ToLLe, on May 5, 2015 at 2:48 pm said:

Although it’d be nice to have references, especially concerning the claim that the attorney stepped down, I don’t doubt what Rock is saying here….Judge Frank would rather storm Gallipoli all on his lonesome than hand a win to a borrower, and he’ll have just that chance, it would seem to this lay person.

The borrowers claim they never received the disclosures, and the BANA guys say they have signatures refuting…I know those two BANA guys, they’ll have them whether they do or not.

Hmmm…. unless I’m missing something here, I wouldn’t want to have a lot of money riding on the borrower’s side….

To the curb?

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christine, on May 5, 2015 at 1:12 pm said:

I don’t recall ringing you. And besides, incompetent attys are a dime a dozen. Can’t be too bright to have joined the cult…

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E. ToLLe, on May 5, 2015 at 12:16 pm said:

Christine, he point blank told you he’s a lawyer in good standing of some two decades in NY. What is your problem? Besides trying to create mayhem?

Just because you claim to have studied law for three decades and have nothing to show for it short of overflowing with piss and vinegar on a foreclosure forum doesn’t mean Rod’s a loser as well.

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christine, on May 5, 2015 at 11:15 am said:

Rock,

I doubt it, unless he passed the bar after posting his LinkedIn profile. Either way, that’s easy enough to verify.

Rod Ciferri
Paralegal at Gonzalez & Leigh, LLP
San Francisco Bay Area Law Practice

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Rock, on May 5, 2015 at 10:46 am said:

Christine, rciferri told Bob he’s been an attorney for twenty yrs., which make his incompetence even worse.

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christine, on May 5, 2015 at 8:20 am said:

Rock,

Are you sure he is an attorney? I was under the impression that he was a paralegal.

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Shadowcat, on May 5, 2015 at 7:46 am said:

I had the pleasure of buying Mr. Frederick lunch about 10 years ago.
Some things do not change…

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Rock, on May 5, 2015 at 7:38 am said:

BTW Shadowcat, the esteemed Mr. Frederick agrees with everything we’ve posted on how rescission works outside of Garfieldtown, much to the chagrin of the scammer/nitwits.

Based on what scammer/nitwit 20 yr. attorney rciferri has been posting, I’m wondering which dupe/nitwit would hire him, because certainly not anyone outside of Garfieldtown would.

What an embarrassment he is to the profession.

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Shadowcat, on May 5, 2015 at 7:15 am said:

Re: Attorneys withdraw (subject to court approval) when material evidence susceptible to determine the outcome of the case was deliberately hidden from them.

Now that’s a FACT!
Hit the road Jack …….

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Rock, on May 5, 2015 at 6:15 am said:

Christine, more evidence rciferri has no clue how things work outside of Garfieldtown, and keeps trying to find SOMETHING to denounce every bit of evidence we’ve provided that proves he’s does nothing but scam anyone who will listen to his nonsense.

Everyone knows, the attorney I was talking about was Jesinoski ‘s trial attorney. Why, because the case was remanded back to the trial court to determine if in fact there really was a TILA violation.

Moreover, Mr. Frederick is the same one the scammer/nitwits said he had no idea how rescission works.

Again, this is why people hate attorneys because you have brainless twits, who claims to be a twenty yr. attorney, admitting he did’t know basic law, didn’t undestand causes of action in foreclosure matters, now posting more nonsense.

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christine, on May 5, 2015 at 12:12 am said:

More surreal by the minute. Boy is this country ever in trouble!

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rciferri, on May 4, 2015 at 11:59 pm said:

@Christine

You said:

““Perhaps he withdew..” no access to Pacer?”

You get on Pacer, you’re the one taking Rock’s speculation and weaving a speculative conspiracy theory with it. You need as much support for that fantasy as you can get.

You also said:

“Perhaps..” doesn’t jive”

“Perhaps” comes from the perspective of: I’m not sure. I’m not Frederick or Jesinoski. “Perhaps”, and foregoing a Pacer look, is also: leave that to the one who has yet to provide a factual basis for what they are saying. Finally, “Perhaps” is from personal knowledge over the course of years about what happens in the real world of attorneys. Which means, I do have a factual basis for what I’m saying (not to mention the fact that the guy does appeals, not trials).

So, do you have any facts to back up your statements that attorneys hardly ever withdraw over money and attorneys invariably stay on as counsel until the end?

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christine, on May 4, 2015 at 11:36 pm said:

“Perhaps he withdew..” no access to Pacer? Even at the firm? Funny, in my experience, attorneys of that caliber don’t withdraw: They remain “of counsel” until the end to preserve their results. Get on Pacer, confirm or disprove when you know what you’re talking about. “Perhaps..” doesn’t jive with the persona you’re trying so hard to project.

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rciferri, on May 4, 2015 at 11:01 pm said:

@Rock

The attorney representing Jesinoski before the Supreme Court was veteran Supreme Court litigator, David C. Frederick:

“David Frederick represents clients across a broad spectrum, principally in appellate courts. He has argued more than 70 appeals, including 41 in the Supreme Court, in every U.S. Court of Appeals, and in three state supreme courts. He has won cases in the Supreme Court nine years in a row…”

Since Frederick represents clients “principally in appellate courts”, perhaps he withdrew (if he did) to allow Jesinoski’s trial court attorney, Michael J. Keogh, to get back into the case, since it has been remanded back to the trial court.

One would think Keogh is the best attorney to handle the case in the trial court, being that he has done that up until now and knows the case better than anybody.

Nah, I’m sure the explanation must have something to do with Rock’s conspiracy theory. Lol!

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rciferri, on May 4, 2015 at 10:48 pm said:

@Christine

You said:

“attys hardly ever withdraw on money issues”

Actually, Christine, attorneys withdraw all the time on money issues.

And by the way, what evidence do we have that Jesinoski’s attorney withdrew?

Rock’s word?

That’s a laugh. I’m sure he’s got a bridge to sell you, Christine. It’s in Brooklyn.

You also said:

“Quite enlightening.”

Not nearly as enlightening as the fact that the Jesinoski Deniers are incapable of answering the questions I posed to them.
You also said:

“More surreal by the day.”

See above.

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christine, on May 4, 2015 at 8:43 pm said:

WOW! Quite enlightening. The “name it, claim it” crowd getting nowhere still denies the evidence. I haven’t checked it out yet but if Jesinoski’.s atty withdrew, that says it all (attys hardly ever withdraw on money issues. Fee contracts are always negotiated if the case is good and the client runs out). Attys don’t even withdraw when they think they may lose. Attys withdraw (subject to court approval) when material evidence susceptible to determine the outcome of the case was deliberately hidden from them.

If Jesinoski lied and was found out, Scalia’s ruling will be challenged by every court, in every jurisdiction until the cows come home. Another hurdle homeowners will now have to overcome!

More surreal by the day.

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rciferri, on May 4, 2015 at 7:18 pm said:

@ Jesinoski Deniers

Since it’s obvious you guys aren’t going to even attempt to answer my previous question, this next one might be easier for you.

Since SCOTUS described Jesinoski’s rescission as a “unilateral rescission”, does the lender even have standing to challenge it after the 20 days have passed?

Hint: Why has a borrower been determined to not have standing to “enforce” a PSA?

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rciferri, on May 4, 2015 at 5:48 pm said:

And the silence is deafening with regard to my unanswered question to the Jesinoski deniers…

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Shadowcat, on May 4, 2015 at 1:15 pm said:

When you crumble cookies… they can not be put back together again.

My Cookie Jars

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Shadowcat, on May 4, 2015 at 1:08 pm said:

It seems that a non borrower who is vested one half of the. Estate with beneficial interests has rights under the contract and the law.

L

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Shadowcat, on May 4, 2015 at 12:49 pm said:

Does anyone want to talk about them refusing tender because the amount was disputed? In my case it wasl $12000. I refused to pay the $12000 and reduced tender by $12000. They refused it! Insisted the records they (BAC received from Countrywide) were accurate.

. I don’t do business with Thugs.

That led me to the county records office…oh boy!
That led to a review of the mortgage and title.
That led me to why BAC was playing dirty…. They were trying to avoid CW liliabilities. BAC adsorbing’ CW was the equivalent of ingesting cyanide.

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rciferri, on May 4, 2015 at 12:27 pm said:

@Rock

You said:

“Most probably because the court has asked counsel from the bank to submit its summary judgement motions to kill the case because the bank has proof Jesinoskis signed they received all notices under TILA. Straight up 1635(b)”

And what is the source of this information? Your imagination? Or, is this just another of your lies?

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rciferri, on May 4, 2015 at 12:25 pm said:

@Rock

You said:

“So much for sending rescission letter that the crackpots thinks is the end, instead of the beginning of the rescission process.”

Then it shouldn’t be hard for you to answer my question posed at 10:52 a.m. (and a couple of other times in the last few days)

Your BS on the point becomes more evident the longer you, and the rest of the Jesinoski deniers, refuse to answer it.

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Rock, on May 4, 2015 at 11:35 am said:

Jesinoski’s counsel has withdrawn his representation, usually there a few reasons for this, however none look good for the Jesinoskis.

Money, the client refuses to follow the advice of counsel, client insists upon advancing a frivolous claim, continued representation would violate the rules of professional responsibility.

The first reason is not true because they’ve retained new counsel, looks like one of the other reasons seems to be in play. Most probably because the court has asked counsel from the bank to submit its summary judgement motions to kill the case because the bank has proof Jesinoskis signed they received all notices under TILA. Straight up 1635(b)

So much for sending rescission letter that the crackpots thinks is the end, instead of the beginning of the rescission process.

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rciferri, on May 4, 2015 at 10:52 am said:

@Rock

@ All the Jesinoski Deniers

Anyone going to take a stab at answering the question posed in this previous post of mine?

See:

Since Rock has stated he will not comment on the Jesinoski case again, I ask Bob Hurt, Shadowcat and any other person who believes Jesinoski’s holding did not necessarily follow from its determination that rescission is completed upon the homeowner’s notice, the following question, based on the following language SCOTUS used in Jesinoski:

“The Eighth Circuit’s affirmance in the present case rested upon its holding in Keiran v. Home Capital, Inc., 720 F.3d 721, 727-728 (2013) that, unless a borrower has filed a suit for rescission within three years of the transaction’s consummation, § 1635(f) extinguishes the right to rescind and bars relief.

That was error. Section 1635(a) explains in unequivocal terms how the right to rescind is to be exercised: It provides that a borrower “shall have the right to rescind … by notifying the creditor, in accordance with regulations of the Board, of his intention to do so” (emphasis added). The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. It follows that, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely.”

Specifically, look at what is said after the discussion of what the 8th Circuit held and, subsequent to that, after the discussion of the statutory language: “The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. IT FOLLOWS THAT, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely (capitalized emphasis added).”

Here’s my question:

Did SCOTUS reach its holding because it necessarily found that the borrower’s notice both initiated and completed the rescission process, and due to the process having been already completed, it followed that Jesinoski didn’t have to sue within 3 years?

In my view, SCOTUS held Jesinoski didn’t have to sue within 3 years to effect rescission BECAUSE his rescission was effected upon his notice of the same to the creditor.

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rciferri, on May 4, 2015 at 10:47 am said:

@Rock

You said:

“Bob, I have to give credit to rciferri for manning up and admitting he doesn’t know the law.”

Yes, I’ve admitted that I didn’t know the FRAP were changed to allow citing of unpublished federal opinions in the federal appeals courts, which I would have known if I had need to cite such a case since the rule was changed. Of course, if I had such a need, the appeal would probably be a long shot anyway, if no published opinion was available to make a point. Just because the rule allows it, doesn’t mean a federal appeals court is going to accord persuasive authority to an unpublished case.

You also said:

“doesn’t understand linguistics”

Keep your irrelevant nominalizations to yourself, Rock! They have no place in analyzing Jesinoski. Its import is clear: TILA rescission is effective upon notice. Now you really should man up and admit you are wrong about that, before the speciousness of your assertions in this regard is laid bare by SCOTUS or other appeals courts. Of course I hope the pretender lenders use your “linguistic” argument, which has no support in the context in which you are using it, to support their cases against homeowners. Then, the homeowners will have a much greater chance at winning.

You also said:

“he cites to cases that are against his arguments”

And:

“The cases he cited from Ca. deal with the tender rule in Ca”

First of all, thank you for putting your disingenuousness on hold and not stating that I in some way asserted California cases are mandatory authority across the US!

However, I was speaking in general for the proposition that a tender refused is a debt discharged. Here it is again, Rock:

2074. An offer in writing to pay a particular sum of money, or to
deliver a written instrument or specific personal property, is, if
not accepted, equivalent to the actual production and tender of the
money, instrument, or property.

Are there any nominalizations you would like to apply to that statute to show the legislature made a law that means the opposite of what I said?

Of course, like any statute or other rule of law, whether the rule applies in a particular case depends on the facts of the case, as the cases you cited indicates.

You also said:

“rciferri’s quote: “When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. However, if that was the case…”

Lol! Yes, Rock, that is the case. How do I know? Because what you quoted isn’t authored by me, it’s the verbatim quotation of the language in Section 1635 authored by the US Congress. I’m sure they know what they’ve written. Boy, it sure is clear you don’t like that law. However, you’ll just have to live with it until it is changed because making pretend the law doesn’t say what it says is not a good way to deal with your disappointment and reveals you to be not much of a lawyer.

“Now, the cases, I posted, that were post Jesinoski, rciferri attempts to convince everyone that they didn’t apply.”

Hey, Rock, give it up. You’ve been caught red handed citing cases you purport shows that Jesinoski didn’t rule TILA rescission is effected through notice. That a litigant loses after signing something that negates the effect of his rescission doesn’t prove Jesinoski didn’t rule the way I say it did (“modification” agreement in In Re Residential).

You also said:

“However, if that was the case as rciferri and the others claim all of those dupe/nitwits, in the cases cited, and Dwight and Leah Dean, wouldn’t have lost their cases, and in shot order their homes.”

I know I’m at risk of misunderstanding you mostly incomprehensible statement above, so, if I do, please correct me (I hope for the sake of your clients your briefs don’t look like that). The problem with this generalization of yours, is you have little idea how any of those folks litigated their cases. For you, when someone cites Jesinoski and loses it means SCOTUS didn’t rule TILA rescission is effected by notice. Clearly, liike any rule of law, its application or non-application in the case depends on the facts of the case. Also, if correct procedure isn’t followed, it doesn’t matter whether or not you were correct in your substantive legal argument. The court can still – rightfully – rule against you. In a very un-lawyer like way, you pretend these circumstances don’t exist in pursuing your incorrect legal argument.

You also said:

“This is why I refuse to debate with people who don’t know the law, its just a waste of time.”

Yeah, right, you refuse to. Another Rock lie. We’ll see if you man up and admit yet another one. You do debate both those who know the law and those who don’t. You also regularly lose the debate to both.

You also said:

“Let’s see if rciferri will man up, when he finally realizes most everything else he’s posted is wrong as well.”

You mean like reading the plain words of 1635 and the plain words of Jesinoski and simply confirming what they said? You know Rock, you don’t have to take my word for it. The internet is littered with lender’s side attorneys who, after being schooled by Jesinoski, know that TILA rescission is effected by notice. Also, not one of them resorts to nominalizations to figure it out. But, that’s ok, the courts will set you straight on the issue again if need be. Even if SCOTUS itself has to take on the task.

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Rock, on May 4, 2015 at 8:25 am said:

Bob, I have to give credit to rciferri for manning up and admitting he doesn’t know the law.

However, because he doesn’t know the law, and doesn’t understand linguistics, and therefore he doesn’t understand the cases he cites, he cites to cases that are against his arguments.

The cases he cited from Ca. deal with the tender rule in Ca:

“In addition to these statutory requirements, “[u]nder California law, the ‘tender rule’ requires that as a precondition to challenging a foreclosure sale, or any cause of action implicitly integrated to the sale, the BORROWER must make a valid and viable tender of payment of the secured debt.” (Montoya v. Countrywide Bank, F.S.B. (N.D. Cal. 2009) 2009 WL 1813973, *11-12

“A quiet title action requires that a plaintiff allege tender or offer of tender of the amounts admittedly borrowed.” (Montoya v. Countrywide Bank, F.S.B., supra, 2009 WL 1813973 at p. 11.; see also Shimpones v. Stickney (1934) 219 Cal. 637, 649 [“a MORTGAGOR cannot quiet his title against the mortgagee without paying the debt secured.”].) This tender requirement is “based upon the equitable principle that he who seeks equity must do equity. . . . [A] court of equity will not aid a person in AVOIDING THE PAYMENT OF HIS OR HER DEBTS.” (Mix v. Sodd (1981) 126 Cal.App.3d 386, 390.)

“Appellant asserts he satisfies the tender requirement because he has “paid all amounts currently owed with respect to the Note under his confirmed bankruptcy plan.” We disagree. Appellant relies on Winnett v. Roberts for this proposition. (Winnett v. Roberts (1986) 179 Cal.App.3d 909.) However, in Winnett, the plaintiffs tendered the full principal amount of debt plus interest. (Id. at p. 921.) The Winnett court held that this full payment of the underlying debt “discharged both the obligation and the security.” (Id. at p. 922.) Appellant’s circumstances are different. He has not met the tender requirement because he has not tendered full payment of his admitted DEBT. Under Civil Code section 1486, a “tender must be one of full performance”; a tender of partial performance is of no effect. (Arnolds Management Corp. v. Eischen, supra, 158.

