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LAWYERS AND JUDGES TAKE NOTE: “Section 1635(a) nowhere suggests a distinction between disputed and undisputed rescissions, much less that a lawsuit would be required for the latter.” Justice Scalia, Jesinoski v Countrywide. [EDITOR’S NOTE: The only possible meaning to this is that the homeowner can use a letter and then, if it is disputed, it must BE BROUGHT to A COURT OF COMPETENT JURISDICTION to vacate the rescission. An order that denies a motion to dismiss for lack of jurisdiction based upon the fact that the rescission was sent does nothing to change the fact that the rescission was effective as of the date it was mailed and still is effective by operation of law. The only way it can be removed is with another operation of law that is properly brought by the real party in interest. An order vacating the rescission without any pleading requesting that relief does absolutely nothing except assure that the judge’s order will be reversed. And if the rescission is recorded before the foreclosure judgment (judicial states) or sale (nonjudicial states) the judgment and sale are void respectively.]
Every state has its own forms and requirements and fees for filing anything in the public records. It is wise to record any rescission that was sent regardless of the timing, in my opinion, but that would be subject to advice from a lawyer in your jurisdiction. Litigation is expected on numerous issues after the nonjudicial cancellation of the loan contract, note and mortgage. Here are some of the issues that might be presented when the rescission is sent and/or recorded:
- Since the rescission is effective upon mailing, the loan contract, note, and mortgage are void (not voidable). This means in states whose recording statutes are either “notice” or “hybrid”, anything that transpired after that in which the note or mortgage were used for collection, enforcement or foreclosure are also void. Title would then stay with the homeowner if the homeowner does not know that he/she still has title. Any deed issued in foreclosure would accordingly be a wild deed.
- If the state recording statutes are purely “race” then if the notice of rescission was not recorded before the foreclosure, the foreclosure sale and deed might well be binding even if it was “fraudulent” or otherwise wrong or illegal.
- State statutes of limitation might effect (limit) the ability to collect damages for trespass or wrongful foreclosure, breach of contract or other common law or statutory remedies. The FDCPA might help depending upon how long it has been since the notice of rescission was sent.
- If the notice of rescission is sent and recorded before the foreclosure judgment in judicial states or before the sale in nonjudicial states, then in all states it would appear that the the loan contract, note and mortgage were rendered void at the moment of mailing, by operation of law, which is the same thing as a judge’s order declaring the note and mortgage void.
- There is no provision in the TILA rescission statutes that allows any lender, creditor or servicer to contest the rescission with a letter. That power is only given to the borrower. Their subsequent action in proceeding to foreclosure “judgment” should be subject to being vacated because they were obtaining relief based upon a void instrument — the mortgage (and the note).
- In a strictly “notice” state, as long as they knew about the rescission the foreclosure is automatically wrongful and actionable, in my opinion. “Notice” might need to include a third party purchaser, who often does know of the existence of the borrower’s defenses and does know about the rescission. The issue here is that at the time of the rescission it was widely and wrongly believed that a lawsuit was necessary to make the rescission effective (i.e., the borrower had to plead and prove a case for rescission under common law rules). TILA rescission is exactly the opposite. So everyone, including appellate courts (other than the Supreme Court of the United States) was proceeding under the wrong assumption.
- The action following rescission should not be to establish the effectiveness of the rescission. That is already complete by operation of law.
- The action could be enforcement of the rescission if filed within one year of the date of mailing of the rescission. At the end of that period, the borrower is barred from filing an enforcement action and the “lender” assuming they have done nothing, is barred from claiming the debt.
- After the expiration of one year from date of mailing of the notice of rescission, the action would be simply for quiet title and perhaps trespass (see above). This action could be brought during the one year period either in lieu of enforcement or with enforcement. An action for injunction preventing the banks, servicers or trustees from attempting to use the void note and mortgage might also be advisable.
- If an action for enforcement is brought during the one year period it is important not to plead as though the rescission might not be effective. it is a fact. See Jesinoski. The relief sought is NOT to have a declaration from the court that the rescission was valid. The pleading must assume that it is already legally binding as per 15 USC 1635 et seq and that the only issues remaining are the duties of the “lender” who should not be described as a lender but only someone who has asserted the rights of a lender, holder, mortgagee, beneficiary or servicer or trustee.
- An attack on standing is appropriate at every step when the “servicer” or Lender” seeks to challenge the rescission without filing an actual lawsuit or pleading. The banking side of the equation has NOT been granted the power to contest with anything other than some other recognized “operation of law.” The only such exercise would be a lawsuit seeking to vacate the rescission on the grounds that it was wrongful or deficient in some way.
