For more Information about Rescission or Foreclosure Defense Strategies please call 954-495-9867 or 520-405-1688
This article is NOT a legal opinion that can be used for any one case. It is for general information only. Decisions and actions should be taken ONLY after consultation with an attorney licensed in the jurisdiction in which the property is located and who has studied the TILA Rescission procedures.
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We all know the problems. So what are the REAL solutions? This article addresses both.
People keep asking me about equitable tolling and other restrictions stated in the TILA Rescission statutes 15 U.S.C. §1635 et seq. They are skipping the procedures, which is what the TILA Rescission statutes are all about and going directly to the substance of the possible claim by an adversary who claims that the rescission was wrongful.
TILA RESCISSION is a very specific statutory remedy that sets forth a procedure in which the “borrower” sets everything in motion by sending a Notice of Rescission (“I here by cancel the above-referenced loan number”). THEN the parties on the other side have a choice — perform the statutory duties or within 20 days bring suit to vacate the rescission, which IS LAW until some other operation of law vacates it.
The issue everyone seems to be skipping over is both that there is a specific procedure set forth in the statute and that the adversary must have jurisdictional standing to ask for the court to vacate the rescission. Instead the adversaries are sliding by without asking for or getting an order vacating the rescission. What they are doing is simply trying to negate or ignore the rescission because it is contested — but they are not directly contesting it by filing a pleading in which they have standing seeking to vacate the rescission.
Remember that Justice Scalia said in Jesinoski that the statute makes no distinction between disputed and undisputed rescissions. It plainly allows “borrowers” to send the notice, even if they turn out to be wrong about whether they could have done so. And the notice is effective by operation of law when sent. SO the moment the homeowner drops the Notice of Rescission in the mail, it is effective by operation of law and that means, by express terms, that the loan contract, the note and the mortgage no longer exist. They are void. So standing cannot be predicated upon the loan contract, the note or the mortgage. It makes no difference whether they were claiming holder status or even holder in due course status (which they never do).
What the adversaries are doing is taking the standing they managed to get validated in the foreclosure and having the Court presume standing for a separate action to vacate the rescission. They can’t have it both ways. If their sole claim is based upon holding or possessing the note and mortgage, they cannot then assert that the Rescission should simply be ignored based upon their assertions that are made with respect to the note and mortgage which are now void. One cannot claim relief based upon a void instrument.
Thus the adversaries are effectively asking the Court to violate the law, which is that no lawsuit is necessary for the Rescission to be effective by operation of law. By ignoring the rescission instead of setting it aside or vacating it they are proceeding on the premise that the rescission is somehow NOT effective by operation of law until a judge rules on it. That is opposite to TILA Rescission and opposite to Jesinoski and opposite to the rules and regulations published by the Federal Reserve and now the CFPB. An order granting the motion of the adversaries saying that the rescission was ineffective because the statute has provisions that might have been violated is an order ruling on when and if the rescission was effective by operation of law.
Such Courts lack jurisdiction to consider the claims of the adversaries UNLESS they file an action within 20 days of receipt of the notice of rescission. AND THAT is because the in order to rule on the rescission they must first accept the premise that the rescission was effective by operation of law and as specifically stated in Jesinoski. It’s done.
Therefore a claim basing standing on the note and mortgage is misplaced because those are void instruments. If a party alleges standing in such a claim and does so properly THEN the court has jurisdiction to hear it. But no court has jurisdiction to ignore or grant relief based upon the idea or inference that the rescission was not effective by operation of law. “Motions” that simply argue law are intentionally avoiding the one point the adversaries can escape from. Once the rescission is sent it is effective by operation of law. Once that happens the statute is ticking away the time for either compliance or filing a simple lawsuit to vacate the rescission. So why have no such lawsuits been filed?
The reason they are taking this tack is that they don’t have a creditor. If they did, they would have all claimed the status of Holder in Due Course. Being unable to make that claim they have relied upon the skill of lawyers to plead “holder” but get treated as though they were holders in due course. This is through no fault of the homeowner. The Wall Street banks essentially stole the money from investors, stole the money from the Trusts and then committed the money to fees that never should have been paid, trading profits that were fictitious trades, and to cover their tracks to loans that the investors never would have approved if asked. And of course this was contrary to the Prospectus and PSA.
When confronted with a memo or motion from the adversary, the foreclosure defense lawyer should immediately attack the pleading, probably moving to strike it for lack of the court’s jurisdiction to hear the action unless they file one with standing and then ask the court to vacate the rescission. The Court should be reminded that the Rescission IS effective by operation of law, and that there is action pending wherein the adversary is pleading standing because they lack standing, to wit: they lack any position in which they can allege that they paid for the funding or acquisition of the loan. Thus there can be no foreclosure and since the 20 days have expired, there can never be a foreclosure.
When the investment banks took money from the pension funds they failed to fund the trust that issued the certificates that were “Sold” to investors. They then took the money and engaged in various transactions never contemplated nor acceptable to the investors. The originator on the note was not the lender and the originator was not in privity with the actual source of funds. The real party is the group of investors but all investors from all trusts had their money dumped into the same slush funds.
It is IMPOSSIBLE to determine which investors have an interest in any particular loan and impossible to determine what size their interest is. In that fact pattern there is no “creditor” (legally speaking) although the investors clearly got screwed. They have a claim against the investment banks,and if they found a credible way to estimate their interests in loans and locate those particular loans they could assert unjust enrichment or some similar equitable theory. Any such claim would be unsecured unless equitable mortgages were suddenly allowed again which would screw up title records even more thy already are corrupted.
Filed under: foreclosure |
OK BOB HOPE YOU CAN READ ENGLISH. IT CAN NOT BE SAID ANY CLEARER THEN THIS.
The depositor will cause the trust assets constituting each pool to be assigned without recourse to the trustee named in the accompanying prospectus supplement, for the benefit of the holders of all of the securities of a series.
AGAIN GO’S TO , IF THIS WAS NOT DONE, AS WE KNOW IT WAS NOT DONE. THEN THE TRUST TRYING TO FORECLOSE ON SOMEONE HAS NO STANDING TO BRING ACTION IN ANY COURT, AS YOU KNOW A ACTION BROUGHT IN COURT, THAT PERSON HAD TO BE INJURED.
the “NAMED DEFENDANT” – in ANY foreclosure case, NEVER signed the Promissory Note…
there has been a substitution of person with rebuttable presumed joinder…
proof of identity may allow you to lawfully bring identity theft charges to the fore vs. the bankster
go read the original note and look closely as to whether you issued it in your “christian name capacity” or in your “CIVIL person capacity”…
they are NOT the same legal person… no matter what fodder the court feeds you… (or bob)
the foreclosure suit is against the wrong legal person…
IMHO…
prove this to be a lie please…
a cautionary devil’s advocate statement to briefly to address the question of “value” for “value”…
i am certain that everyone here remembers “beauty is in the eye of the beholder”… and “one man’s junk is another man’s treasure”…
be careful when challenging the banksters for a receipt for each step of their 4 step process from origination to trust… someone could have simply said “we accept a promise for a jar of blue M&Ms at a later date as payment for this mortgage…
WHO ARE YOU TO CHALLENGE THE VALUE THEY PLACE ON THOSE M&Ms?
ordinary folks generally consider “Value” to be a tangible positive asset, (like when THEY want YOU to pay a BILL with CASH accrued from your Sweat and Labor) HOWEVER – WITHIN THE LEGAL TERMS OF VALUE AND with a fine-tooth-comb analysis of “value”… within a private contract, ANYTHING the payment recipient wants to acknowledge as being of equitable value in exchange for the thing it is transferring to the other party for value is deemed acceptable, with the only exception being if it is in violation of public policy or public safety…
AGAIN BOB, YOU ARE SLOW OR CANT UNDERSTAND COMMEND SENSE.
THE JUDGE HAS LETS SAY 5 PHOTO COPY’S OF THE NOTE,
FROM 5 DIFFERENT ENITIY’S, PLUS THE ONE I HAVE. THAT IS SIGNED/DATED/ WITHOUT RECOURSE, TO A PARTY. THAT IS NOT A PARTY TO TRANSACTION. GET IT SIGNED AND DATED.
AND IS WET INK. NOT A COPY.
AND ALL OTHERS ARE NOT SIGN OR DATED. SO WHAT IS A JUDGE TO DO ABOUT THAT.
I HAVE ASK YOU THIS MANY TIMES. YOU STILL HAVE NOT SAID A THING. WHY OH BOBBY BOY, WHY??
AND I HAVE ONE MORE QUESTION FOR YOU BOB.
IF THEY SAY THAT THIS LOAN IS INFACT IN DEFAULT AS OF 2010, WHY HAVE THEY NOT JUST COME IN AND TAKE IT. NO PAPER TRAIL, MAYBE. HATS SIX 6YRS BOB.
AND STILL NOTHING. WHY IS THAT BOB. MA
BOB SAID THIS, bobhurt, on October 17, 2015 at 4:59 pm said:
David, The Trustee purchased the note for the benefit of certificate holders. The trustee owns the note. And the PSA usually arranges for the trustee to get the note directly from the originator, as you should have read in that California court opinion I showed you.
If you rely on the nonsense about whining over securitization, you will lose just as everyone else does who relies on it.,
PLEASE BOB , SHOW US ALL WERE, WHEN, AND HOW THE TRUST PAID FOR THE NOTES, IN ANY SECURITIZATION TRUST??
SHOW US THE PROOF YOU STATE IS TRUE.. THE SUPREME COURT HAS ALREADY STATED MANY TIMES.
WHAT A CONTRACT SAYS, MAY NOT BE TRUE, WE MUST HAVE PROOF OF VALID PAYMENTS. PROOF OF PAYMENT.
THAT WOULD BE, A CANCELLED CHECK, SHOWING WHAT THE TRUST SAID IT PAYED FOR.
THAT WILL NOT BE THE CASE. THERE IS NO ACCOUNTS FOR THE TRUST, OR CHECK BOOKS FOR THE TRUST.
THIS IS WHY A COMPLETE CHAIN OF TITLE MUST BE , 1,2,3,4,5,
NOT 1, 5. BECAUSE WE DONT KNOW HOW OR WHEN 5 GOT THE MORTGAGE OR NOTE. BECAUSE WE KNOW IT DIDNT GET IT FROM 1, RIGHT.
SORRY, BOB, AM HOLDING A COPY OF NOTE, SERVICER IS HOLDING A COPY OF NOTE, TRUST IS HOLDING COPY OF NOTE, AND MANY OTHERS ALSO HOLDING A COPY OF THE NOTE.
SO PLEASE EXPLAIN , WHO HAS THE RIGHTS AS HOLDER OF THE COPIED NOTES???
AND HOW CAN A COURT DETERMINE THAT??
I submitted my motion to Vacate the Summary Judgment and Dismiss the complaint with Prejudice and requested oral arguments. The return date is this Friday at 9:00 a.m.
The court sent me a letter confirming it is on for Friday.
The Wells Fargo attorneys filed an opposition reply which argues that this should be denied because these points were already argued in court and ruled on. They claim my motion to Vacate is really just a Motion to Reconsider the same arguments under a different motion heading and title.
The paralegal prepared the motion to vacate and the brief on seven different points. He lays out each point and cites the case law to support it ..but I noticed now that he never claims the court made errors in their granting of summary judgment for plaintiff. I’m concerned now that I need to quickly file an amendment to my motion asserting that the court erred in granting SJ..that the courts decision was arbitrary, capricious and unreasonable, that the court ignored the controlling authority which is now the Supreme Court in Jesinoski, the court denied me full due process by not granting my motion to Compel discovery from the stone-walking plaintiff and allowing plaintiffs standing to be established on presumptions, questionable documents, etc.
The reason I’m so nervous is because I don’t understand procedural law, I want to appeal but am not even sure when I can appeal. The paralegal misled me as he dragged his feet after the March 20 SJ ruling in plaintiffs favor. He’s been telling me this whole time that I can appeal in the future when they apply for Final Judgment.
But as I try to understand the confusing rules that govern NJ Courts, It is very unclear still … The Appellate Division says they can review all cases that 1) have been fully adjudicated by the trial court and when a final judgment has been rendered in the case. or 2) interlocatory appeal, when an issue of importance needs to be appealed during the case before all of the other issues have been decided.
So here I have sat since March 20 ..waiting for this paralegal to write this motion …and this guy ended up being a jerk and can’ t answer my questions or return my calls …he feels he delivered and it’s now up to me to figure out the rest of the details.
So I’ll call around and see if I can understand what my options are ..
I am now thinking I should have immediately appealed after the SJ
And now that the trial judge has allowed me to come back in on Friday could be the opportunity to this time to appeal in a timely manner from the Friday hearing on my motion to Vacate … Why should I wait for a Final Judgment to entered before I appeal? I should appeal now from his Friday decision when he will most likely deny my motion.
So now the question is .. Do I amend this paralegals work to include errors by the court …amend it for purposes of appellate review …raise issues that were dismissed early on, like the issue of a default?
If I rescinded under TILA, then how is this plaintiff in court basing his entire claim on an alleged default ?
TILA states that the borrower Can stop making payments upon mailing the rescission letter.
The Judge erred in his decision denying my rescission when he chose to ignore the Jesinoski controlling authority of the Supreme Court.
The reason for an appeal must fall into certain criteria such as if the judge made an arbitrary, capricious ruling that was unreasonable.
So this Fridays hearing will be my final opportunity before appeal ..
I need to make sure I make the most of this last chance to create a record for appeal … Any suggestions are greatly appreciated.
The main arguments in this motion to Vacate ….
Standing …. Fannie Mae claims to own the loan, Wells Fargo is in court enforcing the note as holder
6 year statute of limitation on the accellerated note in NJ statutes
TILA rescission voids the mortgage security instrument which this foreclosure complaint was based on …
The party in court is a servicer holding a void mortgage
The Servicer / Plaintiff is alleging a Default on a rescinded loan
The true creditor/owner of the loan has not been established by the court in regards to the issue of TILA rescission, procedures, tender
The creditor failed to comply or contest the rescission in the 20 days or one year that followed the rescission. They waived their remedies.
The court defiantly rejects what the Supreme Court says in Jesinoski, the court continues to cite old case law that mandates tender offer
The court in its oral decision makes all kinds of false statements and mistakes about the facts of the case ..the judge reads his decision from the bench granting SJ in favor of plaintiff, while falsely stating dates and falsely stating facts of the case…things that the transcripts show were discussed ..and yet he says conflicting things in his decision.
He falsely stated during his decision that we had not identified what missing disclosures we were talking about ..thats a flat out lie, it’s right on the record and he’s part of the discussion …you see? He had the decision already pre-written before the hearing on Summary Judgment, and his decision was written in a way to undermine my case.
Now the appeals court rules say a courts decision must be written, but I was never sent a written decision …I guess I will call the court today and see if his written decision is now in the record.
I feel I have good arguments , but I am in way over my head in regards to appealing this by myself ..while I am working all day to feed my family. New Jersey Legal Services does not represent borrowers in foreclosure cases ..the best they will do is give you advice over the telephone. One of their lawyers is supposed to call me 4 days after this Fridays hearing on my motion.
My main question is … Does the Summary Judgment get stopped in its tracks from going to final judgment while under appeal?
Or does the foreclosure keep going to sheriffs sale even tho it’s being appealed?
Well you should. Just kiddin
And consider the fact Bob that i left my HOME UNDER DURESS with the threat if being thrown out or the distinct possibility of my locks being changed whilst i was on a 14 hr day like the individual big guy that came to my door with a covert threat and the car that pulled up outside and a guy got out armed and started pointing his finger at me looking out of the upstairs window like a goldfish in a bowl
That was happening to people
Now i find that the debt was unsecured. I forfeited my home. not finished yet believe me.
Ian and kalifornia the irs is in possession of inculpatory evidence – if that doesnt impact every single taxpayer when 1099as,s are being issued by Servicers with no 1099c
I have asked the irs about this several times – about five ( my public duty)
And they remain silent
So where does it say Ian that they have ” chosen” not to adress the matter its fraud! Irs doesn’t get to make law but its code applies to all not just us poor folks
et al.:
What is at issue at the state level, where a REMIC trust or other entity has failed to register and pay taxes, is that it can not later avail itself of that state’s statutory remedies, e.g., non-judicial foreclosure.
Bobhurt- the trustee was SUPPOSED to purchase the note for the benefit of the certificate holders. Had any of them (the trustees) done that, the notes, under NY/Del trust law and IRC, would all have been sold twice (two true sales) prior to securitization. This is the law, and assures investors that the assets are owned by a Bankruptcy Remote Entity. (BRE) However, this was never done, a clear violation of the law. This alone triggers the mandatory 100% penalty tax. But the IRS has stated that they chooose not to enforce these or any other actionable offenses regarding MBS.
and Dwight, you’re right on the money. Judges will not hear the argument as it is to their own peril. Protecting their own bank holdings.
bob hurts, state law in my state requires any trust holding interest in Wisconsin land to be registered. This requirment occurs upon the sale of certificates to 5 parties within the state. You’re wrong.
@ BH
How was Al Capone brought down?
The same way a REMIC trust will when it fails to register with the Kalifornia Secretary of State and pay taxes, to wit:
Does California impose a Minimum Franchise Tax on 2 Member LLC’s?
As a matter of fact, “California does tax LLCs with a minimum franchise tax of $800 per year.” The $800 annual tax applies to all LLCs, LPs, LLPs, and REMICs, if any of the following apply to the entity:
• It is doing business in California.
• It is registered in California.
• It is organized in California.
Also, it is worth noting that California State imposes a “Failure to Pay Total Tax by Due Date”.
For LPs, LLPs, and REMICs that must pay the $800 annual tax with Form 565, a penalty for late payment of tax may be assessed. Any LP, LLP, or REMIC that fails to pay the $800 annual tax by the original due date is assessed a penalty of 5% of the unpaid tax, plus 0.5% for each month or part of a month (not to exceed 40 months) the tax remains unpaid. This penalty cannot exceed 25% of the unpaid tax. Interest will be due and payable on the late payment.
Furthermore, “Interest is due and payable on any tax due if not paid by the original due date. Interest is also due on some penalties. The automatic extension of time to file does not stop interest from accruing. California follows federal rules for the calculation of interest.”
Attacking the validity of the loan transaction was part of my defense and clearly pleaded in my Answer. The court provides cover for the Plaintiff and undermines the Defendants right to Discovery from the outset of the litigation. The Defendants in most foreclosure cases are in a battle with the court just trying to receive Due Process and Equal Protection under the law.
The lenders control the piles of paperwork and documents, the borrowers are left begging the court with a Motion to Compel in order to try and drill down past the fabricated, fraudulent, forged, robo-signed papers … In an attempt to try and expose the truth that the loan was invalid and not a legal financial contract between borrower and the pretender lender. Not only does the origination need to be fully revealed and examined through Discovery, but each transfer and sale of the alleged loan that took place along the way also needs full Discovery, which should include proof of purchase for value with receipts.
Where the courts are denying borrowers their due process boils down to the issues of …
1) Does the Plaintiff here in court have legal Standing?
2) Has the true creditor / owner of the subject loan been identified? And was their ownership proven through valid proof of purchase receipts?
3) Has full Discovery been afforded to the Defendants so that they can have every opportunity to defend themselves and their property under The equal protection clause of the U.S. Constitution? Or have we as a society and justice system now classified this group of people as the “Deadbeats who borrowed more than they could afford to pay and they all deserve to lose their homes no matter what their defense might be”.
There is a bias against the borrowers in foreclosure, nobody cares if they do not receive their due process and Equal protection because quite frankly, due process clogs and fills up the poor judges court calender…and it pisses him off !!! The goal of the courts is to clear the court calendars of the vast backlog of foreclosure cases. The easiest way to clear the court calendars is to deny due process and discovery, to lower the bar for what constitutes Standing in these cases.
The deck is stacked against the borrowers in such a way that it makes their chances of receiving justice between slim and none ..and slim just got foreclosed on and left town.
The Bob Hurt comedy show.
You funny
NEVER AGAIN
@ BH
I’ll let the Kalifornia Franchise Tax Board’s Forms applicable to REMIC trusts disabuse you, vel non.
Read them for yourself, and explain to yourself why a foreign business trust must have a Kalifornia “Secretary of State (SOS) File Number,” as well as the adverse implications for failure to statutorily register.
Put up, or forever shut up on the issue.
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Payment Voucher for LP, LLP, and REMIC e-filed Returns
https://www.ftb.ca.gov/forms/2014/14_3587.pdf
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Payment for Automatic Extension for LPs, LLPs, and REMICs
https://www.ftb.ca.gov/forms/2014/14_3538.pdf
Bravo to mn. … For summing up the Bob Hurt taunting, the corrupt banking industry stealing borrowers homes, the misguided judiciary who creates the bad caselaw, etc., etc.
mn, you sound like you are an attorney or Judge yourself who has integrity … true?
BOB YOU HAVE NOT READ A PAGE IN A POOLING AND SERVING AGREEMENT. I HAVE MIND. ALL 600 PAGES, AND HAVING A CERTIFIFED COPY SENT TO ME FROM SEC.