Now, the cases, I posted, that were post Jesinoski, rciferri attempts to convince everyone that they didn’t apply. However each one sent a rescission letter to the lender, and according to rciferri and the other scammer/nitwits, once the letter is sent, and this is rciferri’s quote: “When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission.”

However, if that was the case as rciferri and the others claim all of those dupe/nitwits, in the cases cited, and Dwight and Leah Dean, wouldn’t have lost their cases, and in shot order their homes.

Also, rciferri claims to be an attorney for 20 yrs., but he thanked you Bob for showing him things that any attorney who is knowledgeable in the law already knows. This is why most people hate attorneys, they know most are incompetent.

This is why I refuse to debate with people who don’t know the law, its just a waste of time.

Let’s see if rciferri will man up, when he finally realizes most everything else he’s posted is wrong as well.

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Deborah wynn, on May 3, 2015 at 5:05 pm said:

Phone did it
Thats ” jesinoski” gotta fix that one

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Deborah wynn, on May 3, 2015 at 4:06 pm said:

And this is it , Etolle said:
As has been mentioned here, ” jezinoskis claim to fame isn’t in how easily the borrower should be able to rescind their loan….it lies in the impossibility of their showing the underlying documentation….something they never saw coming”
So i guess im in for round 22 or so

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The A Man, on May 3, 2015 at 4:04 pm said:

Shadowpussy nobody and nothing gets up for you. Not even an inch and not even after a bottle of whiskey.

Maybe Bob Hurt can get it up for you but he doesnt know how to consumate. He’s probably a frustrated virgin.

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Deborah wynn, on May 3, 2015 at 4:02 pm said:

Yes ET , succinct.

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E. ToLLe, on May 3, 2015 at 3:55 pm said:

D. Wynn, you and I both know that that was the intention all along. Add the stolen home to the other millions each note brought in, and pretty soon you’re talking real money.

No matter the various spins argued here, the fact still remains that millions upon millions of hard working people have lost the place where they tuck their kids in at night, and where they used to feel secure that they could make some hay while the sun shines. Those days are gone and it wasn’t due to a normal business cycle or a once in a lifetime, unforeseen economic shift. It was deliberately created by well-funded lobbying and the resulting statutory re-writes that took place while we all raised our families and weren’t looking. Our so-called elected representatives re-envisioned, not in our favor, what it takes for easy pillaging in the 21st century….entities like MERS and other statutory bank-favoring delights that are buried deep in legislative code but surface when they’re needed to suit their needs with reckless abandon. This is no longer a discussion just for conspiracy forums.

To put this criminal event into perspective, from 1931 to 1935, the foreclosure rate was a little over 1%. Corelogic put it at 3.5% some three years ago. And according to the Case-Shiller index, prices have now fallen more than they did during the Great Depression. This couldn’t have been better orchestrated, on the criminal side. And it would never have been shown to be the huge heist that it is, save for the fact that their greed went off the scale, showing the magnitude of the crime. You give a loan to any and every one, raise the prices upward and onward, then crash the entire deal, sweeping up the crumbs in the aftermath.

What’s really telling about all this is that our government doesn’t take it upon themselves to track just how many people have or are going to lose their homes to foreclosure. Absentmindedness? Too busy busting potheads or beating up black kids for wearing their pants too low? Droning brown folks from a different religion overseas? Or is it because of the revolving door that leads straight to these same criminals on Wall Street?

As has been mentioned here, Jesinoski’s claim to fame isn’t in how easily the borrower should be able to rescind their loan….it lies in the impossibility of their showing the underlying documentation….something they never saw coming. For up until now, they had paved the way with graft and had a near perfect mechanism in place for effective pillaging.

Someone on LL recently remarked something along the lines of ….how often do you think the banks didn’t give TILA disclosures to borrowers. I got the TILA disclosures in my paperwork alright, only they weren’t mine, but some poor shmuck in Southern California who would probably be really miffed if he knew that I’m in possession of half of his very revealing paperwork file, social security numbers and all.

These idiots cared about one thing and one thing only…FUND ‘EM.

I say FUCK ‘EM.

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Deborah wynn, on May 3, 2015 at 2:07 pm said:

From the beginning of my research it was not long before their intent to take the home was very clear, they were taking my home no matter what they had to do, and they did.

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The A Man, on May 3, 2015 at 1:36 pm said:

In the entrance of the Auschwitz death camp was and is still written the phrase “Arbeit Macht Frei” “Work Makes you Free”

So the same phrase. “Deadbeat” homeowners is the same phrase used by the Nazi Judges and Nazi banksters.

6million homeowners were and are “deadbeats” the same excuses used to exterminate the Jews Gypsy’s etc…………

NEVER AGAIN

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Trespass Unwanted, on May 3, 2015 at 1:22 pm said:

I know nothing. If I think I know something; I know no problem no thing
I do not give legal advice because I do not know legal things.

New term: CFPB them.
Post a complaint.

Complaint:
I sent a rescission letter to
Name
Address
It has been more than 20 days and I’ve received no response
I expected a response and tender.

Remedy sought:
( Response, Tender, Satisfaction of mortgage, title, penalties, etc )

Let a regulating agency compel them to respond and have the recoeeof the rescission in public.
You have a complaint for consumer protection
TILA provisions protect consumers by forcing the Truth to be revealed

In my opinion,
Trespass Unwanted, Creator, Corporeal. Life, Free

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Shadowcat, on May 3, 2015 at 1:15 pm said:

First of All this case will effect very few people because of the 3yr SOL.
Try Common Law and Contract Law.

Second those who did rescind within the time frame must get past the hurdle of proving a proper TILA claim.
Try Common Law and Contract Claims.

Third with a proper TiLA claim both parties will tender. The amount will be determined by a Judge if disputed..
TILA claims are minimal…try Common Law and Contract Law where the real damages to you are.

Lets get past this case and take real bite out of Crime!

Those who have gone beyond the point of return and foam from the mouth are easily identifiable here.

Proceed at your Own Risk.

Many Blessings to All

ps. . What Up? 6 inches and rising.

Time to Ride!

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The A Man, on May 3, 2015 at 12:41 pm said:

Rock, Shadowpussy and Bob Hurst what up? Moses, Jesus and Muhamed can’t help you. You are destined to burn in eternal Hell.

NEVER AGAIN

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E. ToLLe, on May 3, 2015 at 12:37 pm said:

The whole nature of the “debate” on LL over Jesinoski is over-the-top disingenuous to say the least. Rock et al are consistently saying that the case was simply over whether or not Jesinoski had to file suit within three years….that’s only half correct, as that’s one-half of the circuit court split…the other half being that written notice before the three year period sufficed to effect rescission. We know how SCOTUS decided, so what shakes out now is just conjecture until TPTB do their spins in courts across the land, or open their checkbooks wide enough to effect statutory change, not likely at least not quickly. Rest assured that the banksters, who you’ll recall….quite frankly own the place, will trip over themselves to plug this hole with however much taxpayer money it takes.

Bob, I’m sure you mean well. But your attitude concerning borrowers is slightly akin to an SS guard at a Polish camp, and I’m not talking about a fishing retreat. Derision against folks who are simply doing the best they can against limitless funds, not to mention soulless greed, isn’t going to gain you any friends on a thread filled with borrower’s dealing with a fraud spree the likes of which has never before been seen, as our reps in CONgress cower in the corner awaiting yet another consent decree and a paycheck from their true constituents, the banksters. And as Trespass Unwanted pointed out very well, the borrower might as well be attempting an Everest climb in their skivvies (not her words) when entering a courtroom filled with fraternity members who all speak in tongues and high five each other on the way to yet another home stolen.

I know Bob, your comeback will be all strict about how the borrowers do themselves no favors…..yada yada…. Save it for your blog. You come off truly indignant that borrowers could effect rescission against a bank by a simple act of timely postage, as if it skews the deal unfairly. Oh please….the unfair nature of this debacle, to term it lightly, would be laughable if families weren’t being tossed to the curb for simply doing what families do, but getting caught short due to no fault of their own.

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The A Man, on May 3, 2015 at 12:09 pm said:

Shadowpussy and Bob Hurst what up? Jesus can’t help you. You are destined to burn in internal Hell.

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The A Man, on May 3, 2015 at 12:06 pm said:

Like I said I pitty the Judge that goes against Justice Scalia.

What up Shadowpussy?

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The A Man, on May 3, 2015 at 12:05 pm said:

Scalia has spoken. I believe Justice Scalia and not Bob Hurt or Shadow Pussy

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rciferri, on May 3, 2015 at 2:33 am said:

@bobhurt

You said:

“I keep harking back to “or as otherwise ordered by the court.”

And, as Shadowcat also pointed out to me, that will be the real battlefield post-Jesinoski, the outcome of which will determine whether a borrower can get a “free house” from the lender via TILA rescission by notice. I get into this below.

You also said:

“That pretty much makes the point that SOMEBODY will have to bring the matter to the judge’s attention”

First of all, if a borrower does a TILA rescission via notice, why would the borrower HAVE to bring the matter to a judge’s attention? Assuming I’m right about TILA rescission being effected through notice, then, strictly speaking, the lien is already toast. That’s where the lender’s wrongful inaction (refusal to file a satisfaction of mortgage) may force a borrower to have to do what he shouldn’t have to do – file suit to get a declaratory judgment to file in the real property records to clear the cloud on its title due to an apparent lien that really isn’t a lien because it has been rescinded by operation of law, but still looks like a lien because the lender didn’t do its statutory duty.

It is the lender, if it has any good faith at all, that should bring it up to a court’s attention on a TRO within the 20 days allotted for its compliance with its obligations that are needed to be discharged for it to get its remedy under Section 1635(b). Then, a court is within its equitable jurisdiction to rearrange time periods and the order and quality of tender, if it does not abuse its discretion in doing so.

However, in my opinion, if the bank doesn’t comply with its obligations under Section 1635(b) within 20 days, the terms of the statute should rule (“The procedures prescribed by this subsection SHALL APPLY EXCEPT when otherwise ordered by a court.”) If the court has not been petitioned by the lender within the 20 days, with the lender obtaining a TRO within those 20 days, the 20 days is the time period that “shall apply” within the confines of which the lender must perform its statutory obligations.

I don’t think Congress intended that lenders can do an end around a statute they intended to be for the protection of the borrower simply by ignoring their statutory obligations and then waiting to sue outside the 20 days to get a court to order, that states, nunc pro tunc (turns back time like Superman), that the 20 days is now however long the lender wants.

You also said:

“then he will decide what seems fair and just.”

He may only do that if the court’s equitable jurisdiction has been invoked in the first place. I don’t think a proper declaratory judgment action in federal court seeking a declaration that states “the lien has been cancelled” would necessarily invoke the court’s equitable jurisdiction.

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rciferri, on May 3, 2015 at 1:58 am said:

@bobhurt

You said:

“‘If the lender doesn’t respond to the tender the borrower is discharged as a penalty for not complying with the statute (Cal. Civ. Code). In the context of TILA rescission, in enacting protections for borrowers, TILA is saying to the lenders “you will comply with these requirements, or you will lose everything.”’

Rod:

Please tell me you have some case law or some demonstrable examples to support the above assertions.

I have a hard time believing the court will tell a creditor (who simply disagreed with the borrower about the TILA breaches underlying the borrower’s right to rescind) that he has to forfeit the lien on the property AND the money the borrower owed.”

In the California Civil Code context its found here:

2903. Every person, having an interest in property subject to a
lien, has a right to redeem it from the lien, at any time after the
claim is due, and before his right of redemption is foreclosed, and,
by such redemption, becomes subrogated to all the benefits of the
lien, as against all owners of other interests in the property,
except in so far as he was bound to make such redemption for their
benefit.

And here:

2905. Redemption from a lien is made by performing, or offering to perform, the act for the performance of which it is a security, and paying, or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay.

See also the California Code of Civil Procedure (in pertinent part):

2074. An offer in writing to pay a particular sum of money, or to
deliver a written instrument or specific personal property, is, if
not accepted, equivalent to the actual production and tender of the
money, instrument, or property.

And:

2076. The person to whom a tender is made must, at the time, specify any objection he may have to the money, instrument, or property, or he must be deemed to have waived it…

Finally, California case law:

See, in general, Lichty v. Whitney, 80 Cal.App.2d 696 (1947)

And:

Winnett v. Roberts (1988) 179 Cal.App.3d 909, 922 (“Any time before foreclosure, a tender of the full amount properly due on a loan secured by a trust deed extinguishes the lien on the property…”).

And:

Hunt v. Mahoney (1947) 82 Cal.App.2d 540, 546-47.

As to TILA rescission, I know of no cases, that fully disagree with the following assertion you made:

“I have a hard time believing the court will tell a creditor (who simply disagreed with the borrower about the TILA breaches underlying the borrower’s right to rescind) that he has to forfeit the lien on the property AND the money the borrower owed.”

I just think that’s what the statute was intended to do in an instance in which the borrower rescinded under TILA – of course upon the timely performance by the lender of its obligations under Section 1635(b) within 20 days from the borrower’s TILA rescission, it may then get the property from the borrower.

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Shadowcat, on May 3, 2015 at 1:37 am said:

I would agree Bob.
The 1098s said they paid the taxes and INS on my husbands behalf. It would be a fraud for me to file those statements..when I had the receipts I had indeed paid them personally.
I know right? Foolish to file that claim with the county.
The 1098s stopped coming. No 1099a. Or 1099c either.
Of course here they have to get a court order 1st.
Very problematic…

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bobhurt, on May 3, 2015 at 1:01 am said:

I keep harking back to “or as otherwise ordered by the court.” That pretty much makes the point that SOMEBODY will have to bring the matter to the judge’s attention, and then he will decide what seems fair and just.

He could sanction the lender for misbehavior, and he could impose §1640 damages on the lender for failing to tender or sue within 20 days. But no way under the sun can a judge consider it equitable to discharge the borrower’s debt, and let him keep both the house AND the money JUST because of a TILA violation.

And we really need to keep in mind the romping, stomping incompetence of borrowers in legal and litigation matters, and their desperate, primordial craving to keep their homes regardless of whether they breached their note, committed bank fraud by taking out a loan they knew they could not afford, agreeing to an absurd adjustable rate loan on which the interest rate MUST go WAY up, didn’t even bother reading all those documents they signed at closing, and flat out lied about not getting the TILA disclosures. Predatory borrowers do exist, you know.

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bobhurt, on May 3, 2015 at 12:48 am said:

‘If the lender doesn’t respond to the tender the borrower is discharged as a penalty for not complying with the statute (Cal. Civ. Code). In the context of TILA rescission, in enacting protections for borrowers, TILA is saying to the lenders “you will comply with these requirements, or you will lose everything.”’

Rod:

Please tell me you have some case law or some demonstrable examples to support the above assertions.

I have a hard time believing the court will tell a creditor (who simply disagreed with the borrower about the TILA breaches underlying the borrower’s right to rescind) that he has to forfeit the lien on the property AND the money the borrower owed.

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rciferri, on May 3, 2015 at 12:46 am said:

@bobhurt

You said:

“Regarding unpublished opinions, have you seen Appellate rule 32.1?

Rule 32.1 Citing Judicial Dispositions

(a)Citation Permitted.A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

(b)Copies Required.If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.”

No, Bob. That one slipped by me. Thank you for pointing it out my mistake (sorry for getting on you about that, Rock); I might need to cite an unpublished federal opinion to save a case in the future. I remember an appeal I wrote a brief for (California) and there was only one case directly on point – you guessed it, I couldn’t cite it because it was an unpublished California case.

So, you can cite unpublished federal opinions in federal court. Now that I think about it, there may be a California rule that allows citation of federal unpublished opinions too.

I’m pretty sure California still does not allow citation of their own unpublished opinions, though.

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bobhurt, on May 3, 2015 at 12:38 am said:

“Abandoned property escheats to the state”

If the 1099A arrives at the allegedly abandoned property address, or at the last known address of the mortgagor, the mortgagor with any sense will complain to the servicer about the error (See §20 of the security instrument and RESPA) and demand correction, AND send a corrective 1099 to the IRS because most likely a 1099C has also arrived with respect to the affect of that abandonment on the mortgagor’s income.

The abandonment 1099A typically does not get sent unless the borrower has failed to make timely payments, failed to maintain the property, and vacated the property.

As to taxes and insurance, if the borrower has not made payments, then the servicer has made the insurance and tax payments, all in the borrower’s name of course. So, from appearances in the tax collector and insurance company records, the borrower has not abandoned, except that the servicer pays taxes annually. I don’t know the period of typical insurance payments.

As to a claim, I doubt that the servicer has filed an abandoned property statement with the county because that might trigger a county involvement the servicer does not want.

What do you think, Shadowcat?

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bobhurt, on May 3, 2015 at 12:27 am said:

Regarding unpublished opinions, have you seen Appellate rule 32.1?

Rule 32.1 Citing Judicial Dispositions

(a)Citation Permitted.A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

(b)Copies Required.If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.

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bobhurt, on May 3, 2015 at 12:24 am said:

“For my part, thank you, Bob”

Thank you, Rod. I appreciate your kindness and the insights you have shared too.

Back in 2008 and 2009 I taught seminars on foreclosure defense until I realized that virtually nobody wins them. The foreclosure defense community put a low of energy into understanding and condemning securitization, robosigning, and the like. One former attorney told me banking lawyers devised it to destroy private property (no I don’t yet grok that point).