- STANDING: This is where most cases will be won or lost. Since the note and mortgage were rendered VOID as of the date of mailing, the party seeking to vacate the rescission would need to plead that they are injured by the rescission, to wit: they are going to lose the ability to enforce a legally binding debt. And they would need to establish standing WITHOUT the note and mortgage, which are void (see above).
- Thus the pleader would need to establish themselves as a party who either funded the loan and is still the creditor, or who has purchased the loan from someone who owned the loan because they funded it. This we believe is going to be impossible for the lenders because their money trail leads straight to investors whose money was used improperly and whose money was never paid to the trust that issued the mortgage backed securities. The investors were left out in the cold without a mortgage backed security issued by any entity that had mortgages, without a note and without a mortgage. That leaves them with empty promises from the “Servicer” and no enforcement mechanism to collect from either the borrower or the investment bank. None of that is the fault of the borrower.
The Florida Statute below shows the intent of recording such notices. Using the form that is already approved by statute makes recording a lot easier:
712.05 Effect of filing notice.—(1) A person claiming an interest in land or a homeowners’ association desiring to preserve a covenant or restriction may preserve and protect the same from extinguishment by the operation of this act by filing for record, during the 30-year period immediately following the effective date of the root of title, a written notice in accordance with this chapter. Such notice preserves such claim of right or such covenant or restriction or portion of such covenant or restriction for up to 30 years after filing the notice unless the notice is filed again as required in this chapter. A person’s disability or lack of knowledge of any kind may not delay the commencement of or suspend the running of the 30-year period. Such notice may be filed for record by the claimant or by any other person acting on behalf of a claimant who is:(a) Under a disability;(b) Unable to assert a claim on his or her behalf; or(c) One of a class, but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.Such notice may be filed by a homeowners’ association only if the preservation of such covenant or restriction or portion of such covenant or restriction is approved by at least two-thirds of the members of the board of directors of an incorporated homeowners’ association at a meeting for which a notice, stating the meeting’s time and place and containing the statement of marketable title action described in s. 712.06(1)(b), was mailed or hand delivered to members of the homeowners’ association at least 7 days before such meeting. The homeowners’ association or clerk of the circuit court is not required to provide additional notice pursuant to s. 712.06(3). The preceding sentence is intended to clarify existing law.
(2) It shall not be necessary for the owner of the marketable record title, as herein defined, to file a notice to protect his or her marketable record title.History.—s. 5, ch. 63-133; s. 798, ch. 97-102; s. 3, ch. 97-202; s. 1, ch. 2003-79; s. 7, ch. 2014-133.
Filed under: foreclosure | Tagged: recording, rescission, TILA |
CASE LAW ABOUT RESCISSION
It is not necessary for rescission of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though misrepresentation is innocently made, because it would be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis. 2d 166, 168 N.W.2d 201 (1969).
“A bank is not the holder in due course upon merely crediting the depositors account.” Bankers Trust v. Nagler, 23 A.D.2d 645, 257 N.Y.S.2d 298 (1965).
“Any conduct capable of being turned into a statement of fact is representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts.” (The seller or lender) “He is liable, not upon any idea of benefit to himself, but because of his wrongful act and the consequent injury to the other party.” Leonard v. Springer, 197 Ill 532. 64 NE 299 (1902).
“If any part of the consideration for a promise be illegal, or if there are several considerations for an un-severable promise one of which is illegal, the promise, whether written or oral, is wholly void, as it is impossible to say what part or which one of the considerations induced the promise.” Menominee River Co. v. Augustus Spies L & C Co.,147 Wis. 559 at p. 572; 132 NW 1118 (1912).
“The contract is void if it is only in part connected with the illegal transaction and the promise single or entire.” Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis. 550, 279 NW 79 (1938).
“It is not necessary for rescission of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though misrepresentation is innocently made, because it would be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis.2d 166, 279 N.W. 79 (1938).
In a Debtor’s RICO action against its creditor, alleging that the creditor had collected an unlawful debt, an interest rate (where all loan charges were added together) that exceeded, in the language of the RICO Statute, “twice the enforceable rate.” The Court found no reason to impose a requirement that the Plaintiff show that the Defendant had been convicted of collecting an unlawful debt, running a “loan sharking” operation. The debt included the fact that exaction of a usurious interest rate rendered the debt unlawful and that is all that is necessary to support the Civil RICO action. Durante Bros. & Sons, Inc. v. Flushing Nat ‘l Bank, 755 F.2d 239 (1985). Cert. denied, 473 U.S. 906 (1985).