Assignment: An assignment of the Mortgage, notice of transfer or equivalent instrument, in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect of record the sale of the Mortgage Loan to the Trustee for the benefit of Certificateholders, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering Mortgages secured by Mortgaged Properties located in the same county,
NOT IN ANY STATE , if permitted by law and accompanied by an Opinion of Counsel to that effect.
SECTION 6. Delivery of Mortgage Notes.
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(a) On or prior to the Closing Date, the Seller shall deliver to the Purchaser or the Custodian, as directed by the Purchaser, the original Mortgage Note, with respect to each Mortgage Loan so assigned, endorsed without recourse in blank, or in the name of the Trustee as trustee, and signed by an authorized officer (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Seller, and if in the form of an allonge, the allonge shall be stapled to the Mortgage Note), with all intervening endorsements showing a complete chain of title from the originator to the Seller. If the Mortgage Loan was acquired by the endorser in a merger, the endorsement must be by “____________, successor by merger to [name of predecessor]”. If the Mortgage Loan was acquired or originated by the endorser while doing business under another name, the endorsement must be by “____________ formerly known as [previous name].” The delivery of each Mortgage Note to the Purchaser or the Custodian is at the expense of the Seller.
In lieu of delivering the Mortgage Note relating to any Mortgage Loan, the Seller may deliver or cause to be delivered a lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced or destroyed, and, if available, a copy of each original Mortgage Note; provided, however, that in the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of delivering the above documents, may deliver to the Purchaser a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loan in the Payment Account on the Closing Date.
(b) If any Mortgage Note is not delivered to the Purchaser (or the Custodian as directed by the Purchaser) or the Purchaser discovers any defect with respect to a Mortgage Note which materially and adversely affects the interests of the Certificateholders in the related Mortgage Loan, the Purchaser shall give prompt written specification of such defect or omission to the Seller, and the Seller shall cure such defect or omission in all material respects or repurchase such Mortgage Loan or substitute a Qualified Substitute Mortgage Loan in the manner set forth in Section 7.03. It is understood and agreed that the obligation of the Seller to cure a material defect in, or substitute for, or purchase any Mortgage Loan as to which a material defect in, or omission of, a Mortgage Note exists, shall constitute the sole remedy respecting such material defect or omission available to the Purchaser, Certificateholders or the Trustee on behalf of Certificateholders.
(c) All other documents contained in the Mortgage File and any original documents relating to the Mortgage Loans not contained in the Mortgage File or delivered to the Purchaser, are and shall be retained by the Servicer in trust as agent for the Purchaser.
In the event that in connection with any Mortgage Loan: (a) the original recorded Mortgage (or evidence of submission to the recording office), (b) all interim recorded assignments, (c) the original recorded modification agreement, if required, or (d) evidence of title insurance (together with all riders thereto, if any) satisfying the requirements of clause (I)(ii), (iv), (vi) or (vii) of the definition of Mortgage File, respectively, is not in the possession of the Servicer concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office, or, in the case of each such interim assignment or modification agreement, because the related Mortgage has not been returned by the appropriate recording office, in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, or because the evidence of title insurance has not been delivered to the Seller by the title insurer in the case of clause (I)(vii) of the definition of Mortgage File, the Servicer shall use its best efforts to obtain, (A) in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, such original Mortgage,
Saturday 17 October 2015
bobhurt:
>The trust is NOT a fraud, it does exist, the trustee owns the note and
>the trustee can foreclose if the borrower breached it.
Do you have yet another case cite that states a trust is not a fraud and
that it exists? Or do you continue to believe NG is pissing in the wind
that no loans were validly transferred into a trust, and where courts do
everything possible to protect the corrupt banking practices, preventing
a public and detailed scrutiny whether any loan has been lawfully
transferred.
I cannot attest to any loan being lawfully transferred, but if ANY loan
were, then such trustee WOULD be claiming holder in due course
status, thus ending the matter. Instead, what prevails in court is noting
more than unsubstantiated paperwork that has effectively been
substantiated by virtue if judges ruling to create case law in support.
You bring up some interesting cases worth reading, not to be denied.
However, most of the cases were either poorly/improperly argued by an
inexperienced borrower, even at times an inept defense lawyer. In most
all of the cases, perhaps even all where the borrower loses, the judge is
a pivotal catalyst acting at the behest of the banking industry to protect
plaintiff interests at all costs and will rule to protect plaintiff interests,
and not always justifiably.
Just because so many cases exist does not take away from the fact
that 1,000 wrongs can never make a single right. The fact that almost
all judges employ a form of sophistry to justify their decisions, it is how
the “system” functions.
For you to be such a cheerleader for a dysfunctional albeit controlling
system is unjustified while you continue to point the finger at borrowers
and say, I told you so, [stupid] fool.
Your intentions are not as honorable as you color them. You want to be
right by citing so many cases where the plaintiff prevailed, and in most
of the cases the defense was poor and/or the judge would never let one
who defends against the system a win against the system. Judges have
taken an oath to support the de facto government and its lender-
dominated system, [as opposed to what many believe was an oath to
uphold constitutional law and a fair and just system], so they obligate
themselves to enforce the de facto oath they took.
You want to be acknowledged as right? You are right. Most who
honorably want to defend their homes do not stand a chance, and all
you do, ultimately, is cheer on their losses as being not only justified but
deserving. “They signed a note and deserve to lose for breaching it.”
You fail to acknowledge the corrupt nature of the banking system that
created this mortgage lending environment purposefully designed to
fail so the banking industry could appear to “legally” steal people’s homes.
If that makes you feel better knowing you are right, then you should be
on top of the world, even though you “sell nothing” but constantly
“promote your attack system.”
Your hypocrisy escapes you because you seek to financially benefit from
it, regardless of how often you protest otherwise.
The system will never change, nor will you.
You are “right,” bob hurt, but not for the right reasons.
IS THIS WHAT YOU MEAN BOB , WHEN YOU SAY THIS,
evidence of genuine causes of action.
100’S OF MY COPIED MORTGAGE NOTE ALL OVER THE COMPUTERS. NOW.
SO MILLIONS OF PEOPLE CAN SAY THEY OWN MY HOME. WOULD THAT WORK.
WITH ALL THE COPIED NOTES OUT THERE, AND COURTS SAYING THEY WILL EXCEPT A COPY OF A NOTE.
ANYONE CAN COME UP LATER AND SAY THEY ARE THE HOLDER IN WRONGFUL POSSESSION, THEY TO, CAN SAY GIVE ME THE MONEY OR HOME.
RIGHT.
BOB IF A TRUST IS IN WRONGFUL POSSESSION OF THE COPIED NOTE AS IN MOST CASES.
SO, AM I , IN POSSESSION OF THE COPIED NOTE.
OK THEN WHAT.
NOW – ALSO THE CLOSING DOCS TELL OF 3 OTHER CERTIFIED COPYS OF MY NOTE THAT HAD TO BE GIVEN TO THEM PRIOR TO FUNDING.
SO PLEASE TELL ME WERE ALL OTHER COPYS OF MY NOTE IS, DO YOU HAVE ONE, DOES OBAMA HAVE ONE, WHO HAS THE OTHER 3 COPYS OF MY NOTE???
This admission confirms that the mortgage assignment was not made before the closing date of the trust, invalidating ownership. The suit further argued that “the act of fabricating the assignments is evidence that the MBS Trust did not own the notes and/or the mortgage liens for some assets claimed to be in the pool.”
The federal government, states and cities joined the lawsuit under 25 counts of the federal False Claims Act and state-based versions of the law. All of them bought mortgage-backed securities from banks that never conveyed the mortgages or notes to the trusts. The plaintiffs argued that, considering that trustees and servicers had to spend lots of money forging and fabricating documents to establish ownership, they were materially harmed by the subsequent impaired value of the securities. Also, these investors (which includes the Treasury Department and the Federal Reserve) paid for the transfer of mortgages to the trusts, yet they were never actually transferred.
Finally, the lawsuit argues that the federal government was harmed by “payments made on mortgage guarantees to Defendants lacking valid notes and assignments of mortgages who were not entitled to demand or receive said payments.”
Despite Szymoniak seeking a trial by jury, the government intervened in the case, and settled part of it at the beginning of 2012, extracting $95 million from the five biggest banks in the suit (Wells Fargo, Bank of America, JPMorgan Chase, Citi and GMAC/Ally Bank). Szymoniak herself was awarded $18 million. But the underlying evidence was never revealed until the case was unsealed last Thursday.
Now that it’s unsealed, Szymoniak, as the named plaintiff, can go forward and prove the case. Along with her legal team (which includes the law firm of Grant & Eisenhoffer, which has recovered more money under the False Claims Act than any firm in the country), Szymoniak can pursue discovery and go to trial against the rest of the named defendants, including HSBC, the Bank of New York Mellon, Deutsche Bank and US Bank.
In order for the securitization to work, banks purchasing the mortgages had to physically convey the promissory note and the mortgage into the trust. The note had to be endorsed (the way an individual would endorse a check), and handed over to a document custodian for the trust, with a “mortgage assignment” confirming the transfer of ownership. And this had to be done before a 90-day cutoff date, with no grace period beyond that.
Georgetown Law professor Adam Levitin spelled this out in testimony before Congress in 2010: “If mortgages were not properly transferred in the securitization process, then mortgage-backed securities would in fact not be backed by any mortgages whatsoever.”
The lawsuit alleges that these notes, as well as the mortgage assignments, were “never delivered to the mortgage-backed securities trusts,” and that the trustees lied to the SEC and investors about this. As a result, the trusts could not establish ownership of the loan when they went to foreclose, forcing the production of a stream of false documents, signed by “robo-signers,” employees using a bevy of corporate titles for companies that never employed them, to sign documents about which they had little or no knowledge.
OH SETTLED BY ALL BANKS OF FRAUD. OK BOB
BOB, SHOW ME ANY , I MEAN ANY PROOF , THAT A TRUST PURCHASED ANY MORTGAGE.
AS YOU SHOULD KNOW THAT IS WHY ALL BANKS SETTLED,
KNOWING AND SAID TO GOVERNMENT, THAT THE TRUSTS NEVER EVER BOUGHT THE MORTGAGES,
SO WE ALL KNOW THIS TO BE TRUE. EXCEPT YOU BOB. THE TRUSTS NEVER BOUGHT THE MORTGAGES BY LAW.NEVER WAS PUT INTO ANY TRUST. BECAUSE THERE IS NO TRUST TO BEGIN WITH.
Countrywide Never Sent Mortgages to Trust, Now With …
…/countrywide-never-sent-mortgages-t…
Nov 22, 2010 – Countrywide Never Sent Mortgages to Trust, Now With Helpful Chart. …. Countrywide’s law firm has denied that the bank failed to convey notes …
Countrywide Never Sent Mortgage Notes to Trust
…/deposition-countrywide-never-sent-mortgage-notes…
Nov 21, 2010 – Deposition: Countrywide Never Sent Mortgage Notes to Trust; … for Bank of America Home Loans (BofA bought Countrywide in 2008), admitted …
National Mortgage News – Ginnie Mae Nixes Bank of …
…/ginnie-mae…
National Mortgage News
Apr 15, 2014 – Ginnie Mae Nixes Bank of America Mortgage Servicing Transfer … “Back then, these banks never sold servicing – servicing was gold,” Tozer says. … custodian that the essential documents have been delivered to the trust.
Your mortgage documents are fake! – Salon.com
2013/08/12/your_mortgage_documents_are_fake/
Salon
Aug 12, 2013 – Twenty-eight banks, mortgage servicers and document processing … were “never delivered to the mortgage-backed securities trusts,” and that …
Holy Shit !!! – Deposition: Countrywide Never Sent Mortgage Notes …
…/duboard….
Democratic Underground
Nov 22, 2010 – 54 posts – 24 authors
Deposition: Countrywide Never Sent Mortgage Notes to Trust – FDL. … Now, tell me again how the banks are planning to get out of this.
Countrywide NEVER Transferred Notes – Foreclosure Fraud
…/john-t-kemp-v-countrywide-home-loans-countrywi…
Nov 22, 2010 – Deposition: Countrywide Never Sent Mortgage Notes to Trust; … Now, tell me again how the banks are planning to get out of this. From The
BOB, SHOW ME ANY , I MEAN ANY PROOF , THAT A TRUST PURCHASED ANY MORTGAGE.
AS YOU SHOULD KNOW THAT IS WHY ALL BANKS SETTLED, KNOWING AND SAID TO GOVERNMENT, THAT THE TRUSTS NEVER EVER BOUGHT THE MORTGAGES,
SO WE ALL KNOW THIS TO BE TRUE. EXCEPT YOU BOB. THE TRUSTS NEVER BOUGHT THE MORTGAGES BY LAW.NEVER WAS PUT INTO ANY TRUST. BECAUSE THERE IS NO TRUST TO BEGIN WITH.
Countrywide Never Sent Mortgages to Trust, Now With …
https://rortybomb.wordpress.com/…/countrywide-never-sent-mortgages-t…
Nov 22, 2010 – Countrywide Never Sent Mortgages to Trust, Now With Helpful Chart. …. Countrywide’s law firm has denied that the bank failed to convey notes …
Countrywide Never Sent Mortgage Notes to Trust
shadowproof.com/…/deposition-countrywide-never-sent-mortgage-notes…
Nov 21, 2010 – Deposition: Countrywide Never Sent Mortgage Notes to Trust; … for Bank of America Home Loans (BofA bought Countrywide in 2008), admitted …
National Mortgage News – Ginnie Mae Nixes Bank of …
http://www.nationalmortgagenews.com/…/ginnie-mae...
National Mortgage News
Apr 15, 2014 – Ginnie Mae Nixes Bank of America Mortgage Servicing Transfer … “Back then, these banks never sold servicing – servicing was gold,” Tozer says. … custodian that the essential documents have been delivered to the trust.
Your mortgage documents are fake! – Salon.com
http://www.salon.com/2013/08/12/your_mortgage_documents_are_fake/
Salon
Aug 12, 2013 – Twenty-eight banks, mortgage servicers and document processing … were “never delivered to the mortgage-backed securities trusts,” and that …
Holy Shit !!! – Deposition: Countrywide Never Sent Mortgage Notes …
http://www.democraticunderground.com/…/duboard….
Democratic Underground
Nov 22, 2010 – 54 posts – 24 authors
Deposition: Countrywide Never Sent Mortgage Notes to Trust – FDL. … Now, tell me again how the banks are planning to get out of this.
Countrywide NEVER Transferred Notes – Foreclosure Fraud
4closurefraud.org/…/john-t-kemp-v-countrywide-home-loans-countrywi…
Nov 22, 2010 – Deposition: Countrywide Never Sent Mortgage Notes to Trust; … Now, tell me again how the banks are planning to get out of this. From The
@ BH
In Kalifornia, the warped wheels of justice turn slower than elsewhere, even in your disabused venue of FL:
09CECG03601 – Thomas A Glaski vs Bank of America/BK/STAY
08/17/2015 Jury Trial
Judicial Officer: Snauffer, Mark
Hearing Time: 9:00 AM
Cancel Reason: Case Stayed
@ BH
Gomes is bad law; and it’s being picked apart and/or distinguished over and over by various state and federal venues. (Citations omitted.)
For the edification of your readers, please explain to them how bad case law/stare decisis occurs, as it has in Kalifornia [akin to building a high-rise structure on an unplumb, unsquare footing], and the eventual prospective tear-down and redo that results from the failure to correct the fundamental error(s).
Gomes will be overruled in Kalifornia; Glaski is stayed in the Superior Court of Fresno County, pending the determination of Yvanova…
@ Greg (the putative moderator per BH)
On the issue of a trust acting under the statutes/codes of the respective state that the real property is situated, it looks like if the REMICs never either statutorily registered with the/a state nor payed any taxes to the/a state, those actions in reliance upon the respective state statute(s)/code(s)/regulation(s) against the real property may be void ab intio.
oh no… judges and courts are not corrupt at all….
everyone please remember they are not suing YOU – they are suing the role and capacity in which you may have acted
YOU, in your ROLE of BORROWER may truly have no standing in the PSA TRUST argument because within the mortgage agreement you may have indorsed a clause which allows them to transfer ownership without your consent
YOU, in your ROLE of INVESTOR/BENEFICIARY may certainly have a right to sue the TRUST for harm / injury / fraud etc. – all you need is a tiny legal tow in the door they must address…
YOU or your lawyer, never added the other party, INVESTOR/BENEFICIARY, to the suit as an additional party (I previously provided info and links for people in illinois to read and see how they are beneficiaries/investors of most of these TRUSTS…)
it would read something like:
BOB HURT, in its capacity as INVESTOR/BENEFICIARY of the HSBC TRUST 1234-04HE, COUNTERCLAIMANT
WE WEAR MANY HATS… problem is that people think they are just ONE PERSON when they are many…
please think about that and comment…
bob that was 2011 – the world turned and you were napping?
3/ IF BY LAW, AND IT IS LAW, CONGRESS PAST IT APPROVED IT, AND SUPREME COURT AGREED TO IT.
AFTER THE BORROWER SEND IN HIS RESCISSION LETTER, AND THE BANKS/SERVICE-RS SAY AND DO NOTHING FOR 20 DAYS, OR EVEN ONE YR. 20 DAYS FROM RECEIPT OF RESCISSION LETTER.
NOW THAT THE MORTGAGE AND NOTE ARE BY OPERATION OF LAW IS VOID.
HOW COULD THEY THE BANK SERVICE R USE A VOIDED INSTRUMENTS TO FORECLOSE ON YOU.
2/ AFTER A BANL/SERVICER GET A RESCISSION LETTER IN MAIL, WHAT SHOULD THE BANK SERVICER DO.
BOB AM GOING TO GIVE YOU SOME QUESTIONS. NOW THEY WILL BE SIMPLE AS I KNOW IT MIGHT BE HARD FOR YOU TO SAY JUST A YES OR NO ANSWERS.
1/ SHOULD A BANK / SERVICER WITH OUT ACTUAL VALID PROOF THEY BOUGHT WITH CONCIDERATION PAYED FOR YOUR MORTGAGE NOTE. SHOULD BE ABLE TO FORECLOSE ON YOU.?
David, why don’t you write to the SEC and ask them to tell you who signed the PSA? But what do you care anyway. YOU didn’t sign it, and nothing more matters about it to you.
I HAVE ASK FOR THERE OPIONION, ON THAT MATTER, AND ARE WAITING TO HERE FROM THEM.
WHY DO I CARE AND MILLIONS OF OTHERS CARES.
BECAUSE MOST FORECLOSURES ARE FROM A TRUST. GET IT
IF WE ARE PART OF THE PSA/TRUST AGREEMNET, AS I AGREE WE ARE, THEN WE CAN CHALLENGE ANYTHING TO DO WITH THAT PSA/TRUST AGREEMENTS. THATS WHY.
BUT I WILL SAY THIS ABOUT USING THE PSA. IF THE BANKS SAY AM NOT PART OF THE PSA, THEN HOW IS THE TRUST THAT IS THE PSA TRYING TO FORECLOSE. ??? THEY CAN HAVE IT ONE WAY OR THE OTHER. WE ARE PART OF THE PSA, OR WE ARE NOT PART OF PSA, AND IF WE ARE NOT PART OF PSA, THEN THE FRAUD TRUST TRYING TO FORECLOSE ON SOMEONE HAS NOTHING TO HANG HIS HAT ON.
Bob – question – in your opinion, do the investors in the trust have standing to sue the trust for violations of law or contract which cause them harm?
right, MERS has acknowledged they cannot bring a foreclosure action – that is why they are re-assigning any right of claims back to the trustee for the alleged trust and the trustees are now suing –
it does leave open the possibility that if you were previously foreclosed by MERS – you might re-open the case and have it nullified, only to have the trustee come after you again… this however, might buy you time to get your ducks in a row for an attack or defense counterclaim…
MERS ASSIGNMENTS “HAVE NO EFFECT”; MERS ADMITS TO NO CONTROL OVER NOTES
Posted on February 13, 2014 by eggsistense
Jeff Barnes of Foreclosure Defense Nationwide breaks down the significance of the decision by the Supreme Court of Rhode Island in the case of Chhun v. MERS:
“The homeowners had sued for declaratory relief, quiet title, and punitive damages, alleging that the MERS Assignment had no effect as it was signed by someone who was an employee of Aurora (and not MERS), and that MERS did not order the assignment to Aurora. The Court found that these allegations satisfied the requisite pleading standard and reversed the Superior Court’s ruling.“
Why this particular case is a come-to-Jesus on the part of the Rhode Island Supreme Court I couldn’t tell you, but the fact that MERS–the computer database that is named in mortgages and on assignments, not the parent corporation, MERSCORP–has no employees is not new. The fact that the signers/executors of the MERS assignments do not work for MERS and in fact work for the would-be foreclosing entities is not new.
MERS assignments have no effect
But the best part of the Chhun ruling is that, at least in the Chhun case, the MERS assignment was found–correctly–to have no effect [UPDATE 4-18-14: the Chhun ruling did not decide that MERS assignments have no effect, it only reversed a lower court’s motion to dismiss]. I have written about this before and have shared it with others, but in my own lawsuit against MERS and others, MERS came out and admitted that their assignments have no effect. I know of no other such admission (not saying one doesn’t exist), so I always feel compelled to share it, especially now that the fact that MERS assignments have no effect has been acknowledged by the highest court of a state [see above Update from 4-18-14]–so here is the admission of MERS–it’s actually a three-part admission from interrogatories I propounded to MERS and signed by William Hultman:
“Interrogatory #4: MERS is only able to transfer what it actually holds and cannot transfer a negotiable instrument by virtue of a transfer of real property.
