Hat tip to Carol Molloy, Esq. in Tennessee in bringing this article to my attention. I think that the author, Alexandra P. Everhart Sickler associate Professor of Law at North Dakota School of Law, has done an excellent job in analyzing the legal precedent, the statutory provisions, the agency rules, and the general attitude of the Courts that seek to restrict the effect of TILA Rescission. Published by Rutgers Journal of Law and Public Policy, this is the best of what I have read thus far. I see many parts that could be quoted in briefs and memorandums of law.
see THE TRUTH SHALL SET YOU FREE
Filed under: foreclosure |
I sorta expected long-winded 🙂
I didn’t know nefarious interlopers could block or erase our postings.
Hope you’ll try again in the comments to NG’s article today.
Its a case of too many fingers in the pie as opposed to plausible deniability.
bOb
I like your contributions on here and as devils advocate ( all due respect the best defence is to be ready/ offence) but it doesnt work like that ifvthe other oarty has a lot to hide, and in most cases they do especially if the borrower took them to Court – BUT also had screwed up time and time again being sure they had clear advantage at all times. The tide is turning IMHO
beLieve.
Megabanks.. not Megabucks – though my spellchecker may have a point.
Bob H…. What! Absolutely no response at all to my multiple questions about “mortgage attack”?
Are you snubbing me or doubting my sincerity in receiving specific answers to present day, post Glass Stegall mortgage financing?
Is part of the problem that we confuse well established pre-2001 mortgage financing practices and laws like TILA with the “substituted” case law that developed after the post-2000 merger mania that created Megabucks and merged Investment Banking and Consumer Banking activities in ways that created the “Too Big To Fail” banking behomeths?
Does post-2001 repudiate TILA, FPDC, and UCC laws? Please illucidate.
Sooner or later some of these liars are going to do the perp walk, and until then… It will be business as usual.
Ian
What im thinking is that the debt is owed to true creditor per Contract – assigns and successors are a question of fact and when i rescinded it was with tender to the true creditor not an interloper that decides to step into the true creditors ” shoes” that case (davidson v capital- link i posted thank you to ” foreclosure fraud” for finding it) is going to SCOTUS imho 11 th circuit decision pending.
Deb- when mortgage servicers call any homeowner, dom’t they always begin by saying that they are a debt collector, attempting to collect a debt? And don’t debt collectors, legally, only deal with unsecured debt? Well?
Watch this one
http://stopforeclosurefraud.com/2015/10/09/davidson-v-capital-one-bank-usa-n-a-ftc-files-amicus-brief-asks-federal-court-to-consider-banks-as-debt-collectors-under-the-fdcpa/
more fun stuff
http://www.nolo.com/legal-encyclopedia/free-books/foreclosure-book/chapter7-3.html
Here is a link to a Powerpoint presentation saved as a PDF – produced by lawyers who represent lenders and banks – giving them advice on how to prepare for the “new world” post Jesinoski…
http://files.dorsey.com/files/upload/tila-right-of-recission-041415.pdf
of significant note is that they provide some hard-core Q&A which directly address the questions and arguments that non-lawyer bloggers over here on living-lies are constantly bickering over…
they do not tell their clients they have any right to ignore notices – even if they think they are unjustified… Rather, to the contrary…
they are telling their clients that they damn-well better not ignore notices – even if thought to be frivolous – and comply immediately with the code, including commencing either a court action to deny or to commence with the unwinding within 20 days – or lose everything…
it will not make those who criticize the efficacy and absolute power of TILA & Reg Z very happy…
greg
“The great reckoning”
http://dictionary.reference.com/browse/day-of-reckoning
Amen to that day
It has to come it, alwAys does whether we are here to see it or not.
What is a Minnesota “Assumed Name?”
If an individual, corporation, limited partnership or limited liability company (LLC) doing business in the State of Minnesota operates under a different name, it must register its “assumed name” with the Minnesota Secretary of State. For example:
A sole proprietorship operated by James Thompson might register “Thompson Landscaping” to describe his landscaping business.
A corporation having the legal name of Minnesota Fairway Holdings, Inc. might register the assumed name “Green Pines Golf Course” to describe the golf course it owns and operates.
Corporations and LLCs often file multiple assumed names to promote a distinct product or service through unique branding.
The purpose of the assumed name filing is to put third parties on legal notice of who they are really dealing with and also allow them to look up the business’ official corporate address and registered agent (if any) to deliver legal papers.
In some states, an “assumed name” is called a “doing business as,” “DBA,” “d/b/a,” “fictitious name,” or “trade name.” These terms all basically mean the same thing.
What Will Happen if the Minnesota Assumed Name is Not Registered?
Failing to register your assumed name could be very dangerous. If your business is a corporation, limited partnership, or LLC, one of the major advantages of its corporate status is the shield of “limited liability” protection that it offers the owners of the business (or limited partners in the case of a limited partnership). Under Minnesota law, corporations and LLCs must include as part of their name an official designation to show their status as a corporation or LLC, such as:
____________ Corporation
____________, Inc.
____________, Incorporated
____________, LLC
____________, Limited
____________, Limited Partnership
By using this language, third parties will be put on notice that they are dealing with a legal entity (corporation, LLC, or limited partnership) with limited liability rather than an individual or general partnership (who assume personal liability for business obligations).
If you fail to register your “assumed name” and begin to use a different name (such as “Bluff Point Golf Course” in the example above), it is highly likely that you are doing so for marketing purposes. There is a good chance that you have not thought to indicate your status as a corporation or LLC. If so, the owners and high level officers of the corporation might be accepting an unnecessary risk of personal liability for all contracts and agreements they sign under the unregistered assumed name. Third parties will not be placed on fair notice that they are dealing with a legal entity with limited liability; accordingly, there is a risk that the individuals who enter into the contracts might be deemed to have personal liability under them.
For the same reason, even if the only difference between your officially registered corporate name and the business name you are using is that you have dropped the “Inc.,” “Incorporated,” or “LLC” from the name you use on a daily basis, you must register an assumed name that drops the “Inc.” designator.
Ian, in part said, “….like to see the judge declare that the underlying mortgages were “defective and unenforcable”.”
Yes, and in a land of equal justice we would. It’s virtually impossible to rule against the banks to the tune of hundreds of billions of bucks on the investor side, all the while pretending that the borrower wasn’t harmed. Our government, along with their owners hiding behind the financial behemoths, are on their way towards treating borrowers in a similar fashion to how our southern U.S. ancestors treated the slaves, as chattel and nothing more…..not worthy of breathing the same air as the plantation owners. In their minds we should all simply put shoulder to boulder and STFU.
A great securitization unraveling should follow the circus that the AG’s led with all their pomp and circumstance, only now revealing each and every loan, its whereabouts specific to trust or what have you. The Great Reckoning. There’s no hope of healing without this step.
And MERS HAS TO GO. IT‘S AN ABOMINATION. And arrest Holder. Oh, and Lanny too. And Greenspan and Bernanke. And Blankfein and Moynihan. And Paulson. And Buffet just because I hate that folksy persona crap. But especially Geithner. Yes definitely Geithner. And while we’re at it…..
Ok, Bob H,
Are you saying that your “mortgage attack” does/doesn’t involve addressing the central issue of “fraudulent documents”? Before, or after “default based upon fraudulent documents”?
…Before, during, or after the initiation of foreclosure by parties who were not present or not identified as the actual lender of “corporately-owned money” used to fund the loan at the closing table?
Does “mortgage attack” include attending to the injustice perpetrated on millions of homeowners who were foreclosed upon using fraudulent documents who were just “legally naive,” “ignorant,” “dumb” or just not as blessed as you are with a superior understanding of all legal matters and procedures regarding real estate law?
..Is there a way that “mortgage attack” can be used to restore and make whole those who were foreclosed upon based upon the production of fraudulent documents (or in the non-production of same in “non-judicial foreclosure” states?
Or can “mortgage attack” help those who either finally walked away from their adversary’s “attack” or persisted wirh attorneys or pro se until “the bank won” and they were evicted?
…And, to be clear, is “mortgage attack” equally useful in both “judicial foreclosure” and “non-judicial foreclosure” states.
Lest you be tempted *not* to specifically reply to each of these questions out of a sense I am either being sarcastic or “baiting” you, I assure you that is not the case. Your (may I say) almost endless tirades against the opinions of others have convinced me that you have a familiarity with the subject matter at hand…. also that you are quite adept in your research and making your case.
Your tone leaves much to be desired, but I’ve known other professionals in the healing vocation whose “bedside manner” upset me. Nevertheless, I chose to honor their counsel despite my firm convictions “they are *not* the God who created my body.” (Even then, I’m also convinced they disagree with me. ..Pity, they are too blind to see it is Him Who graciously imparted to them an inquisitive mind that is superior to my own in matters of medicine.)
Nonetheless, correct me and indulge me by patiently re-schooling me (and others on this blog) if you have already addressed any or all of the questions I asked earlier in this post.
Bob H, I really *am* interested in receiving the benefit of your research of these matters and how, specifically, they are addressed by this legal theory of “mortgage attack”.
Please be sure to differentiate between the “clean” mortage transactions that were the “time tested rule” before the MERS-enabled mortgage securitization that’s existed since the repeal of the Glass-Stegall Act.
In any of the larger investors “breach of reps and warranties” under the prospectus for the MBS offering or the PSA, i like to see the judge declare that the underlying mortgages were “defective and unenforcable”.
Unfortunately, exactly which mortgages the judge is referring to is never mentioned, where the complaint lists dozens or a hundred or more pools.
One of the things we have all noticed about Bob Hurt’s pro-banker, pro-corrupt judiciary posts is that he has never shown us a real life example of anything he promotes. Absent is the copy & paste of even a single successful case that he has been a part of, or helped in any way. Show us the proof Bob , put up or shut up. You keep harping about attack the contract/mortgage .. we keep asking “what contract?”
The issue here isn’t whether we breached a contract by missing a payment .. the real issue is based on the fact that 50 states attorneys general were poised to prosecute these pretender lenders for the crimes they committed against us victims, this is the issue !!!
