Clerks Illegally Bowing to Bank Pressure: Recording the Notice of Interest in Real Property with the Notice of Rescission attached.

For more information please call 954-495-9867 or 520-405-1688.

This is for general information only and contains my general opinions on the subject NOBODY should use this article as a substitute from advance from an attorney licensed in the jurisdiction in which the subject property is located.


The Banks are at it again — using their political power to influence officers of State and County government into refusing to perform ministerial duties required by State statutes.
The Clerks are rejecting any filing of the notice of rescission but some are getting through. It is a good idea to send it in by mail rather than show up in person. It should be a Notice of Interest in Real Property. The letter should appear to be from either a lawyer or title agent. If it looks like a homeowner they will inspect it. If it looks like business as usual then they will ordinarily process it without any scrutiny.

A number of people are gearing up to sue the Clerk for a Writ of Mandamus in order to force the Clerk to accept the recording of the Notice of Interest in Real Property with the Notice of Rescission attached. Before suing, the matter should, in my opinion, be escalated briefly, at least, to the County attorney and give him/her a chance to correct the situation. Any document that is properly filled out with formalities that are required by statute MUST be recorded by the Clerk. The Clerk does not have discretion as to what documents they record and no discretion as to what documents that can’t record.

There is also the possibility of escalating to the Florida Attorney General and the US Attorney General

In the event that the attorneys general or County attorneys ignore or delay it, then the Petition for Writ of Mandamus is probably a viable option. Forms for Writ of Mandamus are online but nobody should do this unless they have an attorney licensed in the correct jurisdiction. The complaint should (my opinion) [comments invited]

  1.  Establish jurisdiction in the State or Federal Court (I would say Federal at first glance), to wit: that TILA Rescission is a Federal Law and that the Clerk is refusing to allow implementation of the rights of the borrower under Federal Law.
  2. The complaint should NOT ask the Court to enter an order that says that the rescission was effective — that is not the proper subject for an issue between the property owner and the clerk.
  3. Establish jurisdiction and description of the parties — the Clerk and the party seeking to record, their residence etc.
  4. The State Law requiring the Clerk to record documents should be quoted verbatim
  5. The allegation should be made that any party with an interest in the real property has the right to record such interest and that the Clerk has not been delegated or authorized to exercise discretion as to whether to accept a properly drafted and executed Notice of Interest in Real Property.
  6. The allegation should be made that the Petitioner is a person, sui juris, with an interest in the real property, to wit: the Petitioner owns the property described on Exhibit “A” legal description and street address).
  7. The allegation should be made that the Petitioner rescinded the mortgage (and note) at page ____ of OR Book _____, as per the notice of rescission attached as Exhibit “B”.
  8. The allegation should be made that the rescission is effective by operation of law, and does not require any judicial determination of whether the rescission was effective or not. 15 USC § 1635 et seq. [Maybe cite Jesinoski]
  9. The allegation should be made that the effect of the rescission is to void the mortgage (and note), by operation of law.
  10. The allegation should be made that under the TILA Rescission statutes, the creditor is required to file a release of the encumbrance, but has failed or refused to do so and has not attempted to vacate the rescission within the time window provided by law (20 days from receipt of the rescission).
  11. The allegation should be made that the said mortgage continues to create the illusion of an encumbrance in the chain of title, thus affecting (preventing) the ability of the Petitioner to sell or refinance the property.
  12. The allegation should be made that in the absence of recording the Notice of Interest in Real Property, with the Notice of rescission attached, the mortgage would remain on record with no document releasing the encumbrance as required by Federal law.
  13. The allegation should be made that the Petitioner properly executed, witnessed and notarized a Notice of Interest in Real Property dated the __ day of ___, 201_ and presented same on the ___ day of ____, 201_ to the Respondent for recording by the Respondent. (see attached Exhibit “C”)
  14. The allegation should be made that the Respondent unlawfully refused to accept the aforestated Notice of Interest in Real Property for recording without any right, justification or excuse.
  15. The allegation should be made that Petitioner was neither granted nor delegated any authority to exercise discretion in the recording of a properly executed, witnessed and notarized Interest in real property.
  16. The demand clause should be something like “Wherefore, Petitioner prays this Honorable Court will enter an order commanding the Clerk of _______ County to accept the Notice of Interest in Real Property with its exhibits and, upon payment of the required fees, record same in the Public Records of ____ County.”
  17. Make sure it is served correctly. Expect the banks to mount some challenge to the suit. But there is nothing that they can say that is legally controlling. All they can do is not like it. If they wanted to seek a court order vacating the rescission they should have done so within the 20 days.