Interrogatory #7: Any language in the assignment which claimed to assign the note could not do so, as notes do not move through assignments in the land records.
Interrogatory #13: The MERS assignment can only assign the interest that MERS is holding. When MERS is named as the beneficiary, it holds legal title to the Deed of Trust and can assign the Deed of Trust. Unless MERS is the note holder it cannot transfer the note since the note moves through endorsement and delivery pursuant to the Uniform Commercial Code.”
These interrogatories can be read and downloaded here: MERS INTERROGATORIES
Do you see the pattern? MERS has no control over the note and openly admits it. MERS still perversely claims to have control of the deed of trust/mortgage, but this is impossible if they don’t have control of the note, since the note and mortgage are inseparable AND the note is the greater of the two; the mortgage is worthless without the note. Therefore, MERS cannot legally assign the deed of trust/mortgage because MERS has no control of the note, and openly admits to having no control over the note.
The Chhun decision is great news to be sure, but decisions like it should have been legion over the past five years or so; instead such decisions have been the vast minority. Hopefully Chhun will have a snowball, snowpocalypse effect on MERS and foreclosure fraud…
bob what you put on, and i say would be true either way, as the court stated,
Plaintiff lacks standing to challenge the transfer made pursuant to the PSA, unless he can establish that he was a party to that agreement.
Plaintiff does not — and cannot — argue that he was a signatory to the PSA.
he was a signatory to the PSA. neither was any one a signatory of the fraud psa. i have a certified copy of my pas from the security and exchange, and no one sign it. no one.
so the court are letting banks/servicers/debt collector, use a psa that is not sign by any party. so how can any party say they are a party to the psa. ?????????????????????
if that psa is not signed by anyone stating they are party to it?????
being in denial over the ways and means that your country was stolen and your money rendered impotent is not a solution… only an admission of having been conquered by an enemy force to which you agree to be a servant…
So… The Superior Court of New Jersey Chancery is AT WAR with Congress & SCOTUS… wonder how that will eventually turn out?
bob
– you have not – to the best of my recollection – made any admission that the courts are corrupted and, when a bank is a party, are not equitable at all…
just because there are the pheromones of equity in the room does not mean that equity is observed…
the only reason your way works is that it grabs control of the case before it is born… and if it is killed before it is born, there is nothing for a corrupt judge to rule upon…
c’mon – tell everyone you agree it is so!
thanks
greg
Dwight-
THAT is the elephant in the room that lawyers are afraid to bring forward because it will sooooo embarrass their bosses in black robes (because some day they want to be cloaked in those very same robes as a matter of status and retirement benefits…
Question : “Res Judicata” … can it really apply if the state court did not have competent jurisdiction ?
Example : The state court allows a servicer to proceed to a Summary Judgment who had filed a foreclosure on a mortgage that the borrower had already timely rescinded under TILA rescission years earlier.
Normally the Defendant would not be allowed to bring it to a federal court due to Res Judicata … But the rules and criteria soon that state that it is true as long as it was already adjudicated by a COURT OF COMPETENT JURISDICTION.
And that’s the catch … The foreclosure complaint against a void mortgage security instrument doesn’t allow the state court to fit the definition of a court of competent jurisdiction …does it???
Can it be argued that the state court lacks jurisdiction ..which would allow the borrower to seek relief in federal court?
And not be barred due to Res Judicata ?
does the mortgage follow the note?
http://www.btlaw.com/files/Uploads/Documents/Publications/Thorne%20-%20Mortgage%20Follows%20the%20Note.pdf
as bob, me and others have said before…
study what people did to lose their cases and learn how to win…
here is a good example and the judges even tell you how to get it right…
http://www.gpo.gov/fdsys/pkg/USCOURTS-ilnd-1_14-cv-02164/pdf/USCOURTS-ilnd-1_14-cv-02164-0.pdf
Pay your rents and be a good boy!
Greg…read the emails I sent you .
Compare to Bayview vs Nelson & Nelson vs Bayview on Standing.
Get out of Garfield’s rabbit hole on rescission !!!
Not necessary in Illinois!
Here is an unreported illinois judgment in chancery from 2009 which predated and foretold Jesinoski – denying a bank their motion to dismiss a rescission claim after foreclosure proceedings had commenced
https://www.nclc.org/images/pdf/unreported/HSBC_Jackson.pdf
Excerpt: Cook County Chancery Court…
Case: 08 CH 33861
Pamela Hughes Gillespie Judge Presiding
“DISCUSSION
“… because this is a 2-615 motion, the question at hand is whether the consumer is required to plead their ability to tender the money. There is no law to support the conclusion that such an averment is required and to require such a statement flies in the face of Congress’s clear intent in TILA. Regulation Z requires only that a consumer “notify the creditor of the rescission by mail, telegram, or other means of written communication.” 12 C.F.R. § 226.23 (a)(2). If the consumer were required to file suit and plea the ability to tender, Regulation Z would expressly require it. See, In re: John H. Hunter v. Countrywide Home Loans, 400 B.R. 651, 658-59 (Bankr. N.D. Ill. 2009). The consumer’s ability to tender the borrowed funds is an issue as the lawsuit advances; however, the consumer is not required to plead the ability to tender in order to state their claim for rescission.”
CONCLUSION
Therefore, for the foregoing reasons, HSBC’s Motion to Dismiss Jeanne Jackson’s Counterclaim, pursuant to section 2-615 of the Code of Civil Procedure, is denied.”
bob,
originator- assign mortgage and note, without recourse to a party.
and that party is not a member of merscorp.
in 2005- how could mers assign it to fake trust 6 yrs later, using the originators name, that has gone out of business 5 yrs earlier?
were would they ( mers ) get authority from ) could not be from mortgage / that was sold to a non-party to merscorp, or member of merscorp. against the rules.
ok bob you didn’t answer this question.,
OK LETS get to business,
ok borrower sends in rescission letter, and it’s certified , so there is a trail. now he /she also send it to every one that was involved in securitization , all party in psa.
lets say march 4 2015, servicer never responded in the 20 days, but did send a email from servicers/trust laywers debt colectors, saying they have accepted the letter, and rescission,. and then months later saying getting letters because of cfbp complaints, saying we do not accept and never accepted the rescission, and never got a letter stateing they never got it. even though i have them sign for it.
anyways. no more letter, no more trying to foreclose on us now for 5 months, not a thing.
so what should someone do. and what would happen if i wait for the 1 yr mark, and still nothing from them, and they didnt file anything in that 1 yr mark.
so can i go and do a quit title action, and they could say nothing about the mortgage and note that was void by operation of law, and they didnt comply to the rescission as to releasing lien,note mortgage back to me. right they cant bring that in to court .
and the judge couldnt bring it up either i believe. right?
@kalifornia…i note two problems with the Adams affidavit. First, there are two different fonts being used, which i think is highly unusual. Second, Adams says that he cannot opine on the note itself, whether it was properly transferred to the trust because a copy of the note was not provided him. He only opines on the deed of trust. But if the mortgage or deed of trust follows the note as an incident thereto, assignment of the deed of trust late is irrelevant. What only matters is whether the note or mortgage loan made it to the trust on time, and thus whether it was a qualified mortgage loan.
Once again, I have to caution folks to try and think like a lawyer, i.e., be able to look at a situation from all angles, not just the angle that is most favorable to your internal desires. Unfortunately, that’s not what most folks on this blog seem to want to hear…sigh.
Well then, I have this to say about that fwiw. With due respect (only)
to anyone’s theory of the crime, it does no, zero, nada, zilch good if one doesn’t know how to get the evidence to support that theory because it’s singularly in the possession of the opponent. If I have a bone with posts and or comments here, including NG’s, that’s it.
“Mers” and (court’s) bankster-urged reliance on article III of the UCC (I’m in poss of a bearer note, therefore I am.” me: no, you’re not) are the first, second, third, fourth, and fifth problems. Sixth thru tenth are that the banksters are organized (white papers, etc) and this allows them to keep one step ahead of us when a new m.o. is needed.
Or maybe number one is their willingness to lie like there’s no tomorrow.
MERS HAS TO GO
Some people apparently think that because mers has now what they only hoped would become ‘custom’ (see dot) taken as fact that the fat lady’s singing. I don’t believe it. It may take a village to get one thru for the LAW re: mers, but sooner or later, it’ll happen. Here’s hoping it’s sooner. “Sooner” will be here when we make inroads on discovery, which will take undermining at least reliance on article III and “mers”
assignments. imo.
“David………….If the tender is possible, the court will do the arithmetic and the parties will part trails. Usually that means the lender tenders and releases the lien to clean up borrower credit so the borrower can get a refi to pay off the loan,
“but only if the house has equity in it or the borrower can cover the difference after the lender tenders……”
@bob, disregarding anything else we disagree about, this is highly prejudicial to a borrower, especially since the situation with his house being under water has been occasioned by the bad behavior of the OTHER PARTY or its predecessor / an industry-wide bunch of bs that nearly killed us economically. Following your apparent thinking, I say no court should order an underwater borrower to find independent funds to satisfy what was a predatory loan. If grounds for rescission exist, imo, the loan was predatory (and that’s if for no other reason it was predatory). The burden and the loss, if any, should accrue to the bad actor. To me, it’s an absurd proposition for anyone, esp a court, to suggest a borrower who is a victim of a tila violation should lose his home for his inability to tender the money for an underwater loan. The court could and should see to it the borrower is not harmed by exercizing his or her right to rescind (that is when the matter is properly before a court).
message to Dan, Louise, Kathy from Cyndi on tonite’s after-call….
please pass your emails on to greg at lawman@gmx.us so i can contact you to further discuss tonite’s issues…
thank you
cyndi
can you imagine what might happen to the esprit de’cor of this blog if Neil made me the moderator?
B O B !
A G A I N… PLEASE WITH SUGAR ON TOP AND BANANAS & STRAWBERRIES ON THE SIDE… please STOP posting the ad nauseum content of things for which you could simply just give us a frickken link to the article!
you are wasting important blog space which needs to be expedient
i perceive it as you bragging in someone else’s words… to gain greater traction for your open position which you would like us to accept as superior…
IN THE NAME OF ALL CLOSET RACISTS WHO SWEAR THEY ARE NOT RACISTS BUT ONLY PRAGMATIC SOCIAL ENGINEERS OR STUDENTS THEREOF… PLEASE STOP…
A reminder to call participants from tonite – please pass your emails to me at lawman@gmx.us to privately pass to the folks you wish to speak with the other people who also agreed to directly communicate with you…
thanks
greg
Kali –
marvelous post…
too bad you were not on the call – great strides forward – ask the participants – not me…
greg
http://recordings.talkshoe.com/TC-139335/TS-1012816.mp3
A fatal SEISMIC event is striking Kalifornia:
Expert Witness Affidavit Re: “Legal Impossibility”: REMIC Trust Does Not Own The Loan, The Debt, The Note or The Mortgage
THE AFFIDAVIT:
http://stopforeclosurefraud.com/wp-content/uploads/2015/06/Glaski_Affidavit-Thomas-Adams_5-15.pdf
bob, ivent, K, and others….
would you please PLEASE only post a headline and link to a long extended text…. it is so darn hard to go through this blog, looking for gems, and have all this statutory bullshort to parse through….
thank you
greg
i am on neil’s call and will be hosting our follow-up call at 6:45…
i can’t type now…
please come onto our fo9llow-up call…
thanks
greg
greg were would i see that that wold be what to do , as i think gf said something like that a long time ago, but were is it in the law, that they or the judge can not bring anything up, and were does it say the 1 yr mark and 20 days. in law
i really really hope you folks will come and make this a REAL QUALITY after-call today at 6:45 eastern,,,
Call in at (724) 444-7444 (then use Call ID: 139335) then “0” for guest
and/or use your computer to blog/type at http://www.talkshoe.com/tc/139335
6:45 PM Eastern Thursdays (for 60 min)
please use the phone to speak
thanks in advance…
greg
David B
DO NOT SUE to enforce your rescission – it will allow a judge the opportunity to determine whether you had the right to do it and force you to prove (e.g. was it too late, were there real violations etc.) with admissible evidence (which the judge can deny) in court that you did everything right… if you can live without suing for extra damages and just want your house, let it sleep… pass the 1 year and 20 day mark and then file for quiet title… IMHO – not legal advice…
The legal distinction between the words “payment” and “discharge”
“There is a distinction between a ´debt discharged´ and a ´debt paid.´ When discharged the debt still exists though divested of its character as a legal obligation during the operation of the discharge. Something of the original vitality of the debt continues to exist, which may be transferred, even though the transferee takes it subject to its disability incident to the discharge. The fact that it carries something which may be a consideration for a new promise to pay, so as to make an otherwise worthless promise a legal obligation, makes it the subject of transfer by assignment.”
Stanek v. White, 172 Minn. 390, 215 H.W. 784
more… http://freedom-school.com/money-lesson/
OK LETS get to business,
ok borrower sends in rescission letter, and it’s certified , so there is a trail. now he /she also send it to every one that was involved in securitization , all party in psa.
lets say march 4 2015, servicer never responded in the 20 days, but did send a email from servicers/trust laywers debt colectors, saying they have accepted the letter, and rescission,. and then months later saying getting letters because of cfbp complaints, saying we do not accept and never accepted the rescission, and never got a letter stateing they never got it. even though i have them sign for it.
anyways. no more letter, no more trying to foreclose on us now for 5 months, not a thing.
so what should someone do. and what would happen if i wait for the 1 yr mark, and still nothing from them, and they didnt file anything in that 1 yr mark.
so can i go and do a quit title action, and they could say nothing about the mortgage and note that was void by operation of law, and they didnt comply to the rescission as to releasing lien,note mortgage back to me. right they cant bring that in to court .
and the judge couldnt bring it up either i believe. right?
Garfield’s Goose & Friends
(every Thursday night starting 15 minutes after Neil’s show)
Call in at (724) 444-7444 (then use Call ID: 139335) then “0” for guest
and/or use your computer to blog/type at http://www.talkshoe.com/tc/139335
6:45 PM Eastern Thursdays (for 60 min)
please use the phone to speak
have you folks ever really examined the difference in requirements of what a lawful “PAYMENT” is vs. what a “DISCHARGE” (aka assumption of another’s debt) is?
https://www.law.cornell.edu/ucc/3/3-602
(a) Subject to subsection (b), an instrument is paid to the extent payment is made (i) by or on behalf of a party obliged to pay the instrument, and (ii) to a person entitled to enforce the instrument. To the extent of the payment, the obligation of the party obliged to pay the instrument is discharged even though payment is made with knowledge of a claim to the instrument under Section 3-306 by another person…
there is lots more but i’m not going to waste the blog space – go read the link…
then go lookup “discharge”
OMG you guys & gals have been busy…. 😉
i’m actually very proud of all of us here on this blog… the focus has become much better and the language cleaned up…
i’m thinking this blog should be broken down into a reference manual for others…
what way you all?
Mn your contributions are great
Thing is sending rescission to return the oarties back to theur ore contractual position needs an accurate accounting of the debt and what amounts im due back ( minus equitable setoffs – such as insurance claims cough cough) the numbers i owe thrown around at different times in my ongoing litigation are wildly different, i will be glad of the oppertunity to get into the tender aspect
Thank you for posting that case good stuff.
BTW – when i was born Dwight Eisenhower was president, there were only 48 states in the union and we just recently had gotten out of Korea, and the transistor was still an experiment at Bell Labs…
hey all – sorry i’ve been out helping family all day…
i’ll need to read to catch up
but again a reminder…
i would really think it would be cool if you guys & gals would – PLEASE – come on the follow-up call tonite after Neil’s show – to speak, cry, scream – whatever you want – out loud – about this mess that our trusted representatives, instructors and advisors have buried us under…
unless it gets unruly, i’ll leave all the lines open so we can do it conference call style…
Garfield’s Goose & Friends
(every Thursday night starting 15 minutes after Neil’s show)
Call in at (724) 444-7444 (then use Call ID: 139335) then “0” for guest
and/or use your computer to blog/type at http://www.talkshoe.com/tc/139335
6:45 PM Eastern Thursdays (for 60 min)
be advised… to the best of my knowledge – computer access does not allow speaking – only listening and typing-
use the phone number to fully hear and speak…
i started this follow up show for YOU folks – now please show up and pitch in…
thanks a bunch
greg
Thursday 15 October 2015
More from Lippner:
“Defendants also argue that there was no obligation tohonor the Rescission Demand since they allege Lippner isnot capable of, herself, honoring the rescission. Even if anobligor has a right to rescind, that obligor is still under anobligation to tender the remaining balance of the loanafter factoring in the rescission amount. 15 U.S.C. §1635(b). However, TILA explicitly states that theobligor’s duty to tender the property to the debtor onlyarises once “the creditor’s obligations under [TILA]” arecompleted. Id. A factual dispute remains between theparties regarding the issue of whether Lippner was or iscapable of tendering the remaining loan balance, aftertaking into account the rescission amount. Defendantsargue that Lippner testified at her deposition that she didnot have the cash on hand to pay off the remainingbalance of the loan. (DSF Par. 16). The parties disputewhether Lippner presently or previously could obtainrefinancing to allow her to pay off the remaining balanceof the loan. (R DSF Par. 16). [5]
” Regardless of the factual dispute between the partiessurrounding Lippner’s ability to pay off the balance of theloan, Defendants were under a legal obligation pursuantto Section 1635 to honor the Rescission Demand. 15U.S.C. § 1635(b). TILA clearly requires that the creditorsatisfy its obligations relating to the rescission prior toany obligation by the obligor to pay the balance of theloan. Id. Defendants admit that to date, no steps have beentaken to “reflect the termination of the security interestcreated under the transaction.” Id. Therefore, the burden isyet to shift to Lippner to satisfy her end of the rescissiontransfer. The issue of whether Lippner can satisfy herrescission obligations will not arise until Defendants havecompleted their obligations pursuant to TILA. Therefore,the undisputed facts establish, as a matter of law, thatLippner’s Rescission Demand was a valid demand forrescission and the failure to honor that demand was afurther violation of TILA.”
@ DwightNJ
Of course an executed proof of service by mail by a person not a party to the action will suffice as evidence.
BOB , AGAIN YOU SAY BORROWER CANT RECIND. BECAUSE THEY CANT TENDER. YOUR WRONG AGAIN ON THAT POINT,.
AS CONGRESS SAID, AND AS THE SUPREME COURT SAID.
IT IS UP TO THE LENDER TO RELEASE IT’S LEIN,SECURITY, ON PROPERTY RECORDS, AND TO GIVE THE VOIDED MORTGAGE AND NOTE BACK TO THE BORROWER.
AND AFTER THEY COMPLY TO THAT, IS WHEN THE HOMEOWNER CAN GO GET THE MONEY TO TENDER. THATS WHAT THE LAW SAYS. AND THE TENDER AMOUNT WILL GET SET OFFS, SO EVEN IF THE LENDER SAY YOU OWE 350,000 ON THE NOTE, THAT IS NOT THE AMOUNT THAT WILL BE TENDERD.
BECAUSE OF A FEW THING TO LOOK AT. WHAT AMOUNT WAS GIVEN TO BORROWER AT CLOSING TABLE. TO THE BORROWER!
LIKE IN MY REFI- AND ON CLOSING DOC’S, HUD 1 STATEMENT, IT SAY THIS MONEY FROM BORROWER, 225,789, THAT WAS TO PAY OFF THE OTHER LEIN, BUT SAYS THE MONEY CAME FROM BORROWER. NOT THE LENDER.
THEN ITS SAY MONEY TO BORROWER, 124,211, SO I SAY I ONLY OWE WHAT WAS GIVEN TO ME FROM THE PRETENDER LENDER,
IF THEY SAY THEY PAID THE OTHER BANK THE REST OF THE MONEY , THEY NEED TO GO GET IT FROM THEM, AND THAT BANK WOULD HAVE TO SUE ME FOR THE OTHER MONEY, THATS HOW IT WORKS.
SO 2890 MONTHLY = 6YRS= I PAYED THEM 174, 000. STILL LOOK AS IF THEY OWE ME MONEY. THEN COME THE SECUIRTY AND EXCHANGE DOCS I HAVE SHOWING THEM SELLING MY MORTGAGE FOR 500,000 DOLLARS. SO WHO OWE S WHO MONEY
I offered tender.
I did not neglect my trustee duties.
I hired an attorney.
Hint…its not a trustee or servicer.
One can only assume the trust FC on the taxes.
With a 3 month escrow cushion … The default sounds about right falling in the time frame of an advance if they came due and you didn’t pay them.
After all..the fed tax id # of the trust is recorded as b the fed tax id # as the benificaries.
So I ask…whose name is on those bills?
I don’t get it …. People say they rescind .
They do not tender.
Then they they don’t pay association dues for lawn and maintance .
They don’t pay taxes or insurance.
They neglect their trustee duties that they just took back.
They do not hire attornies .
I just don’t get it.
They are called…
RIGHT TO CANCEL or RTCs
Thank you for the clarification mn .. In regards to the court denying my TILA rescission, it seems that he based his decision on his own misinterpretations of Jesinoski, in combination with him making several false statements about what was already on the record.