I had long since loathed the appraisal industry for incessant lies about the value of realty, and the banking and finance luminaries for creating a shifting sand of interest rates that falsely drove property values up and down by making money cheaper, like that rate drop in 2002 or thereabout. It amazed me that none of the foreclosure defenders seemed to give a hoot about it.

Finally, I realized that it had nothing to do with what made sense from the legal standpoint. The foreclosure defenders, in a Quixotic charge led by Garfield himself, found themselves in slobbery love with the business model of bilking clients for the privilege of leading them step by inexorable step into the jaws of foreclosure, short sale, or loan mod, five-hundred-dollar-a-monthing them for years and years, ultimately netting $20K to $30K apiece for the dilatory cookie-cutter pleadings they copied from case to case.

The borrowers all thought “What the heck, I’m gonna lose the house anyway, and I’d rather give part of my mortgage payment to the lawyer because I REALLY HATE THOSE BANKERS.” And they secretly harbored the la-la-land dream that the lawyer would pull a rabbit out of the hat and the foreclosure would somehow fade away in the mists of time. They never recognized the legal malpractice of their foreclosure pretense defense attorneys because they never bothered to look at what the Financial Crisis Inquiry Commission eventually pointed out as the core of the problem – government inspired predatory lending through appraisal fraud, loan application fraud, regulatory breaches, bait and switch tactics, switching legal titles on documents, and all manner of skullduggery. And of course, their lawyers called those issues “trivial” if they mentioned them at all, and essentially ignored anything that took a lot of work, including attending the summary judgment hearings. And thus, they can handle a hundred or more clients at a time, whereas no lawyer worth his salt can handle more than half a dozen active cases at a time where he must do actual, original work.

So, I turned my horse around in the other direction and headed for the horizon of Mortgage Attack, focusing attention on the injuries to the borrower that a court would do something about if presented artfully.

I have come to the edge of widespread encouragement to borrowers that they attack their foreclosure pretense defense attorneys for legal malpractice. I reason that if a client as a defendant in a breach of contract dispute came to me as an attorney, only negligence or rank incompetence would deter me from examining the loan transaction for evidence of prior breaches, unconscionability, fraud, deception, negligence, regulatory breaches, legal errors, hornswaggling, and skullduggery by the various malefactors who stood to profit by such wrong-doing.

Unfortunately for all the mortgage victims (including foreclosure victims) who don’t get their mortgages examined, they have absolutely NO chance of proving legal malpractice because they must prove the case inside before they can prove the case outside. That is they must prove their injuries and that BUT FOR THE NEGLIGENCE AND INCOMPETENCE of the Pretender Defender, they would not have lost their house or they would have fared better than they did. First they must prove they got injured, then that the lawyer could and should have looked for and found those injuries, then that the lawyer should have sued for compensatory and punitive damages, or at least tried to negotiate set-offs or a cram-down and restart of the loan at 3% fixed for 30 years, which no lender in his right mind would do without his testicles in the borrower’s attorney’s vice-like grip, and finally they must prove that they lost the house to foreclosure specifically because the lawyer failed in all those duties to him.

And now all this noise about TILA rescission, a regulatory breach issue that I consider part of mortgage attack, comes to my attention; and I decide to take the time to explain why it doesn’t matter in the grand scheme of things and has actually become insignificant the way borrowers typically deal with it.

Shouldn’t an attorney take a step back and think of the strategy surrounding the TILA violation, that it might provide much more value for the borrower to go into a mortgage attack and bring to the court the evidence of all those other injuries alongside the TILA breach?

Imagine yourself as the bank’s attorney and a borrower has laid the raw evidence on the table in front of you and told you that if you don’t bring a settlement offer of substance within a week, he will name you as a defendant in the case.

What would you recommend to the bank if the borrower had shown you the evidence of appraisal fraud which the lender underwrote, a fraudulent loan application that the broker concocted and the lender underwrote, TILA violations, a forced-placed insurance scam, and excessive interest and origination fees. Now the TILA violation becomes part of a PATTERN of malfeasance, doesn’t it? Doesn’t that have the fetid stench of conspiracy to it? What would you recommend to your principal?

THAT sums up the point I try to get across to mortgagors in the throes of foreclosure or the paroxysm of final judgment and sale – that even then they can still justify a mortgage examination and a MORTGAGE ATTACK effort because it can produce a monumental damages award package, and possibly reversal of the judgment, or if timed right, a very favorable settlement.

Most mortgagors tell me they don’t have the money to get a professional to examine their mortgages. And, you guessed it, most tell me they have already spent a wad of dough on one or more securitization or loan audits, and on a pretense defense lawyer who will NEVER bother examining a mortgage.

Over the years I have put substantial effort into learning the law, the litigation problems, the borrower problems, the lawyer problems, and the judge problems. They have brought me to embrace the paradigm I have presented above. I appreciate your taking the time to indulge the explanation, and I humbly thank you for your gracious comments.

Bob Hurt

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rciferri, on May 3, 2015 at 12:16 am said:

@bobhurt

You said:

“Rod ciferri: regarding all those case you cited that you say Rock got wrong…

LOOK at them. They show monumental incompetence by the borrowers, don’t they? We should not expect otherwise, should we?

You ought to point that fact out with the conclusion that the judges have simply done their jobs rightly, and so have the creditors’ counselors, but the borrowers have not.

That’s the point I tried to make to Dwight and JohnGault. Those cases show why the Jesinoski opinion will matter very little to the outcome of borrowers’ disputes with lenders.

Now suppose all those borrowers got their mortgages examined by a competent professional who found numerous OTHER causes of action against the appraiser, mortgage broker, lender, title company, etc.

We can conjecture how those borrowers would fare in their litigation efforts bringing those injuries to court for relief and remedy without the assistance of competent counsel.

People who want to beat the bank OUGHT to have a competent TORT/CONTRACT negotiator and litigator present.

Bob Hurt”

Yes, Bob, there was a lot of grasping for all straws Jesinoski in situations where Jesinoski could not help them. Of course, that doesn’t make it right for Rock to be citing those cases for the proposition that TILA rescission isn’t effected by the borrower’s mere notice.

Of course I agree with you that it is ideal to have an experienced litigator represent you (best case scenario) or at least help you do the case yourself (second best scenario), before going it alone (you need a whole lot of brains, the work ethic of a Spartan and a judge that is not biased against the self-represented to get a good outcome when you go it alone).

Finally, I reiterate that a borrower should not ignore the other causes of action you have pointed out in favor of just going for TILA rescission.

While Jesinoski IS a bombshell due to SCOTUS reiterating what the plain wording of the statute already told us regarding rescission via notice, no one should make the decision to go a pure TILA rescission route without serious deliberation, and, hopefully, competent legal counsel.

Remember that before SCOTUS made its Jesinoski ruling, the majority of US Courts of Appeal (almost always the court of last resort in the federal court system due to the rarity of the Supreme Court granting Certiori to hear a case) were slanting the table towards the lenders and away from the borrowers for YEARS on that issue.

No one should be surprised, then, if one loses their home after perfectly litigating their case, through counsel or self-representation, for any of the reasons Bob has pointed out. In my opinion, solely relying on TILA rescission is a strategy fraught with risks and should not be taken lightly.

That said, the more I research and the more I read everyone’s comments about Jesinoski and all the issues attendant to it, the more I believe TILA rescission has merit, if done correctly. However, that’s just one man’s opinion. Obviously, others disagree and those others may include judges.

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johngault, on May 2, 2015 at 11:41 pm said:

I said “Since the borrower had no duty to tender until the lender acted and made demand, I see no reason whatsoever to try to hold him to any degree or in any way responsible for the “dead money”.”

fwiw, I didn’t mean I think the borrower wouldn’t owe the amt of ‘dead money’ (the principal at the time when he rescinded) – just that I don’t believe he would owe the 79k+ or any portion thereof after rescission. I’d love to see one or a hundred of these bums have to forego even the dead-money-principal, but I don’t have an opinion on that one x arguments I’ve advanced re: what’s equitable. Opinion or not, I’d be pretty surprised if a court let a borrower off for that principal or an equitable amt of it even years down the road from her rescission (i.e., the lender not only missed the 20 days but has done zilch and it’s now been years since the rescission). I guess I’m not clear about any arguments here which would find the borrower off the hook for the principal even by the lender’s failure to act on the borrower’s notice of rescission. Except maybe in Dwight’s case where the lender app refused his offer of tender (but then, I do see it’s the lender’s obligation to provide the amt and I don’t see that the borrower has to do anything at all when that amt (etc) is not demanded.
So some believe the failure to act means the lender has foregone the borrower’s tender (for all time)? That’d be grand if true. I mean, the lender should incur a penalty for its failure to act or why bother – other than that it is imprudently sitting on dead money? Bob and many of us seem to disagree about who must act upon a notice of resc. He thinks it’s the borrower’s burden (right?) and most of us don’t. I think tila very clearly makes it the lender’s burden and that his failure to meet the burden is at HIS peril and not the other way around. Opponents of the majority view here cite a lack of genuine basis for the rescission, which is a possibility, there’s no doubt. But the lender is the one who has to DO something about his impression that there’s no genuine basis and not just sit on his laurels.

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bobhurt, on May 2, 2015 at 11:32 pm said:

Rod ciferri: regarding all those case you cited that you say Rock got wrong…

LOOK at them. They show monumental incompetence by the borrowers, don’t they? We should not expect otherwise, should we?

You ought to point that fact out with the conclusion that the judges have simply done their jobs rightly, and so have the creditors’ counselors, but the borrowers have not.

That’s the point I tried to make to Dwight and JohnGault. Those cases show why the Jesinoski opinion will matter very little to the outcome of borrowers’ disputes with lenders.

Now suppose all those borrowers got their mortgages examined by a competent professional who found numerous OTHER causes of action against the appraiser, mortgage broker, lender, title company, etc.

We can conjecture how those borrowers would fare in their litigation efforts bringing those injuries to court for relief and remedy without the assistance of competent counsel.

People who want to beat the bank OUGHT to have a competent TORT/CONTRACT negotiator and litigator present.

Bob Hurt

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bobhurt, on May 2, 2015 at 11:22 pm said:

A Man, I loved reading that Florida Bar Journal article on sanctions for fraud on the court.

I believe WAY TOO MANY litigants fail to ask for sanctions against opposing party or counsel for lying, flim-flamming, stonewalling, etc., in an effort to subvert justice or mislead the court.

Read up in the Rules Regulating the Bar on the topic of “Candor to the Tribunal.”

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bobhurt, on May 2, 2015 at 11:05 pm said:

Speaking of the aftereffects of overvaluation by the appraiser, in the Brown v Quicken Loans case, the appraiser said Lourie Brown’s $46,000 house had a value of $144,000. If she had a $25,000 homestead exemption, she paid tax on only $16,000 minus 20% of $46,000, or 16-9.2=$6,800 (because most assessed values are 20% lower than the market value). That meant her new taxable value after homestead exemption came to $100,200.

Ms Brown obtained a $700,000 settlement out of court with the appraiser, a minion of Quicken Loans. I guess that covered her property tax damage well enough. She had enough in her 4+million receipt from the lawsuit, after giving 40% to Bordas & Bordas to buy several houses, didn’t she???

I know of one mortgagor fighting against foreclosure who splattered ugly paint and mud on his house, disabled his swimming pool pump after draining the pool, and threw dirt and trash in it, and sprung his garage door, then called the county property appraiser to reassess his house, just so he could lower his value and tax and make the property look undesirable to the creditor.

He, by the way, has persistently refused to get his mortgage examined, and the constant stress over his seemingly interminable foreclosure has destroyed his ability to focus on his creative work in the entertainment industry, and caused his health to suffer. And so it goes for people who sip the Kool-Aid month after month, year after year, day in and day out, moaning about the horrors of securitization.

I appreciate your pointing out the aftereffect on property taxes of overvaluation.

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bobhurt, on May 2, 2015 at 10:46 pm said:

Deborah Wynn, please call me at 727 669 5511 to discuss the issue.
Bob Hurt

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bobhurt, on May 2, 2015 at 10:43 pm said:

eTolle, READ the definition of tender. I have explained it already. A tender is a PRESENTATION, not a suggestion or idea about, of MONEY or the equivalent, like laying it out on the table so the other party sees that you have it. You cannot lay a mortgaged property on the table, particularly not one in foreclosure. It must go through a sale or a serious appraisal to determine its net value in a transaction, and if the property must be sold within some short time frame, that puts serious pressure on the one tendering it to get it sold AT some conjectured price. As you know, the faster you must sell, the lower the accepted offer will become. So you see, a prospective sale is a mere conjecture, and so it normally ends up that the borrower offers up the property in a trade of conjectured equity based on appraisal and diminution by the value of the debt, and it almost NEVER has the high equity the borrower thinks it has.

Thus a tender of the borrower requires a tender of the creditor, and if the creditor does not agree that a TILA violation has occurred, the creditor will scoff at the borrower’s tender, in the same way that the creditors scoff at 80% of the borrowers’ loan mod efforts.

MortgageAttack.com – if you find one falsehood on that web site, let’s see your specific citation of the falsehood, and you correspond refutation. I have no contract with any service provider for fees, period. I have offered services FREE, as a public gesture of good will to help borrowers AND ATTORNEYS who don’t understand how to beat the bank. I tell them the strategy that works, and the strategy that doesn’t, and I provide proof via court opinions.

I have given FREE help to people who do services for Garfield, or who have paid for his services and never received either the services or a refund.

As to my motive, I consider myself indwelt by a pre-personal spirit fragment of our Heavenly Father who yearns for me to become like him. I feel inspired by that and by the teachings of his son Jesus of Nazareth, about whom another knowingly wrote…

“The unfailing kindness of Jesus touched the hearts of men, but his stalwart strength of character amazed his followers. He was truly sincere; there was nothing of the hypocrite in him. He was free from affectation; he was always so refreshingly genuine. He never stooped to pretense, and he never resorted to shamming. He lived the truth, even as he taught it. He was the truth. He was constrained to proclaim saving truth to his generation, even though such sincerity sometimes caused pain. He was unquestioningly loyal to all truth.”

Do YOU need help? If you do, feel free to call

Bob Hurt 727 669 5511

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Shadowcat, on May 2, 2015 at 10:39 pm said:

And yes…in 2002 we kept making the payments right up to the time we hired an attorney. Better Safe than Sorry.

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Shadowcat, on May 2, 2015 at 10:36 pm said:

Bob, I thought that’s what I said but you say it so much more eloquently than I. Thank You!

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bobhurt, on May 2, 2015 at 10:17 pm said:

TILA makes it clear that the court becomes the ultimate arbiter of any dispute between borrower and lender with respect to TILA. So I cannot fathom why anyone would presume that a questionable and likely fraudulent notice of rescission could possibly CONSTITUTE a rescission, including discharge of all obligations of the parties to one another, justly or unjustly.

Clearly, in any dispute, the matter must go to the court for resolution. If the borrower doesn’t take it, the creditor will, in a foreclosure action.

THAT should explain to anyone but an infant PRECISELY WHY the lender with an iota of moxy would KEEP MAKING PAYMENTS till the court has resolved the mess. COMMON SENSE, you know.

An amateur borrower puts himself at PROFOUND RISK in making a big money deal with a professional lender. DON’T YOU KNOW THAT BY NOW? The borrower must make every payment, correct to the penny, and including any arrears to cover escrow, on time and not one minute late, in order to avoid losing the house, TILA notwithstanding.

REMEMBER, lending regulations and related court activity have the ultimate purpose: to ENFORCE A VALID CONTRACT between borrower and lender and settle disputes equitably. When you start wondering how TILA rescission should work, start by USING COMMON SENSE. Put yourself in the shoes of a judge who knows and must heed rules of procedure and evidence, and binding case law WHILE settling a matter equitably which the parties present artfully and within the scope of those rules and case law.

You can see from that proposition a glaring deficiency in the knowledge and ability of most borrowers, particularly those who appear pro se, and most particularly in contrast to the knowledge and ability of their opponents, professionals who appear with attorneys, more professionals, representing them.

Please don’t fuss at me about it, and realize that I don’t GO OFF or GET OFF on you. I just try to appeal to common sense with the realities of how things work.

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Shadowcat, on May 2, 2015 at 9:50 pm said:

Its the or as otherwise ordered by the coart part you keep blocking out.

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rciferri, on May 2, 2015 at 8:21 pm said:

@Shadowcat

You said:

“You shouldn’t count your chickens before they hatch.”

True. But, more will hatch if you lovingly await their arrival!

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Shadowcat, on May 2, 2015 at 8:15 pm said:

You shouldn’t count your chickens before they hatch.

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rciferri, on May 2, 2015 at 7:34 pm said:

@Neidermeyer

You said:

“IT DOESN’T WORK ANYMORE ,, Jesinowski IS SO SIMPLE A CAVEMAN CAN UNDERSTAND IT.”

Lol! Saturday Night Live:

“Ladies and gentlemen of the jury, clearly TILA says to my opponent “you snooze, you loose”, but, hey, what do I know? I’m just an unfrozen caveman lawyer!”

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rciferri, on May 2, 2015 at 6:39 pm said:

@Shadowcat

You said:

“Whose cheating who? And who is being True?”