But more importantly it is none of their business — if the Clerk is mandated to record ANY document that fulfills statutory requirements, then the document gets recorded — just like the lis pendens in a foreclosure action — the issue of whether the lis pendens or the lawsuit were wrongfully filed is up to the parties and the courts to fight it out — it is NEVER up to the Clerk. Any argument to the contrary would require an administrative hearing apparatus that does not exist.

49 Responses

  1. I am in need of clarification on this blog post.

    When Neil says “A number of people are gearing up to sue the Clerk for a Writ of Mandamus in order to force the Clerk to accept the recording of the Notice of Interest in Real Property with the Notice of Rescission attached”

    … the “Notice of Rescission” he refers to the one the Homeowner mailed to the alleged Lender? Or the “Notice of Rescission” to be recorded – AND if it is the one to be recorded, does that one say the Title company is ‘hereby noticing the public’ or is it that the Title company is requesting the recording and the Notice is from the Homeowner?

    Since we have the original “Notice of Rescission” sent to the alleged Lender and we have the “Notice of Rescission – Recording Copy” it is important to make clear distinctions for which instrument we are discussing and the parties to which are requesting and seeking recording if we are to make sure and avoid errors.

    Additionally, if Title Company is the one recording the Notice of Rescission to be filed with the Clerk, would they want or need to also file a copy of the initial Notice sent to the alleged lender by the Homeowner?

    Hopefully, I am not the only one who is needing this and it and an answer will serve many others as well – like this blog does for so many of us!

    Much thanks to anyone who responds!

  2. posted on The Lou Bridges Show this evening….

    “a man” (american) can ‘state a claim’ (not complaint) on his own behalf (sui juris, not PRO SE) in court and can only BE THERE (as in English ‘first person’) and cannot “appear” – because he is real – (even though the judge ignores him)

    However, an ENTITY CORPUS must whine (complain) through an attorney and cannot BE or appear in court without one

    every american should learn how to separate the presumed joinder between themselves and their government appointed ENTITY CORPUS, so that they might proceed at law OR equity with firm footing on the land and not be treated like a CORPORATION…

    this causes all actions against “man” by ENTITIES CORPUS, to fail, because there is then no level playing field between the parties, which justice requires…

  3. For a laugh look here:

  4. It is long standing, and well established, that in order to commence a lawsuit there MUST be a live plaintiff, and a live defendant.

    Or, to put it in more layman’s language:

    A dead dude can’t sue a living dude, and a living dude can’t sue a dead dude.

  5. State based review of rescission – CA

    A contract may be rescinded under the following circumstances:

    (1) where the parties mutually consent to rescission [Civ. Code §1689(a)];

    (2) where the consent of the rescinding party or of a jointly contracting party was obtained by mistake, fraud, undue influence, duress, or menace perpetrated by another party [Civ. Code §1689(b)(1)]

    (3) the consideration for the obligation of the rescinding party fails, in whole or in part, due to the fault of the other party. [Civ. Code §1689(b)(2)]

    (4) the consideration becomes entirely void from any cause. [Civ. Code §1689(b)(3)]

    (5) the consideration entirely fails in a material respect from any cause before it is rendered. [Civ. Code §1689(b)(4)]

    (6) the contract is unlawful for causes that do not appear in its terms or conditions and the parties are not equally at fault. [Civ. Code §1689(b)(5)]

    (7) the contract would be prejudicial to the public interest. [Civ. Code §1689(b)(6)]

    (8) rescission is authorized under any special statutory ground. [Civ. Code §1689(b)(7)]

  6. OMG

    Hammertime, on November 11, 2015 at 5:35 pm said:

    Remember “Fiddle while Rome Burns”?

