Federal and State Judges Think they Can Overrule the US Supreme Court

Jeff Barnes has put into words what I have been thinking about for several weeks. Barnes is a lawyer who has concentrated on foreclosure defense and has won many cases across the country. He is a good lawyer, which means that he understands how to get traction. So when he complains about Judges, people ought to sit up and take notice.

I think he has hit the nail on the head:

Posted on October 22, 2015

October 22, 2015

In recent months, we have been advised by homeowners in different states that certain Judges in those states have taken the position that decisions by either the Supreme Court of that state or decisions of the United States Supreme Court are not binding on them. Taking such a position violates the Judge’s duties as an officer of the Court, erodes confidence in the judiciary, and renders the public more suspicious of the court system than it already is.

A Judge is duty-bound to follow the “law of the land” whether they agree with it or not. A Judge cannot impose his or her own personal views as to whether the state or US Supreme Court made the correct decision on an issue: when a state Supreme Court or the US Supreme Court decides a specific legal issue, the law is established and Judges must follow it. State supreme courts (other than as so denominated in New York, as the “Supreme Court” is a lower level court in NY) and the US Supreme Court are the highest appellate courts, and their decisions establish “the law of the land”: a state Supreme Court decision establishes the law for that State, while the US Supreme Court establishes the law for the country.

In our experience, the overwhelming majority of Judges are fair, honest, considerate of the position of both sides, and take the law into account when rendering their decisions. The examples below are isolated, but the fact that two such examples have been recently brought to our attention is disturbing.

One of the cases which we were advised of concerned the use of Mr. Barnes’ successful appeal of the MERS issues in the Supreme Court of Montana, which by its decision established that MERS was not the “beneficiary” of a Deed of Trust despite claiming to be so. Although this decision was issued two years ago, the homeowner advised that when that decision was presented to a local Montana county Judge, the Judge took the position that he was not bound by the Supreme Court of Montana’s decision.

Another homeowner advised us that in a prior foreclosure-related hearing before a state court Judge that the Judge told the homeowner that he was not bound by decisions of the United States Supreme Court.

This contempt and disrespect for state Supreme Courts and the US Supreme Court is beyond disconcerting.  There is no reason why homeowners facing foreclosure should be treated adversely when a decision of a state or the US Supreme Court is in favor of them and presented to the Judge. “And Justice for All” means just that: it does not mean “except no justice for homeowners in foreclosure.”

Jeff Barnes, Esq.

see http://foreclosuredefensenationwide.com/?p=612

We see it in many cases involving rescission. It is isn’t that the Judge doesn’t understand. As pointed out by Justice Scalia in the Jesinoski decision the wording of the Federal statute on TILA Rescission could not be more clear and could not be less susceptible to judicial construction. In that unanimous decision of the US Supreme Court in January, 2015, the Court said that like it or not, notice of rescission is effective by operation of law when mailed and nothing else is required to make it effective. The court specifically said that common law rescission is different than the statutory rescission in the Truth in Lending Act.

In fact, the court was perplexed as to how or why any judge would have found otherwise. Thousands of Judges in hundreds of thousands of cases had refused to apply the plain wording of the TILA statute 15 USC 1635. Then came Jesinoski in which the Supreme court said there is no distinction between disputed and undisputed rescissions — they are both effective upon mailing by operation of law. That became the law of the land.

And yet, trial judges and even appellate court are again leaning toward NOT upholding the law and NOT forcing the banks to comply with statute. Many more are “reserving ruling” denying the homeowner remedies that are readily available through TILA Rescission. These courts don’t like TILA rescission. They don’t want to punish the banks for bad behavior. But that is what Congress wanted when they passed TILA 50 years ago.

As many Judges have said in their own written findings and opinions — if you don’t like the law then change it; don’t come to a court of law and expect a judge to change the law. Whether this will lead to some sort of discipline for Judges or simply make them vulnerable to being removed from the bench is unknown. What I do know is that when ordinary people come to realize that the foreclosure crisis could end now, thus stimulating our limping economy, they will likely vote accordingly.

Any Judge who refuses to follow the law as it is written and passed by a legislative body and signed into law by the executive branch (the {President or the Governor) has no right to be on the bench and should resign if his “moral compass” makes following the law so onerous that he or she cannot uphold the laws. In the absence of resignation, then momentum will likely rise and push the agenda of those people who want such judges removed involuntarily. Those Judges are acting against the most basic thrust of our society — that we are a nation of laws and not of men. We have a very well defined process of passing laws and that does not include any one person (on or off the bench) deciding on their own the way the law should read.