In the context of refusal of tender, I might not matter much if there’s a cheater at all. The law is often that way. Like adverse possession, for instance – from one perspective, legally sanctioned stealing of another’s land – from the other perspective, it serves public policy by making sure people make use of their land under penalty of losing it to another who could use it. In refusal of tender, it furthers the policy of ensuring a commercial system that’s fast and efficient to require a tender to be responded to within a specified period. If the lender doesn’t respond to the tender the borrower is discharged as a penalty for not complying with the statute (Cal. Civ. Code). In the context of TILA rescission, in enacting protections for borrowers, TILA is saying to the lenders “you will comply with these requirements, or you will lose everything.”

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rciferri, on May 2, 2015 at 6:26 pm said:

@DwightNJ

As an aside, you said you were a construction worker. I did that for many years (laborer). I have a lot of respect for people who do that kind of work. In construction, the results of your work are tangible and long lasting. I like that. Whereas the blah, blah, blah us attorneys engage in can be ephemeral.

As for Bob, I’ll take a second look at the bones you are picking.

You said:

“Integrity and honesty are important attributes that matter to some of us here, maybe not to you, but to the rest of us it’s important to any healthy debate.”

I agree with you, what’s the point of debating if the person you are debating is just going to make up “facts”.

Last night I looked through the posts to see where Bob lied to you and I couldn’t find it. If I found something like that, rest assured I would certainly call Bob out on it – or anyone else for that matter.

You also said:

“Bob flat out lies and twists the truth to keep undermining his anti-rescission argument”

Obviously I get that Bob doesn’t buy the TILA rescission by notice argument. However, I don’t see him doing things like posting cases that don’t stand for the proposition he’s asserting – like Rock has made a career of doing. I think he just honestly doesn’t think the courts will go for it – despite what Jesinoski said. Like I told him, I wouldn’t be surprised if they don’t go for it, probably for the same reasons he is so adamant about it, i.e., the court thinks the borrower gets a “free house”, etc. (which is really just socio-economic bias in the context of TILA rescission). The thing is, Bob posts stuff that can help a lot of borrowers in their suits against lenders, so it does make me wonder why he can’t get behind the clearly non-frivolous TILA rescission by notice argument. However, I’m willing to give him the benefit of the doubt that he’s not just some shill working for the banks, because, again, unlike Rock, he actually posts some very useful information here. Yet, despite giving him the benefit of the doubt, I think he’s got a touch of bank bias in him when he goes on about “free house”, etc. It seems to shock him so much, despite the fact that TILA is a remedial statute forged at a time when lenders needed a slap on the nose to fly straight (and nothing has changed in that regard over the years). It doesn’t shock me at all that Congress would be so draconian (Senator D’Amato’s words) as to take the whole deal right out from under them for their failure to follow federal law. Not so, Bob. In short, despite such a bias, I’ve found he’s pointed the way to some methods not considered by a lot of attorneys to, not only slap the lender on the nose, but take the lender’s whole head off its body.

You also said:

“See his comments about why its wrong for borrowers to stop making payments after they rescind, he determined that it deserves a default and foreclosure, thats bullshit and he deserves to be called out”

I read in some post that he said it is a slippery slope to stop payments even if you rescinded. He makes a valid point in that regard, IMO. If the court does pull a Rock and ignore Jesinoski against someone relying on TILA rescission to save the day, at least the person who kept paying their mortgage can still beat the foreclosure case, whereas, if one stopped paying, without more, they would most likely lose the foreclosure case. That said, however, I’m not sure it is the right move, vis a vis TILA rescission, because, even if the court believes Jesinoski meant rescission is effected via notice, a court may say the rescission notice is ineffective because the homeowner has waived any benefit of the rescission, effectively allowing the court to reinstate the loan despite the previously effective rescission. I haven’t researched this issue yet, so I’m not so sure about it. However, anyone who has done a TILA rescission should definitely do some research to make sure they are not undoing the effect of the rescission by continuing to make payments.

You also said:

“and when he twists and spins the truth about my tendering”

I couldn’t tell he wasn’t talking about tender in the context of TILA. If he was, he may have misapprehended the point you were making under statutory or common law tender. So, I’ve got to give him the benefit of the doubt with this one as well. However, I definitely know what you are talking about (I’m currently awaiting a court decision at the conclusion of a bench trial that was based almost exclusively on the lender’s refusal of tender; all demurrers by the lender were overruled and the judge seemed solid with us straight through trial and he definitely gets that, under California law, refusal of tender discharges the amount of the lien by the amount of the tender – in this case – the entire amount of the loan). Talk about a “free house”! And the only Kool-Aid being dispensed is flowing from the fountain of California’s Civil Code. But other jurisdictions may have different law in this regard and Bob may have been stuck in TILA rescission land when he made his comments about it. However, I’m solid with you on the issue Dwight, if New Jersey has rules sufficiently similar to those in California about tender.

You also said:

“disingenious promoter from another website who is twisting everyones statements in his attempt to undermine rescission.”

It seems strange to me that Bob does not to see how huge Jesinoski is in the context of TILA rescission by notice is (not just the shit canning of the sue within 3 years thing), especially when he often shows other ways of slapping the lender upside its head, I must admit I’ve on occasion thought it is just jealousy or protection of the mortgageattack.com business that has led him to be so adamant in his views concerning TILA rescission by notice. Yet, I also give him the benefit of the doubt on this because he has shared information that anyone can take and use right now, without paying him a dime.

You also said:

“show us the cases and the arguments”

He has referred to cases in which it does appear the causes of action and, perhaps case strategy, of mortgageattack.com has led to some excellent results (see the website mortgageattack.com). However, I have not yet seen Bob state that the homeowners in those cases employed mortgageattack.com to help them achieve the results they did. That would be good information to have because, although I believe Bob is certainly capable of doing the work necessary to achieve the results occurring in the cases he’s referred to, I think he’s made it clear that it is not him who does the work – mortgageattack.com does it. So, without showing positive results that can be attributed to mortgageattack.com’s help, I certainly don’t know if they can deliver what I’ve got a feeling Bob is capable of delivering himself. So, I invite Bob to share over here some of the results actual clients of mortgageattack.com have gotten.

You also said:

“so I wrote my own motions and did the best I could ..and I’ve held them off for 8 yrs”

If that’s all that is accomplished, that’s better than a lot of attorneys can achieve on your behalf. As an attorney, I’m proud of you for doing it your-self with such diligence over the long haul. As an attorney, I’ve also seen, what can only be attributed to an implicit bias of the court against the self-represented, despite their excellent lawyering [I’m using “lawyer” as defined by Bouvier’s Law Dictionary, First Edition (1839) as: “Counsellor, one learned in the law.”] Not every judge is biased in that way, but they are common.

You also said:

“so excuse me if I lose my temper at times and lose patience”

I totally understand, Dwight. I REALLY hope you destroy them on appeal. I wish there was a way I could help you more. Construction workers are the salt of the earth. They give WAY more value to the world than some jerks who are paid to kick people when they are down (yeah, I’m talking about you, Rock!)

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Shadowcat, on May 2, 2015 at 5:55 pm said:

We agree on something….
The Judge using the word Tender is a Big Deal.
Just not in the context as you precieve it To be.

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neidermeyer, on May 2, 2015 at 5:44 pm said:

@ Christine ,

*****************
OK, I stand corrected: Scalia did use the word “tender”. Big deal.

Regardless, Scalia’s opinion does not change the spirit of TILA and the fact that it requires tender to make both parties “whole”, i.e., put them back where they were before entering into the loan contract..
*****************

I know you have stated you won’t reply … what everyone here seems to comprehend but you is that to unwind the deal THE DEAL MUST BE REVEALED AND PROPER DOCUMENTATION MUST BE PRODUCED… and in most if not all cases the deal will be shown to have never gone down as memorialized on the deed/mortgage and it will be declared VOID AT INCEPTION (actually it won’t the bank will quit the case and walk so as to not have this as a documented case of fraud). I could go on and quantify the windfall(s) that various parties have made on my back in regards to balancing the scales to perform a valid and equitable tender ,, showing how much they owe me … but that’ll make you and Rock run out for drinks and demand a raise from your bankster bosses while you postulate a reply and further trash your reputation. You guys are pretty good at wearing others down bit by bit with half and quarter truths , always sneaking a bit of truth into your arguments to add legitimacy… IT DOESN’T WORK ANYMORE ,, Jesinowski IS SO SIMPLE A CAVEMAN CAN UNDERSTAND IT.

Let me give you the lowdown…

If you’re a bank and you cheated anywhere in the chain of ownership YOU LOSE.. PERIOD , END OF STORY.

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Shadowcat, on May 2, 2015 at 5:17 pm said:

Strike..I meant . Tenets in Entirety with ROS.

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Shadowcat, on May 2, 2015 at 5:14 pm said:

How can my husband sell me the house to payoff his debt and deliver me title if We granted and conveyed irrevocably via a Warranty Deed to the capital asset company as Tenets in common with right of survivorship at closing?

Then there is that pesky trustee deed to my husband from sellers estate (notice I didn’t say Warranty Deed to US) without any trustee agreements being filed with it.

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johngault, on May 2, 2015 at 5:07 pm said:

One rescinded and thereafter made no payments. Nothing to make payments on. Lender did nothing. Eventually the lender decides to foreclose (on a rescinded contract) and alleges as basis breach of contract (what contract?) and claims that the borrower is in default by $79, 382.14.

Not only must they return the $57,688.92 the borrower has already paid (imo this includes all payments made and the costs related to the loan, i.e., points, orig fee, title insurance, prepaid interest, etc*), the lender has by its failure to act lost any claim to any monies subsequent to the rescission, the $79,382.14. Their self-help (doing nothing) has cost them years of interest when what they could’ve and should’ve done is rescind, do their bit, and get the tender at the time of rescission. The principal amt of the rescinded but unrescinded loan is dead money, just sitting there. They have to eat the $79,382.14 and THAT’s what this is all about. imo. The non-acting lender has by his own inaction / failure allowed a borrower to prolong his tender requirement which isn’t triggered until after the lender’s performance. To the extent someone is obligated to make or did make payments to the certificate holders (after failing to act), they may be liable for that 79,382.14 with no way to collect. But any which way, it’s gone, gone, gone. (It’s unearned). And for their own inaction, they may be denied coverage under any insurance they took or maybe worse, be compelled to return any funds any insurer forked out while the lender didn’t act but claimed default. So of course they want to fight their failure to act tooth and nail. Since the borrower had no duty to tender until the lender acted and made demand, I see no reason whatsoever to try to hold him to any degree or in any way responsible for the “dead money”.
lay opinions

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Shadowcat, on May 2, 2015 at 4:58 pm said:

Misrepresentations? Profit? Signing compasity? Theft? Slander? Delivery of title?
Whose cheating who? And who is being True?

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rciferri, on May 2, 2015 at 4:47 pm said:

@Shadowcat

You said:

“Would you say it has something to do with unfiled trustee agreements? Unfiled Warranty Deeds? Satisfaction of Mortgages? Delivery of title?
Money? Fees?”

No, I wouldn’t say that.

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DwightNJ, on May 2, 2015 at 4:38 pm said:

Rciferri … The reason some of us come down hard on Bob is when he is being disingenious , or at least gives the impression that he is not able to debate the issues in an honest way. Integrity and honesty are important attributes that matter to some of us here, maybe not to you, but to the rest of us it’s important to any healthy debate. We don’t have to agree on everything, but when Bob flat out lies and twists the truth to keep undermining his anti-rescission argument ..it’s bullshit and has no place on a forum like this where the homeowners are trying to get real information and facts in order to understand their options. We don’t need to be further confused by a man who intentionally inserts half truths and misleading information about rescission theories he has, like when he attempts to present mis-information as tho it is fact .. See his comments about why its wrong for borrowers to stop making payments after they rescind, he determined that it deserves a default and foreclosure, thats bullshit and he deserves to be called out , and when he twists and spins the truth about my tendering, he presents his attack on me as tho he’s arguing on the banks behalf , twisting and spinning why a homeowners tender shouldn’t be taken seriously, and thats bullshit…we’re not here on Neil Garfields website to play games with a disingenious promoter from another website who is twisting everyones statements in his attempt to undermine rescission. Its ridiculous, enough already ..we all understand that he’s pushing his own agenda “attack the mortgage” , but he’s over the line and disruptive to the rescission discussion when he can’t debate honestly and with a level of integrity. He’s trying to scare people into thinking they have no right to rescind, that they deserve to be foreclosed on if they rescind, the anti-rescission argument is now morphing into a disinformation campaign by him , like he desperately needs to make sure nobody can hold out hope , constantly attacking every facet of rescission, come on. He spends more time here attacking rescission than he spends in his own life attacking the mortgage and helping those interested in it. Maybe he should post all the great victories of his friends who have won those cases , show us the transcripts , show us the cases and the arguments … But all we ever see is him here attacking rescission. At least be honest and show a little bit of integrity while debating, thats all most of us ask. Bob Hurt has shown a few times to have bent the truth to fit his agenda, and that is why he was called out for it. You want to debate? Fine. Just don’t start playing games with people who come here looking for help or information, it starts getting personal and tempers begin to flare. He’s doing a spin-doctor of rescission while he attacks me personally about my tender offer. And it never stops, he continues to spin and disrupt everything and anything pertaining to TILA rescission and Jesinoski. He’s cheering for the lenders in this rescission issue , but he presents his side as though we’re all the stupid ones . Its no longer a healthy discussion or debate with him when it reaches that point. He has a blog, he should write all his theories and post all the cases from “attack the mortgage” so we can learn about them.But he would rather be here picking my case apart and calling me stupid … I did the best I could as a construction worker with a family and young children, every lawyer I spoke to offered to get me a modification or a chapter 13 .. None knew or wanted to argue attack the mortgage stategies or other foreclosure defenses ..so I wrote my own motions and did the best I could ..and I’ve held them off for 8 yrs , and now the Jesinoski ruling comes out and sure enough I had indeed attempted to rescind ..hell yeah I’m fired up and pissed off. .. I’ve been lied to and jerked around for the past 8 years of my life and I want justice..I can’t even get due process ..so excuse me if I lose my temper at times and lose patience with people like Bob who are sticking me and poking me with his verbal jabs and insults. I’m sorry and do apologize to everyone here, including Bob.

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Shadowcat, on May 2, 2015 at 4:27 pm said:

Would you say it has something to do with unfiled trustee agreements? Unfiled Warranty Deeds? Satisfaction of Mortgages? Delivery of title?
Money? Fees?

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rciferri, on May 2, 2015 at 4:02 pm said:

@Shadowcat

You said:

“Why in the World would anyone refuse tender of a payoff?”

I don’t know. Some people have ventured some theories here.

However, it happens fairly frequently.

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Shadowcat, on May 2, 2015 at 3:58 pm said:

The legal effect of tender that has been refused.
And I am not talking about recission.

Why in the World would anyone refuse tender of a payoff?

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Shadowcat, on May 2, 2015 at 3:45 pm said:

1099A. Property Abandonment
You say you didn’t abandon it..
..but you didn’t claim it either did you?

Abandoned property escheats to the state .

taxes n insurance
maintains and possesses
Staked a claim.

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rciferri, on May 2, 2015 at 3:41 pm said:

@Rock

Oh, Rock, I forgot to say, while you were posting that In Re Residential somehow rejected Jesinoski’s determination that recission is effected by mere notice, that, even if In Re Residential stood for the proposition you say it does – which a cursory reading of the case reveals it does not – it really doesn’t matter because it is UNPUBLISHED. As such, it has very little precedential value.

Why did you neglect to inform everyone that a lender, and courts for that matter, in most instances, would not even be able to cite In Re Residential as authority for anything?

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rciferri, on May 2, 2015 at 3:23 pm said:

Regarding Bob Hurt, I think some of the posters here have been a bit too harsh on him.

I think his opinions posted here are for the most part well thought out, appear to me to be informed through experience and very valuable because they give everyone here something to think about in formulating their own causes of action that are powerful enough to win cases.

He and I may disagree about TILA rescission being completed through notice and perhaps the legal effect of tender that is refused (in general). However, any other disagreements we may have are based upon my view that non-frivolous legal arguments may be made in some of the areas in that Bob rightfully points out have been rejected repeatedly by the courts.

That being said, I respect Bob because he consistently gives well considered opinions on problems faced by some of the posters here, asking no fee from any of us in doing so. Whether one disagrees with Bob on some of the legal issues or not, I believe one must give credit where credit is due on the issues one agrees with Bob on and that he should be thanked for his legal insights provided here for free.

I’ve been practicing law for 20 years and I can tell Bob has been around the legal block more than a few times and he has learned from that experience and brought it here to help folks who may be struggling to understand some of the issues he has already dealt with in the past.

For my part, thank you, Bob, you have helped me see the potential of some causes of action I previously didn’t give much thought to.

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rciferri, on May 2, 2015 at 3:05 pm said:

@Christine

You said:

“Rciferri is a non entity”

What the hell are you talking about, Christine?

Is there someone here who is fluent in gibberish to translate this to English for me?

Rock, you seem like a good candidate that task.

You also said:

“Still just a paralegal”

It’s true, I am a paralegal.

I’m also an attorney of good standing in New York with no disciplinary record, which you would know if you weren’t just too damn slothful and careless to find out.

You also said:

“I remember you from 5 years ago.”

I don’t think you do.

I just started posting here within the past month or so.

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rciferri, on May 2, 2015 at 2:57 pm said:

@Christine

You said:

“You never set foot in a law school, did you?”

I admit there were some useless classes that I rarely went to. Thank God for anonymous grading!