We are victims of a Ponzi scheme and our so-called mortgage contracts are not valid ..nor are they legal financial transactions under the law.
The criminal bankers and their criminal acts have already been investigated, they were about to be prosecuted and throw into prison, but the federal govt intervened and forced the attorneys general of the states to accept the settlement monies instead .
We the victims were told by the federal govt that we would still be allowed to raise, assert and argue any of these known facts in our own defenses ..the facts that the mortgage industry had committed violations, crimes, forgeries, fabricated notes, fake assignments, faulty documents, false robo-witnesses, violated NY Securities laws, violated the PSA’s , lied at the origination, concealed the identities of the true creditors (investors) whose money funded the loans, violated the Truth in Lending Act , violated basic contract law, wrongfully file foreclosure complaints without being the real party in interest and not having legal standing, bringing fraud upon the courts, committing perjury, etc., etc.
We have a damn good reason to be angry and disgusted.
You Bob, and the corrupt Judges and bank lawyers just like you, have hardened hearts and have apparently sold your souls to the devil.
You can have your day in the sun now while you enjoy dancing around and thumbing your noses at the suffering victims , the families with children who were victims of the mortgage Ponzi scheme ..and who were victims of the economic collapse that was caused by the mortgage meltdown of the Ponzi scheme .. go ahead and enjoy your sick, twisted and misguided views on this travesty of justice, but the day is coming when all of you will answer to a higher authority for your actions in this life.
Bob’s very adamant that borrowers shouldn’t concern themselves with the fine print of a PSA, or other legal documents….these are details that only the adults in the room should concern themselves with. The borrower should just sign the docs placed before them and pay each month. Now that’s a good lad.
Bob is OK with living in a kleptocracy, as he’s delusional about his place in the system. He’s convinced that because he’s white and educated, he’ll fare quite well, as that’s been the case traditionally when revolving doors, rather than legal foundations, set up the hierarchy that democratic societies flourish under.
And while us average folk have to be very careful about how a check is filled out and signed, banks are allowed to “recreate” any documents that are found to be illegal or otherwise “lacking”. PSA’s have meaning for them, not us. It doesn’t matter if trust law specifically states void, not voidable, when not strictly adhered to, that’s a mere inconvenience that can be repaired through document manufacture. In Bob’s and the bankster’s world, that doesn’t concern the borrower in the least.
Just remember this: revolving doors are simply portals into corruption. Once they’re setup for the few, they get used more often and against more and more citizens. It’s very difficult to remove them without turmoil. The goings-on in courts across the land are indicative of a systemic breakdown of law and order, and it can’t end well. Each and every foreclosure is riddled with felonies, and once the populace realizes that there is no longer a law of the land, all bets are off.
Peruvian economist, Hernando de Soto writes about the importance of property and business rights. He argues that the big difference between developed and non-developed countries around the world has simply been that the former have established property rights and legal structures that provide an information framework that records ownership of property.
Lacking those things, de Soto argues, what’s generated is a society with “two parallel economies, legal and extra legal. An elite minority enjoys the economic benefits of the law and globalization, while the majority of entrepreneurs are stuck in poverty, where their assets … languish as dead capital in the shadows of the law.”
Wake up or roll over. These issues concern us all.
Bob… I agree with you about watching for scammers who sell you free or useless information that really tells you nothing, and when you try to get answers that you should have gotten but didn’t, they want to charge you more money.
But as for your “Borrower not challenging PSA” theories, both you and the courts are ignorant, mis-informed or just retarded. If you cant challenge a PSA because your a third party, then it can’t be granted the power to act over you either.
As a third party they can’t foreclose either. PERIOD!
Doesn’t mean the right thing is happening. Its not.
Here’s your word picture Bob….
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Let me know if you have any questions…..
Some points from my legal argument ….
IV. LEGAL ARGUMENT
POINT 1 – THE NOTE IS UNENFORCEABLE.
If the default is upon an installment, the statute will begin to run at once in respect to that particular installment. Holmin v. TRW, Inc., 330 N.J. Super. 30, 748 A.2d 1141 (App. Div. 2000). To refuse to allow the statute to run unless the mortgagee elects is a violation of the policy of the statute, a policy which is directed at clearing up claims before the years succeed in dimming the evidence. This appears to be the general rule. See also Note, 159 A.L.R. 1077 (1945); C.J.S., Bills and Notes § 251c.). It was stated in the complaints that the note provides that the whole of the principal sum shall become due at the election of the mortgagee upon default. Mortgagees are required to make the election for the purpose of the running of the 6-year statute of limitations on accelerated notes under NJUCC. The election began in July 2007 by way of default. An election once made cannot be withdrawn by the mortgagee. An election made by bringing a suit, as it generally is, the action is sometimes abandoned, and in that case the statute will run on the note as well as on the mortgage. Courts should proceed on the theory that if the mortgagee is not willing to take advantage of his acceleration clause, there is no reason why the mortgagor should not be allowed to do so. Otherwise, it will be inconsistent that the note should fall due for one purpose and not for another. Plaintiff stated in the Complaint that it accelerated the Note to mature on February 1, 2008; the default date. The Complaint filed in 2007 demonstrates Plaintiff’s intent to accelerate the Note. The 6-year statute of limitations on notes has expired. Plaintiff is time-barred from enforcing the Note; therefore, the Mortgage is void.
Plaintiff has attempted to argue that under the Fair Foreclosure Act (N.J.S.A. 2A:50-56.1), the Statue of Limitations is 20 years from default. The Act states an action to foreclose a residential mortgage shall not be commenced twenty years from the date on which the debtor defaulted.
Equity follows the law. Bank of New York v. Raftogianis, 418 N.J. Super. 323, 13 A.3d 435 (Ch. Div. 2010). Under New Jersey law, the enforcement of a promissory note that is secured by a mortgage is governed by the UCC. In re Kemp, 440 B.R. 624, 630 (Bankr. D.N.J. 2010). Pursuant to N.J.S.A. 12A:3-118(a), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date. In the event of default, the mortgagee may elect whether or not the mortgagee will exercise the right to mature the entire mortgage debt, since the acceleration clause is entirely for the benefit of the mortgagee.
The problem with the FFA argument is, it talks about the “Mortgage” and not the Note (foreclosing on a mortgage that had been in default but had never been accelerated through a foreclosure complaint, those are the cases in which a bank is allowed 20 years from date of default to foreclose, but once they elect to accelerate, they change the maturity date and only get 6 years , just like the Note on gets 6 years after acceleration to maturity). A “mortgage” secures a debt; without an obligation to secure there can be no valid mortgage. Gotlib v. Gotlib, 399 N.J. Super. 295, 944 A.2d 654 (App. Div. 2008). N.J.S.A. 12A:3-118(a) voids the Note.
POINT 2 – THE ASSIGNMENT TO PLAINTIFF IS INVALID.
Black’s Law Dictionary defines forgery as a false document made to look genuine by someone with the intent to deceive. Where an assignment of a bond and mortgage has been forged, it is void. N.J.S.A. 25:2-3. Under a forged assignment of a bill, the assignee can acquire no legal right of action. McCausland v. Drake, 3 Stew. 344, 351 (1831). The assignee of a mortgage and note assigned as collateral security is the real party in interest; he holds the legal title to the mortgage and note and he, not the assignor, is the proper party to file a suit to foreclose the mortgage. An assignee of a mortgage has no greater rights than the assignor; he succeeds to the rights and privileges, as well as to the disabilities of the assignor. Gotlib v. Gotlib, 399 N.J. Super. 295, 944 A.2d 654 (App. Div. 2008).
A mortgage assignment must be in writing and “any such assignment shall pass and convey the estate of the assignor in the mortgaged premises, and the assignee may sue thereon in his own name.” EMC Mortgage Corp. v. Chaudhri, 400 N.J. Super. 126, 141, 946 A.2d 578, 588 (App. Div. 2008) citing N.J.S.A. 46:9-9; Byram Holding Co. v. Bogren, 2 N.J.Super. 331, 336, 63 A.2d 822 (Ch.Div.1949). The assignment of a mortgage, without the assignment of the note secured, confers no right on the assignee. Johnson v. Clarke, 28 A. 558 (N.J. Ch. 1894). “A valid assignment must contain clear evidence of the intent to transfer the person’s rights and ‘the subject matter of the assignment must be described sufficiently to make it capable of being readily identified.’ Tirgan v. Mega Life & Health Ins., 304 N.J. Super. 385, 390, 700 A.2d 1239, 1241 (N.J. Super. Ct. Law Div. 1997); Berkowitz v. Haigood, 256 N.J. Super. 342, 346, 606 A.2d 1157, 1159 (N.J. Super. Ct. Law Div. 1992); Transcon Lines v. Lipo Chem., Inc., 193 N.J. Super. 456, 467, 474 A.2d 1108, 1113 (N.J. Dist. Ct. 1983) all citing Williston, Contracts § 404 at 4 (3 ed. 1957). It is necessary that the assignor manifests an intent to transfer his rights in the contract to the assignee. Here, the record is devoid of any such fact. Such a presumed assignment is thus without foundation in fact. In order to have the existence of an assignment, there must have been an intent to make an assignment. [citing K. Woodmere Associates, L.P. v. Menk Corp., 316 N.J. Super. 306, 314, 720 A.2d 386, 391 (App. Div. 1998) (held: a valid assignment must contain evidence of the intent to transfer one’s rights, and “the subject matter of the assignment must be described sufficiently to make it capable of being readily identified” (citing 3 Williston, Contracts (3 ed. Jaeger 1957) Section 404 at 4; Transcon Lines v. Lipo Chem., Inc., 193 N.J.Super. 456, 474 A.2d 1108 (Cty.Dist.Ct.1983)); In re Jason Realty, L.P., 59 F.3d 423 (3d Cir. 1995) citing Restatement (Second) of Contracts, § 317 (held: an assignment of a right is a manifestation of assignor’s intention to transfer it by virtue of which assignor’s right to performance by the obligor is extinguished, and assignee acquires right to such performance.); Berkowitz v. Haigood, 256 N.J.Super. 342, 346, 606 A.2d 1157 (Law Div.1992) (held: in order for such an assignment to be valid, it must contain clear evidence of the intent to transfer the person’s rights and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified.)] Here, there was no intent to assign the rights in the Note and Mortgage to Plaintiff because Fannie Mae is still the owner, holder and controller of the mortgage instruments.