The Supreme Court found that the Plaintiff in a civil RICO action need establish only a criminal “violation” and not a criminal conviction. Further, the Court held that the Defendant need only have caused harm to the Plaintiff by the commission of a predicate offense in such a way as to constitute a “pattern of Racketeering activity.” That is, the Plaintiff need not demonstrate that the Defendant is an organized crime figure, a mobster in the popular sense, or that the Plaintiff has suffered some type of special Racketeering injury; all that the Plaintiff must show is what the Statute specifically requires. The RICO Statute and the civil remedies for its violation are to be liberally construed to affect the congressional purpose as broadly formulated in the Statute. Sedima, SPRL v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
A violation such as not responding to the TILA rescission letter, no matter how technical, it has no discretion with respect to liability. Holding that creditor failed to make material disclosures in connection with loan. Title 15 USCS §1605(c) Wright v. Mid-Penn Consumer Discount Co., 133 B.R. 704 (Pa. 1991).
Moore v. Mid-Penn Consumer Discount Co., Civil Action No. 90-6452 U.S. Dist. LEXIS 10324 (Pa. 1991).
The court held that, under TILA’s Regulation Z, 12 CFR §226.4 (a), a lender had to expressly notify a
borrower that he had a choice of insurer.
Marshall v. Security State Bank of Hamilton, 121 B.R. 814 (Ill. 1990) violation of Federal Truth in Lending
15 USCS §1638(a)(9), and Regulation Z. The bank took a security interest in the vehicle without
disclosing the security interest.
Steinbrecher v. Mid-Penn Consumer Discount Co., 110 B.R. 155 (Pa. 1990). Mid-Penn violated TILA by not
including in a finance charge the debtors’ purchase of fire insurance on their home. The purchase of
such insurance was a condition imposed by the company. The cost of the insurance was added to the
amount financed and not to the finance charge.
Nichols v. Mid-Penn Consumer Discount Co., 1989 WL 46682 (Pa. 1989). Mid-Penn misinformed Nichols in
the Notice of Right to Cancel Mortgage.
McElvany v. Household Finance Realty Corp., 98 B.R. 237 (Pa. 1989). debtor filed an application to remove the
mortgage foreclosure proceedings to the United States District Court pursuant to 28 USCS §1409. It is strict
liability in the sense that absolute compliance is required and even technical violations will form the basis for
liability. Lauletta v. Valley Buick Inc., 421 F. Supp. 1036 at 1040 (Pa. 1976).
Johnson-Allen v. Lomas and Nettleton Co., 67 B.R. 968 (Pa. 1986). Violation of Truth-in-Lending Act
requirements, 15 USCS §1638(a)(10), required mortgagee to provide a statement containing a
description of any security interest held or to be retained or acquired. Failure to disclose.
Cervantes v. General Electric Mortgage Co., 67 B.R. 816 (Pa. 1986). creditor failed to meet disclosure
requirements under the Truth in Lending Act, 15 U.S.C.S. § 1601-1667c and Regulation Z of the
Federal Reserve Board, 12 CFR §226.1
McCausland v. GMAC Mortgage Co., 63 B.R. 665, (Pa. 1986). GMAC failed to provide information which
must be disclosed as defined in the TILA and Regulation Z, 12 CFR §226.1
Perry v. Federal National Mortgage Corp., 59 B.R. 947 (Pa. 1986) the disclosure statement was deficient
under the Truth In Lending Act, 15 U.S.C.S. § 1638(a)(9). Defendant Mortgage Co. failed to reveal
clearly what security interest was retained.
Schultz v. Central Mortgage Co., 58 B.R. 945 (Pa. 1986). The court determined creditor mortgagor violated
the Truth In Lending Act, 15 U.S.C.S. § 1638(a)(3), by its failure to include the cost of mortgage
insurance in calculating the finance charge. The court found creditor failed to meet any of the
conditions for excluding such costs and was liable for twice the amount of the true finance charge.
Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (Pa. 1986). Any misgivings creditors may have about the
technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not the
courts. Disclosure requirements for credit sales are governed by 15 U.S.C.S. § 1638 12 CFR § 226.8(b), (c).