52 Responses

  1. 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…


  2. In a recent unanimous decision, the United States Supreme Court held that a borrower exercising her right to rescind a mortgage loan under the Truth in Lending Act (“TILA”) merely had to provide written notice of rescission within three years after the loan was originated. The Supreme Court held there is no requirement that a lawsuit be filed within three years of origination in order for rescission to be effective. Rather, the Court found that written notice, and not judicial action, effectuated rescission under TILA. Jesinoski v. Countrywide Home Loans, Inc., No. 13-684 (U.S. S. Ct., Jan. 13, 2015). The Supreme Court’s opinion is remarkably short, and it essentially resolves the entire case based on a straightforward, plain reading of the statute.

    Under TILA, a home loan borrower has the right to rescind a loan within three days of closing the transaction for any reason. The borrower’s unconditional right to rescind expires in three days, after which the borrower may rescind only if the lender failed to make the required TILA disclosures at origination. The extended right of rescission expires three years after the closing or upon sale of the property, whichever comes first, regardless of whether the lender did or did not make the proper TILA disclosures at origination. 15 U.S.C. § 1635(f).

    In Jesinoski, the borrowers sent a letter to Bank of America (successor to Countrywide) exactly three years after the closing, giving notice of rescission of their loan transaction. One year and one day later, the borrowers filed a lawsuit in federal court seeking a declaration of rescission and damages. Bank of America argued that written notice was not sufficient. Rather, it argued the borrowers had to file a lawsuit for rescission within three years of closing. Because the borrowers did not file their lawsuit until four years and one day after the closing, Bank of America argued the lawsuit was time-barred. The District Court and the United States Court of Appeals for the Eighth Circuit agreed.

    On appeal, the Supreme Court disagreed with the District Court and the Eighth Circuit. It held that the plain language of the statute leaves “no doubt” that rescission is effected when the borrower notifies the creditor of his intention to rescind. The statute does not require the filing of a lawsuit.

    Bank of America made several arguments to support its challenge to the statutory text.

    First, it argued that written notice suffices in the initial three-day period if the parties agree that the lender failed to make the required disclosures. However, Bank of America asserted, if the parties dispute the “adequacy of the disclosures – and thus the continued availability of the right to rescind – then written notice does not suffice.” (p. 5.) The Supreme Court dismissed this argument, noting that § 1635 “nowhere suggests a distinction between disputed and undisputed rescissions, much less that a lawsuit should be required for the latter.” Bank of America invoked a neighboring section of TILA in support of its position, claiming that the language of § 1635(g) – which states that the Court may “award relief” – necessarily required a lawsuit in order to “award relief.” The Supreme Court disagreed with this argument also, dismissing the notion that § 1635(g) itself requires a lawsuit and dismissing the claim that this provision has any bearing on how borrower-rescission under § 1635(a) may occur.

    Second, Bank of America challenged the statutory text by invoking a common law analysis. Traditionally, rescission took one of two forms:
    1. Rescission-at-law, which requires the rescinding party to return what he received before rescission can be effected; or
    2. Rescission-in-equity, which requires a court to affirmatively decree rescission of a sale.

    Bank of America argued that TILA disclaims the condition precedent that would be required by rescission-at-law, i.e., that the borrower return the proceeds from the transaction before rescission is effected. Accordingly, the Bank asserted, TILA “codifies” rescission-in-equity, which requires a judicial decree to effect rescission.

    But the Supreme Court was not swayed, holding that “[n]othing in our jurisprudence, and no tool of statutory interpretation, requires that a congressional Act must be construed as implementing its closest common-law analogue.” (Id.)

    Ultimately, the Supreme Court disagreed with Bank of America’s arguments in favor of the statutory text: the borrower “shall have the right to rescind . . . by notifying the creditor, in accordance with regulations of the Board, of his intention to do so.” 15 U.S.C. § 1635(a) (emphasis added). The Supreme Court observed that “so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely.” The Court did not discuss Regulation Z, which addresses the specific manner for providing notice or rescission. See 12 C.F.R. 1026.23(a)(1). Based on a plain reading of TILA, which requires only that the borrower give notice of his intention to rescind within three years of the loan’s consummation, the Supreme Court reversed the lower court’s finding that the borrower had to file a lawsuit to rescind.