  7. A gentle reminder – please make an appointment for yourself to join us for Episode [8] on our 1 Hour follow-up Q&A call on Thursday evening at 6:45 PM Eastern – This is right after Neil’s weekly Thursday Night 30 Min call at 6 PM Eastern tomorrow night (Thursday).
    [Calls and Chat Board are recorded for review and sharing…]
    Details follow:

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    Call in at (724) 444-7444 (then use Call ID: 139335) then “0” for guest
    and/or use your computer to blog/type at
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  8. Hence… The Lawyers Sarcasm.

    You can’t Stop a Foreclose but you can Sure Fired Delay It A Long Time.
    That’s what happens when you misrepresent a mortgage product.

  9. This contract provides the right of life use by the surviving spouse. .
    And I intend to Enforce It.

  10. Standing on the Side Line.
    Many Blessings To All!

    My Cookie Jars

  11. The situation described by Shadowcat is now happening; I have seen several cases. Unless the contract provides for a right of life use by the surviving spouse, you can expect to get evicted forthwith.

    Responding further to Greg, I would mention that Nieil Garfield has a pithy descriptive of the unknown, non-existent person pretending to be plaintiff: “Donald Duck.” I must say I rather like the ring of that; sure brings the issue to the focus of the COurt, when it is pled: “The named lender on that Note might as well have been Donald Duck, it would have been equally accurate.”

    Everybody instantly understands the thrust of that argument!

  12. I Like Jan!
    Go sue them Bums!!!

  13. Exactly Greg! And they name them as defendants too.

    Can you imagine the devastation caused by Reverse mortgages
    When the non borrowing spouse loses their spouse then gets foreclosed on?

    Reverse Mortgage Specialist.

  14. Greg is on the right track here. But it goes further than that. Those lawsuits are structured as “US Bank as Trustee for the 2005-1RZ Certificates, Series 2005-5,” or some such nonsense. Note carefully that it really says that the Certificates are the plaintiffs/owners. Certificates are pieces of paper, and have no Standing before any Court. Your response to such suit is to file a Motion to Dismiss, on the grounds of Standing, in that Certificates are mere pieces of paper, are routinely bought and sold and thus the owners thereof at any moment in time cannot be ascertained, and cannot have Standing. (There is case law on that; will try to dig it out).

    Then go sue USBank and the rest of the bums. Sue them all.

  15. they might as well say they are suing on behalf of “John Doe”, no address known, no proof of life, no proof of claim!

  16. Its a sad day when non parties to a debt get sued. ..
    And the Plaintiffs attorneys know nothing.
    Not whom they represent , nor what the non borrowing defendant owes. Just saying,,,,

  17. T.U. …. Exactly!
    Jan…Welcome Back! Right on Target as Always!
    So how many lawyers are they allowed to substitutes after their want of knowledge affidavits….before people file a MSJ (with prejudice) ?

  18. Also – When a Trustee Like US Bank shows up to sues you for foreclosure keep in mind that it is not US Bank (for itself as a bank) suing you – it the Trust 2014-HE8 (or other) that is suing you, and US Bank is the agent, so the character of the plaintiff is NOT A BANK… and guess what… The Trust is NOT a bank and is NOT protected under the Bank Secrecy Act! (case citation exists but missing here) It is only ASSOCIATED with a bank. It must disclose all your discovery or subpoena demands… Again, try to get a judge who believes you are are guilty by default to enforce that!

  19. BTW – OCWEN Loan Servicing is NOT a bank and is NOT protected under the Bank Secrecy Act! (case citation exists but missing here) It is only ASSOCIATED with a bank. It must disclose all your discovery or subpoena demands… Now try to get a judge who believes you are are guilty by default to enforce that!

  20. For further information on Ocwen, check out the compilation at the New York Times here:

  21. There have been some comments posted here regarding “Ocwen.” When you see Ocwen entering the fray, you might note that the Ocwen entity showing up is not the Ocwen entity that is (on paper at least) the “servicer” of some loan claim (and more on that later).

    Ocwen, run by William Erby, a suitably murky individual (apparently now banned from the mortgage business by the CFPB) hiding behind a reinforced fence in a hilltop villa in the Caribbean, complete with a private army of armed men, is set up with a plurality of corporations. The umbrella entity is Ocwen Financial Corporation. One branch is Ocwen Loan Servicing LLC.