Disclosure requirements for consumer loans are governed by 15 U.S.C.S. § 1639 12 CFR § 226.8(b), (d). A
violator of the disclosure requirements is held to a standard of strict liability. Therefore, a plaintiff need not
show that the creditor in fact deceived him by making substandard disclosures. Since Transworld Systems Inc.
have not cancelled the security interest and return all monies paid by Ms. Sherrie I. LaForce within the 20 days
of receipt of the letter of rescission of October 7, 2009, the lenders named above are responsible for actual and
statutory damages pursuant to 15 U.S.C. 1640(a).
Lewis v. Dodge, 620 F.Supp. 135, 138 (D. Conn. 1985);
Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066 (3rd Cir. 1992). Porter filed an adversary proceeding against appellant under 15 U.S.C. §1635, for failure to honor her request to rescind a loan secured by a mortgage on her home.
Rowland v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (1992) Even technical violations will form the basis for liability. The mortgagors had a right to rescind the contract in accordance with 15 U.S.C. §1635(c).
New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (1992). The court held that defendants were entitled to rescind loan under strict liability terms of TILA because plaintiff violated TILA’s provisions.
Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567 (1990); TILA is a remedial statute, and, hence, is liberally construed in favor of borrowers. The remedial objectives of TILA are achieved by imposing a system of strict liability in favor of consumers when mandated disclosures have not been made. Thus, liability will flow from even minute deviations from the requirements of the statute and the regulations promulgated under it.
Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (1990) There was no dispute as to the material facts that established that the debt collector violated the FDCPA. The court granted the debtors’ motion for summary judgment and held that (1) under 15 U.S.C. §1692(e), a debt collector could not use any false, deceptive, or misleading representation or means in connection with the collection of any debt; Unfair Debt Collection Practices Act.
Jenkins v. Landmark Mortg. Corp. of Virginia, 696 F.Supp. 1089 (W.D. Va. 1988). Plaintiff was also misinformed regarding the effects of a rescission. The pertinent regulation states that “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.” 12 CFR §226.23(d) (1)..
Laubach v. Fidelity Consumer Discount Co., 686 F.Supp. 504 (E.D. Pa. 1988). monetary damages for the plaintiffs pursuant to the Racketeer Influenced and Corrupt Organization Act, 18 USC §1961. (Count I); the Truth-in-Lending Act, 15 USC §1601.
Searles v. Clarion Mortg. Co., 1987 WL 61932 (E.D. Pa. 1987); Liability will flow from even minute deviations from requirements of the statute and Regulation Z. failure to accurately disclose the property in which a security interest was taken in connection with a consumer credit transaction involving the purchase of residential real estate in violation of 15 USCs §1638(a)(9). and 12 CFR §226.18(m).
Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567, 1570 (S.D. Ga. 1990). Congress’s purpose in passing the Truth in Lending Act (TILA), 15 USCs §1601(a). was to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him. 15 USCs §1601(a). TILA is a remedial statute, and, hence, is liberally construed in favor of borrowers.;
Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984). disclosure statement violated 12 CFR §226.6(a).,
Wright v. Mid-Penn Consumer Discount Co., 133 B.R. 704 (E.D. Pa. 1991) Holding that creditor failed to make material disclosures in connection with one loan;
Cervantes v. General Electric Mortgage Co., 67 B.R. 816 (E.D. Pa. 1986). The court found that the TILA violations were governed by a strict liability standard, and defendant’s failure to reveal in the disclosure
statement the exact nature of the security interest violated the TILA.
Perry v. Federal National Mortgage, 59 B.R. 947 (E.D. Pa. 1986). Defendant failed to accurately disclose the security interest taken to secure the loan.
Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066 (3rd Cir. 1992). Adversary proceeding against appellant under 15 U.S.C. §1635, for failure to honor her request to rescind a loan secured by a mortgage on her home. She was entitled to the equitable relief of rescission and the statutory remedies under 15 U.S.C. §1640 for appellant’s failure to rescind upon request.
Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (Pa. 1986). Any misgivings creditors may have about the technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not the courts. Disclosure requirements for credit sales are governed by 15 U.S.C.S. § 1638 12 CFR § 226.8(b), (c). Disclosure requirements for consumer loans are governed by 15 U.S.C.S. § 1639 12 CFR § 226.8(b), (d). A violator of the disclosure requirements is held to a standard of strict liability. Therefore, a plaintiff need not show that the creditor in fact deceived him by making substandard disclosures. Rowland v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (1992),
Even technical violations will form the basis for liability. The mortgagors had a right to rescind the contract in accordance with 15 U.S.C. §1635(c). New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (D. Me. 1992). The court held that defendants were entitled to rescind loan under strict liability terms of TILA because plaintiff violated TILA’s provisions.