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rciferri, on May 2, 2015 at 2:53 pm said:

@Rock

You said:

“because no matter what authority I cite –unrefuted authority, I might add”

I’ve said more than once:

“NONE of the cases you cited show a borrower loss in which the borrower made a timely and properly prepared TILA rescission (and didn’t sign an agreement invalidating it later).

LAGRANT – “Plaintiff alleges that his lender made none of the required disclosures at settlement. Thus, the alleged TILA disclosure violations occurred on December 14, 2006, but Plaintiff did not file suit until November 7, 2014.” – UNTIMELY.

TAYLOR – “Plaintiff alleges in his Complaint that the “closing date” for his mortgage transaction was December 18, 2006. Compl. ¶ 25. Accordingly, pursuant to § 1635(f), Plaintiff was required to exercise his right to rescind by December 18, 2009. Although Plaintiff acknowledges in his Complaint that “[t]he Truth in Lending Act . . . extends Plaintiff’s right to rescind a loan to three years from the date of closing if the borrower received false or incomplete disclosure of either the loan[‘]s terms or Borrower’s right to rescind,” Compl. ¶ 126 (emphasis added), Plaintiff does not allege any facts remotely suggesting that he provided notice of rescission to his borrower before the three-year period elapsed. Instead, Plaintiff appears to be seeking rescission for the first time with the filing of the Complaint presently before the Court.” – UNTIMELY

MACKLIN – Letter that Macklin wanted the court to determine was a rescission notice under TILA didn’t even use the words “rescission” or “Truth In Lending Act.” – INADEQUATE NOTICE.

GALYEAN – While acknowledging plaintiff didn’t need to tender, the court dismissed for a reason unrelated to TILA – plaintiff did not plead facts that the defendant was a proper party. – DISMISSED FOR REASONS UNRELATED TO TILA RESCISSION.

In Re Thomas E. Jones – This case concerns a rescission of a reaffirmation agreement, not a loan. Jones filed a notice of rescission of a reaffirmation agreement with the court. Court treated it as a motion and denied it as “unnecessary and procedurally improper.” MOTION DENIED FOR REASONS UNRELATED TO TILA RESCISSION.

IN RE HAFFEY – Haffey sought to rescind his note on the grounds that it was forged. Court wasn’t buying it for lack of factual allegations to sustain his complaint. CASE HAS NOTHING TO DO WITH TILA RESCISSION.

RESIDENTIAL CAPITAL, LLC – ANY TILA RESCISSION WAIVED BY MODIFICATION AGREEMENT”

So you see, Rock, your BS legal conclusion regarding the cases citing Jesinoski has been refuted – more than once.

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rciferri, on May 2, 2015 at 2:44 pm said:

@Rock

You said:

“And because I do, now I’m a liar.”

At least you have admitted you are a liar.

They say that’s the first stage of recovery, Rock.

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rciferri, on May 2, 2015 at 2:41 pm said:

@Rock

You said:

““First, the Supreme Court’s decision in Jesinoski does not constitute an intervening change of controlling law.” In re: RESIDENTIAL CAPITAL, LLC, et al., Debtors. Case No. 12-12020 (MG) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK April 9, 2015”

Yet, you neglected to quote the part where the court explains WHY it denied the motion for reconsideration:

“While Jesisnoski is undoubtedly relevant to the issue whether Rozier exercised her right to rescind the loan originated by WMC, it does not address whether such rescission can subsequently be waived by entering into a modification of a note and deed of trust and signing a general release—the issue decided in the Opinion. (See Opinion at 24-25 (holding that the Trust established that Rozier waived her right to rescind her loan by entering into a modification of note, modification of deed of trust, and release).)”

In other words, Jesinoski was not on point with the facts of the case. It didn’t apply to the case; the court didn’t say one couldn’t rescind under TILA upon mere notice. The court just wouldn’t reconsider the prior decision finding the modification agreement signed by the homeowner waived rescission (a ridiculous proposition in itself; but that’s another story).

Nice try, but you continue to get your head handed to you contending cases have rejected that determination by Jesinoski. Perhaps you should read a case before you post it here in support of such proposition. But, I guess that would be just too much work – much easier just cutting from a pretender lender synopsis of cases and pasting it here, right, Rock?

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Shadowcat, on May 2, 2015 at 2:21 pm said:

The A potty mouth man,
About 6 inches.
You?

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rciferri, on May 2, 2015 at 2:18 pm said:

test

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Shadowcat, on May 2, 2015 at 2:14 pm said:

Net Worth

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Deborah wynn, on May 2, 2015 at 1:56 pm said:

I know thats probably not what you meant SC

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Deborah wynn, on May 2, 2015 at 1:54 pm said:

Future payment
the word bailout comes to mind

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Deborah wynn, on May 2, 2015 at 1:53 pm said:

You know the 1099a reveals the fair market value ( price paid via ” credit bid” also termed ” legal money” ( not)
The difference was what induced a signature – the purported market value in a ” stable” market, none of which is true, not then and not now.

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The A Man, on May 2, 2015 at 1:49 pm said:

What up Shadowpussy

http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/7ee566f4f7305b2085256e24006a34b6!OpenDocument&Highlight=0,disability*

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Shadowcat, on May 2, 2015 at 1:32 pm said:

Its difficult these days to find a bank who carries their own mortgages.
Word to the wise….ask them if they sell their loans. If they do…walk away.

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Shadowcat, on May 2, 2015 at 1:28 pm said:

Future payment stream?

Ask a bank why they don’t hold their mortgages anymore and sell them on the 2ndary shadow market and they will tell you they don’t make enough profit.

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Shadowcat, on May 2, 2015 at 1:13 pm said:

Selling the notes at face value should tell us something. ????
The face value is vastly smaller amount of money vs selling the value of the payment stream (P&I)?

Help me out here.

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Shadowcat, on May 2, 2015 at 12:55 pm said:

Sorry E- Tolle. .. I forgot you can not read between the lines. But given time..I am confident you will figure it out.

TU… Add the 1098s to that list with the 1099a and 1099c.
In addition to the insurance don’t forget how the inflated appraisals increased the property taxes ..in some cases by double what the seller was paying and the figure used to calculate the payment. Escrows were in default after the 1st year… Now you had to pay the shortage from last year and increase the escrow payment for the next year.

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Deborah wynn, on May 2, 2015 at 12:52 pm said:

Bob
Please do you have the case numbers
That you cited in your reply 2.41 to Dweight. I want to see if they apply to my case at all. Thank you

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E. ToLLe, on May 2, 2015 at 12:47 pm said:

And while I’m at it, Bob, what’s in it for you? Why do you constantly rearrange what DwightNJ has said and shape it into something else? He emphatically stated that he offered tender….why can’t you accept that? You think tender is supposed to consist of hard cold cash only? S&H Green Stamps? WTF? He said he had loads of equity. THAT”S TENDER!

Your constant use of the MORTGAGE ATTACK term is telling, as it’s not a huge leap to put the dot com behind that phrase and read the same exact gibberish on your website. How do you make money on your referrals to analytics? Please inform the masses exactly what your arrangement is with Storm, Rock, Gene, or any others who have a profit motive tied up with the status quo of borrower defenses, or lack thereof.

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E. ToLLe, on May 2, 2015 at 12:38 pm said:

Christine, you’ve hit new depths of deceit. Your comping DwightNJ with cubed2k is the most disingenuous thing you’ve posted, and that’s a mighty long list.

Do go back “over your notes” and tell us all exactly what you have on cubed2k and how it relates to DwightNJ. You have ZERO proof that cubed followed Garfield….ZERO! He was just someone else, like any of us here, who came up against the machine and lost footing. Give up even one single item refuting that. You can’t.

Your twisted goal on LL has shifted from a borrower in search of tactics to hard core disinformation and worse, outright lies. You are exploring new lows….

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Trespass Unwanted, on May 2, 2015 at 12:34 pm said:

Once upon a time I bought a car. I negotiated the price to affordability.
After I thought the car was mine. I ended up in front of a man who sold me undercarriage protection and in case I die or lose my job insurance.

The price of the car was no longer affordable because my auto insurance went from liability to full coverage with comprehension, personal injury protection (PIP) and property damage.

I went home that night angry that guy did not listen to me and made me think I could not get the car unless I protected it.

The next morning I went back and said I wanted to speak to him. I wanted to cancel the coverage.
I thought I’d have to right tooth and nail to get out the deal.

What I got was a very unhappy, disgruntled, shadow of a man who was not as pushy as the night before. He spent his time being nice and trying to find out why I didn’t want it and if they extended the payment terms would that help? I answered no because longer terms meant longer time on full coverage insurance.
I wanted out so bad I thought I had to leave the car and have bad credit.

I had rescinded my signature on an unconscionable contract for me.
I in my right mind would not have entered the contract because I could not afford the car after they had wore me out negotiating for it and sent me to that man to sign papers to close the deal but he didn’t disclose his part was not the car purchase.
All that insurance was a different from the deal made for the car.

My first rescission and it was effective at notice. He shreaded the docs right there and thus the contact no longer existed. (Our very own null and void)

20 days is a long time in the banking world. Most transactions happen within three days.

When you tell them you rescind. They know what it means.

Anyone making you perform the obligations of a rescinded contract are, in my opinion, committing a criminal act and knowing what I know, I learned the only ones who can get to them are the enforcement agencies set up to document their behavior.

They are not Gods but they are in a position of trust, and are not trustworthy.

I tattle tell on them and let their guardian make them do the right thing.

If there are two involved, they each get their own complaint.

If an entire law firm wants to tag team so no one lawyer is guilty of robbing me; I name each one who signed a document to rob me.

Its not over until you give up.

And I don’t beat in the same doors either.
In my opinion the public trust needs to me know what they do behind closed court doors.
In my opinion, remedy is outside. We arebtild to follow the carrot and a lot get slaughtered that way.

Judicial complaint the judge, bar grieve the attorneys, complain with the state AG, few complaint with FTC, CFPB, and even agencies in DC. Many lodged complaints with the IRS.

Next. Don’t accept any more papers from them. 1099A is to say you abandoned the property and they send it to you to file with your taxes. What do you thing a gov’t agency is going to think when you complain but still do business with them by filing forms you abandoned the property? What do you think the IRS is going to assume?

I don’t know legal things. I know no thing.
I only have opinions cause they are changeable and mine and can’t be stolen in court.

Neither law nor fact are tried in courts, that’s why those items go to the Supreme Court. They are the only ones who can hearblaw or fact.

If you don’t complain and make it public record, it’s just business — they know it — you don’t.

Trespass Unwanted – sent from Android – forgive typos

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E. ToLLe, on May 2, 2015 at 12:29 pm said:

You can Revocable.

I would say that’s the single most stupid utterance ever out of your mouth….but the list is wider than the oceans.

The next time you start to post something, for once for God’s sake, THINK FIRST, for a change. Just once.

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Shadowcat, on May 2, 2015 at 12:14 pm said:

Can you modify irrevocably?
You can Revocable.

Nouns and Verbs …. The difference in how you comprehend things.

How many people here with High School diplomas ?

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Shadowcat, on May 2, 2015 at 11:40 am said:

The Little Piggie laughed all the way to market…..
But the widow laughed all the way Home.

They who laugh 1st..don’t laugh last.

Many Blessings to All!

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Shadowcat, on May 2, 2015 at 11:11 am said:

Does anyone comprehend the meaning of irrevocable living estate/trust?

Till death do you part.

We decided our Will was outdated. We had accumlited assets in addition to being Blessed with Grandchildren. One dayl I went to our Estate Attorney to set up a living trust.

Hell has no fury like the widow scorn.

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Rock, on May 2, 2015 at 6:22 am said:

“First, the Supreme Court’s decision in Jesinoski does not constitute an intervening change of controlling law.” In re: RESIDENTIAL CAPITAL, LLC, et al., Debtors. Case No. 12-12020 (MG) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK April 9, 2015

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johngault, on May 2, 2015 at 5:29 am said:

“I say that failure to make payments constitutes a profoundly slippery slope for most borrowers, including would-be rescinders, because borrowers are NOT expert in the law and they goof up many things because they misunderstand how things work.”

well, yes and no imo. WHY in the world would anyone make a payment on a loan he had rescinded? If I had rescinded a loan, I (me not anyone else) sure wouldn’t risk an assessment that I didn’t mean it by making a payment afterward. There’s only prejudice, the “profoundly slippery slope”, if a judge doesn’t agree that rescission occurs 20 days after the lender’s receipt of a timely rescission – and the lender has failed to act in the manner prescribed in the Act to contest the rescission. TILA was NOT written as a lender-help-yourself deal. Fwiw, I’m standing by what I’ve said: a notice of rescission is akin to a “you’ve been served” and accordingly, the lender must either do the X of tila or timely seek absolution or variance. With non-j foreclosure, a Notice of Default may be sent by U.S. mail and it’s also pretty much a “you’ve been served”. Go argue in court (altho one should be able to argue with an impartial dot trustee at least to some extent imo) or lose your home. Is it really so incomprehensible that what’s good for the goose is good for the gander, good lord, at least ONCE?
Don’t bother going off on me. These are my opinions based on MY reading of tila and I don’t care what so and so said or where. I don’t expect anyone to rely on my lay opinions, but neither can anyone with an opinion sit still and countenance what is viewed as illogical.

But, yes, lay people mess things up in court. But even as I always say I don’t want to believe the worst, some (key word) judges are just plain mean and sanctimonious. And don’t even tell me I think they’re mean because they don’t go our way. They scoff at unrepresented litigants daring to enter their hallowed halls, and in response, wrongfully imo hold them to professional standards rather than glean the positions I think they could if not should (“take up the strongest argument their
pleadings suggest”). They seem to think they’re kings being asked to shake hands with a mere commoner / peasant. I’ve said the person getting called ‘sir’ or ‘ma’am’ is in trouble in a court. Go sit in and listen: (pro se homeowner is often sir or ma’am’; bankster attorney is “MISTER Jackson”. I admit my conclusion is subjective, but it’s what it is.

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johngault, on May 2, 2015 at 4:34 am said:

bobhurt: “Why doesn’t the borrower have the right to challenge the assignment or related notary robosigning?

Borrower not a party to it, a third party beneficiary of it, or injured by it.

jg: without addressing injury, as to 3rd party ben, acc to MersCorp et al’s judicially noticeable mers’ propaganda, the borrower was indeed an intended third party ben of securitization (would get better loan rate as a result of securitization)

“Furthermore, if the assignee and assignor have no dispute with one another over it,( why should the borrower).”

jg: that’s just not a fact in evidence. There’s no evidence the party named as the assignee is aware of and has accepted the assgt (even if “mers” could also assign the note) TO dispute it; logic dictates that one with a fiduciary wouldn’t, even if he could, accept an(alleged) asset which destroys the purpose of the organization, is detrimental to those to whom he owes the fiduciary, if acceptance weren’t otherwise required (as I aver it is). It’s nothing but reasonable to require evidence of acceptance as to these ‘late’ assignments, and in fact, imo, it’s error to deny a request for such evidence – from the horse and no one else. Further, it may well be that the sales of the notes were accomplished in and by the psa, so a recitation of the sale and assgt as a current event more than warrants scrutiny, as does “mers” ability to (sell and ) assign the notes. The psa and the ‘mers’ assignment both cannot do one thing. One did and one didn’t, or maybe neither did or does. Since I believe mers is thee ben, imo there’s been no assgt of the coll instrument and IT is, then, a current event, but one for which no consideration is due UNless there’s an agreement to the contrary.

“The robo-notarization only comes into play when assignor and assignee get into a dispute about the assignment validity.

jg: I don’t feel like rehashing this even as I understand what you think is the case. But I do feel like saying again that mers and its parent corporation, Merscorp, are liable for all the robo-signing done in mers’
name. And that we need to get into this century and get on
electronic discovery, at least those who should be capable.

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johngault, on May 2, 2015 at 3:33 am said:

christine@5:56 – even tho your quote was imo highly selective, I’m still surprised you linked that material as, also imo, it offers another opinion which is more in support of the majority of arguments here at LL than not.

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bobhurt, on May 2, 2015 at 2:41 am said:

As to fruit, Dwight, don’t consider yourself MY fruit till you take MY advice and get your mortgage examined by a competent professional so you can find ALL the causes of action against those who injured you.

I have not demeaned you. I have tried to share my knowledge and understanding with you for the purpose of helping you understand the strategy that works and the reason you have lost your dispute with the bank.

I wish you could win it, but I don’t see that happening.

Don’t see our interaction as a contest between us. You need to know what happened to you and why you lost, and ACCEPT THE REALITY of your errors instead of blaming the court.

You SHOULD have learned by now that you THOUGHT you were right in your handling of your case, but YOU WERE WRONG enough to lose. That should tell you that you MISUNDERSTOOD the law or how things work, or you MISACTED in your case. Instead, your gut level reaction is to blame the court and anybody who explains why you lost. But everybody reading this KNOWS I did not cause you to lose and I have given you good strategic counsel in telling you to get your mortgage examined and then hire a competent attorney to ATTACK THE VALIDITY of that loan and seek damages for your injuries.

I have told you foreclosure defense does not work. IT DOESN’T, but you think it should, owing to your misunderstanding and misuse of TILA rescission.

You seem like a bright man, and it seems obvious that you have studied a lot, but you have a way to go before you realize that the law has more common sense in it than you want to give it credit for, and when judges try to show you that, you should PAY ATTENTION.

I don’t hate anyone, particularly not you, in spite of your continual attacks against me. I want you to win, and I have told you what you must do if you want to have any chance at all. You MUST know by now that you ignore me at your peril – you have Brown v Quicken Loans AND Hammer v RCS to prove the point of what works, and all of Garfield’s lawyers who “get it” to prove what fails.