1) He erred when he said in his decision that the TILA disclosures are all present in the note and mortgage (he apparently doesn’t understand the notices of right to rescind are seperate disclosures)
2) He erred when he said in his decision that the Defendant had never identified exactly what disclosure was missing that gave them the right to rescind 3 years after closing. The court record and transcripts show this to be a false statement on the judges part. I clearly identified that the missing disclosures were the notices of right to rescind, we talked about it in open court, on the record, about the missing notices.
3) The court erred on its understanding of Jesinoski, reading Scalia’s paragraph that says a borrowers right to rescind does not go on forever, that it only extends the right for 3 years. This court misunderstood that to mean a properly rescinded loan cannot even be raised after 3 years. The court is failing to understand that my rescission was within the 3 year window, and now after years of litigation, the court is acting like it is outside the 3 years to rescind. This is an error because we are not asserting that we are rescinding now, but that we already rescinded.
4) The court erred by citing bad case law from pre-Jesinoski that says a court does not have to take TILA literally …that a lender must do certain things within 20 days ..instead a court can first inquire about the merits of determine if the borrower even has that much money in the bank to tender back … But this is an error in his decision. This rescission has already taken place in 2007. Back then I had the property worth over 300,000 ..and would have had the option to sell or refinance with a different lender to tender back the 180,000
Scalia said that the tender issue does not apply to TILA effectivness because that tender issue is common law rescission, but TILA rescission is governed by its own process of statutory remedy. This is a case of a federal statute modifying the common law state courts.
5) He said in his decision that my 2007 letter in which I exercised my TILA right to rescind did not make mention of my tendering back to the bank. This is an error , as the Supreme Court addresses the tender issue in its Jesinoski decision.
In his decision the Judge also makes several false statements about the relevant facts of my case … He wrongly states dates, saying the first complaint was vacated and dismissed in 2007, it was really 2011.
And he goes on to make more false statements saying we brought the mortgage payments current in 2007, 2 months later than the default date stated in the first complaint. This is a false statement by the judge.
He is apparently attempting to open a door for the Plaintiff to overcome an appeal by falsely claiming two different defaults occurred.
And there’s much more …
Today UPS just dropped off the Plaintiffs opposition to my motion to Vacate …they are claiming that none of it should be considered .
As for the TILA rescission, they continue to state we had no right to rescind ..but they still do not produce the missing disclosures that this is based on, they simply state that they have them.
please explain this, to us all. you state this. ok.
UCC § 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT. “Person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
ok, the banks use a photo copy of note, and mortgage, to say they are holders of the note and mortgage. right, we all know this to be true.
so, if am holding a copy of the same, so this would work for all homeowners, in the text you show. right. A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument OR is in wrongful possession of the instrument.
AGAIN, AS I HAVE TOLD YOU BEFORE. I DO HAVE A COPY OF MY NOTE, THAT I GOT FROM CLOSING ATTORNEY IN 2013, AND IT WAS SIGNED/DATED/ WITHOUT RECOURSE TO A NON-PARTY TO CLOSING TRANSACTION, MORTGAGE AND NOTE, IT IS DATED 8 NOV 2005.
THE SAME DAY WE CLOSED ON REFI. 8 NOV 2005. SO THEY SOLD MY MORTGAGE AND NOTE PRIOR TO ME SIGNING TO THIS NON-PARTY THAT WAS THE REAL LENDER / CREDITOR OF MONEY.
SO YES IT MAKES A HUGE DIFFERENCE WERE THE MONEY CAME FROM.
AND IT DOES MAKE A DIFFERENCE THAT THE BORROWER HAVE A CLEAN CHAIN OF TITLE OF ASSIGNMENTS. SO AM GOING TO SHOW YOU ALL ASSIGNMENTS THAT HAPPEN IN MY CASE. AND YOU TELL ME IF IT’S RIGHT. OK. NOW IT WAS SECURITED!
1/ THE FIRST WAS TO – DEUTSCHE BANK AN TRUST AMERICAS, DATED 8 NOV 2005. WITHOUT RECOURSE,SIGNED DATED, WET INK SIGNATURE.
2/ NEXT ASSIGNMENT AND THE ONLY ONE RECORDED AT REGISTRY OF DEEDS OFFICE. 20 AUGUST 2012!!!!!
ALSO AFTER 3 QWR’S, SENT TO OCWEN, I HAVE SEEN AND THEY HAVE SENT 2 COPYS OF THE NOTE , NOT SIGNED OR DATED/ NOTHING ON IT.
AND ONE COPY OF IT BEING SIGN OVER IN BLANK , NOT SIGNED OR DATED, AND ITS A STAMP. SIGNATURE.
AND JUST TO REMIND YOU, THE OCC, FEDERAL RESERVE BANK, AND TREASURY HAVE STATED IN REG’S, AND BANKS THAT THE BORROWER IS PART OF ALL PSA. AND THERE REASON IS SIMPLE. WITHOUT THE BORROWER’S MORTGAGE AND NOTE, THE BANKS WOULD NOT HAVE ANY PSA OR SECULARIZATION. TO SELL. SO THIS IS WHY THE HOMEOWNERS ARE NUMBER 1 IN CHAIN.
Also see Newey vs Newey
Illinoinois appellate court stated. … That with respect to potential liability of land trust trustees for certain acts. .
KC…like verifying the party making a claim has standing?
The issue of a trustee as agent of the benificaries of the trust is discussed in Just Pants vs Bank of Ravenwood.
Thursday 15 October 2015
Dwight:
I did not say your case cannot be won. I simply stated your case is
weak without evidence that you actually mailed a rescission letter.
You choose to use terms that do not apply, ex part, judge using his
personal opinion when he stated that which he is supposed to, maybe
not always in favor of a homeowner, but what you indicated was not the
judge’s personal opinion. But that is just my opinion.
It is too time consuming to try to get people to understand what they do
not know but labor under a belief of knowing about court procedures
and how to more effectively defend based on facts and evidence.
What you initially presented and to which I initially responded was more
complex as you posted more. I am not sure about the validity of your
handwritten rescission as to time, is it still in effect after so many years
have passed. I think it may have been mentioned in Jesinoski, but it was
not my immediate interest, so I did not pay as close attention. That is
something you need to find out by reading the case, and others, in
order to know where you stand.
Your motion[s] for reconsideration were already determined as untimely.
If you have not had a final determination, then wait until you get the final
order you keep referencing, and THEN make a timely motion for
reconsideration, using what the judge already said was lacking in your
last one.
Nothing against you or your case. I simply do not have all the facts, and
am not familiar with all of your case, and I do not want to mislead you in
any way.
>Mn points out that the judge stated that he sees no proof that we really
> mailed the rescission letter in 2007 …but can somebody show me
>where in the TILA statute does it state that the borrower must mail it by
> certified return receipt ?? I do not see it.
You do not see it because no such requirement exists, but if you want
to relay upon that which you do not know and think your case is
otherwise solid, based on what you do not see…I cannot help you.
Who made such an argument, besides you giving an opinion? Who said
any rescission mailing had to have a certified return receipt? For me,
you complicate your own issues with unfounded statements like this.
What I asked is if you had proof of mailing, plain and simple. Without it,
plaintiff simply will say no notice was ever received. Do you see how
without proof why I said your case is weakened?
If plaintiff admitted it received your handwritten rescission notice,
proceed accordingly.
Sterling Savings &Loan vs Schultz
Stated that…the Illinois statue relating to judgments against real estate specifically states that a judgment is a lien on real estate.
It makes no mention of personal property nor of the interests of a beneficiary under a land trust.
The beneficiaries of a land trust has standing in litigation involving rights, liabilities with respect to management, control , use & possession of the property pursuant to the trust agreement.
One test for determining standing for benificaries is whether the Trustee can protect the benificaries interests.
Bad Trustee!
Breach of Contract
§ Express/Implied Contracts. 6 Years
(M.G.L. c. 260, §2)
§ Contracts for sale of goods (UCC). 4
Years (M.G.L. c. 106, § 2-725(1))
§ Contracts under seal. 20 Years
(M.G.L. c. 260, §1)
§ Accrual:
Generally accrues at the
time the contract is breached.
However, when the breach is not
discovered because it is “inherently
unknowable,” the date of accrual
occurs when the party knows or
should have known of the breach.
)(“Mail fraud consists of the following
elements: (1) an intentional participation in a scheme to defraud a person of money or property, so the banks using wire transfer to pay a borrower , using someone elses money , but saying it was there money, is fraud.
Discovery Rule
§ Inherently unknowable claims do not accrue until the individual knows or should
have reasonably discovered the injury or wrong.
Fraudulent Concealment
§ If a potential claim is fraudulently concealed from the potential plaintiff, the statute
of limitations is tolled until the date of discovery (M.G.L. c. 260, §12).
Thursday 15 October 2015
There were two pertinent points of interest, at least for me, in this Illinois
federal case on rescission: Lippner v Deutsche Bank Nat’l Tr 544 F Supp 2d 695 [2008], a relatively recent case. While Jesinoski is important,
great information can be gleaned from other cases. Of course, it requires
a little more effort than relying on a spoon fed case that seems to relieve
people here from finding out more.
NG was uncertain whether anyone who had summary judgement and
whose property had been sold was eligible for rescission. This case
gives some direction for those who are creative enough to put it to use.
In Lippner, the court stated: @ 702-703
“Defendants argued that Lippner is not entitled to rescission since a
judgment of foreclosure and sale was entered against Lippner in the
state action relating to the Mortgage. [703*] Defendants have not cited
any law of advanced any argument that would demonstrate that the state
court judgment of foreclosure should preclude Deutsche from liability
for rescission. None of the TILA claims were presented in the state
court action. Therefore, regardless of whether the state court found that
the Mortgage constituted a valid lien at that time, the issue of defendant’s
TILA violation and Deutsche’s liability for rescission remain ripe.”
There is more, but this portion gives an idea of how one can formulate a
plan of attack. Previously, I mentioned rescission is a federal creation,
and it would be better fought on the federal level, as opposed to a state
court where standing for a plaintiff is already a given, and state courts
are more likely to dismiss rescission out of hand.
A second item in that case was interesting in defining a creditor:
15 U.S.C. §
1640 (“Section 1640”). TILA defines a “creditor” as:
… a person who both (1) regularly
extends, whether in connection
with loans, sales of property or
services, or otherwise, consumer
credit which is payable by
agreement in more than four
installments or for which the
payment of a finance charge is or
may be required, and (2) is the
person to whom the debt arising
from the consumer credit
transaction is initially payable on
the face of the evidence of
indebtedness or, if there is no such
evidence of indebtedness, by
agreement.
Does your “creditor” meet the definition in [2]? Most plaintiff’s have their
standing as a mere holder via assignment. While there was one who
disagreed that notes can be assigned, I maintain notes MUST be
conveyed by delivery and CANNOT be assigned, which would make
any note assigned void. It is an argument I would force the plaintiff to
jump through as a hoop it can have trouble clearing.
bobhurt: You are v tedious in your one-trick pony spiel that the only
salvation for anyone in FC is your service. For you, as a mortgage
attack hammer, every foreclosure case is a nail, one size fits all.
More, you have no clue what money is in this country, and I doubt you
could define it. Instead, you constantly argue the status quo of the
courts. A v strong argument can be made against all mortgage notes
that require repayment in U S dollars. They do not exist in this de facto
corporate federal government. Stay away from arguments you fail to
comprehend.
Few may be able to know how to make such an unpopular case about
the money issue, and courts will shun it like a plague, but one can be
made against a lender/creditor.
There is no silver bullet in fighting FC, and I agree that many, maybe
most, have waived their best defenses, but that also holds true for the
use of your service, which would be a total waste of money.
You, lie the now absent Rock, go to great lengths to list cases where
people failed, and I would posture that the failures were due more to
poor defenses/ignorance than anything else, and many could have
achieved better results had the individuals more knowledge. How about
posting 10 cases, they do not have to be yours, where using a mortgage
attack won the day for a homeowner. If not 10, post 5, or 2, even just
one where there is a direct cause/effect that using a service like yours
was effective. Surely, somewhere in the country such a case must
exist.
You have no problem posting cases that do not work. Why not post the
ones you KNOW have worked. After all, you are the expert and should
be tuned into the effectiveness of what you promote, beyond the
promise of effectiveness for the only solution.
You are as myopic in over-promoting your service as those against whom
you point the finger, and disparaging other people’s efforts in the process.
Just a comment here, non-legal in nature….in has been my experience the doctrine of “unclean hands” is used frequently by lawyers and faux players, res judica, equitable tolling, etc….all crap, so is; 12(b)(6), “a claim for which relief cannot be granted”, and the “free house” ruse…isn’t that what all the “counterfeiters” are getting? A free house, with no standing to pursue and zero injury. I, personally have not seen one lawyer/bankster come up with ANY legitimate claim for relief. None of them have proven “standing”, not yet anyway. My claim with New Century/Ocwen has been dismissed three times, we are in round four…and they could very well win, but I have not found one shred of paperwork that’s clearly indicates injury, PETE or otherwise.
I don’t purport to understand anyone else claims…but the lawyers all use the same play book, paperwork and trust information, going back years. Dubious from where I’m sitting…If they have the goods; produce the payment-check, etc…bring a reliable witness, have the lineage of paperwork, done….solved, no need to manufacture shit!
Just saying!
I was emotionally crushed last night after mn pointed out that I have apparently lost my case in regards to rescission and any grounds for appeal.
I’m very confused at this point after mn said nothing in my case can be appealed unless it was objected to and over-ruled by the court.
I guess I have been under the false impression that all of the losses I suffered during the adjudication process was eligible for review by the Appellate court.
The court dismissed most of my affirmative defenses early after the Plaintiff motioned to dismiss them with prejudice. Those defenses included my 1)TILA rescission, 2)6-year statute of limitations ran out on the accellerated note prior to the filing of the complaint, 3)Court lacks jurisdiction 4) forged notary signature on the fabricated assignment 5) two different versions of the note, one with an endorsement from Commerce to Washington Mutual, and one with another endorsement added in blank by Washington Mutual no date 6) Fannie Mae and MERS both claim on their websites that Fannie Mae owns the loan 7) Wells Fargo the servicer Plaintiff claims they are the lender in their Notice of Intent to Foreclose 8) etc, etc, etc.
Mn points out that the judge stated that he sees no proof that we really mailed the rescission letter in 2007 …but can somebody show me where in the TILA statute does it state that the borrower must mail it by certified return receipt ?? I do not see it.
The Plaintiffs attorney never denied that they received it, she only asserted that we had no right to rescind. She said they have the signed acknowledments from the closing saying we were not rescinding. At that point I spoke up and said we never received any such notices. Is this an objection? I’m saying we got none of the required disclosure notices , she talks about having notices but never produces them.
So the question for appeal would be …if my rescission letter was effective by regular mailing, did it void the security instrument by operation of law as the Supreme Court ruled?
Does this state court judge have jurisdiction to entertain a foreclosure complaint against a void mortgage?
Or would the true creditor and owner of the debt need to first come forward in an action seeking to Vacate the rescission? Before they can have a right to file a foreclosure complaint.
Do any of these questions warrant an appeals court review ??
The issue of Wells Fargo standing ?? Their notice of intent misstated that they were the lender …is this enough to have it dismissed?
I’m very dejected and depressed right now .. I feel sick after reading mn’s opinion that I lost my case and have no grounds for appeal, and I respect mn which is why I’m devasted.
California gave me some tips .. I need to re-read them and try to figure out how to get this done quickly if possible ..
A seperate motion , etc etc
I am in way over my head at this point .. I’m a construction worker and 56 years old and feel like I have hit the wall , I’m emotionally shot because I was forced into fighting this pro se .. None of the lawyers I tried to hire had a desire to argue these points .. I knew nothing about procedural law and this was my biggest fear, that I would screw up my own case because I didn’t understand procedures, etc.
Now after fighting since 2007 … I’m being told I have no grounds for appeal ?? Because e I failed to object to everything in court?
I’m confused and disgusted.
On the standing issue…. Unpublished.
American Natal Bank and Trust of Chicago vs Potash
In Illinois the beneficiaries of a land trust holds neither legal or equitable title in the trust.
The beneficiary holds a personal property interest .
Since the beneficiaries interest is personal property judgments can not attach.
For Informational purposes only, See your state trust laws.
@deb…unclean hands is not a recognized affirmative defense to a foreclosure action in NY. As for fraud, most states SOL is six years. check your state’s.
Recalling an old LL post worth revisiting (with a nod to johngault’s analysis):
https://livinglies.wordpress.com/2011/08/10/california-fraud-defined/
DID ANYONE EVER RECEIVE A COPY OF THE REFERENCED PDFs?
Pointing to dandiener1 — winking in support of using your words carefully.
Matthew 5:22
” But I say to you that everyone who is angry with his brother will be liable to judgment; whoever insults his brother will be liable to the council; and whoever says, ‘You fool!’ will be liable to the hell of fire.”
Bob H. Your constant insults – “fool”, “scammer”, etc. are needless and beyond tiring.
Your favorite adjective, “stupid” must surely be a “legal term” from “Juisdictionary”, the definition of which should be shared with us who read your comments.
The only person I’m aware of who uses the term “stupid” more than you is a certain twitter-happy Presidential candidate who also makes his case effectively, but thinks demeaning rhetoric elevates the importance of civil and public discussion.
Though I’ve used a trusted paralegal 10-12 times to draft effective pro se letters to collection agencies, I’ve no intention to self-litigate if and when my situation escalates to legal confrontation in front of a judge.
I’ve pre-determined that only then will I employ a skilled attorney as my advocate…. I’ve seen enough blood splattered on courtroom floors by competent counsel to know litigation is a blood-sport suitable only to view from a safe distance. I’ll choose then to hire an accomplished, leaning toward “vicious”, legal gladiator who’ll represent my legal right to protect my home.
I’ve also noticed that the best “silver-tongued mercenaries” nearly always engage in their trade without incivil invective. To do otherwise taints the “artful” persuasion you encourage, and is likely to incur the ire of the court.
Is it your instruction, Bob, that we who respectfully honor your input (even if we may disagree), should utilize your frequent example(s) of adjective choice describing other individusls and/or their ideas during our discussions of the subject matter of this forum? And, Bob, should litigation of our case be required, do you suggest your demeanor be modeled by us or our retained counsel in a court of law?
Once again, Bob, I encourage you to give attention to the possibility of editing your words before posting your comments.
And as for the investors, they get to loan money from banks at an almost zero interest rate its a case of ” you scratch my back and ill scratch yours” im not sure investors give a rats ass about borrowers who lost their homes in their big picture or the overall economic State of this nation becayse quite simply – they are “all about the Benjamin’s”
I look to the law to help us its all we have IMHO
nEil – you made yourself right – one house at a time
And that is why rescission is not an option for them because it will cost them out of their thieving ” debt collecting” pockets
The documents they can fabricate all day long anyway
And probably the accounting
bob g
Re SOL
Consider tolling, and unclean hands doctrine – misleading the borrower and the COURT when certain disclosures they were absolutely in the know about were not revealed to the court which would definitely have changed the course and outcome of the litigation and they would NOT have got the home in the first place
And fraud no SOL
@bobhurt…you’re on a roll tonight. but to your UCC point below…I have yet to see a bankster say in its complaint that it is in wrongful possession of the instrument. have you?
UCC § 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT. * * * * A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
but you clearly add much to the debate here. and i’m glad to see you too recommending jurisdictionary. but i think that if you want to be taken as more than a critic, as someone that has useful arrows in your quiver, you need to refer us to winning cases other than the Quicken Loans case upon which you base your mortgage attack product/service.
Also, remember this…most folks have probably gone past the statute of limitations with respect to the causes of action that you are advocating. for example, fraud only gets six years most places. that’s why all these institutional investors are losing their suits against the banksters.
if the statute of lims has expired on all the causes of action that you argue should be plead, then folks here are left looking for an alternative solution. if you’ve got one of those, you can make some serious money as well as help out homeowners in distress.
I refer to the free house have you ANY idea what that house truely cost me, no you dont, and i dont expect you to, and it doesn’t matter
Im totally in agreement regarding the issue of hyperinflated appraisals i can demonstrate how inflated – the matket was hostile i could go on but im in court still i can tell you the opposition placed fault on the developer but never went so far as a cross claim.
Theres a lot more to my case (s) im just backing you on some of your points , ive changed my vote somewhat your ok- ish – we need devils advocate when facing the devils 😑
bob Very funny very
If that’s your belief then your right
After all thats been revealed since 2008 and what borrowers have had to endure in court – that free house cliche-
Excuse, can not possibly be taken seriously anymore however, the argument has evolved, as have we all in our understanding of something thats taken years to get the tip of the iceberg, something we could never have hoped to understand at the ” closing table ” choke choke.
DwightNJ- Plaintiffs is plural. No appstrophe. Plaintiff’s denotes ownership. “We decided to cut off the plaintiff’s…….. Or, the plaintiff’s whimpering infuriated the judge, who then smote the bailiff with his teddy bear.
bob hurts, you always address “equity” assuming there was valid consideration presented at the closing, or that somebody HAS TO EXACT RETRIBUTION AGAINST THE HOMEOWNER AND IT’S THE JUDGES’ OBLIGATION TO EXECUTE THEM.