Recorders should record with uniformity and I’d be surprised if they don’t. Best way imo (I can’t speak to all recorder offices nationally as to their indexing) is to search records under the parcel number. EVERYthing impacting a particular property should come up under that parcel number – liens including judicial ones, foreclosure docs, deeds, affidavits, notices, whatever, should being the key word. But I know that recorders’ offices sometimes change their recording index methods so if older doc, keep looking other than by parcel number (and find out how your recorder indexes – by party name, by what, and best if one wants everything to check under both party names and parcel number. Sometimes a street address will get stuff, but I wouldn’t count on it. But those are possibilities: party name, street address, parcel number. For anyone’s interest, a parcel number is generally to my knowledge assigned by the county assessor for them to keep track of property taxes. Some (all? got me) recorders have now gone to uniformity by requiring the parcel number to be on the upper left corner (but inside that infamous margin) of the doc to be recorded. Even still, I’d check party name and address, also.
dandelier1 -ps – good idea about requesting the certified copies then and there and paying for them! This all may be done by mail, but so much better if one has access to the recorder’s office. Just in case it’s not clear: say one has to fight and needs copies to submit in that fight or for any reason. One doesn’t want to let loose of originals, and only copies certified BY THE RECORDER are generally admissable. imo.
Recorded docs, even cert’d copies, don’t stand as evidence of the veracity of what’s in them. They merely stand as evidence of Notice of what’s in them and that’s the purpose of recordation: Notice, not to establish facts. Banksters will claim recorded docs are self-authenticating under some rule, probably 902, which starts out with
“The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted”
Imo that merely means the document 1) exists and 2) is recorded and therefore imparts notice of the claim, essentially, made therein. TO THE EXTENT the document is found to do what it says, has veracity, it’s now not only binding on the parties thereto, but everyone else. Prior to the recordation, to the extent the document is found to do what it says, it’s only binding on the parties thereto.
To attack a claim of self-authentication said to mean the document IS what it says / does do what it says rather than merely imparting notice of an allegation, essentially, might want to start studying self-authenticating documents, starting here:
http://trialtheater.com/evidence/danger-of-self-authenticating-documents/
strictly lay opinions as always
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Dwight. … sounds like you need to run in the next election for Clerk of Superior Court. … It’s evident being an attorney is not a prerequisite.
There’s a CFPB case working in Georgia involving a debt collection agency named Hanna and Associates.
One of the main counts in the case is that non-attorneys are bypassing a requirement that attorneys actually sign collection letters to debtors, not ministerial employees.
As to the “super-clerk” you encountered in the recording office, she sounds like she might be the party you will be running against ..and she seems to be dispensing legal information without a license… relying on County Counsel only when things get “above her pay grade.”
It’s always been a little frustrating to me when the “ministerial clerks at the counter” must “play dumb” saying we can’t give legal advice.” I just press on and ask for them to help me with the procedures they are told to follow.
The Clerk should be sure the employees are properly trained to help the county’s citizens, they are not attorneys’ unpaid interns!
JG,
If I remember correctly, while I was looking up everything in the land records associated with my home, I asked if there were any other computer locations where I could find information regarding my home…. I was told about where the Lein section was, the Lis Pendes section and the catch-all location, Notices. … that’s where you can find items like Affidavits.
A ha! Said I.
dandelier1: “You do bring up an interesting point.. others have made the case that Land Offices *should* bear some responsibility for the willy nilly recording of fraudulent “bank documents” with the signatures of known Robo-signers.”
Yes, I recognized that as I wrote. I’m afraid just now I have to go with what I’ve been taught, and basically, it’s “as long as” the document presented for recording comports with the recorder’s (non-substantive) requirements, it must record it. But back then, we didn’t have known robo-signors. Still, given that recorders aren’t attorneys charged with what would be substantive issues, maybe best they don’t police recordation beyond the “as long as”. I believe there’s an “as long as” as to identification of the real property impacted by the document recorded, but really can’t even this minute swear to that (that failing identification it shouldn’t be recorded). What I do think I know is whether or not a document is recorded, if it fails to sufficiently identify that real property, isn’t notarized (hence one reason – only – notes aren’t recorded) it may if not will be deemed not to impart notice as a matter of law.
Included. .. not incurred!