POINT 3 – PLAINTIFF DID NOT HAVE STANDING TO FILE THE COMPLAINT.
One of the issues here concerns plaintiff’s standing to bring this lawsuit. The question of whether a plaintiff has the right to sue must be addressed. … long argument about why Plaintiff lacks standing
POINT 4 – THE CERTIFICATION TO SUPPORT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IS INSUFFICIENT.
A certification will support the grant of summary judgment only if the material facts alleged therein are based on personal knowledge. Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 15 A.3d 327 (App. Div. 2011) citing R. 1:6–6. Allegations in certification that assignee is the holder and owner of note, and mortgage are not based on personal knowledge, and thus, the certification was insufficient to establish that assignee had standing to pursue foreclosure action, precluding summary judgment in favor of the assignee in foreclosure action. Id. Summary judgment affidavits in which the affiant fails to identify specifically her position, or explain the source of her personal knowledge of the facts to which she attests, or attempts to authenticate attached documents without explaining precisely what each is and how it came into the affiant’s hands should be rejected. New Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 98 A.3d 583 (App. Div. 2014) citing R. 1:6–6.
Alissa Doepp says all the things you have to say to satisfy the business record exception to the Hearsay Rule. See Exhibit Z (Doepp Certification). Then she says, in connection with making this certification, she have acquired personal knowledge of the matter stated herein by examining the business records. She cannot acquired personal knowledge because if she talks about her personal knowledge without the documents or the business records it is hearsay. She did not look at the Note, Mortgage, Assignment, Notice of Intent or Payment History. She has not seen neither document nor she personally did not see the Note as of any certain date. To her credit, she does not certify she saw those documents. She says, “I personally reviewed certain business records of Wells Fargo.” See paragraph #8 of Exhibit Z (Doepp Certification). She then says, “Based upon my review of that record, Wells Fargo was in physical possession of the Note on May 9, 2014, the date the Complaint for Foreclosure was filed, and prior thereto.” See paragraph #19 of Exhibit Z (Doepp Certification). Reading Fannie Mae’s Servicing Guide it is believe that she is referring to constructive possession, because it states:
In order to ensure that a servicer is able to perform the services and duties incident to the servicing of the mortgage loan, Fannie Mae temporarily gives the servicer possession of the mortgage note whenever the servicer, acting in its own name, represents the interests of Fannie Mae in foreclosure actions, bankruptcy cases, probate proceedings, or other legal proceedings.
This temporary transfer of possession occurs automatically and immediately upon the commencement of the servicer’s representation, in its name, of Fannie Mae’s interests in the foreclosure, bankruptcy, probate, or other legal proceeding.
See page 102-39 of Exhibit U (Fannie Mae Guide).
This proposition is not sustainable in light of the actual possession required under the New Jersey UCC. In re Kemp, 440 B.R. 624, 631 (Bankr. D.N.J. 2010) citing N.J.S.A. 12A:1–201(20).
POINT 5 – THE NOTICE OF INTENT IS DEFECTIVE.
The Notice of Intention is a central component of the FFA, serving the important legislative objective of providing timely and clear notice to homeowners that immediate action is necessary to forestall foreclosure. N.J.S.A. 2A:50–56(a) requires lenders contemplating foreclosure to give defaulting homeowners “notice of such intention at least 30 days in advance of such action as provided in this section.” Therein, the lender must be disclosed to defaulting homeowners. US Bank Nat. Ass’n v. Guillaume, 209 N.J. 449, 38 A.3d 570 (2012) (holding the Fair Foreclosure Act requires that a Notice of Intention to foreclose includes the name and address of the actual lender, in addition to contact information for any loan servicer who is charged by the lender with the responsibility to accept mortgage payments and/or negotiate a resolution of the dispute between the lender and the homeowner; citing N.J.S.A. 2A:50–56(c)(11).). The Notice misstates Plaintiff as the lender, and Plaintiff provided no evidence to prove it had mailed the Notice to Defendants.
POINT 6 – THE ALLEGED DEFAULT IS NOT SUPPORTED BY EVIDENCE.
A foreclosure process begins with the occurrence of an event of default pursuant to the loan documents creating the obligation. Upon the occurrence of an event of default, a mortgagee has the right to insist on strict compliance with the provisions in the loan documents relating to acceleration of the sums due in the event of a default of any kind, unless the default is the result of the mortgagee’s own conduct. Eisen v. Kostakos, 116 N.J. Super. 358, 366, 282 A.2d 421, 425 (N.J. Super. Ct. App. Div. 1971). Plaintiff pled Defendants defaulted, but cannot produce a payment history that identifies Defendants’ history to support the assertions.
POINT 7 – THE MORTGAGE IS VOID UNDER TILA
(the paralegal I hired to write this motion and brief didn’t want to include the TILA rescission argument because he felt I had the victory with the 6 year statute of limitations on the accelerated Note, but he included this below .. I then added much more to this, by adding Jesinoski and everything else we talk about on this blog)
In Sherzer v. Homestar Mortgage Servs., 707 F.3d 255, 257 (3d Cir. 2013), borrowers Daniel and Geraldine Sherzer sent a letter to the lender of two loans secured by mortgages on their home, along with the lender’s assignee (together, the “lenders”), asserting they had not received the disclosures required under TILA and exercising the right to rescind the loans. The letter was sent about two years and nine months after closing on the loans. The lenders agreed to rescind one loan, but denied the asserted TILA violation to the other, much larger loan. The Sherzers filed suit more than three years after their closing date, asking for a declaration of rescission among other remedies. The trial court granted judgment on the pleadings for the lenders, ruling the suit time-barred under Section 1635(f).
The question presented was the following: does an obligor exercise his right to rescind a loan subject to TILA by so notifying the creditor in writing, or must the obligor file suit before the three-year period expires? In the Third Circuit Court of Appeals’ opinion, the text of §1635 and its implementing regulation (Regulation Z) supports the view that to timely rescind a loan agreement, an obligor need only send a valid notice of rescission. Id. at 258. In determining what the Sherzers had to do to rescind their loan agreement pursuant to §1635, the Court of Appeals began with the statutory text. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). When “the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” The language of the statute provides that an obligor exercises his right of rescission when he sends notice to the creditor; it says nothing about a court filing. Id. Sections 1635(a) and (b) explicitly address both how the right of rescission is exercised and when the rights and corresponding obligations flowing therefrom are incurred by the parties to the loan. Section 1635(a) provides that “the obligor shall have the right to rescind the transaction … by notifying the creditor, in accordance with regulations of the Bureau, of his intention to do so.” 15 U.S.C. § 1635(a). Regulation Z specifies that the obligor must notify his lender “by mail, telegram, or other means of written communication.” 12 C.F.R. §§ 1026.15(a)(2), 1026.23(a)(2). Neither §1635(a) nor Regulation Z states that the obligor must also file suit; both refer exclusively to written notification as the means by which an obligor exercises his right of rescission. Id. Section 1635(b), which describes the “[r]eturn of money or property following rescission,” suggests that rescission occurs automatically when the obligor validly exercises his right to rescind. It states, in relevant part:
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, down payment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.
Id. 258-59. Here, Defendants mailed Plaintiff their Rescission Notice within the 3 years allowed for disclosure violations and Plaintiff ignored it. The mortgage security instrument became void by operation of law. The Plaintiff failed to comply or respond within the statutes 20 day window for doing so, and therefore waived it’s remedies and/or defenses. Only the true creditor would have been able to establish standing to contest the rescission within 20 days and would have had to establish standing without the use of the void mortgage instrument. This Court has no jurisdiction and the Summary Judgment must be Vacated and Dismissed with Prejudice.
IV. CONCLUSION
For the reasons mention hereinabove, Defendant requests this Court to deny Plaintiff’s motion for summary judgment and grant this cross-motion to Vacate and Dismiss with respect to the above-referenced matter.
Date: September 24, 2015 DNJ Pro se
Submitted my Motion to Vacate the Summary Judgment and Dismiss the Complaint with Prejudice ..
Here is the short preliminary statement in my Brief …
I. PRELIMINARY STATEMENT
This case concerns a plaintiff who claims to be the owner and holder of the Note and Mortgage. The plaintiff is the servicer according to Fannie Mae and MERS. The plaintiff has no evidence that Fannie Mae delivered the original Note to it. The assignment was prepared and executed by the plaintiff to itself to make it appear that it purchased subject loan. Fannie Mae and MERS documents shows Fannie Mae as the owner and holder of the Note and Mortgage, which demonstrates there was no intent to transfer the rights of the Mortgage to the plaintiff. The plaintiff pled the defendants defaulted, but submits no evidence that shows payments were made up to a certain date and cease thereafter. The plaintiff mailed the defendants each a Notice of Intention to Foreclose misrepresenting itself as the lender. Fannie Mae states it is at all times the owner and possesses the Note. As for the enforcement of the Note, the plaintiff is out of time according to NJUCC’s Statue of Limitations. The originator did not give the defendants the required Truth In Lending Act (TILA) disclosures at closing; Notice of Right to Rescind and as a result, the defendants exercised their right to rescind on July 1, 2007, which voided the mortgage security instrument by operation of law, therefore the Plaintiff has no legal standing and the Court has no jurisdiction.
DNJ’s Motion to Vacate the Summary Judgment and Dismiss the Complaint with Prejudice … DNJ’s Certification
CERTIFICATION OF THE FACTS
I, REDACTED, Co-Defendant, hereby certify as follows:
1. I make this Certification in support of my motion to vacate the summary judgment order and dismiss the Complaint with prejudice.