If there was no real money (phony cashier’s check, on a line of credit, meaning credit lent instead of currency), banks lending credit is illegal. Unregistered trusts operating contrary to statute; notes that obligate the maker and the N.A. bank to…..who?
Anyway, I think your assumption that there was uncontrivertable “equity” at the heart of every loan is inane.
Forgot about this link about the three trustees:
http://infotofightforeclosure.com/tag/what-is-a-remic-trustee/
For all, the focus of the REIT/REMIC posts are not necessarily about taxation, but more for the purpose of status, capacity, and standing in terms of entity registration and ability to hold/own/transfer/record real property rights, titles, estates, liens, and/or interests within each of the several states, to wit:
Beneficial Ownership and the REMIC Classification Rules
REMICs are securitized pools of mortgages that qualify for special flow-through taxation. To qualify for flow-through tax treatment, the pool must satisfy several requirements. An intended REMIC that fails to satisfy those requirements will likely be taxed as a corporation and payments made to holders of interests in a failed REMIC will likely be nondeductible dividend payments, subjecting the REMIC to significant tax and penalties. Such tax and penalties will cause beneficial interests in the pool to lose value and frustrate investors who relied upon REMIC classification as an incentive to purchase interests. Thus, tax classification is critical to REMICs and their investors. Nonetheless, recent litigation and various media reports suggest that many mortgage pools may not qualify for REMIC classification.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2175766
Kalifornia
seems courts are still arriving at the WONG anwser – LOL
@ dandiener1
On the distinguishment between rescission, e.g., common law vs TILA:
Kalifornia, on October 13, 2015 at 9:52 (**& the link 9:59**) pm said:
Common law rescission in Kalifornia: Wong v Stoler (2015) 237 CA 4th 1375 (UNPUBLISHED)
Analysis:
http://www.rogerbernhardt.com/index.php/ceb-columns/388-rethinking-rescission-wong-v-stoller
@ Greg
With patience, perseverance and collective consideration(s), we are definitely moving consciousness toward a…(to be determined)????
Tsk, tsk…. Bob H. …There you go again with your offensive “Stupid! Attack” routine that is not at all necessary. 🙂
Neverthless, are you making the case in your 2:01 PM posting regarding the long-existing, pre-1968 common law rescission case law, as opposed to the “new” “post TILA … statutory rescission requirements “…. that the “old, common law” tender provisions “supercede” the now long-established “non-common law” TILA Rescission requirements?
@ DwightNJ
Separate from your motion, compose a Motion for Judicial Notice citing to the Jesinoski case, and language in citation(s) in support of your motion to vacate. Also, make it a separate heading in your motion to vacate, with analysis and argument — within the page limits in NJ; or else submit an ex parte application for an order for permission to exceed the page/word limits on the motion.
In doing so, the issue is preserved for appeal.
ladies & gentlemen… i would like to humbly make an observation…
it seems to me, upon reading so many of our contributions here, that we “WE” are getting very close to figuring out the 2-3 things we can do to win… at least as it pertains to “substantive law” (constitution, common law, statutes, etc.)…
what we still lack is a firm grasp of what the lawyers call “procedural law” – which really is NO LAW at all – just the maze of regulations brought upon us by the bar associations and their pals with black robes… these procedures are (IMHO) designed to insure that only a well trained poodle (sorry – lawyer) will have any instinct whatsoever on how to negotiate the maze…
the notion that a real right or claim might be denied a real american man or woman on the basis of not knowing that they were supposed to balance 3 spinning plates in front of an audience of dolphins is to me – heresy of law before g0d and man – and politically approaching treason…
perhaps we can address this in tomorrows follow up call and start zeroing in on how we can avoid those pitfalls, at least until we can take back our courts….
what say you all?
greg
Distracted on other matters, I missed and just now an reviewing this relevant post on the issue REMIC-ownership related matters:
https://livinglies.wordpress.com/2015/06/03/legal-impossibility-remic-trust-does-not-own-the-loan-the-debt-the-note-or-the-mortgage/
Thank you Kalifornia ..
here is the last point of my amendment ….
POINT 5 – The Court abused its discretion when it disregarded the United States Supreme Court ruling in Jesinoski. The court’s denial of Defendant’s rescission, using
improper reasoning, not based on law, is an abuse of discretion by the court.
This below is an example, taken from Jesinoski:
“Even if a legitimate policy concern were present, the Court cannot discard the statute’s plain text. When the meaning of the statutory text is clear, this Court may not rewrite the statute to avoid “practical problems” it may perceive in its implementation. Lewis v. City of Chicago, 560 U.S. 205, 216 (2010); see id. at 217 (“[I]t is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted. . . . If [the statute has] effect[s] [that were] unintended, it is a problem for Congress, not one that federal courts can fix.”); see also Caminetti, 242 U.S. at 490 (“If the words are plain, they give meaning to the act, and it is neither the duty nor the privilege of the courts to enter speculative fields in search of a different mean- ing.”). Accordingly, even if Section 1635(a) created uncertainty by requiring only notice for a borrower to exercise the right to rescind, that policy concern would provide no warrant for the Court to cast aside the plain meaning of Section 1635(a)’s text.”
The court here in the instant case has shown a bias against the Defendant’s and has thus abused its discretion by deliberately disregarding the United States Supreme Court ruling in Jesinoski, where the unanimous court agrees that the issue of tender is a common law procedure that is not to be used in a TILA rescission matter to decide if a rescission notice mailed by the borrower is effective. It is effective by simply being dropped in the mail. The court may disagree with the Federal statute, but the court is not allowed to legislate a new meaning into the plain language simply because the court doesn’t like the results of a TILA rescission. This court in the instant matter abused its discretion when it disregarded the United States Supreme Court decision in Jesinoski. The mortgage and note were void by operation of law under TILA rescission once the Defendant mailed the notice. The Plaintiff lacks standing to bring a foreclosure complaint against a void security instrument. The court lacks jurisdiction in this matter.
The clear and unambiguous language of the statute…”Our charge is to give effect to the law Congress has enacted.”
again… i want you guys & gals – PLEASE – on the follow-up call tomorrow after Neil’s show – to speak, cry, scream – whatever you want – out loud – about this mess that our trusted representatives, instructors and advisors have buried us under…
Garfield’s Goose & Friends
(every Thursday night starting 15 minutes after Neil’s show)
Call in at (724) 444-7444 (then use Call ID: 139335) then “0” for guest
and/or use your computer to blog/type at http://www.talkshoe.com/tc/139335
6:45 PM Eastern Thursdays (for 60 min)
be advised… to the best of my knowledge – computer access does not allow speaking – only listening and typing-
i started it for YOU – now please show up…
thanks
greg
@ DwightNJ
To the question of: “…does a judge get to legislate it to mean more than it says?”
In Kalifornia, the Supreme Court has considered such judicial action(s) as a “dangerous innovation” to deviate and judicially usurp what the plain and unambiguous legislative intent is; hence, judicial interpretations of the plain legislative intent.
I’m working on adding an amendment to my motion to Vacate and Dismiss …
now maybe a motion to reconsider is only allowed in 20 days ..but can I motion to Vacate at any time before Final Judgment is granted?
Here are a few points I want to add to my motion …
Point 2 – Please see the attached “Exhibit Z” of the court transcripts from the Summary Judgment hearing that was conducted by this court on March 20, 2015 when the court granted the Plaintiff’s their Motion for Summary Judgment. We respectfully request that the court allow us to submit this into the record as “Exhibit Z” in support of this Motion to Vacate the Summary Judgment as it will show proof of the errors made by the court during the hearing and errors of the court that were stated in the decision to grant Summary Judgment.
Point 3 – The court erred in the decision to grant Plaintiff’s Motion for Summary Judgment on March 20, 2015 when it falsely stated on the record during the reading of the decision, that the Defendant’s failed to identify exactly what disclosures were missing that triggered the extended 3-year window to rescind under TILA (Truth In Lending Act). The transcripts clearly show this not to be true. The record clearly reflects that the Defendant’s did infact identify the missing disclosures as the mandatory Notices of Right to Rescind (Cancel) the loan. The Defendant’s clearly stated this on the record, discussed it with the Judge and argued it with the Plaintiff’s during the hearing. It’s right on the record as the transcripts prove. But later, during the reading of the decision, the Judge errors when he states that the Defendant’s never identified what the missing disclosures were. This is false and is a clear error by the court (false statement #1). The court relied on this error in the decision to grant the Summary Judgment for the Plaintiff’s. See the Court’s decision in the transcripts (Exhibit Z – Transcripts of SJ hearing) when the Judge says several times that the Defendant’s failed to identify what disclosures they were speaking of in regards to their TILA extended right to rescind. The Defendant’s right to rescind up to 3 years after consummation under TILA is effective once the borrower mails the letter in which they state they are exercising their right to rescind under TILA. The Defendant’s letter explains and identifies the missing Notices of Right to Rescind that were not included in his mandatory disclosures. The Defendant’s answer to this complaint pleads that there were TILA violations. The Defendant’s answer pleads the court has no jurisdiction. The United States Supreme Court in Jesinoski confirms and validates that the Defendant’s TILA RESCISSION letter was effective and voided the mortgage by operation of law. So it is an error by this court to now allow a party who is not the true creditor, to come in under a foreclosure complaint against a void mortgage and note, and try to argue whether the TILA rescission was valid or not. First of all, only the true creditor can contest a TILA rescission, not a mere servicer of the loan, which this Plaintiff is, a mere servicer. Secondly, The real party in interest would have needed to contest the rescission in the 20 days allowed, or within the one year window after. The only way the real party can contest the rescission would be to file for an injunction, or to file an action to have the TILA rescission Vacated. Because the rescission was effective by operation of law, as per the United States Supreme Court, it would mean that the true party in interest would need to get a court order to undo the order that already happened under operation of law. Justice Scalia said in the Supreme Courts decision that it doesn’t matter if it’s disputed and not disputed, that the borrowers letter alone effects the rescission once mailed, and the mortgage security instrument becomes void by operation of law. This is the hard, cold reality that the creditor is faced with. They need to act quickly if they want to contest the rescission, and they need to establish standing without relying on the void mortgage and note. They would need to establish standing by proving they own the debt with proof of a purchase. Only at that point would they be deemed to have established legal standing to contest the rescission if done within the 20 days to comply. Possibly for 1-year that follows if the borrower chooses to file an action to collect the payments and the fines/damages for violations. But there is nothing that rewards a Plaintiff for ignoring and stone-walling the TILA rescission, if so it would mean the statute is meaningless and ineffective.
The court erred when it made the false statement in the reading of the decision at the conclusion of the March 20, 2015 hearing on the Plaintiff’s Motion for Summary Judgment.
The court relied on its own false statement error when denying Defendant’s TILA rescission.
The court erred when it made these false statements (false statement #1) in its decision. These false statements made by the court in regards to the Defendant’s testimony were not based in reality or part of the record, as the transcripts prove. This was a critical and crucial statement made by the Judge against the Defendant that was not supported by fact. The official court record and the transcripts reflect that the Judge’s false statement is perplexing and disturbing. And this is not the only false statement made by the Judge during his decision. There are others.
Point 4 – The court erred when the Judge made false statements during his decision regarding the procedural history and time-line of events leading up to the filing of the instant complaint (false statement #2). As the court transcripts (Exhibit Z – Transcripts of March 20, 2015 SJ Hearing) reflect on page 30 of the transcripts, the Judge is making false statements about the case history. The court erred when the Judge states that the first case was dismissed without prejudice on October of 2007. This is an error. It was vacated and dismissed in 2011.
The Judge goes on to make another false statement (false statement #3) when he falsely states in his decision that the Defendant’s made some payments and brought the mortgage payments current to October 1st, 2007. This is a complete fabrication and is not based in fact or supported by the record, it constitutes a serious error, especially when viewed under the light of granting a Summary Judgment while the Judge is making all of these false statements.
All of this leads the Defendant’s to believe that an Ex Parte communication may have taken place between the Judge or his clerks, and the Plaintiff in this case. The fact that the Judge looked up and winked at the female attorney for the Plaintiff’s while he was reading the decision only raised more suspicions that something was seriously wrong. All of his false statements are apparently made in an effort to undermine the Defendant’s case and the Defendant’s chances for an Appeal. The false statements made by the Judge during the reading of his pre-written decision, which was prepared before the hearing ever took place, seems to be slanted in such a way as to undermine the Defendant’s main arguments.
The TILA rescission arguments , the 6-year statute of limitations argument, etc.
By making false statements about dates of prior cases , dismissals, payments, bring the mortgage payments current on October 1st, 2007 ?? This undermines the Defendant’s case.
The Judge is inventing and inserting his own fabricated facts into the case while he reads his pre-written decision. He is working on behalf of the Plaintiff to help them overcome the statute of limitations argument when he makes assertions that the Plaintiff never asserted in their case. The Judge falsely stating that the mortgage payments became current on Oct 1, 2007 is a deliberate move to help the Plaintiff later argue that the new complaint was based on a new default. This is a critical error by the court and this Summary Judgment needs to be Vacated immediately. The court cannot base a Summary Judgment decision on errors and fabricated facts and dates. The court cannot use its own personal knowledge to help bolster the Plaintiffs case in an effort to help it survive appeal. The court cannot deliberately make false statements in an effort to undermine the Defendant’s case and destroy his chance for Appeal. A Summary Judgment cannot be based on invented, fabricated false statements and facts that are not based in truth, reality or supported by the record.
POINT 5 – The Court abused its discretion when it disregarded the United States Supreme Court ruling in Jesinoski.
mn …. My motion for reconsideration on the TILA rescission was due to good cause , the Supreme Court ruled on Jesinoski in Jan 2015 , the prior judge in my case rejected my TILA rescission months earlier based on bad case law … A motion for reconsideration being late should be acceptable if new found evidence only came to light now? Once the Jesinoski decision came out, it should allow a defendant to raise it, even if late, because it changes how the court understands TILA rescission … the previous denial of my rescission was based on bad case law.
As for the lack of proof of mailing … nowhere in the statute does it state that the notice must be mailed certified return receipt. The statute doesn’t even say you HAVE to mail it , it says you CAN mail it, or send it over some other form of communication ..it never mandates that it must be sent certified with proof of receipt.
So if the statute doesn’t say it … does a judge get to legislate it to mean more than it says?
Back to where the trail is leading in Kalifornia:
2014 Instructions for Form FTB 3587
Payment Voucher for LP, LLP, and REMIC e-filed Returns
https://www.ftb.ca.gov/forms/2014/14_3587.pdf
Wednesday 14 October 2015
DwightNJ…
Objections, if not timely made, and by timely is meant immediately, are
waived, and you cannot create an “objection” in your motion.
You are misunderstanding the meaning of “ex parte.” The judge would
have had a discussion outside your presence for it to be ex parte. His
discussion, as you describe, is what judges do, and he made his own
clarification about TILA, including reference to several cases, which is
within his right to do so.
Your motion for reconsideration was “out of time,” as the judge noted.
It sounds like 20 days is the time alloted for reconsideration motions.
He also pointed out you did not include s copy of the motion you wanted
for reconsidertion, both technical violations, as he stated, and he need
not give the motion consideration, as it were. In point of fact, he denied
your motion on those two technicalities, adding it would further be denied,
the technicalities notwithstanding, finding no basis for overturning the
court’s decision. The appellate court will not review that which has been
decided, something you thought the court of review would do for you.
Upon reading the judge’s reasoning, the appellate court will not
overturn the judge, having no basis to overturn.
Do you have proof of mailing your apparently handwritten notice to
rescind? Lacking such proof, your argument will fail. This weakens
your abuse of discretion potential I mentioned previously. Further, once
a year has passed since rescinding, you waive the rescission for not
having taken court action to enforce it. I am less certain on that point
and suggest you find the answer in Jesinoski, where I believe it was
addressed.
mn
bob, the problem, is that the pretender lender on most mortgages and note, DID NOT FUND THE MORTGAGE / AND NOTE. the pretender lender took a application, on borrower, then they took that application and sent it around to investors, and the investor said yes or no on the application, and if they said yes, then the pretender lender would put it together with hundreds of other yes, and then , PROMISE/OR SIGN A CONTRACT WITH INVESTORS/WAREHOUSE LENDERS ON YOUR APPLICATION, THEY THEY WILL SELL IT TO THEM ONCE THE BORROWER SIGNS A MORTGAGE AND NOTE.
THIS IS WHY I HAVE THE ( WIRE TRANSFER FOR CREDIT RECEIPT ) THAT SHOW WITH OUT A DOUBT THAT THE PRETENDER LENDER, ON MY MORTGAGE AND NOTE, DID NOT LEND A PENNY TO THE CLOSING TRANSACTION. NOT ONE CENT.
SO WHY WOULD YOU ARE ANYONE ELSE , NOW PAY TO ANYONE THAT IS ON THE NOTE MORTGAGE, THAT WAS USED IN A NAME ONLY, AND DIDNT LEND A DIME.
WHY?
AND WHY WOULD ANYONE PAY ON A DEBT, THAT HAS BEEN PAYED OFF , HAVE DOCS SHOWING IT WAS PAYED OFF BY SOMEONE. AND REMEMBER IT DOESNT MATTER WHO,WHAT,WHERE A DEBT IS PAYED OFF AS LONG AS THE DEBT IS PAYED OFF. THATS THE LAW. NO ONE IS TO PAY OFF A DEBT THAT HAS BEEN ONCE ALREADY, NO MATTER WHO,WHAT OR WHERE THAT DEBT WAS PAID FROM.
…and to paraphrase what Greg is pointing at: ACKNOWLEDGMENT.
@ bobhurt
Hypothetically, if “somebody” records a real estate instrument in the land records of where ever without any acknowledgment, whether valid or not, not withstanding the rebuttable presumption of the recorded instrument, is that unacknowledged instrument proof of anything?
As elexquisitor has pointed to repeatedly, Ca. Civ. Code 1203 provides some sort of a statutory mechanism for a prove up.
Acknowledgment is a fundamental element.
bob
i’ve recorded several instruments over the years and in order to make them negotiable “as cash” beyond the original grantee, they must be for a period longer than 9 months and properly and timely indorsed…
in those cases, International negotiable instrument law and the SEC rules apply and it is not a mortgage instrument… it is a security…
ironically, a security cannot be a mortgage… there is conflict of law pertaining to negotiable instruments and mortgages which has still not been resolved since 1913… courts are more ignorant than monday morning arm-chair quarterbacks on this… i trust you agree…
i also agree with you that when i generate a note or bond – it is my signature and witness statements alone which indicate its validity and authenticity… however, it is the acceptance and indorsement which allow it to move forward (or not)… and if the first indorsement is not by the original grantee and by some undisclosed claimed agent instead – if that were not specified, then it is void….
Bob – and if they don’t or record some deficient document? what then?
26 U.S. Code § 856 – Definition of real estate investment trust
https://www.law.cornell.edu/uscode/text/26/856
…as to the comment on NOTE & SECURITY INSTRUMENT, both should be acknowledged, akin to a grantor’s deed — at least in Kalifornia, that is what is supposed to occur.
@ bobhurt
In a word — acknowledgment.
Georgetown University Law Center
TAXATION OF FINANCIAL INSTITUTIONS AND PRODUCTS
http://www.steptoe.com/assets/attachments/2610.pdf
and dammit… i want you guys & gals on the follow-up call tomorrow after Neil’s show – to speak, cry, scream – whatever you want – out loud – about this mess that our trusted representatives, instructors and advisors have buried us under…
Garfield’s Goose & Friends
(every Thursday night starting 15 minutes after Neil’s show)
Call in at (724) 444-7444 (then use Call ID: 139335) then “0” for guest
and/or use your computer to blog/type at http://www.talkshoe.com/tc/139335
6:45 PM Eastern Thursdays (for 60 min)
<<<>>>
i started it for YOU – now please show up…
thanks
greg
THE HOMEOWNER’S NOTe IS THE ORIGINAL INSTRUMENT WHICH CREATED THE VALUE (CASH) TO FUND THE ALLEGED LOAN AND THE HOMEOWNER IS THE ORIGINAL INVESTOR IN THIS GIANT PONZI SCHEME…
Bob always talks about going back to the origination fraud to nail the jerks,… right?
THE USE OF YOUR ORIGINAL NOTE “AS CASH” TO FUND YOUR SO-CALLED LOAN IS THE ORIGINAL FRAUD!!!!
what say you Bob?
FYI, the link is to a waiver in Ohio for reporting certain specified investors in REIT/RIC/REMIC:
http://www.tax.ohio.gov/portals/0/corporation_franchise/reits-10-11.pdf
if just one lawyer had the balls to actively become the nations’ advocate on this – his/her name would be alongside the two most famous lawyers in our time Ralph Nader and Mohandas Gandhi
FYI, the link is to page 1 of 5:
http://seekingalpha.com/article/1257351-tax-bomb-mortgage-reits-triggering-ubit
shadow –
the Chicago broker was Garfield Mortgage (forced to close)
the agent for the broker was/is a good friend of mine
he told me that Garfield pushed them to do “no doc” or “low doc” loans for higher commissions…
the backside disadvantages to the homeowners were hidden from the agents to give them plausible deniability and a clear conscience to sell these to friends and other clients…
i am finally putting the pieces of my original fraud puzzle together and how everyone was induced through limited selective disclosure to ignorantly allow wall street, et. al. to do harmful things to them…
American Bar Article on:
IRS Issues Safe Harbor Guidance for REITs Investing in REMICs
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0CDEQFjADahUKEwjp67PXz8LIAhXQoogKHWoRBA4&url=http%3A%2F%2Fapps.americanbar.org%2Fdch%2Fthedl.cfm%3Ffilename%3D%2FRP290500%2Fnewsletterpubs%2FABAalert201214.pdf&usg=AFQjCNHlFD_Lch21Zav71voyJzu4zzy3fQ&bvm=bv.105039540,d.cGU&cad=rja
@ Greg; johngault; et al.