    Many lenders and services already have in place procedures for handling notices of rescission, whether it is a written notice or in response to a lawsuit. For those who might have previously considered a writing to not be valid notice for rescission, the Jesinoski decision confirms that rescission procedures must also apply to written notice.

    the Jesinoski opinion stated that TILA’s language “leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind.” (p. 3, emphasis added.) By stating that rescission is “effected” and not simply “exercised,” the Supreme Court

  3. Oral Arguments this Friday morning 9:00 a.m. on my Motion to Vacate the summary judgment and Dismiss the complaint with prejudice.

    Points ….

    1 – Standing … Plaintiff Wells Fargo lacks Standing.

    The summary judgment was granted on the plaintiffs affidavit by a Wells Fargo employee who reviewed the business records regarding the transfer of ownership via them becoming holders of the note and the recording of an Assignment of Mortgage.

    At least 3 seperate issues of material fact exist that should have led to the Court denying their motion for summary judgment.

    a ) The note was endorsed and sold to Washington Mutual Bank at the time of closing October 2004. Borrowers made monthly payments to WAMU for nearly 3 years after. Sometime in 2007 Wells Fargo became servicer of the loan.

    On July 1, 2007 the Defendants mailed their letter rescinding the loan under the 3 year extended right to rescind for disclosure violations.Wells Fargo ignored the rescission for 3 months.

    On Sept. 25, 2007 Wells Fargo filed a foreclosure complaint alleging the Defendants had defaulted on July 1, 2007.

    Washington Mutual Bank went out of business Sept of 2008.

    On October 8, 2008 Wells Fargo recorded an Assignment of Mortgage in the county land records, stating MERS as nominee for the originator lender Commerce Bank now assigns the note and mortgage to WF for a sum of money …they back-date the assignment to Oct. 2007, a year earlier. The assignment has known robo-signers and the notary is a blatant forgery when compared to his signature on other assignments available on the internet.

    The copy of the note they filed with the foreclosure complaint does not have a stamped endorsement in blank from Washington Mutual. And when we went to court in December of 2010 they submitted their certification again certifying to this same note as being a true and accurate copy of the note they possess to foreclose.

    All this time FANNIE MAE website and MERS website both confirm that FANNIE MAE is the owner of the loan since December of 2004, two months after the closing in 2004.

    At the hearing in 2010 on my Motion to dismiss ..the judge tells me that he is going to adjourn for 3 months so the Plaintiff can go get the note that has the endorsement in blank by Washington Mutual, who now has been out of business for two years, since 2008.

    I called the FDIC to inquire about my loan, to see if it was one of those that went to Chase after WAMU failed ..they tell me “No, it was not”. They do not see my loan in the list that Chase received when Chase purchased WAMU assets.

    Wells Fargo comes back to court 3 months later in Feb. 2011 and now has a note with the stamp added in blank by WaMu with no date.

    Judge wants a plenary hearing so Wells Fargo can produce a witness Who can testify about some of the issues and concerns regarding the history and transfers in this loan.

    9 months later, after multiple adjournments , Wells Fargo requests that the case be dismissed without prejudice, Judge signs the Order.

    This new complaint filed in 2014 uses the same assignment and note.
    As of 2014 and now 2015 FANNIE MAE still continues to show that they own my loan. I called FANNIE MAE and the girl confirmed to me on the telephone that Fannie owns my loan, and that Wells Fargo is only the servicer.


    Can someone explain to me about assignments?

    My argument is Wells Fargo has fabricated this assignment and it is a misrepresentation…it is misleading the court to believe they own the loan and can foreclose.

    Am I misunderstanding something ???

    Yet I see that At least 30 other foreclosures have been filed in the name of FANNIE MAE in The same court as mine and around the same date.

    So why wouldn’t FANNIE MAE have not had someone foreclose in the name of FANNIE MAE if they truly owned my loan?

    Why do we have conflicting stories about my loan?

    The language in the assignment of mortgage makes it sound like Wells Fargo is the new owner …

    Is this an issue of material fact that could be tied to the suspect note in my case …why is FANNIE Mae allowing WF to foreclose on my loan?

    Do I have a valid argument about whether anyone can prove they own my loan?

    This is just one of the issues …standing ..the assignment…

    I also have to point out why The Judge erred in denying my rescission.

    And why he erred in denying My claim they are time barred by the statute of limitations on the note …New Jersey allows 6 years to collect on an accellerated note … The plaintiff was into their 7 year when they filed the new complaint in 2014.

    But right now I’m trying to understand how to argue the assignment being a misrepresentation upon which plaintiff filed the complaint.