2. Subject property is my primary residence.
3. On August 14, 2003, my wife and co-Defendant acquired subject property.
4. On October 19, 2004, my wife and I obtained subject mortgage loan from Commerce Bank, NA to refinance the previous mortgage. See Exhibit A (Note w/1 Endorsement) and Exhibit B (Mortgage). The Mortgage was recorded on February 10, 2005.
5. Commerce Bank sold subject loan to Washington Mutual Bank, endorsing the Note and delivering it with the original Mortgage. See endorsement on the last page of Exhibit A (Note w/1 Endorsement).
6. On December 1, 2004, Washington Mutual Bank sold subject loan to Fannie Mae. Fannie Mae’s custodian took possession of the original Note and Mortgage.
7. In June 2007,(we were current on our payments through June) my wife and I realized Commerce Bank did not provide us our closing documents, which included mandatory disclosures. Thereafter, I mailed Plaintiff a “Rescission Notice” rescinding subject loan because we did not receive the primary disclosure, the “Notice of Right to Cancel.” See Exhibit C (Rescission letter mailed by Defendant’s on July 1, 2007)). Plaintiff did not respond to my “Rescission Notice.”
8. On September 25, 2007, Plaintiff filed a complaint accelerating the maturity date from November 1, 2034 to July 1, 2007. See Exhibit D (Complaint). Plaintiff stated “as a result of said default (July 1, 2007), Plaintiff hereby elects and declares that the whole unpaid principal sum due on the Note and Mortgage, along with all unpaid interest, advances, fees and costs, shall be accelerated and is now due and payable.” See allegation # 7 of Exhibit D (Complaint).
9. The Statue of Limitations under N.J.S.A. 12A:3-118(a) was triggered on July 1, 2007, Plaintiff intended to accelerate the Note and foreclose on the Mortgage on September 25, 2007.
10. On October 8, 2007, the defunct Zucker, Goldberg & Ackerman law firm fabricated an assignment to show Plaintiff purchased subject loan for a sum of money. See Exhibit E (Assignment).
11. On April 21, 2009, Helen Belton, Vice President Wells Fargo, misstated in her certification that “Plaintiff is still the holder and owner of the Note and Mortgage.” See paragraph #5 of Exhibit F (Final Judgment Certification).
12. On December 29, 2009, Final Judgment was entered. See Exhibit G (Final Judgment).
13. On December 20, 2010, the New Jersey Supreme Court issued the following order:
It is ORDERED that the attached amendments to Rules 1:5-6, 4:64-1 and 4:64-2 are adopted effective immediately. It is FURTHER ORDERED that in all uncontested residential foreclosure cases in which judgment has been entered, but no sale of the property has occurred as of December 20, 2010, (1) within 45 (forty-five) days, plaintiff’s counsel shall file a certification, which shall be served on all defendants, stating (a) that the attorney has communicated with an employee or employees of the plaintiff who (i) personally reviewed the documents submitted to the court thus far and (ii) confirmed their accuracy; and (b) the name(s), title(s) and responsibilities in those titles of the plaintiff’s employee(s) with whom the attorney communicated; (2) plaintiff’s attorney shall also file a certification attesting that the complaint and all documents subsequently filed with the court comport with the requirements of Rule 1:4-8(a).
R. 4:64-2.
14. Plaintiff could not make the required Certification of Diligent Inquiry, stating all assertions and documents are true and accurate.
15. On October 11, 2011, the Court vacated the Final Judgment and dismissed the Complaint. See Exhibit H (Dismissal Order).
16. On April 1, 2013, Counsel prepared a Notice of Intention to Foreclose misstating Plaintiff is the lender, knowing Fannie Mae is my lender and Plaintiff the servicer. See Exhibit I (NOI).
17. From April 30, 2014 to May 9, 2014, Counsel has filed 25 foreclosure complaints naming Federal National Mortgage Association (Fannie Mae) the plaintiff. The dockets are: 16900, 16994, 17114, 17370, 17384, 17433, 17537, 17542, 17545, 17637, 17840, 17868, 17887, 17921, 17989, 18002, 18105, 18251, 18305, 18361, 18594, 18636, 18637, 18638, and 18689. See Exhibit J (Fannie Mae Filings – 1).
18. On May 9, 2014, Counsel filed the instant subject Complaint against Defendant’s misstating Plaintiff (Wells Fargo) is the owner and holder of the original Note and Mortgage. See Exhibit K (Complaint).
19. From May 9, 2014 to May 14, 2014, Counsel has filed 7 additional foreclosure complaints naming Federal National Mortgage Association (Fannie Mae) the plaintiff. The dockets are: 18756, 18852, 19016, 19131, 19225, 19296, and 19311. See Exhibit L (Fannie Mae Filings – 2).
20. On August 29, 2014, Plaintiff filed a motion to dismiss my Counterclaim and Affirmative Defenses (which included proof that Defendant’s had Rescinded in 2007). See Exhibit M (Cover Letter & Notice). Plaintiff did not submit a Statement of Material Facts, a Certification in support of the motion nor the “Notice of Right to Cancel.” which they had mis-stated on the record had been properly disclosed and was included in the closing documents, but they never submitted any proof of the phantom documents. The Court granted the motion. See Exhibit N (Order 1).
21. On November 7, 2014, Plaintiff informed me by mailed letter that it came into possession of the original Note on said date, six months after the Complaint was filed. See Exhibit O (Letter).
22. In my Demand for Production of Documents, I requested Plaintiff to produce any and all documents related to the physical transfer of the Note and any and all documents related to the origination and closing. On January 16, 2015, in response to my discovery demands, Plaintiff refused to produce the documents. See response #8 of Exhibit P (Document Responses). Plaintiff also refused to produce the proof or evidence of the phantom “Notice of Right to Cancel” that they keep insisting was included in the disclosures and closing documents.
23. On February 19, 2015, Plaintiff filed a motion for Summary Judgment to strike my the remaining affirmative defenses in my Answer regarding standing issues. See Exhibit Q (Cover Letter & Notice). There were no certification from the document custodian to support Plaintiff’s possession claim. There was no payment history to support Plaintiff’s default claim. A second version of the Note with an additional endorsement was submitted along with an assignment that misstates Plaintiff purchased subject loan on October 8, 2007 for a sum of money. The Court granted the motion. See Exhibit R (Order 2).
24. On July 5, 2015, I called Fannie Mae and spoke with a rep who informed me that it acquired my loan on December 1, 2004 and is still the owner and holder of the Note and Mortgage, and that Plaintiff is only the servicer. I was told to go to Fannie Mae’s website for confirmation. On said date, our personal information, the property information, MERS MIN (Mortgage Identification Number) was entered into Fannie Mae’s (website address) and MERS’s Websites (web address). The website confirmed it. See Exhibit S (Fannie Mae Results). MERS confirmed same. See Exhibit T (MERS Results).
25. I obtained a copy of Fannie Mae Guide from its website.
Under “Funding the Market,” clicking “Single-Family Business,” under “Access the Single-Family Guides,” clicking “Service Guides,” under “PDF Version,” clicking “Show all,” clicking “page 2,” I found the 2012 Guide (no 2013 and 2014 is dated Nov 12). See Exhibit U (Fannie Mae Guide).
Fannie Mae states:
It is at all times the owner and has possession of and is the holder of the mortgage note. If Fannie Mae possesses the note through a document custodian, the document custodian has custody of the note for Fannie Mae’s exclusive use and benefit. A servicer will have a copy of the mortgage note. If a servicer determines that it needs physical possession of the original mortgage note to represent the interests of Fannie Mae in a foreclosure proceeding, the servicer may obtain physical possession of the original mortgage note by submitting a request directly to the document custodian. If Fannie Mae possesses the original note through a third-party document custodian that has custody of the note, the servicer should submit a Request for Release/Return of Documents (Form 2009) to Fannie Mae’s custodian to obtain the note and any other custodial documents that are needed.
26. On September 23, 2015, our personal information, the property information, MERS MIN was entered into Fannie Mae’s (web site) and MERS’s (web address) websites. Fannie Mae and MERS still say Fannie Mae is still the owner and holder of the Note and Mortgage. See Exhibit V (Fannie Mae Results 9/23/15) and Exhibit W (MERS Results 9/23/15).
I further certify the foregoing statements made by me are true. I am aware if any of the statements made by me are willfully false, I may be subject to punishment.
September 24, 2015 DNJ, Pro Se
ok bob,
how would it work in my case, as we have talked about.
lender has (copy of note) and has given me a copy of that note, 3 times in all qwr’s,
note number 1/ no endorsements. nothing on it. may 2012
note number 2/ no endorsements., nothing on it july 2013
note number 3/ endorsed in blank , ( STAMP ) NOT SIGN OR DATED.
now i have a mortgage note, from 2005 as you know, signed dated, to a non-party to transaction.
so again who , has the rights to the notes,mortgage???
oh and this was assigned into a fake trust in 2012 6 1/2 yrs after the closing of this fraud non-ative trust.
“The holder of the note can always enforce the mortgage”.
NOT. But he does need it to enforce the note.
bob: “TILA very clearly says the court may make an adjustment in the rescission process…”
jg: yes, it does. where we disagree is WHEN. My opinion is that it’s within 20 days of the rescission. Yours appears to be in perpetuity.
bob: “A lender would have to suffer from insanity to tender and remove the lien while knowing the borrower had lied like a dog about the TILA violations, and that no violation had occurred. Don’t you agree?”
jg: yes and no. The lender is NOT compelled by tila to remove the lien under any circumstances, including with pictures or video of the violation AS LONG AS the lender takes the matter before a court within 20 days. It must, and if a court sides with the lender, finding no grounds for rescission, the borrower is likely going to have the book thrown at him or her, at least if the rescission were totally without merit. I agree the lenders are suffering from insanity. To me, the truth is that a lender must do one of those two things. What’s part of the insanity of lenders these days is not to and imo, eventually, the truth will out.