Without hi-jacking the theme of the thread, and in drilling down on the distinguishment between a REIT & REMIC, for the purpose of identifying Kalifornia’s (1) statutory business registration and (2) tax requirements on such unincorporated association(s), as well as whether or what ministerial requirements apply (3) for holding valid interests in real property, if any; a historical consideration of the REIT/REMIC relationship through the investment perspective:
http://pdf.onenorth.com/pdfrenderer.svc/v1/ABCpdf7/GetRenderedPdfByUrl//Mortgage-REITs-Are-Back-Again-08-31-2009.pdf/?url=http://www.mofo.com:80%2fresources%2fpublications%2f2009%2f08%2fmortgage-reits-are-back-again%3fpdf%3d1%26PageName%3dMortgage%2bREITs%2bAre%2bBack%2b%28Again%29&attachment=false
bob – good post about the tightening of note requirements…
banks still Fork with it though and produce fraudulent copies alleged to be originals from scans or archives and have no human being who can swear to their originality or authenticity… only that “this is what i found”
gg
And Greg! You Trust the broker???
Just when I thought heard it all…sheesh!!
Who is the broker?
Greg..we have discussed the warehouse lines funding dry loans.
Look up the difference between a dry loan and a wet loan.
i am still in touch with the man who served as my mortgage broker…
he was at the signing table…
he says that what i did was called a “dry closing” – i other words, not a closing at all, but just an acknowledgement of the offer… the counter-signatory requirement was not met or made at that time…
there was no notice to ME when the actual consummation took place if at all…
Rescission…
To resort to that is a question why
The unclean hands doctrine comes to my mind, and better yet they KNOW IT and subconsciously they will hang themselves being that its the truth, the more lies they tell the more lies they need to tell to cover it all up. I just want the whole truth, and the proverbial chips will fall where they may.
Or even divine
Right greg
I cant tell you how many ” devine” intervention moments ive had over the years i have been moving my case throught the Court(s) , just know that theres something far greater at work that will crush the banks and their agents because truth has a habit of doing that,
Im sure many are realizing that their bad acts will and are catching up with them. Thats all i have to say bout that.( forest)
Then again the open escrows … Lack of consummation ….
Wild Deeds. ….
Breach of Contract…. Do A or B. Get the position in writings and nail those little peckers! !!
During the 1st 3 days you can cancel the transaction for any reason.
Or at least that’s how TILA intended it.
The 3 year Only Applies to Very Specific Reasons.
You nailed the APR but did not show proof of your claim.
Another is Identifying the RPII in the contracts.
Dwight..the document you sign at closing merely acknowledges you received your copies of the RTCs. with a copy of the closing packages.
What she was talking about was Something that happened prior to closing! Those I have worked with that legitimly rescinded in the 3 days period all found themselves with council .
That’s when they crash and burn!!!
Greg…as it should have been ruled.
It would have only harmed the borrower had they redeemed.
another kick in the groin…
Illinois Appellate Court Upholds Foreclosure Judgment Despite Discrepancies Between Copies of the Note Attached to Foreclosure Complaint and Submitted into Evidence
posted on: Monday, October 12, 2015
http://www.natlawreview.com/article/illinois-appellate-court-upholds-foreclosure-judgment-despite-discrepancies-between#sthash.XyrDcGQd.dpuf
Yes Dwight there are preclosing disclosures. I doubt you know what they are because RTCs…are not one of them.
The link I tried to post are not working…Google It!
Its Illinois case law but refers to other state laws toward the end.
Dwight..
1. You had no proof you mailed it….attorney
2. Calculating an understated APR. ..me or attorney
3. Title issues causing harm … me or attorney
4. Offering tender and requesting payoff…me and attorney
The dog ate the disclosures.. Nope!
There are 2 trusts in a PPM agreement structure …
Even if you had/have a valid recession…..
You failed your land trustee duties.
Can not get one without the other.
serendipity Dwight – your “guardian angel” is working overtime…
DwightNJ, on October 14, 2015 at 12:40 pm said:
I spoke to a mortgage specialist at the library the other day who was sitting next to me at the computers .. she gave me her opinion on why the lawyer for Wells Fargo in my case never produced the phantom notice of right to cancel documents in court …
lawyers are still reluctant to help us in this battle, especially when default/summary foreclosure judgments are flying off the bench like paper airplanes…
it is taking us so darn long to get our heads around these newly confirmed defenses that the clock ticks against us… possibly putting us beyond timely filings of 2-1401s or appeals…
the foreclosure defense lawyers have not been pro-active in learning these things, as their bread and butter has always been bankruptcy or negotiating settlements to get homeowners to re-contract at lower amounts, making it appear that it is a win-win situation…
but… is it really a win to agree to go back into a relationship with a wife beater just because he promises to only beat you 3 days a week instead of 7?
the old cliche’ “no guts – no glory” applies here too…
I spoke to a mortgage specialist at the library the other day who was sitting next to me at the computers .. she gave me her opinion on why the lawyer for Wells Fargo in my case never produced the phantom notice of right to cancel documents in court … here is what she said ,
that it was customary practice to NOT give the notices to the borrower prior to the closing .. and then at the closing, while they are signing multiple documents and pages , not reading most of it, the closing agent slips in the acknowledgment forms into the stack of papers you are signing … even if you do read them, you are obviously not rescinding at the closing anyway .. so the borrowers sign them … and the agent keeps the signed acknowledgments .. meaning the borrower never received their two copies each ….
So why is this important ??
Well this mortgage girl tells me that the critical problem is the date on which you signed the acknowledgment .. it was dated and signed AFTER THE 3 DAYS PASSED ..
Meaning … you were never given your notices before the closing .
This is crucial … it means that their won signed documents prove that they violated your rights…you were not given the notices prior so that you could be made aware of your right to rescind …
They never gave you those disclosures before the closing … if they had, there would be signed and dated copies showing that you had signed AT LEAST 3 DAYS BEFORE THE CLOSING.
This game was normal operating procedure the girl told me .. they did not want you to have the notice of right to cancel during the 3 day period .. and they didn’t give it to you after either … they simply kept the disclosures themselves …and then had you sign them at the closing.
But she said the reason the Wells Fargo attorney doesn’t want to submit them into the record is probably because they are dated and signed on the date of the closing …which is not right.
You are supposed to sign at least 3 days in advance of the closing, acknowledging that you have now received your right to rescind notices and that you have 3 days to cancel the deal for any reason.
This needs to be in the borrowers possession before the closing.
The bank showing that you signed these at the closing falls short and does not constitute that you had been given your notices in advance.
So if Wells Fargo shows the acknowledgments signed on the date of my closing … it fails.
The date of the acknowledgments should be BEFORE the closing. You are acknowledging that your are in receipt of your right to cancel notices …it is dated over 3 days before your closing and signed by you. At the actual closing you then sign a new date 3 days later, saying you are not rescinding ..and the deal goes thru.
Could this be the reason they refuse to submit the documents?
Quite possibly.
thanks
usedkarguy, on October 13, 2015 at 11:54 pm said:
.
FINANCIAL FREEDOM ACQUISITION, LLC (OneWest Bank N.A., Appellee) v.STANDARD BANK AND TRUST COMPANY et al., Appellant. No. 117950 Supreme Court of Illinois.
Dwight i can almost guarantee you will be going to appeal
That last “motion for reconsideration” will give you more to bring into your appeal gives the court a chance to reconsider what they want in that appeal, makes them look bad if you are right, no judge wants to be wrong, but they are Jesinoski proves that.
Yes Dwight final judgements
Be ready is what im saying line up the proverbial duckies
(Transcripts)
(From the hearing on Plaintiffs Motion for Summary Judgment)
11 FEMALE ATTORNEY FOR WELLS FARGO: And on this notice of right to rescind,
12 obviously, we would contest the validity of that
13 handwritten note. That’s dated from 2007. But it’s
14 important for the Court to also hear that obviously the
15 defendants don’t have a right to rescind. And they
16 both signed notices of right to cancel, swearing that
17 they received two copies of the notice of right to
18 cancel. And then they signed the notice of right to
19 cancel again on the day that they got $22,000 out. The
20 disbursement date on the loan, they took $22,000 out
21 and the closing agent had both of the defendants come
22 in and re-sign the notices saying —
23 THE COURT: After the alleged notice to
24 rescind.
25 MS. LENDER: Right. So, they —
1 THE COURT: They took more money out, is what
2 you’re saying, after their notice to rescind?
3 MS. LENDER: I’m sorry. No. I’m saying the
4 closing happened October 19th, 2004. The time to
5 cancel is three business days. After that three
6 business day period had passed, October 25th, the
7 defendants went back to the closing agent and re-signed
8 the notice of right to cancel saying we didn’t cancel
9 so that they could get the cash out. So, I mean, the
10 documents speak for themselves. And I have copies if
11 the Court needs them, but there is no right to cancel,
12 no right to rescind after the three-day period. And
13 both defendants already said that they were not
14 cancelling within that three-day period in 2004.
15 THE COURT: All right. I think what — I
16 think what he’s arguing is the three-year period, right
17 to rescind under — under misrepresentation.
18 DWIGHT NJ: Well, also it’s Federal law that
19 — we have our closing documents, we’ve always kept.
20 There was never a right to rescind notice given to us
21 which is a Federal law that protects borrowers. They
22 claim that they did give them to us. This is a
23 rebuttable presumption that is allowed for deeper
24 discovery.
25 We clearly have the actual good faith
1 estimate sent by the bank, all the closing documents,
2 the two sets of documents given, one to my wife, one to
3 myself. Nowhere was there ever the notice of
4 rescission rights included. And that’s a violation
5 that extends your statute of limitations to three
6 years.
7 THE COURT: That’s your argument, right?
8 DWIGHT NJ: Yes.
9 THE COURT: And you’re arguing also that you
10 provided that notice to rescind within that three
11 years, is what your other argument is.
12 MR. BORROWER: Well, yes. That I mailed it in.
***Below is how the Judge denied my TILA rescission during his oral reading of his decision *which was already pre-written before we even had the hearing… notice how he says that Defendant never identified exactly what disclosures were missing …but above you see that I did identify the missing disclosures , what is he talking about?
*(My reason for filing a motion for reconsideration was the fact the Supreme Court had only recently decided Jesinowski on Jan, 13, 2015 .. I raised this motion in conjunction with my opposition to summary judgment because it was newly found evidence in Jesinoski that was not available when the prior judge dismissed my TILA rescission months earlier, before Jesinoski came out)
Here is what the judge had to say about it …
3 The defendant has made the motion to
4 reconsider out of time, first of all. The defendant
5 had 20 days to follow the order on September —
6 following the order on September 19th, 2014 to make the
7 motion. Furthermore, the defendant has not annexed to
8 his motion a copy of the order which he seeks to have
9 reconsidered. They’re technical violations.
10 Therefore, the defendant has not complied strictly with
11 New Jersey 4:49-2.
12 Moreover, if the Court were to overlook the
13 procedural deficiencies in the motion, it must be
14 denied for the substantial reasons: that is, the Court
15 does not find any adequate basis for which to overturn
16 the Court’s prior decision. The burden to succeed
17 under the rule is high, as evidenced in cited
18 decisions. The Court originally barred the claim under
19 the Truth In Lending Act or TILA claim as being brought
20 out of time, past the three-year statute of
21 limitations.
22 Defendant now claims that they did exercise
23 their right to rescind the loan contract within the
24 three years providing what is a handwritten document
25 which purports to be notice. The United States Supreme
1 Court decision in Jesinoski also relies on that. In
2 Countywide v. Home Loans, 135 Sup. Ct. 790 (2015) case
3 which holds that: “The borrower may notify the lender
4 in writing of their intention to rescind the loan
5 within the three-year statute of limitations rather
6 than forcing the borrower to file a complaint within
7 the three-year statute of limitations.”
8 However, the Jesinoski court also stated in
9 its decision that: “This regime grants borrowers —
10 this regime grants borrowers a non-conditional right to
11 rescind for three days after which they may rescind
12 only if the lender failed to satisfy the act’s
13 disclosure requirements. But this conditional right to
14 rescind does not last forever, as the court indicated.
15 That’s where the lender fails to make the required
16 disclosure, the right of rescission shall expire three
17 years after the date of consummation of the transaction
18 or upon the sale of the property, whichever comes
19 first.” And that’s the Jesinoski at 792. See also 12
20 C.F.R. 226.23.
21 Therefore, this three-year statute of
22 limitation right only exists if the defendant was not
23 given the property disclosures. The note and mortgage
24 very clearly on their face recite the material
25 disclosure required by the law, Section 12 C.F.R.
1 226.32 stating: “The term ‘materials disclosure’ means
2 the required disclosures, the annual percentage rate,
3 the finance charge, the amount financed, the total
4 payments, the payment schedule and disclosure
5 limitations referred to in section 226.32(c) and (d),
6 and 226.35(b)(2).”
7 The defendant has not identified the missing
8 disclosures which would justify the statute of
9 limitations to continue to run and three-year
10 limitations either initially in the motion before Judge
11 B (just retired) or in this motion to reconsider. Even if
12 defendant were to show that the conditional three-year
13 statute of limitations were to apply, defendant lacks
14 sufficient evidence to first show that they properly
15 effectuated the right to rescind.
16 Defendant has submitted a handwritten copy of
17 a letter that is dated July 1st, 2007 and simply titled
18 “Truth In Lending Act Rescission Notice”. The Court
19 has no way to properly ascertain nor could anyone
20 properly ascertain whether this letter was actually
21 mailed, made or received by plaintiff to effectuate the
22 rescission.
23 The defendant’s failure to provide
24 substantive support for his assertions notwithstanding,
25 the defendant asserts that the rescission of the loan
1 would simply discharged the note and mortgage. While
2 this would be true, to rescind the note — the loan,
3 the defendant would need to return the loan proceeds to
4 plaintiff which amount to over $180,000.
5 The Supreme Court has stated in U.S. Bank v.
6 Guillame, 200 — 209, pardon me — 209 N.J. 449, 481-
7 482 (2012) that, “TILA sets forth a procedure for
8 homeowners to tender the property that he or she has
9 received from the lender, citing to the U.S. Code,
10 citation omitted.
11 “Although the statutory language calls for
12 rescission by the lender prior to homeowner’s tender of
13 the balance of the loan, federal courts have held that
14 TILA need not be interpreted literally as always
15 requiring the creditor to remove its security interest
16 prior to the borrower’s tender of the proceeds.” And
17 that’s Yamamoto Bank of New York vs. Bank of New York,
18 329 F.3d 1167, 1171 (9th Circ. 2003)
19 “Courts adjudicating TILA claims have
20 discretion to deny recision if the homeowner cannot
21 tender the property that he or she has received from
22 the lender.” See American Mortgage Network, Inc. v.
23 Shelton, 46 F.3d 815, 821 (4th Circ. 2007) holding that
24 once the trial judge in his case determined that the
25 Shelton’s were unable to tender the loan proceeds, the
1 remedy of unconditional rescission was inappropriate.
2 Also, Yamamoto, Super 328 F.3d 1172, footnote
3 5, noting: “Authority holding that rescission may be
4 conditioned on borrower’s repayment of the loan
5 proceeds.”
6 And Williams v. Homestake Mortgage Company,
7 968 F.2d, 1137, 1142, (11th Cir. 1992), stating: “In
8 the context of rescission under TILA, the courts should
9 consider traditional equitable notions including
10 whether the borrower has the ability to repay the
11 principal amount.
12 Federal Deposit Insurance Company v. Hughes
13 Development Company, 938 F.2d 889, 890 (8th Cir. 1991)
14 stating that: “TILA gives Courts discretion to
15 condition rescission upon the debtor’s prior return of
16 the principal.”
17 Brown v. National Permanent Fed Savings
18 Association, 683 F.2d, 444, 447, 221 U.S. App. D.C.
19 125, 125 (D.C. Cir. 1982) holding that: “A court may
20 condition the granting of rescission upon plaintiff’s
21 repayment of the principal amount of the loan to the
22 creditor.” Internal quotations and citations omitted.
23 See also Rudisell v. Fifth Third Bank, 622
24 F.2d 243, 254 (6th Cir. 1980) holding that: “Since
25 rescission is an equitable remedy, the court may
1 condition the return of money to the debtor upon the
2 return of the property to the creditor.”
3 See also Powers v. Sims and Levin, 542 F.2d
4 1216, 1221 (4th Cir. 1976) holding as follows: “That
5 surely, the Congress did not intend to require a lender
6 to relinquish its security interest when it is now
7 known that the borrower did not intend and were not
8 prepared to tender restitution of the funds expended by
9 the lender and discharging the prior obligations of the
10 borrowers.” And that’s the case at 1221.
11 Additionally, defendant does not adequately
12 address the other claims and defenses which were
13 dismissed pursuant to the order of September 19th,
14 2014. Therefore, for the reasons stated, defendant’s
15 motion for reconsideration September 19th, 2014 order
16 is denied. I’ll note that the purported notice of
17 rescission did not include any reference to the monies
18 being returned or any indication that they had the
19 monies to return. I find that it is insufficient.
Thank you Deb … only a 10 day window to file a Reconsideration? Maybe that is for “Final Judgments” ??
In my case the Summary Judgment was granted on March 18, 2015
But they have not filed a notice of application for Final Judgement yet
Not sure if there is a difference or if it bars me from filing a motion
But as long as no Final Judgment has been ordered, I am under the belief that I can keep submitting motions right now ..
Once a Final Judgment has been entered, you only have 45 days to appeal …
But at some point I am wondering if I can appeal this SJ before they file a notice for application of Final Judgment .. not sure if I will need leave for appeal .. or if I can appeal right now … the paralegal had told me that in NJ the appellate division wants the case to be decided first ..but I guess a Summary Judgment is like a final judgment right?
Think theres only a 10 day window from date of judgement for motion for reconsideration
nolo series of legal books are very useful
Get ” how to represent yourself in court” as a GUIDE
Its no substitute for professional council if you can get one.
As for ex parte discussions – ill cite from one of my hearings
” as we discussed your honor” at that point there was a ” meeting of minds” and mine was nit one if them but i did strongly object and its thete in the transcript record – create that record
I personally used motions for reconsideration
You take apart every aspect of the judgement and state why its wrong with case law to back it up if possible, get paralegal to shepardize it for you if you decide its appropriate for your case.
Not an attorney just sharing what i did as a pro se litigant.
Thank you MN & Greg … Yes MN , I have my work cut out for me and I am currently trying to prepare my case so that it can be deemed “appealable” by the appellate division. Like you pointed out, they can only look at things that are already part of the record and that may have been “errors” by the state superior court judge in my case. Also you point out that “objections” are part of their review , the problem is that I was struggling to understand “procedural law” when I was in court representing myself Pro se , and therefore may have missed certain opportunities to “object” on the record. I was under the impression that an appeals court, later under appeal, would see the errors and wrongs by the court when they reviewed the case and the transcripts later while under appeal. Now I understand the importance of “objecting” on the record. My thinking was that I was already “objecting” to everything through my pleadings in my answer.
Question – can I now, prior to a Final Judgment , object to something that the judge allowed during one of the hearings? Can I include it now in my amendment to my motion to vacate the SJ ?
Example – during the hearing for Wells Fargo’s Summary Judgment … the issue of the TILA rescission was being discussed on the record. The banks attorney was confused about the extended 3 year window under TILA , she was saying “but the 3 days passed and they didn’t rescind, so why is this an issue?”
The judge helped her by explaining to her that the Defendant was asserting that a special extended window of 3 years is allowed under TILA due to disclosure violations, primarily the notices of Right to Cancel notices were not included in the required disclosure docs.
The lawyer then made a statement that I should have “objected” to …
she said “but we have the acknowledgments that he and his wife signed at closing saying they had received their right to cancel and were not canceling now that the 3 days had passed. We can get this if the court needs to see it, it is in the closing documents file”
This attorney attesting to a phantom document that was not part of the record should have been objected to. My story was consistent, that we had never received our notices, and that the Plaintiff had no such notices in their file when they replied to our QWR Qualified Written Request and to our Discovery demands for production of documents.
In all of the papers and docs they sent us relating to the subject loan, never was there any such phantom notices that the attorney was now standing in court testifying about. The judge allowed her to talk about some phantom document that was never submitted as an exhibit and to which nobody had seen in any of the replies to Discovery.
Now … is this something the Appeals Court would regard as error by the court?
I believe the judge mentioned this phantom document in his decision as he was granting the Plaintiff their Summary Judgment.