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johngault, on May 2, 2015 at 2:33 am said:

shadowcat, when you refinance a home, you first warrant in your loan application that you own the home subject to the loans you list in the application. YOU are not charged, as the borrower, with seeing that any existing loan to be paid off IS paid off not if you’re financing the payoff). You are not the one technically warranting it will be paid off since you’re not the one paying it off, i.e., sending the check; the money to pay it off is not put in your acct. The lender doing the refi gives those funds to the closing agent, not the borrower. The title company (or maybe the escrow company, if any) or whomever acts as the closing agent has the job of paying off the existing loan and is the one who must defend the job it took on. If an existing loan is not paid off with the refi proceeds, someone’s in a world of hurt, but it’s not the borrower. Well, it is to the extent he’s got two encumberances on his home, but he’s not liable for the failure of another (who got paid by the way) to pay off the existing loan. Imo, both the refi lender and the borrower have causes of action against anyone who took the job of paying off the loan and didn’t.
I have never seen the refi lender be the party to send the payoff check itself, but i suppose it could happen. A title company, however, isn’t likely to insure if it didn’t send that check since paying off the existing loan is a condition of the title insurance. WHO disbursed the loan funds you may be talking about if you weren’t speaking hypothetically?

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bobhurt, on May 2, 2015 at 2:24 am said:

“Didn’t you read the Act ??? It clearly authorizes the borrower to stop making payments when they rescind.”

The Act does not authorize the borrower to stop paying when they send notice of rescission without just cause. All of that language about rescission depends upon a TILA VIOLATION having occurred, AND the borrower sending PROPER NOTICE of rescission

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DwightNJ, on May 2, 2015 at 2:18 am said:

The lost souls who troll this website attacking homeowners serve a different master … You will know them by their rotten fruits … they all share the same dark, rotten characteristics with each other. They have no life outside of this message board …sad & pathetic.

I feel sorry for them because I can see that none of them have God in their lives … They are full of hatred and they know their time is short. This is how they spend their life , spreading their hate.
Nothing more needs to be said, we can judge the tree by its fruit.

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bobhurt, on May 2, 2015 at 2:15 am said:

Dwight, I will not go back and re-read everything. If I made the error you suggested, I did it unintentionally. But most likely you missed something in the context of my comments. Even if the judge found that a TILA violation sufficed to entitle the borrower to rescind, the lender must have received the borrower’s timely and proper notice of rescission in order to initiate the rescission process. If the borrower did not do that, or cannot prove it, then the judge will allow the foreclosure because the borrower MESSED UP his opportunity, just like YOU did, if I understand your circumstances correctly.

I believe you sent a letter but the judge didn’t see a notice of rescission in it. Furthermore, the lender presented to the judge an acknowledgment of receipt of disclosures, and you could not or did not prove the lender forged your signature on that receipt. That cooked your rescission goose.

You have become a living, breathing example of what I wrote above, and what I believe I intended to write last night.

As to the effect of the SCOTUS opinion in Jesinoski, we shall see. I believe YOU will lose your appeal, Dwight, because you are not handling your case properly so far, and you will probably mess it up further. Nevertheless, I wish you the very best of good luck.

And I believe Jesinoski will not get a TILA rescission, and he will lose his house to foreclosure for the same reason you will.

I don’t predict these things because I root for the banks. I predict them because both of you have ignored the most fundamental principles about contracts – the judge will do his best to enforce valid contracts, and if you plan to attack a traditional werewolf creditor, you had better load your gun with all the silver bullets you can find to challenge the validity of the contract.

That means foreclosure defense will get you nowhere, but injuries at the inception of the loan can get you everywhere IF you artfully present them.

You did not artfully present your TILA Rescission effort. If you want to have any chance of saving your house, you need to get a competent professional to examine all your mortgage related documents so as to dig out all the silver bullet causes of action before the eviction notice arrives.

And, Dwight, I am far from done.

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christine, on May 2, 2015 at 2:14 am said:

Bob Hurt,

Sorry, I had to switch from cellphone to regular keyboard.

Cubed2k. Ultimately taken down in Modesto, by ATF, and whatever agency, I don’t even recall, after posting here for years and asking for help while having NO MONEY and being upfront about it. He followed all of Garfield’s advice. He dealt with collection agencies, following Garfield’s advice (don’t admit and debts have been securitized: you owe nothing) and got slammed in court repeatedly, foreclosure (don’t admit and pretender-lender, no money paid anyway), the whole bit. Got slammed over and over.

If I recall (and I will go back to my notes), cubed2k was a veteran too.

Cubed2k imploded right before our eyes. Dwight is doing the same thing. Same methodology, same denial, everything is similar.

There was no reasoning cubed2k. There no reasoning Dwight. Maybe we simply have to wait for enough people to implode before something is done to stop the blatant misinformation spread here.

One thing is sure: it will get a hell of a lot worse.

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DwightNJ, on May 2, 2015 at 1:56 am said:

I can’t copy & paste Bob Hurts post with this device, but the man is dishonest and no longer holds any credibility on this message board. Nothing Bob Hurt says can be taken as being truthful. He’s done.

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christine, on May 2, 2015 at 1:54 am said:

Bob Hurt

Rciferri is a non entity with a big mouth. I bet hsttended Garfield seminars for his law firm, reported on them and feels like an expert. Still just a paralegal with no authority whatsoever but a Garfield seminar under his belt. Too much of the bad knowledge to spread and that, he does. Non entity.

I remember you from 5 years ago. Do you remember cubed2k? A true casualty of LL?
He followed Garfield on everything: Debt collectors, (he lost every time), foreclosure: he filed everything, poor guy even lost his family and ended up in a shooting match in Modesto, against some SWat team of God knows what: A
TF, DEA

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DwightNJ, on May 2, 2015 at 1:49 am said:

Bob Hurt .. You’re being dishonest about what you posted. Its down below, go back and copy & paste it to show a little integrity.

You clearly said that even if the Judge finds you had a valid right to rescind , that the judge will tell the bank to go ahead and foreclose because the borrower stopped making their monthly payments.

You clearly do not comprehend rescission. The borrower is not supposd to make payments after he rescinds, the mortgage is void.

So your misguided view makes no sense , there is no default, the law tells the borrower to stop paying. You can’t foreclose on a void mortgage that never defaulted.

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bobhurt, on May 2, 2015 at 1:20 am said:

“Bob Hurt thinks the borrower needs to keep making payments after they effected a valid rescission”

You want an admission that I mis-spoke ? Maybe you ought to read what I wrote on the subject. If the borrower sends a bogus notice of rescission, the lender will ignore it. If the borrower stops making payments, the lender will initiate foreclosure. Then, either the borrower will sue to restrain the creditor from foreclosing or offer the rescission argument as an affirmative defense, or lose the house. If the borrower litigates, the court will sort out the following questions:

1. Did the borrower acknowledge receipt of requisite TILA disclosures in writing? 2. Did the lender violate TILA? 3. Did the borrower timely send a valid notice of rescission to the lender? 4. Did the lender receive the notice?

In most cases the borrower acknowledged receipt of the TILA disclosures and so the lender has good reason to ignore the rescission notice. In most of those cases, the borrower breached the note by failing to pay. That would constitute a material breach because the borrower never had a right to initiate rescission because the borrower did acknowledge receipt of the disclosures and did receive them.

I say that failure to make payments constitutes a profoundly slippery slope for most borrowers, including would-be rescinders, because borrowers are NOT expert in the law and they goof up many things because they misunderstand how things work.

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DwightNJ, on May 1, 2015 at 11:41 pm said:

The fact is that a unanimous Supreme Court has spoken .. and all of your crying, foot stomping, name calling and schoolyard taunts at the members of this message board isn’t going to change that fact.

Now, you can choose to put on your big-boy pants and deal with the truth .. or you can continue to spew your venom and hiss like serpents the way you’ve been doing. The God we serve will make a way for us, even as we walk through the shadow of the valley of death, we fear no evil.

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christine, on May 1, 2015 at 11:29 pm said:

Cubed2k all over again. How tragic.

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DwightNJ, on May 1, 2015 at 11:17 pm said:

Christine, shadowcat, Rock … Since none of you can act like an adult and discuss the issues in a mature manner , you’ll be treated the same way by me. You can dish it out but you can’t take it when itsdonee to you, can you? How’s it feel to take a dose of your own medicine? I’m purposely acting like you …and its pretty ugly isn’t it?

Grow up

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christine, on May 1, 2015 at 10:49 pm said:

Dwight, research cubed2k. You’re heading the same way and there’s no reason for it.

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Trespass Unwanted, on May 1, 2015 at 10:11 pm said:

Rescission is available because the loan was not consummated.
Purported borrower may think its consummated because we dont comprehend the complexity of the transaction. Purported lender knows it was not and has the proof it was not.

Proof? They lack the paperwork and prrof that it was consummated that’s why it was not and they can’t and won’t fake that in 10 days. THEY KNOW BETTER THAN TO DO THAT!

So you have folks confusing the issue because the tender is not the reason to not rescind.

The TENDER is the reason to rescind.
Someone has collected payments and did not reveal the true creditor ( thus keeping the loan unconsummated).

They have to give you your tender, reveal the true creditor and if you want to tender to that creditor, so be it. If you want to walk away for a better property so be it.

The confuse wants you to do nothing by using fear.

Fear makes people stop. So they do nothing. When this passes they will high five each other in some private email or chat about more stupidity of the people who listened to Neil and didn’t rescind as Mich as they claim we listen to him and purchase his products or services.

My comprehension is Neil if he has a license, has no reason to have them take it from him for knowing the truth. Once he steps into court as an attorney he’s an officer of the court, not his client.

His duty would be to the court, not the client who is paying him.

Those claiming to know law are leaving out that crucial fact and Neil has no need to ‘step into any challenge’ from anyone who needs his blog to pitch their message.

They need Neil like a leech needs the blood of a host. Purely symbiotic. Neil doesn’t have to ban them.

Both side of any argument if part of the legal world.

If I had to choose between listening to Mother Teresa and Hitler I would choose according to how I vibe with the message.
Some people let strong intimidating types stop them from living their lives and its their own fault doe not growing up and for allowing the overbearing unknown people tell them what they can and cannot do or should and should not do.

But the free thinkers of the world know what to do by divine right. We have prevailed, we are prevailing, we will prevail, ALWAYS.

Some will fall by the wayside. They have a Creator.

Trespass Unwanted, Creator, Corporeal, Life, Free, People, State, In Jure Proprio, Jure Divino

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Shadowcat, on May 1, 2015 at 10:06 pm said:

Dwight.. Lay off the Kool-aid and come back to the real world before you reach the point of no return.

Underdisclosure of the APR by more than 1/8 of 1% is recission trigger but you didn’t say by how much or admit into evedience the formula and the figures did you?
But then there is the tender part.

You even had them on standing but didn’t know how to prove it did you?

You didn’t pay your taxes and insurance like I told you did you?
You didn’t hire an attorney to represent you did you?

That’s shame…attorneys know contract law 101
Attorneys can do an assessment of the harm they caused you
Attorneys know procedure

Nincapoops have a wishful thinking in one hand and shit in the other.

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DwightNJ, on May 1, 2015 at 9:42 pm said:

rciferri. … Kudos. … Bravo. … Out-standing presentation !!!!!

It’s Friday… Strike up the band. !!!!!

“Happy days are here again. … La la laa la la la la la laaaaa !!!!!

Ladies and Gentlemen, Justice Scalia and the rest of the unanimous members of the Supreme Court are here reading the message board tonight and has requested the band play a few songs for Rock and his friends …

Send in the Clowns
Turn out the lights the party’s over
The Green Green Grass of Home
God Bless America

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christine, on May 1, 2015 at 8:22 pm said:

“rescission is effected”. Doesn’t mean “supported”. Doesn’t mean “finalized”. Doesn’t mean “concluded”. Doesn’t mean “granted”.

You never set foot in a law school, did you?

“effected” in that context only means “to put into operation”, “to bring to the forefront”. Meaning that banks can no longer flat out deny it because homeowner failed to bring suit in order to prove the validity of his claim for rescission. Doesn’t mean homeowner won’t have to prove the validity of rescission in his case. Just his claim.

Homeowner being denied will still have the burden of proof to support his claim before the court because homeowner WILL still end up before the court after the 20 days following rescission letter are up. Homeowner will only prevail if his rescission should have legally been honored as soon as claimed: that will be for the trier of facts to decide. Homeowner who files suit after having been rightfully denied will expose himself to sanctions the amount of which Garfield combo pales in comparison. Homeowner forced into litigation when:
1) He was right and was wronged under TILA;
AND
2) Has to money to tender to “finalize” rescission will collect the few bucks TILA provides for and maybe (maybe) some of his legal expenses. That’s it.

SCOTUS decision never said and never implied “claim rescission and it is yours, just by the mere fact of claiming it.”

And there’s still that pesky little “tender” issue to resolve.

So insular that they don’t see the world moving around them. So uneducated, they don’t see how their own systems work. So ignorant, they can’t understand what they read.

Afflicting.

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rciferri, on May 1, 2015 at 7:35 pm said:

@Christine

You said:

“Do they even understand English?”

SCOTUS said:

“The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind.”

Do you understand SCOTUS?

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rciferri, on May 1, 2015 at 7:27 pm said:

@bobhurt

You said:

“What would YOU opine if the bank proved it gave the disclosures and the borrower could not prove otherwise?”

If I were judge in such a case, I would deny the borrower damages under 1640. However, I would not roll back the completed rescission under 1635, because that has been settled by SCOTUS and is now law of the case.

That said, I cannot say for sure I wouldn’t rule Jesinoski rebutted the presumption of delivery of disclosures if he testifies he didn’t receive them.

However, my answer above is purely in the context of the facts of your hypothetical where the bank “proved” it gave disclosures and the borrower could not prove otherwise.

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christine, on May 1, 2015 at 7:25 pm said:

Do they even understand English?

“Exercising a right” to claim something has never meant “being entitled” to obtain that which is claimed.

Surreal…

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rciferri, on May 1, 2015 at 7:19 pm said:

@bobhurt

You said:

“Why doesn’t the borrower have the right to challenge the assignment or related notary robosigning? Borrower not a party to it, a third party beneficiary of it, or injured by it. Furthermore, if the assignee and assignor have no dispute with one another over it, why should the borrower. The robo-notarization only comes into play when assignor and assignee get into a dispute about the assignment validity.”

I disagree about a homeowner’s third party standing with regards to a PSA. And, yes, I know about all the cases. I just believe a non-frivolous argument may be made that those cases were wrongfully decided.

Also, I believe any homeowner being foreclosed upon by an alleged “securitized” trust that took an assignment after the closing date of the trust and in violation of New York trust law, is definitely damaged, in that, it is being foreclosed upon by a party that otherwise has no standing to do so. I believe that would also be the case if the trust became a holder or a person otherwise entitled to enforce the note after the closing date of the trust. New York trust law, should void the acceptance by the trust of the note (if the courts didn’t go off the rail on the crazy train with regard to their recent cases about the matter).

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rciferri, on May 1, 2015 at 7:05 pm said:

@bobhurt

You said:

“Do you not understand that NO SPECIFIC PENALTY attaches to the failure of the lender to act within 20 days…”

IMO, that’s true, Bob, at least as to TILA rescission under Section 1635(b), but it is the actual completed rescission that triggered the steps the lender must take to get his remedy.

If a lender neglects to do so, and in the wake of Jesinoski, I believe such inaction constitutes the lender’s knowing relinquishment of their remedy under TILA – in other words, they waived their remedy.

Post-Jesinoski, if the lender does nothing before the end of the 20 days, the homeowner gets the cancellation of his mortgage/deed of trust and the lender gets nothing.

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E. ToLLe, on May 1, 2015 at 7:03 pm said:

Yes rciferri, it’s the Consumer Police words, not mine. It should be mentioned that the CFPB and 25 state AG’s filed amicus briefs in Jesinoski which said:

In short, the CFPB argues, as it has in the past, that no TILA provision requires a borrower to bring suit in order to exercise the TILA-granted right to rescind, and that TILA’s history and purpose confirm that a borrower who sends a notice of rescission in the three-year period has exercised the right of rescission.

Again, notice how that pretty much states that it’s a done deal….no need to get ready for the follow-up rescission steps that Rock is so sure of….

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rciferri, on May 1, 2015 at 6:52 pm said:

@E ToLLe

Or, I should say you pointed out the CFPB’s website said it.

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rciferri, on May 1, 2015 at 6:50 pm said:

@E ToLLe

You said:

“Unless you waive your right of rescission, you have until midnight of the third business day after the mortgage closing to cancel the contract.”

And, yet, the Jesinoski Deniers still deny!

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E. ToLLe, on May 1, 2015 at 6:48 pm said:

And Christine weighs in with:

I’m done splitting that TILA hair ad nauseam. Better things to do with my time.

Yay! Now we have Rock and Christine promising to remain silent on these issues. Thank God.

Bets anyone? 10 to 1 odds? I have cash to tender!

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rciferri, on May 1, 2015 at 6:45 pm said:

@Christine

You said:

“OK, I stand corrected: Scalia did use the word “tender”. Big deal”

It isn’t a big deal that you got a little excited and made a broad, sweeping statement that wasn’t technically true.