    When you get into litigation, at some point an Affidavit will show up, invariably styled as “I am employed as a Senior Loan Analyst by Ocwen Financial Corporation, whose indirect subsidiary is Ocwen Loan Servicing, LLC, the loan servicer of defendant’s loan, and am authorized to make this Affidavit on behalf of Ocwen and plaintiff.”

    Note carefully what is happening here. You have the LLC [the presumptive servicer, although they are likely not even that] but the Affiant is some clown working at the Financial Corp,[the “Corp.”] which has only an “indirect subsidiary” relationship with the LLC.

    At this point forward, all you get in the Affidavit, and all the pleadings, is “Ocwen.” Well, which Ocwen? The LLC, or the Corp., or some other entity? Nobody knows.

    By sliding into the generalization “Ocwen,” these clowns avoid really referencing which corporation they are representing, and even the attorney doing the foreclosure does not work for either the plaintiff (typically, Deutsche Bank National Trust, etc), but works for Ocwen Financial. So you end up with some lawyer hired by the Corp. bringing in some employee of the Corp. attesting to the business records of the LLC, which in turn is remote from the Plaintiff, which likely is a stranger to the loan in the first instance as that plaintiff never paid any real money for the Note, but is likely only a residual entity with claims to the income stream payments (and thus not entitled to file some foreclosure lawsuit in the first place).

    The first problem to trouble the Court, assuming anyone is paying attention, is that the foreclosure law firm, and the attorney in court, is not representing the plaintiff. Likely, the named plaintiff never even heard of the attorney, and would not know him if they fell over him. Indeed, likely DBNT, or USBank, etc does not even know that this lawsuit is even in play.

    The second problem is that the law firm represents some other entity and not the LLC that is before the Court as the servicer, in whatever capacity the servicer is sitting in there. They represent the Corp. To slide past this, all the pleadings and even the affidavits immediately go to “Ocwen” as a catch-all. But those are all separate corporations, crafted as Potemkin Villages to slide by everyone from the IRS to the various courts and government oversight agencies. You cannot have it both ways: separate corporations to create distance, and then one jumbled morass to slide past those barriers when in the foreclosure court.

    Since it is never the Corp that is before the court, only the LLC, and since the affiants always seem to work for the Corp., there is a real issue as to the credibility of these affidavits (usually filed in support of some summary judgment motion) as to “personal knowledge.” Your defenses therefore start with a Motion for Proof of Authority to Represent, attacking what that lawyer is doing in that court, and asking for his production of his retainer agreement with the “bank,” which I can assure you Ocwen will never release. Then you can file a Motion for Sanctions against the law firm, claiming that they have no real representation in the case. I would also file a Grievance with the State Bar Grievance Committee, claiming that the lawyer does not represent the plaintiff in the litigation and is committing a fraud upon the court with his Appearance. Typically, those Committees do nothing, but it will kick up some dust. And you file a Request for Production asking for the Retainer Agreement. That will go nowhere, but it serves to focus the court’s attention that the attorney standing before the court does not represent the named plaintiff.

    Your next step, and you must do this while the state court action is still ongoing (to avoid the dreaded Rooker-Feldman barrier), is to file suit in the USDC against the named plaintiff, the “bank,” claiming whatever TILA and debt-collection violations there are out there (and those will be legion, if past experience is any guide). At that point DBNT or whomever finds out that Ocwen is up to the usual tricks and then the fireworks get started.

    My motto: sue the bums. Happy hunting, folks.

  22. I heartily “endorse” the Pro Se practice of recording favorable documents and court decisions. Anything on file can then be produced as a certified document to bolster any subsequent actions concerning your property.


  24. dan, this letter is dated jan.2 2014. the letter is dated, 2 jan 2014.

    i sent my rescission letter march, 4 2015. they tried to foreclose 2 twice in 2014, and 2 twice in 2015. no go’s . always cancelled at last minute. by them. the last one, in 2015 was also the one i got the email from them stating they cancelled the sales date, and accepted the rescission .

    but i also sent the company a email that was doing the foreclosure sale as auction company, and told them i want to see who,what where they were getting authority to sell my home, and if they show up again i will have them arrested for trespassing. well they never came back. hum funny right.

    now am going to have that letter put on my land records at registry of deeds office.