But this is where my suspicions of Ex Parte communications comes in, because once the banks attorney testified about the phantom document, the judge knowing that it alone was weak, gave the Plaintiff help by offering them an alternative angle to argue , from his own personal knowledge (which is supposedly a big error for a judge to do) when he offered the plaintiff the “tender defense” to my rescission.
Now from what I am told, a judge is not supposed to help either side by asserting his own personal knowledge into how a claim should be argued or asserted. It is up to the Plaintiff to state a claim, based on their own arguments and assertions. This too may be an error by the judge when he steered the Plaintiff into the “Tender defense”. They had not raised this issue of tender on their own in their pleadings. When they moved to strike my affirmative defenses, one of which was the TILA rescission, they motioned for the court to dismiss it with prejudice due to “the 3 years being timed-out” .. they were granted their motion to dismiss my affirmative defense on TILA because the judge agreed with them that a borrower cannot assert that he had rescinded a loan after 3 years. The court erred because as long as my rescission was timely, meaning I did rescind inside the 3 years, that it was still valid and effective now 7 years later in 2014 .. the Plaintiff and judge both argued that I only had 3 years to enforce it.
So when this TILA rescission came up later during the hearing for the Summary Judgment .. this new judge was on the bench, he had replaced the old judge who retired after dismissing my TILA rescission defense with prejudice .. this new judge now changed the strategy for the Plaintiff ..remember the Plaintiff only argued the 3 year rule ..but now this new Judge acted as the banks attorney and asserted a new strategy when he realized the Plaintiff failed to produce the notice of right to cancel … he took over as a summary judgment hearing and inserted his own legal help to bolster the plaintiffs case ..he went into the argument that “Defendant failed to offer tender at the time he rescinded the loan under TILA” – THIS WAS NOT PART OF the Plaintiffs arguments or assertions. So would this be considered a foul by the Appeals Court? That the judge created a new pleading and claim to help the Plaintiff , when the Plaintiff never stated this in their claim of their complaint or in any motions or hearings? Someone told me that judges are not allowed to do this. The Plaintiffs must sink or swim by their own case ..their own arguments … is that true?
And can I object to the judge doing this, and allowing the lawyer to testify about a phantom document at the SJ hearing?
Can I object now after the fact ..by showing the transcript .. so as to bring it up before it goes to an Appeals Court for review?
Thank you, DNJ
Ukg
Thats the kind of useful information…
May not be exact fit in each unique case, but read them for insight into the courts reasoning and identify the weak spots in your own cases, thats all you can do, the courts have the power.
Sorry. .try this link.
http://www.firstam.com/title/resources/reference-information/jack-murry-law-library/the-use-of-land-trusts-and-business-trusts-in-real-estate-transactions.html.
Illinois
http://www.firstam.com/…./the-use-of-land-trusts-and-business-trusts-in-real-estate….
UKG… They see her now! 😃
Christine..Behave! 😁
“johngault, on October 13, 2015 at 8:37 pm said:
How do I serve process on a national bank?”
Some states authorize service of an NA to the SoS in one’s own
state.
U.S. Patent & Trademark Office at http://tess2.uspto.gov.
.
FINANCIAL FREEDOM ACQUISITION, LLC (OneWest Bank N.A., Appellee)
v.
STANDARD BANK AND TRUST COMPANY et al., Appellant.
No. 117950
Supreme Court of Illinois.
Opinion filed September 24, 2015.
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.
COMMENT: I lifted this from an article by Daniel P. Nora of Maurice Wutscher LLP, delivered by LEXOLOGY
The Supreme Court of Illinois recently held that the trustee of a land trust involved in a reverse mortgage loan transaction is entitled to receive disclosures, including notice of the right to rescind, under the federal Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq.
In July 2009, a consumer obtained a reverse mortgage secured by her condominium unit, title to which was held by a land trust of which she was the beneficiary.
The mortgage contained a customary exculpatory clause, which provided that the trustee was not personally obligated on the note “and the only means of enforcing a security interest was through the property itself.” In addition, the note provided that the loan became immediately due upon the death of the borrower, the sale of the property by the borrower, or if the borrower failed to use the property as her principal dwelling for more than 12 consecutive months.
Although the loan documents, including the notice of right to cancel disclosure required by TILA (15 U.S.C. § 1635(a)), were prepared for the trustee as the mortgagor, they were delivered only to the borrower/trust beneficiary.
The borrower/trust beneficiary died in May 2010, and in October 2010 the mortgagee sued to foreclose.
In June 2011, the defendant trustee sent the plaintiff mortgagee a letter purporting to exercise its right to rescind the transaction. In July 2011, the defendant/trustee filed a counterclaim under TILA, seeking rescission, termination of the security interest, statutory damages and attorney’s fees.
In January 2012, the trial court dismissed the counterclaim with prejudice. Shortly thereafter, the defendant/trustee paid the mortgagee the full amount due under the note and mortgage, and then terminated the trust, conveying the mortgaged property to a third party.
The mortgagee then moved to voluntarily dismiss the foreclosure action, and in March 2012, the court dismissed the case with prejudice. The defendant/trustee appealed the dismissal of its TILA counterclaim.
On appeal, the defendant/trustee argued that it had the right to rescind under TILA, and timely exercised that right. The plaintiff mortgagee argued that “a land trust is not a ‘consumer’ as that term is defined in TILA and, therefore, [the trustee] had no standing to rescind.” The plaintiff mortgagee also argued that the trustee “had no right to rescind because the property was not [its] principal dwelling and because [the trustee] was not a party to the transaction.”
The appellate court affirmed the circuit court’s dismissal of the counterclaim in a divided opinion, reasoning that the mortgage’s exculpatory clause meant that the borrower/beneficiary, not the trustee, was the “obligor,” and therefore that the borrower/beneficiary was the only person entitled to rescind under TILA.
Although neither TILA nor its implementing Regulation Z define “obligor,” the appellate court, looking to the dictionary definition, found that obligor meant “the person to whom credit is extended” and, because the trustee was not the obligor, it could not plead any set of facts under which it had the right to rescind the transaction. The appellate court also held that the trustee forfeited its claim to statutory damages because it failed to raise the issue on appeal.
Court Allows TILA Damages Claim for Failure to Rescind After Notice
The Illinois Supreme Court granted the trustee’s petition for leave to appeal, and began its opinion by discussing the background of TILA, enacted by Congress in 1968 “to ensure credit terms are disclosed in a meaningful way so consumers can readily and knowledgeably compare the credit options available to them.”
The Court then pointed out that Regulation Z and the Federal Reserve Board’s Official Staff Commentary in effect during the period relevant here were entitled to great deference “absent some obvious repugnance to TILA.”
After analyzing the applicable provisions of TILA, Regulation Z and Official Staff Commentary, the Court concluded that “Congress did not intend to limit rescission rights to only obligors, as that term is generally defined.” The Court based its conclusion primarily on the commentary stating that “to possess the right to rescind one need not be liable (i.e., an obligor) on the underlying consumer credit transaction.”
The Court also reasoned that the applicable provisions of TILA and commentary have existed since 1968, and “Congress has not amended TILA to exclude consumers who are not liable on the underlying credit transaction from having the right to rescind.”
The Illinois Supreme Court found that “[t]he appellate court majority failed to take into account the fact a reverse mortgage was at issue in this case and the nature of such mortgages.” The Court noted that, because a reverse mortgage is a “nonrecourse consumer credit transaction, secured by the consumer’s principal dwelling … the borrower has not undertaken any obligation to make payments … [and] … [t]here is no personal liability of any kind in such a transaction since the only recourse is against the property itself … there is no obligor within the ordinary meaning of that term.”
The Court therefore concluded that “the appellate court erred in affirming the circuit court’s finding that [the defendant trustee] has no right to rescind because it was not an ‘obligor’ within the meaning of TILA.”
The Court stressed that the exculpatory clause in the mortgage, on which the appellate court relied for its decision, was “simply irrelevant.” The trustee “was not personally liable nor did it undertake any type of obligation because the only recourse in a reverse mortgage is against the property itself.”
Having held that “the right to rescind extends to ‘each consumer whose ownership interest is or will be subject to the security interest’ or ‘is subject to the risk of loss,’” the Illinois Supreme Court turned to the question of “whether a trustee under a land trust maintains an ownership interest subject to the security interest such that it is entitled to TILA disclosures and may exercise the right to rescind.”
The Court defined a land trust as a “form of land ownership where a trustee holds title to property for the benefit of the true owner/beneficiary of the trust.”
“Legal and equitable title of the property rests with the trustee, including the right to transfer and encumber the property. … However, the trustee must deal with the property as the beneficiary directs.”
“Conversely, the beneficiary’s interest in the real property changes to a personal property interest in the trust. … The beneficiary’s name does not appear publicly as an owner of record either in title documents or tax records and generally the trustee is required to keep the beneficiary name(s) confidential [and] [t]he beneficiary retains certain ownership rights such as the right of possession, operation, maintenance and control along with the right to use and enjoy the property.”
The Court then analyzed the two provisions of the Official Staff Commentary to Regulation Z that address land trusts, both of which provide that, for purposes of the definition of the term “consumer,” credit extended to a land trust is considered to be extended to a natural person. Because “the trustee of the land trust is a consumer, whose ownership interest is subject to the security interest,” the Court concluded that the trustee “was entitled to TILA disclosures and has the right to rescind the transaction,” reversing the appellate court’s holding to the contrary.
The Illinois Supreme Court also rejected the plaintiff’s alternative argument that the trustee’s right to rescind terminated when it sold the property to a third party, reasoning that although the right to rescind terminates upon sale of the property or transfer of the consumer’s interest therein, “section 1635(f) addresses only the time for exercising that right to rescind … [and] [b]ecause [the trustee] gave notice to plaintiff that it was exercising that right, its right to rescind did not terminate upon the sale of the property.”
Relying on a 2010 bankruptcy case in which the bankruptcy court held that once the right to rescind was timely exercised, the subsequent sale of the property did not extinguish that right, the Illinois Supreme Court reasoned that “[i]f a sale of the property subsequent to the exercise of the right to rescind served to extinguish that right, a consumer would lose the right to damages based on the creditor’s failure to rescind when it was legally required to do so.”
Finally, the Illinois Supreme Court addressed the trustee’s argument that it was entitled to statutory damages under TILA.
The Court found that the appellate court committed error by holding that the trustee forfeited its claim for statutory damages because “the circuit court never addressed this issue and, therefore, there was no order from which [the trustee] could appeal.”
The Illinois Supreme Court also held that the trustee’s “claim for damages resulting from plaintiff’s failure to rescind is not time barred as plaintiff contends,” relying on a 2009 bankruptcy court decision which held that “[f]or claims of failure to effectuate rescission, the date of the occurrence of the violation is the earlier of when the creditor refuses to effectuate rescission, or twenty days after it receives the notice of rescission.”
Because the trustee sent the notice of rescission in June 2011, the plaintiff did not respond thereto, and the trustee filed its counterclaim in July 2011, the trustee’s “claim for statutory damages was brought within one year of the occurrence” of the violation, as required by TILA, 15 U.S.C. § 1640(e).
The appellate court’s judgment was reversed, and the case remanded to the trial court for further proceedings.
The Court also held that, because the disclosures were not provided to the land trust trustee, the three-day right to rescind was extended to three years after the transaction and the trustee timely exercised that right. In addition, the Court held the trustee’s claim for statutory damages was not time barred.
The Court found that the appellate court committed error by holding that the trustee forfeited its claim for statutory damages because “the circuit court never addressed this issue and, therefore, there was no order from which [the trustee] could appeal.”
The Illinois Supreme Court also held that the trustee’s “claim for damages resulting from plaintiff’s failure to rescind is not time barred as plaintiff contends,” relying on a 2009 bankruptcy court decision which held that “[f]or claims of failure to effectuate rescission, the date of the occurrence of the violation is the earlier of when the creditor refuses to effectuate rescission, or twenty days after it receives the notice of rescission.”
Because the trustee sent the notice of rescission in June 2011, the plaintiff did not respond thereto, and the trustee filed its counterclaim in July 2011, the trustee’s “claim for statutory damages was brought within one year of the occurrence” of the violation, as required by TILA, 15 U.S.C. § 1640(e).
The appellate court’s judgment was reversed, and the case remanded to the trial court for further proceedings.
“As a messenger, NG provides a lot of information that can be quite useful.” “Can be”? Since 2007, who has been helped by the messenger’s can be “useful” information?
Case law speaks for itself. None exists here. Garfield runs a lucrative business from which he is the only one profiting. And if I were wrong, as an attorney, he would have sued me in defamation long ago. He hasn’t. Why? Because there is no case won thanks to his website and he knows it. He can’t prove otherwise.
I guess he is a “messenger” without work. That would make this entire blog… a cult. And everyone following him a cult member. I bet he even created his LLC as a non-profit. Easy to verify.
What a great country! Any question on what has become of it and why?
Tuesday 13 October 2015
Christine…
You are otherwise an intelligent individual. Why do you continue to get
into a pissing contest on this site beating a dead horse? Is it that important
that you be acknowledged as being right instead of being constructive?
Why should it matter to you how many, if any, cases NG has won? What
difference does it make to you, to your case? If you see/find no value
here, move on.
As a messenger, NG provides a lot of information that can be quite useful. Some of his articles are incredibly on point. Some may be a waste
of time. If I can find a single sentence out of an entire article that can be used to effect, and the same can be said of many others, then NG’s
win/loss record is unimportant and of no concern
Personally, I believe you can make constructive posts that can be v useful
to people, but if you choose to be RIGHT instead of helpful, then you are no different than rock, someone you think has value, a point on which
I would disagree and with a basis for doing so.
There are so many distractions in the form of egos and personalities that feel compelled to post endlessly on useless issues, except in their mind[s]. You need not place yourself in that category.
I think more of you than that, fwiw…
mn
Tuesday 13 October 2015
greg:
It is not inconceivable that you have already had your day in court and just do not know it. From the scant comments you make, and I would say
with little authority, sometimes even understanding, your bravado attitude
can be your own undoing.
Even more reason to sit down with an experienced FC atty and have him/her
review your situation to see what is going on. Your comments argue v
strongly in favor of doing so, but everyone must make their own choice,
however informed, or not.
Illinois chancery judges and plaintiff attorneys are certainly not fools.
From what little I know, and from reading just a few of your comments,
I would be v concerned. I could be dead wrong, but you do not take
chances in chancery.
Tuesday 13 October 2015
DwightNJ:
Use what time you have productively. Appellate courts are more demanding
and will not tolerate frivolous or unsubstantiated arguments, especially from what many post in these comments section. You must support
each of your arguments with existing NJ case law, or the appellate court
will ignore it. You argument becomes stillborn without case support.
Get onto the NJ appellate web site and become v familiar with their rules
of procedure, which you are required to follow. The other side can get your
case kicked out on failure to follow procedure alone, regardless of the merits of your case. Always remember, the appellate court will not review
your case and give a different decision.
Appeals will only consider objections you made that were overruled. If
you have no transcript of did not make bystander notes, you cannot
re-argue that which has already been decided.
Absent objections, is there any condition precedent notice that the NJ legislature requires a plaintiff to send to a borrower PRIOR to filing a
complaint to foreclose? There may or may not be such a requirement.
I am not familiar with NJ statutes. If there is, plaintiff may be required to
provide proof of mailing with first-class postage on the envelope used to
send such a notice, and plaintiff would have submitted it into evidence.
Further, it may require that the notice be mailed to the address of record for the property in the case.
If NJ has such a legislative requirement, it may be that proof of mailing and proof of mailing to the correct address are non-waivable issues, and
it is this kind of issue that can get your case kicked back for dismissal,
if the record shows no proof.
Again, NJ may not have this, but look for something else that may be a
non-waivable issue that the plaintiff failed to follow. It may be there are
none.
Another option to pursue in appeals is court abuse of discretion. The way
in which I read your post, the court’s denial of your rescission, using
improper reasoning, not based on law, is an abuse of discretion, and THIS
is an argument you can make to salvage your situation, but you have to
be v deliberate, precise, and support with case law.
Read the Jesinoski case over and over until it starts to speak to you. If
what you say about the judge is true, then he ignored the law. This is an
example, taken from Jesinoski:
“Even if a legitimate policy concern were present, the Court cannot discard the statute’s plain text. When the meaning of the statutory text is clear, this Court may not rewrite the statute to avoid “practical problems” it may perceive in its implementation. Lewis v. City of Chicago, 560 U.S. 205, 216 (2010); see id. at 217 (“[I]t is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted. . . . If [the statute has] effect[s] [that were] unintended, it is a problem for Congress, not one that federal courts can fix.”); see also Caminetti, 242 U.S. at 490 (“If the words are plain, they give meaning to the act, and it is neither the duty nor the privilege of the courts to enter speculative fields in search of a different mean- ing.”). Accordingly, even if Section 1635(a) created uncertainty by requiring only notice for a borrower to exercise the right to rescind, that policy concern would provide no warrant for the Court to cast aside the plain meaning of Section 1635(a)’s text.”
There is your counterpunch to the biased court’s opinion which goes against
the clear and unambiguous language of the statute…”Our charge is to give
effect to the law Congress has enacted.” Read the entire paragraph, and that will become a part of your argument.
The case site is to Lewis v City of Chicago. Look up that case and read
it, as well, to develop more depth and understanding as to how you will
proceed. When you look up the case, [use dogpile.com as a search],
look for sites that come from “leagle” as the case source. They have live
links of other cases you can also look up immediately.
Look up “judicial abuse of discretion new jersey,” or “abuse of discretion
new jersey,” trying to find cases that cite what constitutes abuse, and
these will become your case supports in appeals for your own case. You may read a solid example from one case…take the language from
it and use it in your own words, making slight changes, and then attribute
a different case using a similar language to make it appear less obvious.
Do this also for the summary judgment granted against you. What is required
of the other party to obtain SJ? Often, information used must be viewed
in a light most favorable to you and against the party seeking SJ. Was that
true in your case? If not, do a search on nj summary judgment, and start
reading up on that to use as a defense in appeals why SJ grated against
you was improper.
Just a few thoughts that may help you find you way more effectively.
Cheers…
mn
I meant to include, re SJ…if it was a weak SJ against you, and the other
side has not yet respond to your motion to vacate, add on an amendment
to your motion to vacate that beefs up your motion, and be sure to include an affidavit in support, stating ONLY FACTS, no conclusions.
Make sure you understand that.
OOPS!
The opinion: http://www.courts.ca.gov/opinions/nonpub/A138270.PDF
Common law rescission in Kalifornia: Wong v Stoler (2015) 237 CA 4th 1375 (UNPUBLISHED)
Analysis:
http://www.rogerbernhardt.com/index.php/ceb-columns/388-rethinking-rescission-wong-v-stoller
greg, on October 13, 2015 at 7:46 pm said:
“Neil,
HOW MUCH OF YOUR OWN PERSONAL WORTH (UNRECOVERABLE IF WRONG) HAVE YOU BET/PLEDGED THAT YOU ARE RIGHT?
i have a BIG PROBLEM with those who induce bets of others that do not themselves make the bet they indorse [sic]!”
Somebody is waking up. Neil Garfield has NO skin in the game. None whatsoever. He is a retired corporate attorney who never tried a case hence never won one. He found a lucrative niche years ago to supplement his retirement by selling, to the desperate and gullible, theories thrown out by court after court nationwide, and by peddling inadmissible mortgage analyses not even worth the paper they’re written on.
There is not ONE case with NG’s name on it as the attorney of record. None that he has produced anyway and none that could be traced back to him, whether in state or federal court. Serious defense attorneys, tired of seeing the amount of jurisprudence Garfield has caused to be created in favor of the banks and detrimental to homeowners, have taken notice and are taking action.
Of the old crowd who cared enough to try and instill some sense into homeowners, Bob Hurt is the last one resilient enough to stick with LL and still try today. Many of us tried to teach people Law 101 strategies, such as: “Don’t default. First, get your papers in order, check the accounting, compare statements and NODs, find the $5 missing and… ATTACK first. On the accounting! Then, you can default.” We told people” “Do a timeline of all your dealings with the bank. Takes a few days but worth the time. Once you have the timeline, consult an attorney. He’ll take the case if it stands on its own with adequate documentation.” We offered to show people how to do one. We provided examples. We said everything we possibly could and we proved it works.
Well, that tirade should get me kicked out of LL. Again. It happens every time NG doesn’t like what I have to say. Last time, Garfield went out of his way to call me a “shill for the banks”. He still has to show ONE case he handled and won.
You see, Greg, I happen to be one of the very few people who did what she preached: attack first. And it worked the first time around (got a monetary judgment in federal court against the bank and the dismissal of a state court foreclosure the bank had filed after the fact and knew it couldn’t win) and it is working now (going now for the jugular, again in federal court). I haven’t made one mortgage payment since the first day I attacked and I know I’m staying put for good.
Asserting TILA? When people defaulted eons ago? Bull sh**t! Using BK as a defense to FC? Bull sh**t! There’s a right way and wrong way to fight. Garfield makes a ton of money on teaching the wrong ways. It is not in his interest to teach how to win because… he’d lose his very lucrative business.
The best defense has always been a good attack. Always. One cannot rightfully attack when one is already in the defensive position of having to fight a default.
“How do I serve process on a national bank?