I gotta quit trusting NG’s spellchecker!
dandiener1, I like your “affidavit” so the ‘cover sheet’ could be called either “Affidavit” or “Notice” in my lay opinion. But either way, to give proper notice, I do believe whatever one calls her cover sheet it must adequately describe the real property for recording purposes. If a document recorded doesn’t sufficiently identify the real property in question, it may be deemed to not impart notice. Lay opinion
JG,
I included the Deed Book number and Page number in my Affidavit of TILA Rescission… and an adequate collaborative “commonly known as (my address) information in the TILA Rescission Letters themselves.
I guess I could have incurred “legal descriptions” but that’s what licensed attorneys do… and I’m just a lowly Pro Se homeowner.
Besides, the Clerk’s office has no issue with the validity of the notarized Affidavit.
You do bring up an interesting point.. others have made the case that Land Offices *should* bear some responsibility for the willy nilly recording of fraudulent “bank documents” with the signatures of known Robo-signers.
I promised earlier to give a report about filing an Affidavit of TILA Rescission actions.
I prepared an Affidavit, was sworn and notarized by the Notary, and signed the Affidavit in front of two witnesses.
Before I recorded the Affidavit, I went to the records room and retrieved a copy a “Discharge of Deed to Secure Debt” executed by my previous lender (the only pre-MERS “real lender” involved since the purchase of our home.)
Less than two minutes later, I arrived at the Office of the.Clerk of Superior Court and presented the Affidavit, along with copies of my TILA Rescission Letters to the “pretender lender,” and to each of the “assignees”.
(Ocwen has initiated foreclosure sales based on the second assigment no less than six different times, the most recent of which was scheduled for today and – had not the foreclosing attorney removed me *again* from the process, – was taking place less than 50 feet away.)
Other than clarifying that I wanted the copies of the TILA Rescission Letters to be filed as a single attachment, the clerk had no problems at all processing the Affidavit, telling me simultaneously I would receive my originals back within 7-10 days.
When I asked if I could get “certified copies of the Affidavit and its attachment today, her response was a “cheery”, “If you pay for the 3 certified copies today, we will include those with the originals we’ll be sending you!”
So, for a total cost of $42, I’m on my way home knowing I don’t even have to “schlup” back to the courthouse in two weeks to finish what I effectively ended today.
As I drove home, I reflected upon the reality, that what began as a “Show Me the Note!” defense, has now transformed into a “Cancel My Note!” offense. What wonderful irony!
BTW, when I returned home, I retrieved a very informative letter from Ocwen, informing me they were continuing to respond to my RESPA Qualified Written Request letter mailed to Ocwen the day before I mailed my TILA Rescission Letters to the 3 “lenders” on “Independence Day”, July 4th, 2015!…. “Ain’t that grand?”
I actually have no idea if I’d certify the copy of my Notice of Rescission I attached to my cover sheet entitled “Notice” centered above the apn.
A notice of rescission by itself would not be a sufficient recordation as it doesn’t include an adequate description of the real property and it’s likely not acknowledged by a notary. I would use a cover sheet which does. I would check with my recorder’s office about the following:
Probably need parcel #, street address (“commonly known as”) and absolutely correct legal description.
To my knowledge, recorded docs must be first notarized. I would sign the cover sheet and get it notarized. I’d stay in the recorder’s required margins and leave room within those margins for the notary’s “stuff” – acknowledgement, signature, and stamp. I’d do this margin business knowing that if I don’t, it will cost more to record, if they’ll even take it.
I would attach a certified (by me) “I certify this is a true and accurate copy of the original” with a signature line signed by me under this) copy of the Notice of Rescission which you sent. I’d probably just put the certification on in pen and sign in blue ink. Something like this (what I’d do). Apn stands for accessor’s parcel number:
APN: 423-45-089-555
Recording Requested by
John Q. Homeowner and Jane Q. Homeowner
After recording, send this and tax statements to:
1234 Main Street
Still an American Town, KS 55555
August 3, 2015
NOTICE is hereby given of the information contained in
the attachment hereto regarding instrument # 20040908765454*
recorded on May 1, 2004 affecting the real property commonly
known as
1234 Main Street
Still an American Town, KS
and by legal description:
Lot 4, Block 10, Sutter’s Subdivision
Hanover County, Kansas
_________________________ _______________________
John Q. Homeowner Jane Q. Homeowner
Notary here:
Page 1 of 2 (I would make sure to include this, making sure the page number including my cover sheet is correct)
*I’d get recording info of deed of trust / mortgage from recorder’s records
These are STRICTLY lay opinions about what I would do myself. Ask a lawyer who practices real estate law.