I’m going to repeat something else I believe while we’re on rescission again. fwiw. Because of successor liability, no one is free of the claim of a tila violation, at least not for three years. Those claims defy hdc status imo -, at least one reason in support of the proposition they’re not regulated by article III. And since I miss gene – just kidding – I’ll add that the language in the note rules, not the default law UCC. The parties agreed that the note could be sold but that it could only be enforced by one who had taken by transfer AND was entitled to payment. This precludes, and was meant to preclude, its enforcement by, say, a warehouse lender for whom the note is collateral or the claim of the warehouse lender’s bk trustee (should the w/h lender file bk) against the maker or the long arm of anyone’s bk trustee with the exception of the lender or its successor in interest. Possession is 9/10th’s of the law or so it’s said, and FNMA, who crafted the note’s language, et al didn’t want just anyone who came into possession of a bearer note to be able to enforce it. Not to mention the security first laws being grossly overlooked.
Bob, you should be able to answer this if you’d like: what gives a party in poss of a bearer note a right to the assignment of its collateral instrument? Me: absolutely nothing.** I believe that a coll instrument really isn’t just a ‘mere’ incident of the note. The collateral instrument is an intregral part of creating a complete contract, and as a doc / instrument which impacts real property is subject to the statue of frauds which requires a writing.
Further, because of security first rules in many states, a prom note secured by an interest in real property may not be enforced without the coll instrument and any attempt at enforcing without the coll instrument generally results in the loss of the collateral.
** If “Margaret” somehow gets possession of a bearer note or an employee of its custodian does, should the ben assign the coll instrument to Margaret or the employee? We all think the answer is no (I would think).***
But what’s the difference if it’s e.tolle or someone else who got poss of the note? Some presumption that that someone came by it more honestly and is more entitled because it’s last name is Trust or Inc.?!
***That IS the intent of article III as to bearer notes in commerce generally, but it isn’t the one to regulate these notes and to be safe, the people who wrote the notes put in caveats / conditions for enforcement.
In the real world and one sans smers, if I sold a note to Tom and Joe called me up looking for an assgt of the coll instrument stating that he had poss of the bearer note, I’d say I don’t think so, I sold that note / transferred it to Tom. Sue me. Then I suppose I or Tom and I would in fact have to sue Joe for the note. Tom and I could argue about how Joe got poss of the note (whose fault it was), but one way or another, Joe has to be dealt with as in 86’d as a party entitled to enforce the note. One thing which stops him is the language in the note. He did NOT take the note by transfer and he is NOT entitled to payment.
Bob: “Remember that a law does not bind those on whom it imposes no penalty for its violation.”
jg: okay
And TILA imposes no penalty on the lender for refusing to tender or remove the lien in response to the notice
jg: nah, the loan’s rescinded, which is an intended consequence of the act.
“, partly because lenders in bankruptcy cannot tender, and borrowers typically cannot tender. (jg: long and short, and sorry, but now who’s drinking the kool aid?!) The law simply lets the court award damages for the lender’s refusal in the face of the borrower’s accrued right to rescind.”
jg: same as my comment above. The reality of the harsh consequence seems to boggle you (or shock you or offend your sensibility?), but it’s nonetheless the one intended and created. I’ve already said three times why that is, but for newbies, I’ll say it’s about self-governance by lenders in regard to a few simple things (accurate numbers and disclosures) and to deter false advertizing / unfair competition.
Look at the res judicata, with little exception, of foreclosure (including the add’l fun of the innocent purchase for value tenet). Losing one’s home is a rather harsh but prescribed remedy for breach of contract, wouldn’t you say? Say Terri is three mos down and a NOD issues. Terri has til a time certain to cure and if she doesn’t, game over generally. Terri inherited a million dollars three days after the time certain. The lender does NOT have to accept her payment. If Craig lost his job and was late, same harsh consequence. The lender is NOT compelled to work with him. He can’t compel the lender to do a work out or tack on his late payments or NUTHIN. Even if one goes to court and pleads hardship, the lender can say too bad so sad. One may try some contractual defenses, maybe even including impossibility of performance, but you know darn well anyone is probably going to lose his or her home because that’s the lousy deal aka a harsh consequence for people who must borrow to buy homes. And if the home is sold thru f/c in a ‘down’ market and it means the loss of the hundred grand put down and in it, well tough luck for Terri or Craig or any of us. Just because we’ve been forced to accept this sucky consequence historically doesn’t mean it’s any less harsh than tila’s.
bob, that’s certainly the way lenders want it and the way courts are adjudicating it, but I still disagree. I’ll concede that right this minute, without looking thru my tomes of files, I can’t rattle off the law which says the note and dot are extinguished, but it’s what I believe and that belief was formed by studying tila a while back. Imo, as I said, the only thing which possibly survives between the lender and the borrower is the borrower’s obligation to tender. If I were in a position to do so (and had a war chest), I’d find out even if it were the ‘hard way’ (but only after spending the time bolstering my argument with facts, i.e., reviewing what led to my own conclusion). The law says a court may deviate from the effect of rescission, long and short and which is a blessing for the lender, even when factual basis for rescission exits, but I believe that in order for a court to have juris to do so, the matter must be brought to it by the lender within 20 days. You apparently believe a lender may ignore rescission and bring a foreclosure action at some future date, years later even, as if a rescission didn’t happen. I don’t.
Terri’s injury isn’t getting worse by her not bringing suit, except that she loses damages for non-rescission, if any, to which she would be entitled had she filed suit within a year. In fact, the lender is allowing and sanctioning Terri’s benefit and the subsequent loss of interest by its non-action (since interest isn’t accruing). It’s the lender who must mitigate, limit, whatever ITS damages (the loss of interest and potential exposure to more claims out of Terri) as a result of its not bringing an action to seek adj of Terri’s basis for rescission in a timely manner.
23 months after she rescinded, can Terri bring an action for failure to rescind or damages flowing from the tila violation which gave rise to the rescission or can she also file for declaratory judgment to quiet title? I believe she’s at least entitled to quiet title and she may be entitled to damages for non-rescission as distinct from damages arising from the violation which caused her to rescind. Can’t form an opinion on that without studying, but I can see that as an equitable consideration – as applicable, caveat, even if she were entitled to damages at that point, the court might offset them with the benefit of her lack of payments for those months or some portion thereof unless sufficient argument can be made against any offset. But that’s all. If her loan is rescinded, and it is imo, she’s entitled to the return of the “value’ paid and the lender could move to the matter of tender, that is, supporting that it’s owed. If a lender hasn’t performed under tila, that’s really all it has to argue: that tender is due and how much, a claim for an unsecured amt of moolah. A foreclosure action doesn’t state a cause of action after rescission and also isn’t the proper vehicle to argue the rescission. It’s just a pretense. The lender is trying
surreptitiously to avoid what is akin to a default judgment and even more akin to an adjudication on the merits as a result of its own
failure.
If I found myself in that boat, that is, a judicial foreclosure action were brought against me after I rescinded, I think I’d take a breath, demonstrate my rescission by attaching my Notice4 of Rescission and an affidavit (I suppose), and argue the court had no juris to hear the f/c action and that the Lender, now an unsecured creditor (tender) had not stated a claim. The issue brought by the lender was f/c, not anything else. I don’t think the lender’s action can be saved by amendment; I think it requires a new action claiming there was no rescission, the only basis for action available outside the 20 days.
If Lender B was the lender at the time of rescission and Lender C now thinks he has a secured claim against Terri (the loan), he doesn’t and he can take that up with B et al.
Where Terri wanted to sell her house within the 1 year of rescission, yes, I agree it would have behooved her to file suit and avoid the question. But imo, her loan is still rescinded. In the meantime, it’s the LENDER who is compelled to limit its damages / exposure.
Reblogged this on Alina's Blog and commented:
This law review article examines the Truth in Lending Act (TILA) from a different perspective. For several decades now, the banks have been able to steer the courts into re-writing this very important consumer protection statute. This law review article examines the trend of courts to ignore the plain language of TILA and substitute their own view of TILA. In the beginning, judges understood the importance of TILA and the fact that a lender who fails to follow TILA’s plain and unambiguous language has no one to blame but themselves for whatever ills befall them. Below are a couple of my favorite citations from some early TILA cases. I would love to see judges ruling in this fashion once more.
“The creditors, of course, failed to carry out any of their statutory duties, and thus their lament of any inequity being visited upon them is utterly unpersuasive, for the power was completely theirs to prevent this parade of creditor horribles from ever occurring.” Sosa v. Fite, 498 F.2d 114, 119 (5th Cir., 1974).
“Applying these requirements to this case, when defendant Warwick Credit Union received plaintiffs’ notice of rescission, had it complied with the Act (instead of attempting to foreclose) by then returning any money paid by the plaintiffs within 10 days and terminating any security interest created, plaintiffs would have then had to return whatever amounts they had received from such defendant and defendant would have suffered relatively minor pecuniary loss. Sosa, supra at 118-119. However, since the defendant did not comply with the above-stated statutory requisites, it becomes amenable to the rather harsh legislative remedy which the Truth in Lending Act imposes upon errant creditors.” French v. Wilson, 446 F. Supp. 216 (D.R.I., 1978)
Hey E. T…if memory serves, Christine’s case was about a “suspense account” nothing near the issues the rest of us have here.
She is correct for “her” case, the cases herein are related to issues outside suspense accounts. That is a breach of contract issue, in my non-legal opinion, fairly simple, just one layer in my case.
And in my non-legal opinion again: if you are not a REMIC, you have no standing to foreclose under the GUISE of one. If you lost or never had REMIC status, you cannot claim to be one! Nothing to do with PSA…borrower interest. They are lying.
And I’m just betting here, but the loans all of us have are REIT, not REMIC and notes have been sold to holding companies…all while trying to “trick” the judge with counterfeit papers saying they are in fact, secured, REMIC Trusts, that have standing. Hogwash all of it.
Period!