However, it is a big deal (in the context of your legal conclusions in the wake of Jesinoski) that you don’t seem to get that it is the written opinion of SCOTUS that counts as law, not something bandied about in oral argument.

It is also a big deal in that same context that you don’t get that SCOTUS ruled the common law tender requirement was modified by TILA.

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E. ToLLe, on May 1, 2015 at 6:41 pm said:

This is really bizarre, if not too cute, the fact that a few banker-friendly, or anti-borrower types, and excuse me, you just can’t define it any other way, choose to interpret a SCOTUS ruling in an obviously twisted way. Who, in their right mind, would attempt to define the verb describing the action “to rescind”, as the initial step in a process that involves further steps? It’s just fucking crazy. To rescind, phase one? What is that?

After SCOTUS, who does it fall to to police this matter? The CFPB. What do they say about it? From the CFPB’s website:

Unless you waive your right of rescission, you have until midnight of the third business day after the mortgage closing to cancel the contract.

The three-day clock does not start until all three of the following events have happened:

1.You sign the credit contract

2.You receive two copies of the a Truth-in-Lending disclosure form containing certain important disclosures about the credit contract:

– The annual percentage rate
– The finance charge
– The amount financed
– The total amount of payments
– The payment schedule

3.You receive two copies of a notice explaining your right to rescind

The first business day after the last of these events counts as day one. For rescission purposes, business days include Saturdays, but not Sundays or legal public holidays. For example, if the last of the above three events occurs on a Friday, you have until midnight on the following Tuesday to rescind.

You may use the form provided to you by the lender or a letter. Whatever form of written notice you use, make sure it is delivered or mailed before midnight of the third business day. Keep a copy and any evidence that it was delivered or mailed on time.

Tip: Please note that if the lender fails to give you two copies of the right to rescind or the Truth-in-Lending Disclosure, you continue to have the right to cancel the loan for up to three years.

*******

Notice how, possibly in an attempt at making these instructions consumer (protection) friendly (which is what E. Warren intended) and easily understandable by even lowly bankster types, the CFPB uses the term “right to cancel”, instead of the term rescission, the latter being a term which somehow twists bank-minion’s small brains into tiny neuroligical pretzels shutting down normal synapses in an attempt at shifting the simple language towards legalese that suits their needed purpose, instead of a reality that is easily comprehended by all.

Never once do they say things like….this will start the lengthy process that you will lose, or, after sending in this letter, be prepared to continue the long, grueling process, in phases two through twenty of rescission, which will undoubtedly last until you’re a senior citizen and have lost your home, after completing the many necessary steps after rescission.

It’s actually very simple.

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rciferri, on May 1, 2015 at 6:35 pm said:

@ All the Jesinoski Deniers

Anyone going to take a stab at answering the question posed in this previous post of mine?

See:

Since Rock has stated he will not comment on the Jesinoski case again, I ask Bob Hurt, Shadowcat and any other person who believes Jesinoski’s holding did not necessarily follow from its determination that rescission is completed upon the homeowner’s notice, the following question, based on the following language SCOTUS used in Jesinoski:

“The Eighth Circuit’s affirmance in the present case rested upon its holding in Keiran v. Home Capital, Inc., 720 F.3d 721, 727-728 (2013) that, unless a borrower has filed a suit for rescission within three years of the transaction’s consummation, § 1635(f) extinguishes the right to rescind and bars relief.

That was error. Section 1635(a) explains in unequivocal terms how the right to rescind is to be exercised: It provides that a borrower “shall have the right to rescind … by notifying the creditor, in accordance with regulations of the Board, of his intention to do so” (emphasis added). The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. It follows that, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely.”

Specifically, look at what is said after the discussion of what the 8th Circuit held and, subsequent to that, after the discussion of the statutory language: “The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. IT FOLLOWS THAT, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely (capitalized emphasis added).”

Here’s my question:

Did SCOTUS reach its holding because it necessarily found that the borrower’s notice both initiated and completed the rescission process, and due to the process having been already completed, it followed that Jesinoski didn’t have to sue within 3 years?

In my view, SCOTUS held Jesinoski didn’t have to sue within 3 years to effect rescission BECAUSE his rescission was effected upon his notice of the same to the creditor.

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christine, on May 1, 2015 at 6:33 pm said:

OK, I stand corrected: Scalia did use the word “tender”. Big deal.

Regardless, Scalia’s opinion does not change the spirit of TILA and the fact that it requires tender to make both parties “whole”, i.e., put them back where they were before entering into the loan contract..

“In contrast to these four Justices, Justices Scalia and Alito emphasized that a rescission, by definition, requires that the parties be returned to where they were before the transaction was consummated. If the borrower lacks the ability to return the funds, then the rescission cannot be effectuated, regardless of whether the borrower sent the creditor a notice of intent to rescind. Thus, it seems, mere notice by the borrower could not be sufficient to accomplish a rescission. The implication, presumably, is that only a lawsuit could achieve that result, and thus filing a lawsuit within the three-year period is necessary.”

Go ahead, people. Send your rescission letters, go file your ludicrous legal actions and let’s see how many of you actually end up “whole”. Given the track record so far, anyone with half a brain can easily predict that not one cult member here will pull it off.

I’m done splitting that TILA hair ad nauseam. Better things to do with my time.

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rciferri, on May 1, 2015 at 6:31 pm said:

@Rock

You said:

“Sup. Ct. basically has three options:

AFFIRM–allow the lower court’s ruling to stand;

REVERSE, VOID, OR VACATE–overturn the lower court’s ruling; or

REMAND–send the case back to a lower court for retrial.”

Wrong.

They can also modify a lower court ruling, if they choose to.

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DwightNJ, on May 1, 2015 at 6:17 pm said:

Christine .. I tendered before they filed foreclosure .. LOL

July 2007 … Rescission effected

August 2007 … Tendered to lender

Sept 25, 2007 .. Lender filed FC against a void mortgage .. LOL

LOLOLOLOLOLOLOLOLOLOLOL HEHEHEHEHEHEHEEEE

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rciferri, on May 1, 2015 at 6:03 pm said:

@Christine

You said:

“SCALIA NEVER addressed tender”

Wrong. Scalia did address tender in Jesinoski, at least to the extent it stated common law tender rules were modified by TILA.

See:

“But the negation of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity.”

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christine, on May 1, 2015 at 5:29 pm said:

DwightNJ, on May 1, 2015 at 5:26 pm said:

“My tender was available in the form of money (refinance after they complied with step 1) ..”

Can’t refinance property being foreclosed upon.

Surreal.

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DwightNJ, on May 1, 2015 at 5:26 pm said:

The 20 days allowed for the lender to act and comply will be the kill shot that sinks the lenders future arguments.

To rule otherwise would make the 20 day rule meaningless.

I’m thirsty now , I am going to make a large pitcher of kool-aid and will make a toast at the dinner table tonight from inside my home .. To the rule of law .. And to Justice Scalia … God Bless America.

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DwightNJ, on May 1, 2015 at 5:18 pm said:

My tender was available in the form of money (refinance after they complied with step 1) ..

Or …

My tender of the property if they wanted to pay me the difference in equity ..

300,000 minus 180,000 = 120,000 they pay me

They cut me a check for 120,000

They get the 300,000 house

Or they can release the security and allow me to sell or refinance and they would have gotten the money 180,000

TILA rescission was never written with the intent to harm the borrower

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DwightNJ, on May 1, 2015 at 5:07 pm said:

Bob Hurt thinks the borrower needs to keep making payments after they effected a valid rescission … This tells you everything you need to know about his level of competency regarding this law.

If Bob cannot even comprehend that the borrower does not make payments after he has rescinded, then how can we listen to anything else he has to offer about rescission?

I hope he can take the high road and admit he mis-spoke, or we are left to question his credibility and integrity.

I will allow him 20 days to comply and issue an apology.

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Shadowcat, on May 1, 2015 at 5:06 pm said:

We can not save them all, its ashame we will lose Dwight. I liked him until he started drinking the kool- aid. I pray he handles it better than Linda aka Stripes fka Ivent.

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christine, on May 1, 2015 at 5:04 pm said:

DwightNJ, on May 1, 2015 at 4:57 pm said:

Bob Hurt … I offered my property as the proof of my ability to tender.

Hahaha!!! He offered as a collateral something he didn’t own free and clear… and he wonders why the bank didn’t bite!

Surreal.

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DwightNJ, on May 1, 2015 at 4:57 pm said:

Bob Hurt … I offered my property as the proof of my ability to tender. But they would still need to produce a valid proof of amount due in order to adjust the final amount due. The borrower does not offer a blank check. This is supposed to be a negotiation between the two parties. I had equity in my house, it was worth 300,000 and the estimated amount due them after set-offs was only 180,000

It takes 2 to dance ..they failed to accept means they lose.

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Shadowcat, on May 1, 2015 at 4:52 pm said:

Dwight..why are you yelling at Bob?
The Judge disagreed with you and ruled.

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rciferri, on May 1, 2015 at 4:51 pm said:

@Rock

You said:

“Shadowcat, obviously rciferri is still not taking his medication.”

Maybe you should try ad hominem abusive attacks on the judges who will hear you BS argument regarding Jesinoski.

That, and perhaps a few nominalizations sprinkled in there might distract them from how wrong you are. LOL!

You know the old saying:

“If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table!”

Keep pounding the table Rock! What more can you do? Poor guy.

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Shadowcat, on May 1, 2015 at 4:50 pm said:

When a couple didn’t sign the notified their their lender that they would not be refinancing with a new lender and continued their payments.

90 days later…they call me and tell me that they received a default notice on a loan from the bank the broker sold the loan …

That’s when I learned they were selling the loans up in advance….
I spent the next 3 years grinning ear to ear everytime a broker/pretender lender went up in smoke when a borrower didn’t sign.

I heard it all …… Pleading..Lying..Cursing….

If because of lender error or misrepresentation occurs the borrower is Not liable for the fees. 😝

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DwightNJ, on May 1, 2015 at 4:50 pm said:

Bob Hurt … You’re wrong again. You misleadingly speculate that the lower court judge who finds the rescission is valid , will somehow turn against the borrower for not making payments ..lol

Didn’t you read the Act ??? It clearly authorizes the borrower to stop making payments when they rescind.

Go ahead and spin it .. or dothe right thing and admit your error.

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christine, on May 1, 2015 at 4:50 pm said:

rciferri, on May 1, 2015 at 4:41 pm said:
@Christine
It’s just PR for the financial industry to use when I tries to change the law. Judges who actually make pretend these issues exist post-Jesinoski are just setting themselves up to be reversed.

You got it wrong: homeowners are being set up by the likes of Garfield and his cult followers to be heavily sanctioned for filing ludicrous lawsuits.

Paralegal, right? Keep your day job.

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bobhurt, on May 1, 2015 at 4:46 pm said:

” I already offered tender after I rescinded and they failed to accept my tender in the 20 days prescribed for them to take my offer of the property.”

You OFFERED TENDER? What does that mean? Didn’t you read the definition of tender? You have to put up the deed or money or bank draft or letter of credit or SOMETHING tangible, don’t you? If you don’t, why should the bank take you seriously?

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christine, on May 1, 2015 at 4:43 pm said:

“Will the borrower get the house for free if they rescind under TILA?

This is doubtful. Again, the Courts will not likely allow this to happen, and what might happen is the borrower and the creditors work out a deal in federal court during a Declaratory Judgment Lawsuit (assuming the lender, loan servicer, creditor, or securitized loan trust files such an action within 20 days.

Now, if the borrower rescinds the mortgage, and the lender fails to respond within 20 days, you might see borrowers going to file their own Declaratory Judgement action, and also seeking to Quiet Title and filing for “cancellation of instruments” (this will vary as each state has its own laws and we are only licensed to practice in California and Arizona). This is also possible because if you rescind, and the lender forecloses, there is some case law that suggests you lose your right to rescind the loan if the house is sold. So this is one thing to keep an eye on. Of course, if the lender or creditor forecloses when the security interest was VOISD AS A MATTER OF LAW (as we discussed above) then you can see how this might be argued to be a “wrongful foreclosure” or a willful, or opressive exercise of the power of sale under the (cancelled) deed of trust, and that opens another can of worms, again depending upon the law in your jurisdiction. But these are things to just keep in mind.

What does a mortgage lender do if they disagree with the borrowers assertion that there is a material loan violation justifying an extended three year right to rescind the loan?

Again, they have 20 days to go into court. They could also try to contact the borrower and work our an arrangement informally. Nothing prohits a borrower and a lender from resolving their TILA dispute privately and informally on terms acceptable to both parties.”

http://activerain.trulia.com/blogsview/4614311/what-all-brokers-need-to-know-about-tila-loan-rescission

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rciferri, on May 1, 2015 at 4:43 pm said:

@DwightNJ

You said:

“I already offered tender after I rescinded and they failed to accept my tender in the 20 days prescribed for them to take my offer of the property.”

Have you checked New Jersey law on refusal of tender? In California, it appears that, by statute, refusal of tender discharges the debt in the amount of the tender. Perhaps New Jersey follows some similar rule?

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rciferri, on May 1, 2015 at 4:41 pm said:

@Christine

It’s just PR for the financial industry to use when I tries to change the law. Judges who actually make pretend these issues exist post-Jesinoski are just setting themselves up to be reversed.

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rciferri, on May 1, 2015 at 4:40 pm said:

@Dulpeck

You said:

“@Rock, you’ve earned your keep from whomever’s payroll you are on.”

Yeah, what do they expect? Rock making a silk purse out the sow’s ear SCOTUS just handed him?

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Rock, on May 1, 2015 at 4:40 pm said:

Shadowcat, obviously rciferri is still not taking his medication.

How many times do I have to explain to these braindead nitwits, that “effected” is a nomalization (a process word). Its verb is effect, its definition–cause (something) to happen; bring about.

This is utter madness I feel like I’m stuck in the movie Groundhog day. I cite cases and authorities, these scammer/nitwits ignore them, and insist I’m wrong.

I’m not sure why I bother with this, because no matter what authority I cite –unrefuted authority, I might add – I know the scammer/nitwits won’t agree. Nonetheless, I just can’t sit by and watch this unsubstantiated and inaccurate nonsense to float out there unchallenged. And because I do, now I’m a liar.

Like I said, rciferri, Dwight, et al., and the other nitwits are stark raving lunatics.

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christine, on May 1, 2015 at 4:40 pm said:

High Court Rules that Borrowers May Exercise Right To Rescind Mortgage Loans By Providing Notice To Lender of Intent to Rescind Within Three Years of Loan Closing

“Certain Practical Implications: While it has been suggested that this decision allows borrowers to “walk-away” from underwater loans, that is not the case. First, borrowers are rarely able to tender back the funds received – a requirement that must be met before a mortgage can be rescinded. Second, while the decision states that a lawsuit is not required for the exercise of a right of rescission, the decision does not negate the lenders’ ability to defend against the rescission notice if the borrower received the required disclosures. A borrower still must exercise the right to rescind within three days of consummating the loan or receiving proper TILA notices, so long as that time period does not exceed three years. If the lender can show that the borrower received the proper notices, a notice of intent to rescind made more than three days after closing would be ineffective. Of course, litigation is generally required to adjudicate whether the borrower received proper TILA notices.”

http://www.gtlaw.com

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DwightNJ, on May 1, 2015 at 4:37 pm said:

Shadowcat … You’re wrong again … I already offered tender after I rescinded and they failed to accept my tender in the 20 days prescribed for them to take my offer of the property.

I rescinded on July 1, 2007

I offered to tender my property on July 25, 2007

They mailed me a letter in August 2007 acknowleding that they had spoken to me on the telephone “about the problem, we will get back in touch with you”.

20 days expired , meaning I may keep the house.

September 25, 2007 they filed a foreclosure complaint

Sorry Charlie

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christine, on May 1, 2015 at 4:37 pm said:

“Loans.
Petitioners rightly state that a borrower is entitled
to rescission after three days only if the creditor did
not timely provide the borrower with the required
disclosures under Section 1635. Based on the
experience of amici and their members, it is the rare
exception that a borrower does not timely receive the
required disclosures. These documents are part of the
closing documentation for all loans, and nearly all
borrowers’ loan files plainly indicate that the borrower
did in fact receive the required disclosures. Finally,
borrowers rarely litigate their rescission claims; were
these meritorious allegations, borrowers would raise
their claims in court.
The large number of meritless rescission notices is
driven by borrowers who have defaulted on their loans
and are attempting to stave off foreclosure. Were the
14
Court to adopt Petitioners’ interpretation of Section
1635, this would leave creditors with only two options
upon receipt of a notice of rescission: (i) begin the
rescission process for those few borrowers actually
eligible for rescission, or (ii) file a lawsuit in the
overwhelming majority of cases to prove that the
borrower did receive the required disclosures, or is
otherwise ineligible for rescission, and that the note
and the security instrument remain valid. Since
Petitioners’ interpretation of the law would not
require the borrower to identify the defect that the
borrower believes enables an extended right to
rescission but merely to send in their rescission notice,
even determining which of these two paths to follow
will cost hundreds, if not thousands, of dollars since
the creditor must analyze the loan file to attempt to
identify any required disclosure the borrower may not
have received.
If a creditor has to file suit to refute a borrower’s
meritless claim of rescission on the eve of default or
foreclosure, this only serves to weaken the borrower’s
already tenuous financial position. According to the
terms of most security instruments, borrowers are
responsible for any legal costs incurred by creditors
to enforce or protect their security interests.”

http://www.afsaonline.org/

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rciferri, on May 1, 2015 at 4:36 pm said:

@Shadowcat

You said:

“Listen up Knucklehead!”