I was rejected today in the Ocean County, NJ courthouse. I was there to pick up forms for something else and decided to walk down the hall to the Recording Office and ask how much it would cost for me to record a notice of my rescission. I did not have anything prepared and was just inquiring and informing them of my intention to do so.
Well …the lady’s first reaction was a facial expression of disgust and anger …”You can’t record that, who are you, we have rules, you can’t just come in here recording whatever you want, we don’t record rescissions”
I interjected .. “Well you may not have ever done it in the past because the courts and lawyers have never understood their legal effect, but now the United States Supreme Court has ruled on it and clarified the issue, and a homeowners rescission of a mortgage contract is effective by mailing”
Now I got everybody attention, all of the workers at their desks looked up at the same time …
The lady’s face became more twisted and defiant as she asked “Who are you, are you a lawyer?” … “No, I’m the homeowner” I replied.
“Well you aren’t allowed to record things” she snarled
I asked “Well then who is allowed to record things, and what do they record?”
Steam was coming out of her ears and her face was red , If looks could kill … I would have been dead on the spot …
“Well law firms record Lis Pendes .. Mortgages , satisfactions, …” she was feeling off all the usual suspects
So I interjected .. “Oh ..well that’s what I’m doing ..As a homeowner I am giving Notice to the world that I have rescinded the mortgage on my property .. This is an issue regarding Title of my property and Now the United States Supreme Court has unanimously decided that my rescission was effective .. I want to record it…give notice that I have rescinded ..and since I have a servicer Wells Fargo attempting to foreclose on my property, I need to record that I had already rescinded back in 2007 .. I have a copy of the letter I mailed and will create an affidavit sworn statement Notice to be recorded so that in the event this property goes to a sheriff’s sale auction, the recorded notice will warn any potential bidders of the problem … The courts have been wrong on the borrowers rights to rescind and this is all new territory since the Supreme Court has clarified things .. So I believe I have a right to record something in regards to my property title”
She began to back-pedal ..saying “But we record official documents, like Lis Pendes ..and …Well, I would have to have you give me whatever it is you want to record, and then I will have to submit it to Counsel and see if they approve it ..its a legal question, and the County Counsel would need to review what you want to record ..so when you have it, leave it and we will send it to the law firm that represents the County.
Not sure what to do .. I know what lawfirm it is, they are as corrupt as the day is long ..been the County’s Counsel for decades, it’s a good old boys network that runs the local politics and Republican party that controls the County and courthouse .. All part of the inner circle of the bankers crowd ..all part of the foreclosure travesty .. This county is one of the leading foreclosure machines in the nation. I know their initial reaction will be to reject the Recording of rescissions ..so it’s going to be a fight .. My plate is so full , my head is spinning ..not sure I can do the leg work to find the rules … Thinking I should just call that firm and speak to them on the phone? Thoughts?
Thank you Ill try again. They did not give me a formal reason.
The purpose of recordation is to give notice. I know of no reason a recorder’s office could refuse to record a notice of rescission with a notarized cover sheet in front of a certified copy of a Notice of Rescission, the name on which is stated “Notice”. A couple weeks ago, I posted what I would write in that notice if I wanted to provide notice by way of recordation of my rescission, which I would only record if I still had an ownership interest in the home.
If anyone has actually had a rejection from a recorder, I’d be interested in hearing the reason given.
Recorders are not attorneys and they aren’t charged with making determinations, have little if any discretion, aren’t allowed to be subjective as to what may be recorded. imo.
A Man…..
To record a document in my county, the document must be a “certfied” copy from a court…. or a sworn, notarized Affidavit.
I will record my recission letters (one each to the original “pretender lender” and the two assignees) as an attachment to my sworn affidavit stipulating that “In accordance with the unanimous SCOTUS ruling on January 13th, 2015, I mailed the attached documents.” I will state the details concerning the attached recission letters..i.e. My name, my status as owner of my property and the address thereof, the date(s) I sent the recission letter via certified mail to the “addressees”, the date(s) I received my signed proofs of receipt from the USPS from each recipient, the date 20 days afterwards, and a statement that I’ve not been served with notice by either of the addressees.
As my next to last step, before taking the Affidavit with the attached documents to the Clerk of Superior Court office, I will get a notary to witness my signing of the Affidavit.
Finally, after the records office notifies me the documents have been recorded, I will return to the Clerk’s office to obtain and pay for 5 “certfied copies” of my recorded Affidavit, to be used if needed in the future.
I’ll report later if I’m refused the opportunity to record my Affidavit in the land records.