Well here you are, Bob. So here’s another scenario re: tila rescisson and my view of the law’s proper application:
Terri rescinded her loan on April 14, 2015 because her a.p.r. was off – up or down – doesn’t matter) by more than its general tolerance of .125% or up to .25% (think it is on some loans). The lender did nothing.
By law, the dot is toast. The lender made no demand for tender, either, because it was ignoring the rescission because 1) it felt like it or 2) it disagreed with the rescission and at also doesn’t matter.
Terri’s house was valued at 350k and she estimated her tender requirement (if any tender requirement survived the lender ignoring her rescission) would be around 230k. In her computation, she had deducted her payments, cost of the loan, etc from the balance at the time of her rescission. She maybe even ran an amortization schedule on an online site to help her with her figures.
Interest failed to accrue under the note upon her rescission because the note was also toast. So, with the poss she might be obligated to 230k in mind, on July 8th, she entered a contract with Mark and Mindy for the sale of her home. However, the title report indicated to Mark and Mindy that there was a loan with Lender for 410 (just say orig balance) and further, the requirement section of the title report stated that the loan had to be paid off. Mark and Mindy, after some discussion, bolted and Terri lost the sale. She marketed for another few months with no success. Mark and Mindy decided to sue Terri for specific performance or they stayed gone. Either way, Terri has been damaged.
Terri has until April 13, 2016 (roughly) to sue Lender for not rescinding and for damages. However, if Terri does nothing, the loan is still rescinded and there will be no available claim for foreclosure out of Lender. Terri would be wise to sue Lender for damages relevant to her lost sale, but imo she doesn’t have to if she doesn’t want and or doesn’t mind dealing with the situation on her house (and if Mark and Mindy are truly ‘gone’. But, she needs to be sure they are merely
‘gone’ and that no rights of theirs later imposed against her would be after her own one year to sue Lender for damages).
She’s just living there and no interest is accruing (because note is toast).
Now, at least while the real property sales contract with Mark and Mindy is alive, Mark and Mindy, as parties to that agreement, are being damaged by the Lender (or maybe they even have legit damages against the Lender if the contract dies…have to ponder that one). The contract gives Mark and Mindy an equitable interest as a matter of law (read standing). imo. Also imo, they may join Terri in an action against the Lender or maybe even file their own suit. Or like that.
The Lender has no defense as it lost its rights after 20 days when the loan was rescinded as a matter of law by its failure to excercise its right to contest the rescission or ask the court to see that Terri could tender if they perform. The only question I have is “Is the lender at this date entitled to tender of the 230k?” Equity isn’t to come to the rescue of those with dirty hands, and for the Lender’s lack of exercising its rights, the tender is now only or may be only an equitable consideration. I really don’t mean to suggest the lender has lost its right to tender, but while it’s not a suggestion, it’s certainly a legit thought imo. Devil’s advocate: since the note and dot are toast as a matter of law, but no tender demand was ever made, does equity (v law) demand tender, even for a party with unclean hands, and one who abandoned its rights (for you, Bob: failed to protect its rights and interests) ? Going further, suppose Terri doesn’t want to sell her house, but the lender now performs (it won’t) and is demanding tender sixteen months after her rescission, does she owe it? Let’s say she does (arguendo ONLY because I think not, but I am looking at equity for even a party with unclean hands tho I would argue otherwise), but can’t pay it (and it’s UNsecured). One thing a court might do is put Terri back in the same position she was in prior to her refinance as long as she isn’t harmed by it, like maybe by her old loan having a balloon or an awful loan she reasonably expected to 86 with the refinance). Except, since TILA violations (including the Lender’s failure to perform) must have consequences (or why bother with a tila), Terri should yet get back the “value” re: the loan (payments made, costs of loan, etc). So if Terri owed 196k on her old loan, she could owe that to Lender minus the “value” she gave Lender for the refinance. This results in what will be called a windfall to Terri by Lender. I would call it a consequence of bad faith and bad acts (1) tila violation and 2) failure to rescind).
So if courts want to impose equity, esp to an actor with dirty hands, equity has to be parced out to both parties equally and not by ignoring the bad acts of one. Parties settle: Lender gets new loan for the duration of the remaining years on Terri’s orig loan (longer?) and Terri’s gets a chunk knocked off the balance (by “refund” of value she gave for / re new loan) of her old loan (balance at refi in the new loan on her house with Lender, so maybe she now has payments on, say, 146k. Either that, or the Lender can eat what Terri would’ve had to tender (230k) had they excercised their rights when she rescinded.
We all know lenders won’t like any of my thoughts. If we’d gotten a loan from Local Credit Union which had the loan on its own books, not so much a major battle. But as we know, today alleged servicers are calling the shots and they have motivation (CDS’s, insurance claims, advances, guarantees, and so on) to not want to resolve jack. The borrower shouldn’t be made to pay for someone else’s bs business plan / m.o. and adjudications should be made without regard to them or bs arguments made because of them against resolution. IF a lender which abandoned its right to holler about rescission has a case in equity for tender 16 mos (or whenever) after rescission, then that equity has to apply to the other party as well.
Bob – were you ever circumscribed?
if i could start a new topic here – i would for this…
Under the Hood of a REMIC
Posted on January 28, 2015 by Alina
https://avirani.wordpress.com/2015/01/28/under-the-hood-of-a-remic
here is a lawyer who is kicking ass using the help of the CFPB
http://www.brydgeslaw.net/radio/TLBS_Podcast_091915_FullShow.mp3
Modern Banking Metaphor by greg:
1) take the tail of the snake and feed it into the snake’s mouth and take a commission for every bite the snake takes while it consumes itself…
2) the snake will never know what we’ve done to it because it will be locked into an impossible dilemma, a) the need to eat to survive, and b) the need to preserve its own life… by the time it gets halfway done eating itself, we will have most of its life energy and be gone…
3) further, by doing this, the snake has no weapon to stop us…
After all this tme im coming to realize that its nit what we think it is lol
The long way may lead me home
Thanks Bob
Ive not digested that Petition yet
the richest people hire the smartest people and reward them beyond their wildest dreams until there is such an imbalance of intellectual power that it creates a neutron star…
The American Bar Association
http://apps.americanbar.org/buslaw/committees/CL230000pub/newsletter/201505/feature_1.pdf
NEVER AGAIN
Rough guess David they will not do anything they will let the borrower file suit and drag us through Court doing what they do best, as we have witnessed since the crisis, its time – for tide to turn,
– and im now 6 1/2 years into it.
david b – good suggestion
i always include my Attorney General and Sheriff too…
i should probably add my Secretary of State, Governor and the US Secretary of Treasury and Comptroller of the Currency as well…
maybe the Senate Chairman on Banking?
hey question, dont you all think that when you send in a rescission letter , that we should also be sending the AGENCY that is charge of enforcing, the tila laws CFBP. . i am sending them , the same letter am sending the lender. that you as lender has not complyed to the statue, law, its been 8 months after you sign and recieved the letter of rescission from us. now you are in violation of the staues.
I THINK WE ALL SHOULD BE. LET THEM GET MILLIONS OF RESCISSION LETTERS. AND SEE WHAT THEY DO.
(202) 435-7000
Consumer Financial Protection Bureau
Attention: [Employee Name, Division, and/or Office Number]
1700 G Street, NW
Washington, D.C. 20552
info@consumerfinance.gov
ATTENTION, RICHARD CORDRAY, AND STEVEN ANTONAHES.
START SENDING CERTIFIED REQUESTED LETTERS TO THEM.
if anyone wants to listen shows from an illnois version of Neil…
try http://www.brydgeslaw.net/radio/?C=M%3BO%3DD
recorded mp3 shows
bob what will you say after the supreme court put the end game in, when they say ny law says , what it says. the word void. means what its says. void. void is void. / void no where mean voidable, if they wanted it to be a voidable act. then they should of said voidable act.
now , to the judges and banks, get the fuck out. you lose again.
Writ of Certiorari to SCOTUS: Transfers to Trusts Are Void, not Voidable →
No. 15-260 Anh N. Tran, et al. v. Bank of New York, nka Bank of New York Mellon, et al. from the United States Court of Appeals for the Second Circuit
Posted on September 22, 2015 by Here and Now
Anh N. Tran, et al. v. Bank of New York SCOTUS Certiorari
Thank you DB for link
Great resource – Cornell law
Bernanke: More Execs Should Have Faced Prosecution For 2008 Financial Crisis
“Now a financial firm is of course a legal fiction; it’s not a person. You can’t put a financial firm in jail.” “But it would have been my preference to have more investigation of individual action, since obviously everything that went wrong or was illegal was done by some individual, not by an abstract firm,” Bernanke was quoted as saying.
http://www.huffingtonpost.com/entry/bernanke-more-execs-should-have-faced-prosecution-for-2008-financial-crisis_5611a5d7e4b076812702677e
P.S. Bernanke is wrong – as of now – SCOTUS in Citizens United determined the law-of-the-land that Legal Fictions ARE persons…
and we could certainly TERMINATE THEIR CHARTER
david b
here is a link that works to your reference
http://www.federalregister.com/Browse/Document/usa/na/fr/2013/12/31/2013-28210
SCOTUS UPDATE
on 2015-10-08 i sent an inquiry to “www.scotusblog.com” asking:
Quick question… looked for status on 15-260 certiorari… no matches…
Is there anything indicating if/when to be heard?
http://www.scotusblog.com/case-files/petitions-were-watching/
it pertains to the securitization question in Anh-N.-Tran-et-al.-v.-Bank-of-New-York-SCOTUS-Certiorari
they answered today:
It will be before the Justices in a couple of weeks; the electronic docket will say when that will be. The key thing to watch for is whether any of the Justices order the respondents to file a response; the Court will deny review without requiring a response, but it won’t grant it.
78 FR 251 pgs. 79730-80365 – Integrated Mortgage …
http://www.federalregister.com/Browse/Document/usa/…/fr/2013/…/31/2013-282...