  25. Db..

    Very interesting!

    What’s the most likely reason for Ocwen’s saying they are no longer the Loss Payee on your homeowner policy?

    Was it a result of Ocwen acknowledging your mailing a TILA Rescission Letter?

    Was it a result of your insurance company hearing from you about your dispute about them being your escrow agent?

    Was it a result of a judicial event during your Pro Se legal disputes?

    Has one of your legal challenges been that you personally paid the balance earlier…. or that other volunteer payees like GSEs, Derivatives claims and/or other parties?

    I agree, David, this is very curious!….. Will you use this statement from Ocwen as one of your allegations in a suit for Quite Title?

    Are you a Vet? Since this is Veterans Day, has the VA honored you by stepping in to wipe out the underlying lein associated with a VA loan guarantee???

    Maybe someone has hacked Ocwen and has created “loan payoffs” on behalf of homeowners they claim to be servicing?

    Whatever the reason, I’m eagerly awaiting my own “release” from Ocwen.

  26. well all I got a surprise in , from my homeowners insurance company yesterday, it’s a letter to the ins. company from, Customer Service Department, Ocwen Mortgage Loan Servicing.

    re: Attached Report of Mortgage Loans Paid in Full.

    Please delete the INTEREST OF OCWEN LOAN SERVICING,LLC for the attached referenced policies.

    These loans paid off effective with the date on the attached report., All future premium notices should be sent directly to the insured.

    effective date 01/01/2014. and my mortgage number is one of them.

    now ain’t that something. hum

  27. It’s either business as usual, and if there is a dispute, go to court if you wish.

    Or it’s criminal, and you file a criminal complaint with the AG and FBI.
    Depending on the value of any property stolen, it’s felony territory if there is no contract to allow them to take it legally.

    Name names.
    If the rescission was sitting at CFPB, and the rejection letter from the clerk was shown to the AG with the information that the rescission being filed is already part of a database of consumer complaints, I doubt there is much power in refusing what is already public with a federal agency.

    If you don’t use them, it’s your decision.
    That’s my opinion,
    Trespass Unwanted, Creator, Corporeal, Life, Free, People, Independent, State, In Jure Proprio, Jure Divino

  28. The thing Trump has going for him is he is not ” politically correct” i do love that lol

  29. Greg I agree with you regarding the county recorders. They don’t want to make a mistake recording. Let us not forget this is a new subject. But I agree with Neil’s approach.

    The banksters play the helpless unsophisticated victim. Donald Trump beat them in Jersey


  30. what matters to me is that they keep winning when they should not
    mo matter what kind of mythical beast we call them…
    change that!

  31. According to Trump and this is not a direct quote. The banksters are “sharks”. Not boy scouts

    I respectfully disagree. They’re Wolves as in little red riding hood

    Trojan horse

  32. When i think about the AG settlement i think about Jame Diamon making a public statement re the quality of the loan pools as i remember him saying- quote ” yes we were stupid” rather he thinks we are, because stupid they are not.

  33. in cook county the clerk’s office is on notice from the feds as a result of previous indictment of one of her assistants taking bribes to falsify dates on documents recorded… i think this is making them cautious and reticent to record things

  34. Dandiener1
    Point is you cant settle something until you grasp the magnitude of it and the far reaching harm to the 99% – we are all on the tax hook for the securitization fail not only did we lose our homes and in many cases whole life savings.

  35. Deb W..

    It was my understanding at the time, that cashing the $300 check would not preclude pursuing a personal suit against the culprit banks later.

    I cashed the check only after I was satisfied I could sue later.

    The Truth will one day be openly disclosed.

    I won’t be dissuaded until a sitting judge at appellate level or higher rules on this specific issue, “post-Jesinoski.”

    The 49-state “settlement” based the “evidence” upon banks relying on non-TILA Rescission-voided notes, security instruments, and assignments.