The answer varies by state law. In general, a litigant should first determine if the bank maintains an agent for service of process within the state (generally at the Sec of State’s – sic). If not, the litigant should follow the court’s rules for serving process on an out-of-state corporation that does not maintain an agent for service of process.
The state law may authorize service by:
having process served on an officer of the corporation at a location in the state,
having process served on an officer of the corporation at the corporation’s headquarters (bank headquarters are listed on the FDIC’s website)
by a third-party process server, or
serving process by certified mail to an officer.”
http://www.helpwithmybank.gov/get-answers/other-topics/general-bank-questions/faq-other-topics-gen-bank-questions-12.html
Tuesday 13 October 2015
bobhurt:
>mn: I have posted numerous cases using with good effect the
>mortgage attack methodology that I advocate. I point the finger at
>ridiculous nonsense and explain precisely why it qualifies as
>nonsense. What fault can you find with that?
There is a ton of nonsense in the comments section. What NG posts I find is not “ridicules nonsense.” Quite the contrary, he has brought forth
considerable information that can be utilized effectively, and I speak only for me.
[I misread your sentence, construing it as “ridicules nonsense” from NG,
when you left it open-ended, applicable to anyone, but I do not have the
time to rewrite what I just did below, so take what I said about you re NG in context.]
NG is just a messenger. I have stated I could care less if he has won many
cases or none. Many expect him to deliver more than the goods, to
include a road map on how to do defend oneself/property. I know nothing
about NG beyond what he posts and having listened to a few of his radio broadcasts, at Trespass Unwanted’s mentioning of one. He seems
to have his heart in the right place. How he handles cases and deals
with other people or selling services on his blog, I have no clue, nor do
I care.
His value is in the content provided.
Where I find fault with you is your constant putdown of him personally,
and the unsubstantiated claims directed at him as can be equally directed
at you, as I did in one of my posts below. Your negativity also extends to
those who choose defend themselves, for whatever reason, and all you do,
or all I have read for the past several weeks, is constant putdown and
case after case of people who failed on their own, most of the times,
justifiably in all probability.
The community on this site are looking for direction. Some overuse the site
to vent equally ad nausea over nonsensical issues or over the top
arguments that will fail in court every time. Still, those seeking direction
will not necessarily succeed using your service or storm’s service, nor do you do them a service by flaying what will not work in the unending
cases demonstrating failure.
Fault NG as much as you will, but he is at leaf presenting information
that “may” be far more useful than the case you and storm keep posting
about failure.
I read your post of the Shelton case, and yes, they abused rescission to
the hilt and deserved to lose. The lesson from that, and from every case,
comes from reading it to see what worked or did not and why. I question
if anyone came away with a positive from your post by virtue of you defensive manner [generally, which seeps into all your posts, warranted
or not].
You are probably a nice guy, well intended, and I say that about NG.
My apologies to you if I made a personal attack, for I do not know you
enough to have done so.
Moving on…
Dwight –
YOU HAVE A KILLER WIN AHEAD OF YOU if you can just keep your emotions in private with your loved ones and never let them see you sweat…
it might be a bit costly on the front-end with lawyers afraid to piss off judges… but this case of yours, IMHO, if properly described herein… is a coffin nail for the ass holes…
DAMMIT NEIL – JUMP ON THIS ONE
greg
Neil-
in case nobody asked this before; ’cause i sure forgot to ask…
HOW MUCH OF YOUR OWN PERSONAL WORTH (UNRECOVERABLE IF WRONG) HAVE YOU BET/PLEDGED THAT YOU ARE RIGHT?
i have a BIG PROBLEM with those who induce bets of others that do not themselves make the bet they indorse!
my ongoing song is totally dependent on your answer….
greg
Let me give everyone some more food for thought. Has anyone ever checked to see if the trust that foreclosing against you is a legal entity. All these alleged trusts are registered with the SEC. If you look up your trust on the SEC website you will see the trust states they are incorporated in one of two states. NY or DE. Do a search on these states Department of Finance websites and you will not find these trust anywhere. Contact these states Secretary of State’s office and they will tell you that the trusts are not currently nor have they ever been registered in these states. File a Freedom of Information Act Request asking for the information regarding the alleged trust that is foreclosing on your home and you will get a written statement that states the trust does not nor has it ever existed in said state. If only a legal entity can file a complaint in court. How can these alleged trust file a complaint.
In my case in NJ State Superior Court … I did raise the fact that I had already rescinded under TILA on July 1, 2007 …which was within the extended 3 year window from my Oct. 2004 refinance.
Wells Fargo filed their first FC on Sept. 25, 2007 …but dismissed it in 2011 after the judge requested they bring in witnesses to testify about the inconsistencies surrounding their fabricated documents.
In May of 2014 they filed again …this time my answer clearly stated that I had rescinded in 2007 and submitted a copy of the rescission letter.
The Servicer/Plaintiff/Holder motioned to dismiss my TILA rescission with prejudice …the judge agreed and granted the motion based on the old case law about filing a law suit and offering tender first. This happened a few months before Jesinoski became public.
When Jesinoski came out, I motioned to Reconsider and to Dismiss the complaint due to the Jesinoski ruling.
The judge and Wells Fargo attorneys devised a strategy Ex Parte to deal with my move …the judge twisted the Jesinoski decision into a mere bag of shells in his arrogant and defiant attitude …he told me on the record that Jesinoski only dealt with the issue of whether a law suit was neccassary and nothing more …he proudly boasted that he could still deny the effectiveness of my rescission because in my letter I had not offered to tender …he cited Yamamota case law saying the issue of lack of offering tender gives him the authority to deny my rescission was effective.
Wells Fargo then swiftly moved for Summary Judgment and he granted it.
So…now I have submitted a Motion to Vacate the SJ and to Dismiss the complaint with Prejudice ..(done primarily to fix up loose ends and to prepare it for the Appellate Division) The plaintiff still has not made a move requesting application for Final Judgment ..they have just been sitting on my case doing nothing since March 2015 when they were granted the Summary Judgment … I’m Pro se and have had a hard time finding any attorney with the desire or competence …but the appeals rules are very intense ..I’m going to need a lawyer just to prepare the paperwork the correct way that they want it at the Appellate Court. I still have not recorded my rescission in the land records, this will have to be my next move…when I inquired about it, the lady at the recording office acted like she could not allow such a thing ..she told me to give her what I wanted to record and she would send it over to county counsel to see if the lawyers would allow such a thing.
scot is also right….
it’s only a matter of time until those who want to “control the wind” take over the tenor of these comments… and the early notations forgotten amongst partisan bickering… right?
sorry bob – upon re-reading my own comments – i should have stated them more neutrally
you know i do not agree with you “at large” and agree with you only on some specific points…
but please tell everyone here that I AM WRONG about finding that tons of your opinions come from at least one lawyer’s blog in which you participate…
thanks
g
mn
also
i have never made a “general appearance” in the case – fact pleading or not… plaintiff standing and jurisdiction was my only question on my first stand – 5 years after they began…
there was never a proper service of process – several fraudulent affidavits from sub-contractors – the so-called defendant learning about the case from hearsay and from being burglarized by the servicing company…
to put it plainly – i never had my day (to commence a defense) in court…
mn
i invite your thoughts in particular… email me and we can swap phone numbers….
and i just found a lawyer who may have the balls to do this…
thanks
greg
mn
don’t waste your time asking bob to produce anything but phlegm… all he has is the output of a lawyer’s chat board to which he is a member… there is not one original thought in his head… i found most of what he says here over there – and is mimicked here…
let’s just go “bobbing for french fries”… and ignore the stale worm on the hook… “this dog won’t hunt”
(at least it is entertaining to watch a man, collapsing into his own event horizon, so vehemently seek attention fro othres where no one cares)
Tuesday 13 October 2015
Greg:
Spend a few hundred dollars to consult with an experienced FC atty, and
run all of your ideas by him that you post here. I am guessing you have
little to no experience inside Cook County’s chancery.
Illinois is a fact pleading state. You have none.
Not trying to rain on your parade, but you would get eaten alive, not only
by the judge but the plaintiff attorney. Let me put it another way, knowing
as little as I do about pleading, I would undress your argument[s] with
ease, and supported with case law.
mn
bob et. al. keep trying to get you to go along with what they see as “practical law” (that which today’s local court judges will give you) so you can get a “cheap win” – as opposed to a “total win” under “absolute law” – under the origins of law in america (including the bible, magna carta, DOI, AOC, constitution, etc.)
pick your poison… it is up to you… he is not wrong… he is not right…
…but at least ask who pays for his enjoyment…
Tuesday 13 October 2015
bobhurt:
>it’s a good thing you can lean back in your easy chair and talk
>philosophy of law instead of busying yourself with actual litigation. If
>you bothered to litigate, you might have to dig for case law to support
>your viewpoints. And there you’d get stuck, because the courts don’t
>agree with you.
I have yet to see you wear the same shoe. How about posting some of
your successes… Oh, wait, you have none. After people use your service that you claim not to sell on this site, they never report back to
you about their success[es]. Must be for a reason, n’cest ce pas?
Seems like your biggest strength, weakness for me, is pointing the finger
at others, NG in particular, and the rest of those who do not use your
service. Why do you bother posting on this site, other than pimping for
that which you claim not to sell?
You and Rock are birds of a feather, posting ad nauseam those cases
in which hapless defenders lost. If only they had used yours and Rock’s
essential services for success.
Do you offer a guarantee that your service will produce the positive outcome
you “suggest” is required in order not to otherwise be assured of losing?
It is a rhetorical question the answer to which is known prior to posing it,
a redundancy.
“Your honor, your honor! There is appraisal fraud here, and my case
should be dismissed!”
Judge: Your house was over appraised, and you received more money
than you should have? How were you damaged? If you could not
afford the higher appraised value/mortgage, why take the loan, at all?
“But your honor, I had a forensic analysis done, and I was told this would
work. Look! Here is an article on appraisal fraud where the borrower won. I should be next!”
Judge: Next? Yes, next case.
mn
GOOD OBSERVATION – yet there is no res judicata for violation of federal law and usurpation of constitutional rights under color of law….
in historical practice – if you let the state judges, trying to enforce local policy which is contrary to “the law of the land”, put their heads into the “treason noose” – the federal judges my insist you step out of the way so they can pull the lever themselves to hang them…
Selma revisited…
Greylord revisited…
greg
Tuesday 13 October 2015
In general, it seems some of the comments from those contemplating
rescission is in relation to a state court. TILA is a federal statute and
seems best addressed in that venue. Keep in mind, state/chancery
already sees the creditor with standing that need not be readdressed.
Take rescission to a state court, where odds may be greater the argument
will not be well received/understood and more easily dismissed means
rescission is forever barred in any other court…res judicator and Rooker
Feldman.
Best shot is in Federal court where a judge has to [should, anyway] be
more responsive to congressional staute/intent.
THE ONE YEAR LIMIT IS ON BOTH PARTIES
bob –
the law imposes a penalty to the so called creditor in that if they do not act within one year of the rescission – they have lost their right to recover….
under article 9 of the bill of rights (unlimited rights), i have a common law right to make an independent verified claim in equity; based upon a statutory allowance or requirement UPON FRANCHISEES of “the government of the people, for the people, by the people”… without consenting to the jurisdiction of an inferior administrative court…
the trick there is to 1) know who you are, 2) know what forum to come in under and 3) know the basis of the claim being in another forum…
do not be tricked while you are being tricky…
greg
the banks cannot file a claim – only a man can – they can only beg a black-robed daddy to override your unalienable rights… and only YOU can give the TWO of them permission to do so…
my unarmed lifeless body…
Dwight –
in 99.999% of the cases, the so-called “Lender” isn’t there anymore…
maybe a P.E.T.E. or H.I.D.C. or just a presumed “holder-at-large”
if within 20 days the so-called lender does anything at all except follow TILA – it is the same as just smearing mustard on the wall of a men’s room after a night of drunkenness…
if the so-called “borrower” accepts anything at all except for what is due under TILA rescission, then the so-called “borrower” will have been duped into entering a NEW CONTRACT from which he will never escape…
do not fall for it!
greg
mn
thanks for asking for the clarification… i did not mean to be vague…
i am in process… here in CROOK COUNTY (lol) maybe federal court too, soon…
just wanted folks to know that there was someone on the knife edge doing what everyone else is speculating about…
will i be the “poster child” – time will tell – but i will never surrender my land unless they carry my lifeless body off of it…
best
greg
who is the damn “Borrower”?
i can write a contract that calls me Shirley – but am i functioning within the contract as “Shirley” (Shirley you jest – lol)
Borrower or Lender are not just PRONOUNs – but serve as a legal/equitable function… if the named “Lender” does not perform the duty of its office (e.g. directly risking its own value on behalf of the named “borrower”) – the word “Lender” simply becomes a pronoun for “THIEF”… and there is no contract!
greg
Tuesday 13 October 2015
Greg:
It is unclear if, re your “default judgment is void,” is posted for this audience
that endorses such sentiment, or if it were something you presented in a
court of law where you prevailed. If not the latter, why bother?
As to not needing permission from a black-robed individual, take whatever
action you deem not requiring de facto endorsement and then post those
results to see if they match your premise.
I am always interested in results, especially those deriving from reality
as opposed legally untested posturing.
mn
Example … If the creditor responds within 20 days and contacts the borrower in order to work out the details ..it would most likely lead to an agreement that the borrower chooses one of four options …
1) Borrower needs to refinance with a new lender in order to tender
2)Borrower needs to sell the property , tender and keep profit.
3) Borrower is willing to tender property after receiving his payments
4) Borrower and creditor agree to a payment plan which allows the borrower to pay back the tender balance over time.
All of the borrowers options depend on creditor complying by removing the security instrument , so the borrower can refi, sell, etc.
Greg .. Thank you for responding to my post, appreciate it. I will look for your posts on the other thread too. This is how we help each other, by giving full, comprehensive responses to each other’s questions. Some of the members here enjoy posting short, one-line responses that only they can understand ..but it doesn’t help others who are here to learn. Try and be considerate like Greg by posting responses with a little more detail so that others can follow along and learn too ..it only takes a little extra effort to write complete paragraphs so that your posts can be useful and educational to the rest of us. Thank you.
elexquisitor
20 days is to COMMENCE the process… not complete it….
if not commenced in 20 days… then a violation
@Neil – the one thing you keep repeating, that the creditor has to file suit within the 20 days, just doesn’t make sense. From a logical perspective it OBVIOUSLY doesn’t give the borrower a chance to fulfill their requirements of the TILA rescission, that of tendering the original loan. From a practical perspective, it might. But I can’t imagine too many attorneys being successful at filing actions based on possible future acts of adversaries that may, or may not, take place. If you can, please explain the window of time the borrower has to repay the original loan before the creditor can sue with certainty for lack of performance. 20 days? 1 year?
SIDENOTE – when you, as an adult american, have done something right, proper, lawful, and non-harmful to other people pertaining to your unalienable rights/property – do you really think you need permission or an order from a black-robed daddy to bless your actions – or might you just go in there with a verified CLAIM (not complaint) that what you have done, notwithstanding another better verified CLAIM, is a final declaratory CLAIM, res judicata?
thanks Deb…
and if everyone would just go back to
https://livinglies.wordpress.com/2015/09/11/recording-the-notice-of-rescission-in-california-and-elsewhere/
you will find all my document links posted to mimic and get to this powerful place yourselves…
consult a legal writing expert first
greg
P.S. sorry to “those who will remain nameless” insisting that their way is the only way….
Go greg
As applies to US Bank v Greg – the default judgment is VOID, not Voidable
Greg’s Notice of Rescission was sent certified mail/return receipt to Plaintiff/US Bank via its attorney Fisher & Shapiro 2 years prior to default foreclosure judgment…
since identifying a true creditor in the current environment is nearly impossible, Dodd-Frank grants the homeowner; “notice to one is notice to all” (with each party involved having the duty to pass the information along to the proper party);
NO proper legal independent (non-foreclosure related) response or action came forth regarding the rescission notice within 20 days –
the Notice was filed into the County Recorder’s land records
a copy of the Notice was filed into court record for official notice to the court so they had cognizance and no plausible deniability
no proper suit for challenge or recovery was filed by US Bank v Greg’s Rescission within 1 year –
The statute timed out for US Bank or any other alleged creditor to to file a motion for standing and sue against the Rescission Notice for recovery of the unsecured loan 1 full year before the default foreclosure judgment –
SO at the time of the default foreclosure judgment, the Plaintiff and Court had lost standing for want of the subject matter of the foreclosure suit; since by operation of law, the Note was cancelled and the mortgage void, no longer providing the essential basis for the foreclosure suit…
Therefore, the default foreclosure judgment is VOID, not Voidable, and must be recognized as such to prevent further harm to Greg or injury to his property
Res ipsa loquitor – the document speaks for itself
Yes indeed, the who the where then when and the how
Yes Mam! !!
Notary Acknowledgements Too!!!
Bad Trustee!!!!
sCott –
After 20 days you tell them to cease and desist on attempt to collect a debt that is unsecured as a matter of law
Not legal advice just stating how i see it under the Jesinoski SCOTUS decision
Its the Estate Boss… Its the Estate !
Has nothing to do with a house they don’t want!!!
Its identity theft of the signature to use as they wished
After closing the signature page was loose assignment undated
” fixed up” at fireclosure time
Greg…Requires Proof the Original CREDITOR was paid off.
Requirement /Element. To Prove standing .
NEil … As an Investor…oh never mind .
If anyone one has already filed a TILA rescission you do not file a motion for rescission in court. You file a motion for enforcement of the TILA rescission. In your motion you state the statues that the lender per operation of law had 20 days to file a motion in court to challenge and vacate the rescission. If they did not file a motion within the 20 days they again by operation of law forfeited any defenses they may have had. This even includes responding to your motion to enforce the TILA rescission. They cannot object to your motion to enforce because the forfeited this right.
This is all fine and great and I agree with you Neil. But what good is all of this knowledge if you cannot get a lawyer to defend you based on these simple TILA statutes. Does anyone know of any attorney that is licensed in the state of Wisconsin that has the will, guts or what ever you want to call it to defend TILA. If not it does not matter how right we are or how many statutes state we are right. We still lose. Through all of this I have learned that the court room is no place for the truth or justice. It is who ever has the better attorney and dam the facts.
and BTW – if we can show the original loan was funded by the homeowner – then guess who is the only party that can be the creditor to foreclose – that’s right… YOU! The negotiation of the note by the banks as cash is the evidence…
Excellent article … Now we need to discuss and share ideas on how to properly argue and articulate this through a Motion …keep in mind that the courts view the Plaintiff /Servicers as already having established standing by way of their fabricated mortgage assignments and their alleged possession of the Notes …the courts believe that the hurdle has been cleared and that the Plaintiff does have standing to foreclose.
It’s difficult to imagine any Judge having the patience, wisdom or competence to allow a borrower to school him on why a TILA rescinded loan requires a different criteria of standing than the normal standing he allows in his foreclosure cases.
And when he rejects your argument and denies your Motion ..will the Appellate Division understand your argument and deem it worthy of their time and consideration? They all barely understand the basic concept of what constitutes a TILA rescission, and now we are being forced into educating the judiciary on why TILA requires a different level of Standing …talk about an uphill battle and long shot odds ..at what point does it seem possible that a certain court might turn the issue of standing upside down on its head ..and agree that “yes, the borrower makes a valid point, that TILA rescission requires and mandates that only the true creditor, owner of the debt…can be deemed as the only real party in interest..only they who can prove ownership of the debt with proof of purchase can be granted standing to state a claim against the void mortgage and note …and can they do it in a foreclosure case?”
This is the battle we have in front of us …and the judges are not going to be receptive to any of this.
We know the state superior courts will reject it …
And the state appellate courts will not want to open this can of worms..
At what point and in what court will a judge finally see it our way?
And why would he agree with us? Simply because the word Creditor is used in the TILA statutes?
The Servicer is in court right now, every day of the week, as holders with blank endorsements ..and mortgage assignments saying they have been given the right to collect the debt …how do we overcome this? How do we convince any court that they are not the real party in interest? We need a well written template showing the articulated argument ..pointing out exactly why only the true creditor can be deemed to have standing to be in court against a TILA rescinded loan …
Maybe NG or some other talented member here can create such a template that would successfully argue (and educate the judges) by showing exactly why, where and how ..the plaintiff lacks standing and the court lacks jurisdiction when a servicer/holder seems foreclosure against a rescinded loan.
and one might add that the banks admit/recognize that they risked absolutely nothing and that the homeowner/so-called borrower was THE ORIGINAL INVESTOR/LENDER (funding his own loan) by way of the bank using the original note “as cash” (new money) and depositing it into a demand deposit account in the homeowner’s name, then 1) using the deposit to leverage the creation of an additional 9x of the funds by way of the federal reserve’s fractional banking regulation, then 2) writing a check to the seller’s bank from that account, then 3) closing the demand account and erasing the record, then 4) bifurcating the mortgage and note, selling each multiple times into different investment pools, then 5) taking out 30 insurance policies on each version of the note or mortgage sold…
the homeowner should be receiving dividend payments – NOT A BILL!
(maybe i missed a step but boy that would be quite a confession – huh?)
So in my case they misrepresented themselves in no less than 3 courts fed, state, BK
This is where the playing field is leveled
I thank god for Jesinoski and the SCOTUS
Bravo Neil. Bravo