Dec 31, 2013 – On May 11, 2011, the Board proposed amendments to Regulation Z to implement section … Act. The Bureau’s Regulation Z took effect on December 30, 2011. ….. 97 78 FR 32547 (May 31, 2013), finalizing a proposal to delay the ….. Web site and place a Web site link on the integrated disclosures directing …
12 CFR 1026.39 – Mortgage transfer disclosures. | US Law …
https://law.cornell.edu/cfr/text/12/1026.39
Legal Information Institute
1026.39 Mortgage transfer disclosures. Link to an amendment published at 78 FR 80130, Dec. 31, 2013. (a) Scope. The disclosure requirements of this section …
You visited this page on 10/8/15.
I had to agree to an Ocwen Modification for a CH13 Bankruptcy in Dec. 2011 and still have 1 1/2 years of trustee payments to complete. My question is, Can I still file a Rescission with the bank? Do I take a chance of having the BK dismissed because of the rescission? We know the original loan was tainted but the BK Judge, Trustee and even our Attorney would not listen to us. We are in Northwest Indiana and under the Hammond Division, Northern District of Indiana BK Court…
” an excuse is worse and more terrible than a lie”
Alexander Pope.
David B
Please can you post a link to the post you made below.
CFR › Title 12 › Chapter X › Part 1026 › Subpart E › Section 1026.39
12 CFR 1026.39 – Mortgage transfer disclosures.
CFR
eCFR
Authorities (U.S. Code)
Rulemaking
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§ 1026.39 Mortgage transfer disclosures. Link to an amendment published at 78 FR 80130, Dec. 31, 2013.
(a) Scope. The disclosure requirements of this section apply to any covered person except as otherwise provided in this section. For purposes of this section:
(1) A “covered person” means any person, as defined in § 1026.2(a)(22), that becomes the owner of an existing mortgage loan by acquiring legal title to the debt obligation, whether through a purchase, assignment or other transfer, and who acquires more than one mortgage loan in any twelve-month period. For purposes of this section, a servicer of a mortgage loan shall not be treated as the owner of the obligation if the servicer holds title to the loan, or title is assigned to the servicer, solely for the administrative convenience of the servicer in servicing the obligation.
(2) A “mortgage loan” means any consumer credit transaction that is secured by the principal dwelling of a consumer.
(b) Disclosure required. Except as provided in paragraph (c) of this section, each covered person is subject to the requirements of this section and shall mail or deliver the disclosures required by this section to the consumer on or before the 30th calendar day following the date of transfer.
(1) Form of disclosures. The disclosures required by this section shall be provided clearly and conspicuously in writing, in a form that the consumer may keep. The disclosures required by this section may be provided to the consumer in electronic form, subject to compliance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.).
(2) The date of transfer. For purposes of this section, the date of transfer to the covered person may, at the covered person’s option, be either the date of acquisition recognized in the books and records of the acquiring party, or the date of transfer recognized in the books and records of the transferring party.
(3) Multiple consumers. If more than one consumer is liable on the obligation, a covered person may mail or deliver the disclosures to any consumer who is primarily liable.
(4) Multiple transfers. If a mortgage loan is acquired by a covered person and subsequently sold, assigned, or otherwise transferred to another covered person, a single disclosure may be provided on behalf of both covered persons if the disclosure satisfies the timing and content requirements applicable to each covered person.
(5) Multiple covered persons. If an acquisition involves multiple covered persons who jointly acquire the loan, a single disclosure must be provided on behalf of all covered persons.
(c) Exceptions. Notwithstanding paragraph (b) of this section, a covered person is not subject to the requirements of this section with respect to a particular mortgage loan if:
(1) The covered person sells, or otherwise transfers or assigns legal title to the mortgage loan on or before the 30th calendar day following the date that the covered person acquired the mortgage loan which shall be the date of transfer recognized for purposes of paragraph (b)(2) of this section;
(2) The mortgage loan is transferred to the covered person in connection with a repurchase agreement that obligates the transferor to repurchase the loan. However, if the transferor does not repurchase the loan, the covered person must provide the disclosures required by this section within 30 days after the date that the transaction is recognized as an acquisition on its books and records; or
(3) The covered person acquires only a partial interest in the loan and the party authorized to receive the consumer’s notice of the right to rescind and resolve issues concerning the consumer’s payments on the loan does not change as a result of the transfer of the partial interest.
(d) Content of required disclosures. The disclosures required by this section shall identify the loan that was sold, assigned or otherwise transferred, and state the following:
(1) The name, address, and telephone number of the covered person.
(i) If a single disclosure is provided on behalf of more than one covered person, the information required by this paragraph shall be provided for each of them unless paragraph (d)(1)(ii) of this section applies.
(ii) If a single disclosure is provided on behalf of more than one covered person and one of them has been authorized in accordance with paragraph (d)(3) of this section to receive the consumer’s notice of the right to rescind and resolve issues concerning the consumer’s payments on the loan, the information required by paragraph (d)(1) of this section may be provided only for that covered person.
(2) The date of transfer.
(3) The name, address and telephone number of an agent or party authorized to receive notice of the right to rescind and resolve issues concerning the consumer’s payments on the loan. However, no information is required to be provided under this paragraph if the consumer can use the information provided under paragraph (d)(1) of this section for these purposes.
(4) Where transfer of ownership of the debt to the covered person is or may be recorded in public records, or, alternatively, that the transfer of ownership has not been recorded in public records at the time the disclosure is provided.
(e) Optional disclosures. In addition to the information required to be disclosed under paragraph (d) of this section, a covered person may, at its option, provide any other information regarding the transaction.
Effective Date Note:
At 78 FR 80130, Dec. 31, 2013, § 1026.39 was amended by revising paragraphs (a)(2) and (d) introductory text and adding paragraph (d)(5), effective Aug. 1, 2015. For the convenience of the user, the added and revised text is set forth as follows:
§ 1026.39 Mortgage transfer disclosures.
(a) * * *
(2) A “mortgage loan” means:
(i) An open-end consumer credit transaction that is secured by the principal dwelling of a consumer; and
(ii) A closed-end consumer credit transaction secured by a dwelling or real property.
(d) Content of required disclosures. The disclosures required by this section shall identify the mortgage loan that was sold, assigned or otherwise transferred, and state the following, except that the information required by paragraph (d)(5) of this section shall be stated only for a mortgage loan that is a closed-end consumer credit transaction secured by a dwelling or real property other than a reverse mortgage transaction subject to § 1026.33 of this part:
(5) Partial payment policy. Under the subheading “Partial Payment”:
(i) If periodic payments that are less than the full amount due are accepted, a statement that the covered person, using the term “lender,” may accept partial paymentsand apply such payments to the consumer’s loan;
(ii) If periodic payments that are less than the full amount due are accepted but not applied to a consumer’s loan until the consumer pays the remainder of the full amount due, a statement that the covered person, using the term “lender,” may hold partial payments in a separate account until the consumer pays the remainder of the payment and then apply the full periodic payment to the consumer’s loan;
(iii) If periodic payments that are less than the full amount due are not accepted, a statement that the covered person, using the term “lender,” does not accept any partial payments; and
(iv) A statement that, if the loan is sold, the new covered person, using the term “lender,” may have a different policy.
how long does it take a group of conservatives to screw in a light bulb?
forever – they all argue over who gets to be the screwer and nobody wants to be the screwee that has to stabilize the fixture…
how long does it take a group of liberals to screw in a light bulb?
forever – none want the voters to view them as the screwer and they all argue over the opportunity of being seen sympathetically as the screwee…
how long does it take an ordinary american homeowner to screw in a light bulb?
instantly – as none of us wants to be in the dark or deal with nagging spouses or kids! lol
how long does it take a group of judges to screw in a light bulb…
forever – why screw a light bulb when there are so many ordinary american homeowners waiting to be screwed?
thanks dandiener1…
not sure i deserve the prop…
gg
“In the land of the blind, the one-eyed man is king.”
Fortunately, on this discussion board, there are men and women of sound mind who “have ears to hear” and have both eyes wide open.
Greg… Keep on keeping on!
reminding everyone that in America – they have this thing that the majority makes the rules…
at last count We the People are the majority… LET’S RULE!
“In the land of the blind, the one-eyed man is king.”
Fortunately, on this discussion board, there are men and women of sound mind who “have ears to hear” and have both eyes wide open.”
Greg… Keep on keeping on!
“The prayers of a righteous person availeth much.”
the only reason for collective government is when people are untrustworthy to govern themselves for their own, without harm to others, and for their family and community…
most american originals were self governing people and only had counsels to help settle claims which were larger than the original agreement, they did not try to take from others, they just tried to fugire out how to share better in equity…
there is still plenty of earth to go around… isn’t there?
maybe people should stop reproducing like rabbits? – maybe that is a form of harm?
We still need a land of laws
That do what they are supposed to the most good for the most people.
thanks to all who know they are in abundance and not in lack…
your voices expressed here in small meaningful phrases are much more powerful than those who would use meaningless overwhelming argument to confuse and harm you…
love and prosper…
(and stand your ground on the land our families died for – at all costs)
greg
FOR G0D’S SAKE –
THIS IS PROOF THAT EDUCATED PEOPLE ARE IDIOTS OR JUST SO ENTRENCHED IN THEIR BELIEFS THEY WOULD RATHER DIE FOR NEWTON THAN LEARN QUANTUM THEORY
SCOTUS DETERMINED THAT THE PEOPLE – THROUGH CONGRESS ASSEMBLED – DETERMINED, FOR THEMSELVES; THE INTENT AND OUTCOME OF TILA MATTER AND MADE IT PLAIN ON ITS FACE FOR THE WORLD TO SEE
SCOTUS NAILED DOWN THE FACT THAT ALL LOWER COURTS ARE FORECLOSED TO SPEAK OR RULE AGAINST IT ANYMORE
SCOTUS TELLS ALL LOWER COURTS THAT THEY BETTER NOT WAR WITH CONGRESS AND BETTER CORRECT ALL PAST MISTAKES INCONSISTENT WITH THE PEOPLE’S PLAIN MEANING
SCOTUS TELLS ALL LOWER COURTS TO USE TILA TO ACT IN DEFENSE OF THE PEOPLE’S VOICE AND NEEDS – NOT THE BANKS OR CORPORATIONS
P E R I O D ! ! !