    Can FANNIE MAE own my loan and still have WF get an Assignment representing that they own the note and mortgage?

    Or am I misunderstanding what an Assignment is ??


    If that doesn’t FORCE COERCION unjustifiably, they steal them under FALSE MANUFACTURED PRETENSES.

    That is unlawful FALSE IMPRISONMENT by the BIG FISH on WALL STREET.

  5. OH NO MR. BILL – If the POLITICAL PROSTITUTES can’t get no more POLITICALLY EAR MARKED MONEY they can’t pocket without claiming CAPITAL GAINS TAX it would be the end of their WALL STREET LOVE AFFAIR.

  6. Sure they’re bias, & their opinions incredulous because they don’t think we have NATURAL BORN LEGAL RIGHTS & that’s why we’re ignored by the POLITICAL CENTRISTS.

  7. Why have political debates & listen to how dictators want to dictate their opinions?


    If they violate the U.S. BILL OF RIGHTS they must resign & no EX POST FACTO LAWS.

    Then WALL STREET won’t want to sponsor them.

  8. Clearly there is nothing to rule upon because of FRAUD IN THE FACTUM, so they’re dictating their own opinions which is unlawful.

    The politicians speak their opinions like fact & that factless, baseless, PRESUMPTIVE & ASSUMPTIVE behavior has infiltrated everything.

    Their single-minded, one-sided opinions is what’s ruining the country like the DECLARATION OF INDEPENDENCE described it would.

  9. greg, on November 13, 2015 at 6:47 pm said:


    i agree that is a “presumption” but as we are learning with Scalia’s help – that when it comes to statutes (not god’s; or common; or equity; law)…

    “the ‘expressed’ letter of the law cuts like a knife”

    congress did not express in the statute that the specific term of rescission for that purpose is 3 days (a presumption) AND both terms are cited as periods of rescission AND even in equity, the benefit of the argument goes to the lesser powerful… (homeowner)

    if i am correct, then we might be looking at yet another tool…

    that’s all i’m saying, ok?

    and no, i have never seen anyone else take this tack –
    and yes, it might be inspired…

  10. I think OCWEN is RONNIE WOO WOO & can’t get over it.

  11. What if the sky fell isn’t the way I live my life, & they’re not NOSTRODAMUS so they can take their SPECULATIVE PREDICTIVE “WHAT IF” PREVENTATIVE THEORIES over to CHINA where they like FASCIST DICTATORS.

  12. So when the POLITICIANS want to make PROCTOLOGY MORE AFFORDABLE for the FEDERAL PROCTOLOGISTS ignore them, & fry up some bacon instead.


    Without the CREDIT BUBBLE people can’t go shopping & can’t FRAUDULENTLY REPURCHASE ILLEGITIMATE HEALTHCARE independently.

    That is meant to force people to pool their money in with the FEDERAL LOAN SHARKS.

  14. how many judges would say that the supreme court does not apply to them if the thing that the supreme court said was…

    “all men & women wearing black robes sitting behind benches in courtrooms must be paid by their body politic before any other creditor or employee, even if said body politic be bankrupt and payment must be tendered as “payment-in-kind by the transfer of said body’s property.” ?

  15. Now Ocwen says the credit rating agency won’t allow any more modification for that trust. Such BS.

    now w t f , does a credit agency have to do with this mortgage

  16. DwightNJ,
    They are LegalServices for whom? It’s obvious not you.
    They don’t do foreclosures because there are too many?
    Or because they could not get any business if they reveal all the things wrong with the things called foreclosures which is legalized theft using a term reserved only for ‘the Creditor’!

    Anyone who is not helping the situation by filing the complaint with the CFPB so they can trend what these bank corporations are doing and file their own lawsuits, is helping the banks hurt them and everyone else.

    If you know a crime has been committed and do not make it known to an agency you are also committing Misprision of Felony.

    This blog is your complaint among peers, it serves no other purpose except to relieve the stress.

    But the complaint in public from someone stating the claim under penalty of perjury and showing the documents they sent and received in the form of an image or some other acceptable form, and helping to clean this country of the criminals who hide behind the corporate veil, is what we need.

    We complain and beg for help, like praying every day for a savior, and then one is created with what is available, and the savior is taking names…names of people and the companies they did things to you while working for, and we complain and beg for help.
    [we don’t use what is given to us – but we elect more people who make promises and if they keep them by creating CFPB, we complain and don’t use what is given to us to help us]

    Each offense is reportable.
    You help them trend the behavior.
    How many more ‘thefts’ in the name of a term reserved only for the creditor, are we allowing by not taking that time to file that complaint and make them answer for what they did to ‘you’.