BTW, it’s worthy to note… this recording process is far more involved than writing and mailing the recission letters themselves.
I have been rejected twice about a month ago? they did not give me the run around, did not write down the excuse just sent me on my way.
excuse me successfully record in any California County?
Stan Burman do you know of anybody being able to record in California?
thanx
Reblogged this on California Freelance Paralegal and commented:
Neil Garfield blog post discussing recording the notice of rescission under the Truth in Lending Act (TILA) with the County Recorder. In my opinion that makes sense particularly in California where judicial notice can be taken of the existence of recorded documents.
I opinion a new entry, without giving legal advice. I don’t know legal things and I don’t practice – law nor do I have a law – practice.
14. Send the rescission and on the 21st day, record it with a complaint to CFPB that you have received no response regarding the rescission.
If you get a response denying it, or a response that ignores it was sent, make that part of the complaint that someone is acting with an authority they do not have [ultra vires], or ignored the TILA requirement to address the rescission an operation of law in their response.
I am bastardizing the above intentionally. It makes no sense to do it such that someone writes as I do.
Use your power, use your words, you are the Creator of your future experiences.
I opinion
Any writings made “under penalty of perjury” carry it’s on ‘jurat’ type power without the notary, in so many words.
In my opinion
People in oppressive places of confinement usually have no access to the notary and sometimes have to make their communication under penalty of perjury as they [can’t/may not be able to] use another in the same place as a witness.
In my opinion
There may be statute of limitations on trespass and wrongful foreclosure (by the creditor – by definition the only one who can foreclose).
There is no statute of limitation on fraud.
Opinion:
Is there the felony?
I opinion these questions
Who harmed you? Who signed documents transferring the right to property without power of attorney? Who rejected your rescission without authority to reject an operation of law?
There are judicial conduct committees or something similar in the state.
There is the bar association grievance process.
There is the attorney general office- when deprived of the right to property or liberty.
There is the FTC and CFPB – business in it’s corrupt practices.
There is the FBI for title 18 violations.
https://www.fbi.gov
white collar crimes
house stealing
Are unknown employees of corporations doing, any thing different from any other unknown person who has used your identity without your consent or signature to record deeds to transfer property?
In my opinion
Initially the transfers were not by the original trustee of the property. The original trustee remained on the sidelines and did no thing to protect the assets of the [deed of] TRUST.
In my opinion
Initially it has been a substitute trustee (unknown) who has recorded documents to record deeds and transfer property.
I opinion
A substitute trustee is NOT at the closing and during the crisis the substitute trustee has not received appointment by the original trustee.
same fbi website
about-us/investigate/civilrights/federal-statutes#section242
In my opinion
the crimes are unreported as people are waiting on other corrupt people to fix or repair the corruption of their friends and co-workers.
I opinion, one could read the Title 18, U.S.C., Section 242
Deprivation of Rights Under Color of Law
notice it names many offices that people presumed had immunity from prosecution; but they do not have immunity.
All men are created equal. All men are endowed by the Creator. No man is above the law.
Trespass Unwanted, Creator, Corporeal, Life, Free, People, State, Independent, In Jure Proprio, Jure Divino.
Reblogged this on Deadly Clear.
referents to MERS AS MORTAGEE FOR TRUST. THE TRUST WOULD HAVE TO BE A PARTY TO MERSCORP. A MEMEBER OF MERSCORP.
AND I KNOW THEY AREN’T. AND I DO KNOW THE MY DEPOSITOR FOR THE TRUST , IS AND NEVER WAS A MEMBER OF MERSCORP.
SO EVEN BEFORE THE PSA WAS DONE, BECAUSE THE LOANS WERE SOLD TO DEPOSITOR. AND WAS NOT A MEMBER OF MERSCORP.
MER WOULD HAVE NO AUTHORITY WHAT SO EVER TO DO ANYTHING WITH A ASSIGNMENT 6 YRS LATER TO TRUST FOR FORECLOSURE.
Non-Recordation of Assignments; Possession of Mortgages
The seller will not be required to record assignments of the mortgages to the trustee in the real
property records of the states in which the related mortgaged properties are located.
( Other than ) with
respect to the mortgage loans recorded in the name of MERS
, GMACM will retain record title to the
mortgages on behalf of the trustee and the certificateholders.
SO ALL MORTGAGES IN THE TRUST THAT WERE MERS MORTGAGES HAD TO BE ASSIGN TO THE TRUSTEE AT THE TIME OF PSA.