    The January, unanimous, Jesinoski ruling casts strong, legal suspicion upon the TBTF bank contributions to the 49 sitting AG’s.

    The settlement, to my knowledge, did not address fraudulent, Robo-signed documents the subject banks were relying upon “pre-settlement.”

    Shame and judgement should still be showered on at least 49 AGs!

  36. It’s time to go gay marriage on county clerk and have them arrested if necessary.

  37. Never mind santa, the emperor is and always was in his birthday suit
    And thats why its so ridiculous for govy to keep up a charard thats over and from my experience and feedback people are sick of being treated like darn mushrooms. 2016 the wind is going to blow the other way because it has to.

  38. Whoever thinks this isn’t good advice thinks the banks have to be trusted like the bribed officials tell us and believes in Santa Claus.

  39. dandier1
    Slightly off at a tangent but
    Re AG,s
    We have a Private right of action and that big AG settlement does not change that and doesnt apply especially if suit was filed prior to that settlement. I like many i was sent a cheque for around $300 of course i wrote back and said no thanks ill continue my private right of action.

  40. ims53….

    Though I’m not in Fl, I decided several years ago that your AG is totally in bed with the TBTF banks.

    My own state’s AG is too, just not so openly as “Ms. Pam Bondi.”

  41. Don’t forget…. when the clerk accepts your sworn and notarized Notice of Interest in Real Property or your Affidavit of TILA Rescission, to request and pay for a “Certified copy of that filed document” (that includes copies of the actual TILA Rescission Letter(s).)

    For a few dollars more during the filing process, my county clerk mailed me two certified copy at the same time the original documents were returned to me.

    I’ve successfully walked two friends through this same process.

  42. Iwantmynpv…

    “..just look like a lawyer or title company..”

    Don’t forget that, like these bank-controlled land office clerks, homeowner insurance companies and county tax offices accept mortgage servicers official-looking letters claiming they are the homeowners’ Loss Payee and the homeowners property tax payee because they are the self-proclaimed “Escrow Agent” despite the language in escrow impound agreements that the homeowner has the right to void the escrow agreement at any time, simply by sending the “alleged agent” notice of cancellation of the instant any and all similar voluntary agreements.

    On another note, would a “Net Present Value” evaluation include an accounting audit of all related financial transactions, including payments by GSE’s, exercised derivative claims such as CDOs, Credit Default Swaps – and any other “volunteered payments” to a loan that has no proven default to Holders in Due Course”?

  43. FYI, there are requirements for filing documents with the Register of Deeds Office or Recorder’s Office in each state and county. Make sure you are conversant with same before attempted filing. You might include a cover letter in your mailing that states: according to statute (fill in the name and number of said statute) I am enclosing (name it) for filing and stamping (certifying) and return, stamped envelope. Make sure you find out if there are any filing fees & get money order addressed to clerk.

    If they will not accept it, they will send you a document with the reasons which may be of assistance for the second time around.

  44. Jan van Eck- nice to hear from you again. Please continue to post, we all need sharp insight from people who have it. Thx

  45. now the banksters are trying to control what gets filed in the court system, believable and especially in florida, our AG is a sell out. in bed with the banks since the beginning of this fiasco. I filed an affidavit on my case, took 3 trips to the courthouse to make sure it got filed in my bamboozling into a foreclosure judgement. they are already ruling the clerk of courts in florida , no justice. don’t spend your money on attorneys in south florida

  46. Wow. Just file it with the Clerk, but make it look like it was mailed from an Attorney or Title Company… you know, the one’s that file thousands of documents, this way it may not be reviewed by the employees of the Clerk.

    This is not good advice… if it can be filed – it should be filed and that is it. If they choose not to file it, request the basis of the denial. If it is anything other than statute, take the Clerk to Court. It worked for the homo’s that wanted to get married.

  47. It would be interesting, if not surprising, to see a Federal Court Judge opine on the clerk of a town or county non-filing matter, considering that property filings are inherently a State matter. I would anticipate that a Federal Judge, presented with such Petition, would in effect say: “Hey, fellas, you have a state-law dispute. Go over across the street to the State Court and go file over there.”

    If anyone has actually convinced a Federal Court to take such case under advisement, please do post.

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