    People sending rescissions that end up in the trash, and they and their return receipt are the only evidence it happened, when if they involved the agency that would regulate the bank acknowledging the rescission or filing the lawsuit, they would not be sitting on this blog saying they don’t know what to do, cause their paper is not accepted.

    At most CFPB makes them talk to you, after the compliant is made, be it bank employee (with no knowledge of the transaction) or law firm (with no knowledge of the transaction), they still have to reply through the CFPB and if you dispute their reply, then investigation begins, if you accept their reply, there is no longer a dispute.

    Who’s fault is it that they ignore your rescission and you have not contacted the CFPB to make it public what they have done to you and want to keep private between you and them and the law firm that wants your home?

    Who’s fault?

    Well it’s only opinion. I don’t know legal things anyway.

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

    That’s my opinion.

  17. My typos below were due to sticky keys issues & proof reading every comment is not possible everytime.

    However, nothing is undecipherable.

  18. Correct typo: _in_ this country

    WALL STREET thinks COUNTERFEITING means they own things they don’t because DEBT FRAUD CREATION has no value.

  19. WALL STREET is obstructing the entire legal justice system im this country & it’s got nothng to do with the money, the purported debt or MORAL HAZARD.

    They’re trying to cover up their own crimes scenes by unlawful TITLE EXCHANGES.

    It makes no difference who they sayeth they’re not, they’re destroyonh evidence by claiming to be someoje they’re not.

    Who that someone is wants to be underhanded & sneaky because of the likes of AIG & MAURICE GREENBURG behaving like this is HITLERS GERMANY in the U.S. & no one should NOTICE THAT ONE UP AGAIN.

    many times to cover up their CRIME SYNDICATE is one b:az CREDIT CONSPIRACY to ignore
    our legal roghts.

  20. Friend….. “BOA sent me a letter from collections office saying I didn’t file TILA Rescission Letter within 3 years as required by TILA… they denied it.”

    Me…. “Did you receive a notice of a lawsuit from a BOA attorney disputing your TILA Rescission Letter within 20 days of receiving it?”

    Friend… “No, but I just feel I need to do something like call the foreclosing attorney’s office to see if they are going to advertise and schedule an auction at the courthouse.”

    Me: “First of all the ‘TILA denial letter was not even signed by an attorney….but it’s additional proof of their receiving your TILA Rescission Letter. .. the Return Receipts from the USPS also prove the fact.

    “Don’t dare respond to their bluff and don’t make a phone call. That would be like wading info a field of Kudzu and kicking through the vines looking for a den of rattlesnakes. Wait till they start advertising, then send them a well-worded letter demanding they remove your home from the sale process… We’ll include a copy of your Affidavit of TILA Rescission. If that doesn’t phase them, we’ll add other ‘incentives’ for them to comply to your letter. This FC mill has a history of making mistakes that can be used to make a bar complaint…. give them time, then we act.”

    “Remember, wait ’till the Kudzu is dry…then burn the field. Stand at the edges and kill the snakes when they’re trying to figure out what’s going on.”

    Friend : “Remember when I told you last month BOA cut off my access to my credit card….. The branch manager I met with said in 25 years she’d never seen BOA close an account for a customer that wasn’t dead.”

    Me: “Yep, you said she corrected the ‘clerical error’ but never provided you with the name of the clerk and the supervisor that did not first request a ‘certified proof of death’.”

    Friend: “But now, they’ve mailed three letters to inform me they are foreclosing on my estate and also on my parents who’ve been deceased for decades. I sent them death certificates but they’ve never removed my parents from the title.”

    Me: “When the snakes raise their heads, it’s time to act. We won’t have to take machetes or shotguns to the fire we’re about to light.. Let’s copy all these documents and go see my personal paralegal. He’s a certified snake slayer and the rattlesnake season just opened” 🙂

  21. Thank you … Stupendous Man, Michael Keane & the Fine Gentleman from Georgia …

    Who are these 3 intimidating figures who have the bankers and judges shaking in their filth?

    Like a scene out of a Clint Eastwood western movie…these 3 high plains drifters have rode into town and waiting in the street …out in front of the bank and the courthouse ….the women and children would run into their homes to hide and shudder the windows…but their homes are foreclosed on and the bank has changed the locks….