I say:

You do the same.

After you do, hear this: SCOTUS ruled Truth In Lending Act Rescission pursuant to 15 USC 1635 rescission is effected through notice.

Your common law rescission arguments are as IRRELEVANT to the TILA rescission question presented by Jesinoski as they were when they appeared in Countrywide’s brief. SCOTUS thought so much about Countrywide’s common law rescission arguments they demolished them in two sentences.

Maybe you can borrow some of Rock’s nominalizations to turn white into black and Jesinoski into what you (for some reason) want it to be instead of what it really is.

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christine, on May 1, 2015 at 4:30 pm said:

“Playing up that point, Countrywide points out that there is no legal sanction for a frivolous letter – the borrowers can send the letter with no factual basis whatsoever. But filing a law suit is quite a different thing; Rule 11 sanctions deter borrowers from claiming they didn’t receive disclosures without some reasonable basis for the claim. So putting the burden of litigation on the borrowers would bring some dose of reality to the cases that end up bringing the disputes to fruition.”

http://www.scotusblog.com/2014/10/argument-preview-high-powered-counsel-spar-in-truth-in-lending-act-timeliness-dispute/

They’re going to file suit, they’re going to be sanctioned and they’ll come back here to commiserate on judges bias and corruption instead of taking stock of their own stupidity. Now, instead of just Losing the house”, they’ll lose the house and pay a fine for frivolous action.

Nothing has changed: they won’t learn.

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bobhurt, on May 1, 2015 at 4:27 pm said:

rciferri:

I believe you do not understand, so I’ll explain. The Scotus said “you can sue after 3 years, so go back and do it. The trial court never reached the merit of the rescission effort because it opined the rescinder had waited too long to file suit. Now the rescinder will go back and sue, and the court will tell him “Tough luck, Jes. The bank showed your signature on this ack that you received your TILA disclosures, so you don’t have a TILA violation to litigate, unless you can prove the bank didn’t give you the disclosures. Can you prove that, Jes??? No? Okay, I’m ruling in favor of the bank. Case dismissed.”

And even if Jes could prove the bank liked about the disclosures, NOW BOTH PARTIES HAVE TO TENDER. First the bank tenders, no problem, because the bank has a wad of dough. It hands the dough to the court. Then the borrower tenders… UH-OH, borrower can’t because Jes has an underwater loan and he can’t sell it and raise the money he needs to make a full tender. The judge tells the bank to take its tender money back and the bank proceeds with the foreclosure because Jes has long ago stopped making mortgage payments.

The above explanation shows why I believe Jesinoski will not get a TILA rescission and why he will lose the house.

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Shadowcat, on May 1, 2015 at 4:25 pm said:

Dwight… You are up Shit Creek without a paddle.

Your Psyche has shattered.
You latch to things that are not true because you need to hear them.
Boy…grab the lifeline before your family goes with you!!!!!

Just admit you can not tender and move on to something you can sink your teeth into!!!!!

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christine, on May 1, 2015 at 4:25 pm said:

“Remember, courts have the discretion to not only determine whether there is a proper basis for a rescission notice but also to reorder the creditor’s and debtor’s obligations in the event rescission was proper.

Even if the rescission notice is well founded, a court can still require the borrower to show an ability to tender before forcing the lender to return funds and void a security interest. How all that works will be judge dependent but based on the language of this case fewer courts will require plaintiff to tender loan proceeds before the lender must satisfy its duties.”

http://www.cfslbulletin.com/2015/01/13/the-supreme-court-just-held-that-tila-rescission-is-accomplished-with-notice-alone/

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christine, on May 1, 2015 at 4:23 pm said:

Just because they want to make Scalia say something he never said doesn’t make it so. TENDER remains THE ISSUE. And they will keep on filing ludicrous pleadings and argue that “the loan was rescinded” when, in fact, Scalia NEVER said that. In fact, SCALIA NEVER addressed tender, which i an intrinsic part of regulation Z and TILA statute… enacted by Congress.

Judges don’t WRITE laws. They simply interpret them. And cult followers in foreclosure daydream. By now, it has become hilarious.

http://www.alston.com/Files/Publication/ed22dc33-62b5-4a03-8a6c-9b8bba621ef1/Presentation/PublicationAttachment/e660a742-06ce-42b1-9020-5868dc1cf53c/HIRSCH%20LIFE.pdf

THE ACE IN THE HOLE?
Problem:Although the issue was evidently not
enough to garner his vote, Justice Alito grasped one
of the practical anomalies associated with a rescission
procedure that is eected immediately upon the
giving of notice: He asked if there are not scenarios
where the “the rescission is rescinded.”
This could be the hidden gun that the industry
needs. During oral argument, Justice Alito posited
the scenario where a rescission is already completed
upon the borrower’s giving notice, but where the
borrower is thereafter unable to tender back the
funds delivered. This is real quicksand which cannot
be avoided and must be crossed.
What type of security interest does a creditor
obtain in the property after a failure to tender? Does
the rescinded mortgage go back into eect? Is the
property now held in a constructive trust on behalf
of the creditor? Or perhaps the creditor’s secured
status never returns, and they may only sue upon
the note?
TILA does not answer these questions. Rescission
at law and rescission in equity both require that a
tender be made at least contemporaneously with the
rescission. Thus, the problems associated with the
post-rescission and pre-tender time period are
unique to TILA rescission.
Solution: This conundrum may be best left to
Congress, but the new Wild West may be littered
with bones before Congress acts. TILA could be
amended to include a provision which states that
upon a borrower’s failure to tender, a creditor’s
previously rescinded security interest is revived and
placed in the same position of priority with respect
to other secured parties that it was in prior to the
rescission.
Disregarding the long-odds of a statutory clarication,
there are other options for courts. Equitable
mortgages, equitable liens, and constructive trusts
are all common-law creations to resolve inequitable
circumstances. Courts have long held that an equitable
lien creates “a right of a special nature over
the thing, which constitutes a charge or incumbrance
upon the thing, so that the very thing itself may be
proceeded against in an equitable action.” It can be
“either sold or sequestered under a judicial decree,
and its proceeds in the one case, or its rents and
prots in the other, applied upon the demand of the
creditor in whose favor the lien exists.” (Quoting
Jones v. Carpenter, 106 So. 127 (1925).)
A court could determine that an equitable lien is
automatically placed upon the subject property at
the time of a borrower’s failure to tender, subject to
the terms and conditions of the rescinded mortgage.
Alternatively, a court could use its equitable powers
to do just what Justice Alito suggested: Rescind the
rescission and act as if nothing had ever happened
to the security interest of the creditor.
BA

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christine, on May 1, 2015 at 4:12 pm said:

Boy are they ever dense!!!

“In light of the Jesinoski decision, lenders now face difficult questions of how to handle rescission notices received more than three days after the close of a transaction. What if the lender disagrees with the borrower’s assertion that the lender failed to provide the requisite disclosures, and thus rescission should not be available? Does the lender still have to release the mortgage? Can (or must) a lender file suit within 20 days of receipt of such a letter to protect its interest? What internal policies and procedures will the Consumer Financial Protection Bureau be looking for lenders to establish? After Jesinoski, there are no easy answers. Until the lower courts clarify these questions, lenders and their counsel should develop and articulate clear policies that are consistent with the borrower’s right to rescind, as upheld by the Court, and that protect the lender’s right to the return of the loan principal.”

Tender will be decided at the lower level court. All competent attorneys know that. So, banks will insist on tender which, if borrower can’t satisfy, will result in… FORECLOSURE!!!

http://www.thompsonhine.com/publications/jesinoski-presents-lenders-with-difficult-questions-on-loan-rescissions

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Shadowcat, on May 1, 2015 at 4:10 pm said:

Listen up Knucklehead!

Recission is a process…not a single act.

If you want to start poking at my weaknesses…just wait till your on the receiving end of my Strengths.

Trust & Honesty is a Powerful Strength..
I am the Master of Redirection …

Nincapoops….like you haven’t got a chance.
🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥

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DwightNJ, on May 1, 2015 at 4:09 pm said:

Look at any other law that sets a time-window for potential litigants to come together and have a controversy ajudicated in a court of law.

In a foreclosure action filed in a non-judicial state, the burden is not placed on the party “effecting the foreclosure” to initiate a court action in order to ratify and validate what they had aleady effecuated.

If the homeowner believes there should not be a foreclosure, they need to act within the stated time-window and bring it before a judge. It is their burden to act quickly and bring the controversy before the court.

The same is true with a TILA rescission, the borrower has no burden or duty to file an action to ratify or validate what was already effected.

If the lender believes they have proof of a signed document which could lead to a judge ruling that the rescission had no basis, they would need to act quickly and bear the burden of filing an action within the 20 day time-window mandated for them to relinquish the security and return the money. Otherwise the rescission is forever viewed as a non-contested foreclosure might be viewed. It happens on its own by operation of law. The time-window for arguments and litigation was set at 20 days.

So once the 20 days expires and the lender fails to comply, the note and mortgage are absolutely deemed void. The only question remaining is whether the borrower wants to file an action to collect on the monies due to him, i.e. payments, violations damages, etc. , here the borrower is limited to 1-year to file an enforcement action. The word enforcement applies to the monies , not to the note & mortgage being voided , they were already voided by operation of law when he rescinded, this 1-year enforcement window pertains to the collection of payment disgorgment monies and damages for violations, it has nothing to do with the voided note and mortgage.

If the borrower was required to file a complaint within a year to make his rescission valid, they would never had declared that the note and mortgage were void by operation of law.
The law would have clearly mandated that a borrower must receive a declatory judgment from a court of law in order to rescind in full, but it does not state anything of the such. It is clear that the rescission is effected and complete upon the mailing and the tolling of 20 days.

So how does a borrower deal with a lender who ignores? He eventually files a quiet title action to remove the rescinded mortgage from the records.

If more than 1-year has tolled since he rescinded, he probably has lost his right to collect the payment disgorgments due to him. But he owns the house free of any claims by the lender.

Can the lender come after you later, after the 20-day window has expired? Before you have filed an action yourself to quiet title?

In my opinion the answer is “No”.

The reason is that it would bring a harm to the public and throw the stability of marketable property into a tail-spin of un-certaincy. The confidence of the public in knowing that titles of properties were not left open to the whims of lenders who might at some unknown time in the future decide to come swooping in years after the fact to claim that the title is clouded and encumbered by legal issues that they have never brought forth in a timely manner would be catastrophic .

You cannot allow an open-ended free pass that rewards lenders for ignoring rescission letters. The harm of allowing such a thing brings harm to the overall public and hurts marketable properties by allowing such a thing to exist. The line has to be drawn somewhere, and that line has been determined to be 20 days to oppose the rescission.

We as a society cannot allow lenders accused of wrong-doing and in violation of Federal lending laws, the arrogance to think that they will determine if and when they might get around to complying or responding to a Federal Act signed into law to protect borrowers, it just doesn’t work that way. They are not above the law.

(I just wrote that, not too bad for a construction worker, right?)

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rciferri, on May 1, 2015 at 4:02 pm said:

@Rock

Oh, and, before I forget, you are also a liar for posting regarding Jesinoski when you said you wouldn’t.

Perhaps you can generate some “nominalizations” in a futile effort to prove what you really said was you WOULD post about Jesinoski again. LMAO!

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rciferri, on May 1, 2015 at 3:59 pm said:

@Rock

You are very good at explaining what the law once was.

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rciferri, on May 1, 2015 at 3:55 pm said:

@Rock

You said:

“Nowhere in his opinion does he say that providing a written notice to a lender completes rescission”

BS, Rock: “The language leaves no doubt that rescission is EFFECTED when the borrower notifies the creditor of his intention to rescind.”

If, despite my efforts, you still don’t know the word “effected” means completed, go back and read its definition.

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Dulpeck, on May 1, 2015 at 3:55 pm said:

@Rock, you’ve earned your keep from whomever’s payroll you are on. Let it go. Justices of the supreme court have had their say on this issue and it’s the final word. Give Neil credit for a job well done, he ventured in to an area of law that only a few homeowners knew about and seven years later all the the justices in the supreme court agreed with him..End of story.

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rciferri, on May 1, 2015 at 3:49 pm said:

@Shadowcat

You said:

“I do not give legal advice.”

Fair enough. However, I’m not seeking legal advice. I was just asking your opinion on a point of academic interest.

You also said:

“I am however a bankster survivor and a bad speller.”

IMO, you certainly can be forgiven for the latter, due to the fortitude it must have taken to become the former.

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rciferri, on May 1, 2015 at 3:46 pm said:

@Shadowcat

You said:

“The recission notice caused the recission process to start.”

Sorry, neither the statute nor SCOTUS said that. In the context I am talking about, both TILA and SCOTUS use the word “rescission”, not “rescission process.”

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Rock, on May 1, 2015 at 3:34 pm said:

Shadowcat, you and everyone else outside of Garfieldtown understands this, but because rciferri still doesn’t understand how rescission works, or what a nomilization is, and because of that doesn’t understand what he’s reading, he continues to throw up all over himself by making factually, & legally incorrect, dumb comments.

Scalia stated: “The clear import of §1635(a) is that a borrower need only provide written notice to a lender in order to EXERCISE his RIGHT to rescind.” Not that rescission has taken place, or had been completed. If he meant to say what the scammers wanted him to say, he would have said: The clear import of §1635(a) is that a borrower need only provide written notice to a lender in order to complete rescission.

Nowhere in his opinion does he say that providing a written notice to a lender completes rescission, he says that it provides that a borrower “shall have the right to rescind . . . by notifying the creditor, in accordance with regulations of the Board, of his INTENTION to do so”

Once again, for the innocents, the goal of rescission is to unwind a transaction and return each party to the status quo ante. See, e.g., Handy v. Anchor Mortg. Corp., 464 F.3d 760, 765–66 (7th Cir. 2006).

Even if a borrower has a right to rescind, he or she may yet be unable to take advantage of that right if he or she cannot tender the loan proceeds. See, e.g., American Mortg. Network, Inc. v. Shelton, 486 F.3d 815 (4th Cir.2007); Yamamoto v. Bank of New York, 329 F.3d 1167, 1173 (9th Cir. 2003); Large v. Conseco Fin. Serv. Co., 292 F.3d 49, 52 (1st Cir. 2002); FDIC v. Hughes, 938 F.2d 889 (8th Cir. 1991).

Allowing borrowers to keep the lender’s money interest free for an extended period of time is not a rescission of the transaction — THE TRANSACTION ISN’T RESCINDED UNTIL THE MONEY HAS BEEN RETURNED. Instead, it is a reformation of the agreement, a remedy not provided for by TILA.

These issues were considered by the U.S. Circuit Court of Appeals for the Seventh Circuit in Iroanyah v Bank of America et al., a case I had previously posted.

The parties filed cross-motions for summary judgment that were granted in part and denied in part. The court held that TB&W had violated TILA by providing a TILDS that failed to specify the payment frequency on the basis of the Seventh Circuit’s decision in Hamm v. Ameriquest. The court found that for this reason the Iroanyahs had a right to rescind their mortgages.

But the court also granted the motions filed by the lenders to establish reasonable rescission procedures. The court allowed the Iroanyahs 90 days to tender. Effectively, the court was giving the Iroanyahs 90 days to find alternative financing.

When the Iroanyahs were unable to tender within the period set by the court, the court rendered judgment for the lenders on the Iroanyahs’ rescission claim. The Iroanyahs appealed. The Seventh Circuit wholly rejected the plaintiffs’ argument that TILA bars courts from conditioning rescission upon tender.

The court stated that their arguments “evince a FLAWED CONCEPTION of rescission.” Iroanyah, 2014 WL 2198562 at *3. Elaborating on this point, the court said “[w]hat the Iroanyahs MISUNDERSTAND is that RESCISSION IS A PROCESS involving two parties, each with their own obligations.” The Iroanyahs’ argument that a court “cannot affect the borrower’s right to rescind” fails for that reason — the Iroanyahs “ignore the role of their own tender obligations in the PROCESS of rescission.”

Recognizing that RESCISSION is two-way street, the Seventh Circuit confirmed that “[T]ENDER IS INHERENTLY PART OF RESCISSION, NOT AN OCCASIONAL EFFECT OF IT.” Id. (citing Marr v. Bank of America, N.A., 662 F.3d 963, 966–67 (7th Cir. 2011); Andrews v. Chevy Chase Bank, 545 F.3d 570, 573–74 (7th Cir. 2008)).

Stated differently, if a borrower cannot repay the loan proceeds on terms the district court deems equitable, “RESCISSION, BY ANY DEFINITION, HAS NOT TAKEN PLACE.

In reaching this decision, the Seventh Circuit acknowledged that “RESCISSION IS OFTEN UNAVAILABLE TO CONSUMERS because they are unable to return unpaid principal as a result of decreased property value, poor housing market or any number of reasons.” While certain circumstances may make rescission impossible as a practical matter, a borrower is not entitled to procedures that allow him to take advantage of his RIGHT of rescission. Instead, a borrower is only “entitled to an equitable plan.”

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Shadowcat, on May 1, 2015 at 2:45 pm said:

Rcferri. . you are new here so let me repeat this.

Your questions are legal questions.
I am not an attorney.
I do not give legal advice.
I am however a bankster survivor and a bad speller.

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Back to the Future: RESCISSION

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Back to the Future: RESCISSION

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