P E R I O D ! ! !
P E R I O D ! ! !
ANYTHING ELSE IS A COUP DE TAT ! ! !
ANYTHING ELSE IS TREASON ! ! !
greg
one can create legal proof, duties, obligations and judgments without (outside of) any court!!!
– it is this ongoing craziness that every damn thing must go before “black-robed daddy” to settle claims that is destroying America…
– that guy on the bench is NOT my daddy…
– things can still be legally settled with teeth between parties without an arbitrator or administrator or court…
– and if you bind them to a counter offer version of a contract after they make an initial offer, and tell them in writing to answer or counter, else accept – you can get them to the SAME enforceable place that credit card companies get you when you don’s send back a cut-up credit card after they send you notice of change of terms…
– if you get them into a legal agreement separately that stipulates that all issues are final and settled, they are foreclosed to bring it before a judge without violating the contract – and if you were sharp enough to add stipulations for recourse upon such breach of contract, you can collect or lien them up to their eyebrows… and a judge (if they do sue) should rule in your favor)
– everyone forgot that THEY (The People) ARE the U.S., and the corporations we ALLOW to exist are there to serve US and the U.S.!
– we can also create adhesion contracts that bind them to a post to the same degree that they create adhesion contracts which bind us to a post…
– think of it as “What’s good for the Goose is good for the Gander Law”
everyone is drunk on litigation!
greg
When you rescind a CONTRACT …. You get to look at it again! And they did things that are now a matter of fact and public record i wonder how that will sit with the Court when the time comes.
bob make life easier for yourself
Accept jesinoski for what it is ( flippin fabulous as far as im concerned)
You are arguing way ahead of where we are, be glad we are where we are. theres more to it and i for one expect it and believe me ill be ready for them.
Greg good stuff
But remember many of us were fighting like hell for our rights and our homes pre Jesinoski, i did everything i could think of to protect my right to defend myself i found non disclosure issues and fraud and many ither things right frimmthat NOTS up till now, i did rescind i did file suit i did put a lis pendens thereto on the record.
please remember to call into our fledgling follow up Q&A show 15 min after Neil concludes at;
Phone# 724.444.7444 Call ID139335 (just hit 0 for anonymous guest)
or from your computer at:
http://www.talkshoe.com/tc/139335
6:45PM EST for up to 1 hour
BTW – there is no strict format anymore until we get more participants and need the organization
thanks
greg
i thought this might be a good place to recap what i added to the other topic –
https://livinglies.wordpress.com/2015/10/02/bias-in-the-courts-ucc-and-tila-review/
– so it doesn’t get lost in the constant new topics here
greg, on October 8, 2015 at 5:24 pm said:
my corrections –
in re… bobhurt, on October 8, 2015 at 1:55 am said: to: Johngault:
“Everyone bears the onus of asserting and protecting his rights.”
(absolutely TRUE – freedom ain’t free – and while government my be charged with helping secure your rights by doing nothing to impair them – other persons and corporations are not under that same constraint and have the ability to FORK with you if you are asleep at the wheel)
“The rescinding borrower must send the creditor a valid notice of rescission for an actual (not fictitious) TILA violation.”
(correction – that is an interpretation of something not stated that way in the actual statute – it simply says to transmit in some form of writing notice of rescission under TILA)
“The borrower must look for a response from the creditor.”
(correction – the borrow MAY look to a responsive answer in compliance with the statute – and if none is received w/i 20 days, MAY proceed with another action – or MAY do other things not prohibited by law – like record the rescission on the county record! – to secure the title for possible refinancing or other actions)
“If and when the creditor tenders, the borrower must tender.”
(correction – skipped a step – first the lender must provide the cancelled mortgage releasing the security interest and then present the now “unsecured” note for the swap…)
“If the creditor believes he did not breach TILA, the then creditor must refuse to tender and notify the borrower.”
(correction – the lender can’t believe anything because it is a non-living legal fiction – it can however, collectively, by way of the controlling people, hold a “position” on a topic… THEN if the lender is not going to simply acquiesce to the borrower’s rescission, it must sue w/i 20 days for a declaratory judgment, bringing facts and evidence to prove its case to nullify the underlying basis of the borrower’s claims or timing – else they tacitly accept and are barred!)
“The borrower must sue the lender to enforce the rescission and collect damages, within one year.”
(correction – the borrower MAY sue to enforce the rescission to claim their payments/damages due from the lender AFTER the 20 days and before 1 year and 20 days – the borrower may also “just let sleeping dogs lie” and let the statutory clock run out on the lender’s arrogance or incompetence – AND – the lender also has the same window in which it MAY sue – if no action is taken by either party within this window the borrower MAY just sue for quiet title after the foolish lender’s rights are extinguished and keep the house)
“The lender must respond to the lawsuit or lose.”
(correction – the lender must respond to the notice of rescission AND/OR borrower’s subsequent lawsuit OR file their own lawsuit – or lose!)
“You see? The unwinding imposes burdens on both borrower and creditor.”
(absolutely TRUE – with the above corrections)
“THAT is what TILA and Reg Z require, and if one of the parties fails to do it’s part, the court, if a party invokes its authority, will compel or deny the rescission for cause.”
(correction – the court only has a voice IF one of the parties brings an action into the court in regard to the rescission – the court cannot make a motion on its own to bring a plaintiff and defendant before it for a controversy – that must be done by one of the parties with a legal interest… MORAL TO THE STORY – DON’T FILE ANY LAWSUIT AFTER RESCISSION AND WAIT MORE THAN 1 YEAR AND 20 DAYS TO LET THEM DIE ON THE VINE)
“And yes, the borrower has one year ONLY, after the 20 days, to sue for damages and to force rescission.”
(correction – the borrower has ONLY one year, after the 20 days, to sue for damages and payments owed… the borrower NEVER NEEDS to file a lawsuit to confirm rescission [although it may be necessary to get a declaratory judgment to keep the ignorant hounds at bay [AFTER YOU HAVE WAITED THAT LONG] that the borrower DID execute rescission AND the lender IGNORED IT [broke the law] AND lender NEVER responded IN ANY WAY… AND lender has lost all recourse and right of claim – AND any foreclosure judgment or sale which occurred after that statutory period is null and void and unenforceable)
“Just remember that the court will determine whether the facts (actual breach, timely notice, timely lawsuit, ability to tender) justify the rescission.”
(correction – Just remember IF THE LENDER FILES A SUIT W/I 20 DAYS OR YOU OR THE LENDER FILE A LAWSUIT WITHIN THAT 1 YEAR AND 20 DAY PERIOD, YOU OR THEY WILL BE GRANTING THE COURT JURISDICTION TO ALLOW THAT COURT THE POWER TO determine whether the facts (actual breach, timely notice, timely lawsuit, ability to tender) justify the rescission.)
greg
ET
They too have been convinced that they are too big to fail
Hopefully we are seeing the blinkers come off to the realization that the emperor is well and truely naked whether they like it or not we cant un- know this fact but we can move forward in truth and start to fix the system. until it is accepted whole heartedly by the judiciary that theres a problem so deep and so wide that there will be no turning back if its not adressed now then the lies they tell themselves will affect their well- being because they know.
JUST MADE OVER 100 COPYS OF THIS, AND SENT OUT TO EVERY JUDGE IN MASS. CERTIFIED REQUEST RECEIPT. JUST TO MAKE SURE THEY GET THEM, AND WHEN I SHOW UP AT COURT, AND THEY SAY WELL I DONT CARE WHAT THEY THE SUPREME COURT SAY. I CAN SAY. OH WELL JUDGE. THE LAW IS THE LAW, NO MATTER HOW BAD YOU SIR MIGHT THINK, YOU MUST FOLLOW THE LAW. STILL DONT THATS OK, GIVES ME APPEAL RIGHTS. THEN YOU CAN LOOK STUPID AGAIN. AND AGAIN. INSTEAD OF DOING WHAT IS RIGHT AND BY THE LAW.
Wow! Nice to finally see someone besides disgruntled ex-homeowners realizing that the judiciary is most assuredly in the bank’s (pocket) corner!
Now if we could get something cogent like this on all the other blatant disregards of borrower rights, such as standing ala Glaski, we might actually get somewhere. Somewhere besides the curb. We also need a dissection of the near 95% borrower-toss due to Rule 12(b)(6), an even larger and more egregious issue in my book.
Merry Christmas DwightNJ ,Deb Wynn, and all the others who are heading down this path. I would think this would go a long way towards shoring up your situations. This might be the background for the reluctance of DwightNJ’s paralegal to push the TILA aspect, even though from all appearances stated on this forum it sounds like it’s been handled exactly as prescribed.
It’s time for Bob Hurt to limp back in here and man-up to his mirror image bank leanings just like expressed in this piece. Everything he’s written on this blog could be copied and pasted from the above article on how the judiciary has decided to rewrite the rules. Expert my ass.
And speaking of, Christine, you can forever bury your smartass conviction that the judiciary is correct and that borrowers are simply going at it all wrong. It’s impossible to move the ball passed the scrimmage line if the officials already have their red bank flags out, and this piece shines a bright light on their deceptive cheerleading practices.
Right on Neil! You’ve been spot on in your analysis, even when being flamed for nearly every word.
“CLOAK SOME UNARTICULATED REASON”
Probably a healthy dose of pension protection with a side of campaign contributions.
wonderful article – well articulated… i love the closing phrase of the conclusion…
“But where, as here, the statutory language is unequivocal, and there
is clearly no relevant precedent, one could conclude that the
erroneous decisions CLOAK SOME UNARTICULATED REASON. (my emphasis added)
Has not gas, sorry
You gotta admit though that jesinoski is the best thing that gas happened for consumers since the crisis began
P 14 appears author confuses closing with consummation