    Laughter can be heard coming from the judges chambers as whiskey and money are spilled across the floor in an orgy of filth and lies …. the rat bastard banker is down on his hands and knees wiping the judges vomit off the Order granting summary judgment .. Flies buzzing around their heads …

    And the court clerk screamed out in a loud cry …
    “Judge .. Judge ..there’s trouble waiting outside ..its 3 of the men from Neil Garfield blog site …they’re here “

  22. A fine gentleman asked me to post this, as follows:


    BEFORE ME the undersigned authority, duly authorized to administer

    oaths, personally appeared NAME, to me well known, or who

    identified self to me with Georgia Driver’s License #______________, who,

    after being duly sworn, deposes and says as follows:

    1. That I am a legal adult over the age of eighteen (18) years, and that I

    make this affidavit for the purposes expressed herein.

    2. That I am the fee simple owner of certain real property, located in

    _______ County, Georgia and legally described as Lot 9, Block 62 of

    City____, according to the Plat thereof, as recorded in Plat Book 2, Page 18

    of the Public Records of ______ County, Georgia, also known as 1413 North

    Andrews Avenue, City_____, Georgia 33311.

    3. That I own the property by virtue of a Warranty Deed issued to me at the

    time I purchased the property.

    4. That on June 1, 2015 I rescinded the mortgage on the subject property

    pursuant to the Truth in Lending Act, a Federal law, and that the Note and Security

    Deed has been rescinded and is null and void.

    5. By recording this Affidavit of Rescission in the Public Records of

    _____ County, Georgia, I hereby put all parties and the public on notice that the

    Security Deed recorded on said property has been rescinded and is null and void.

    6. Pursuant to Federal law, all parties notified of said rescission who were

    sent and received said notice, had twenty (20) days from their receipt of the

    rescission letter notice to dispute said rescission. By operation of law, said

    rescission becomes final if not disputed within the time period set forth above.

    7. That I make this affidavit of my own personal knowledge of the facts

    as set forth in this affidavit.

    8. That I make this affidavit under oath and under penalty of perjury.


    SWORN TO AND SUBSCRIBED before me, the undersigned authority,

    this ______day of June, 2015.

    ________________________________ _________________________
    Witness Witness

    ________________________________ _________________________
    Printed name of witness Printed name of witness

    ________________________________ _________________________
    Notary Public, State of Florida At Large Name _______________, Affiant

    My commission expires:

    Notary Seal

  23. Dwight,

    Give JPMC v Butler a read. Here is the citation:

    JP Morgan Chase Bank, Natl. Assn. v Butler (2013 NY Slip Op 51050(U))

    Schack has been spanked by NY appellate courts several times. I don’t know that this opinion held up. You should do your own research. It would be pretty bad to make arguments coming from a foreign jurisdiction that ended up not working.

    If you need a good case on equity give this one a read:

    290 U.S. 240 (1933)

    Actually, everyone involved in this should give the second one a read.

  24. The note becomes void after 6 years from accelleration ..

    Wells Fargo accellerated in 2007 …

    2007 plus 6 years = 2013

    Wells Fargo filed this second foreclosure complaint in May 2014 …

    Time-barred. !!!!

    The Judge says “but the mortgage gives them 30 years” ….

    I try to explain it so that a 8 year old child can understand … But the judge and Shadowcat are still confused …

    The mortgage cannot exist once the note becomes unenforceable by operation of law ..

    NJ statute that governs notes …states that 6 years after acceleration, the note becomes unenforceable …

    If there is no note …there is no longer a mortgage.

  25. The sum … Advances
    30 years,… YES!
    But they have the right to accelerate the entire balance now.

    Shakes Head.

  26. Legal Services of NJ has been looking into my case for the past 2 wks. They don’t represent homeowners in Court because there are too many foreclosures for them to handle, so they look at your case and offer advice over the telephone or email.

    The lead supervising senior attorney spoke to me in the beginning and then passed it onto her senior paralegal to research whether I have any arguments that can prevail.

    Both ladies I spoke to had a very limited understanding of what the Jesinoski decision means to how courts treat TILA rescission.

    Just got off the phone with the paralegal who says she and two attorneys have been reviewing my case and see some problems…

    1 – She tells me that the two attorneys see that my rescission letter names Wells Fargo and states the loan number, but it doesn’t state the address of Wells Fargo on the rescission letter.

    I told her that I mailed it to the address that appeared on all of their correspondences to me at the time. I didn’t think I had to include it in the rescission letter itself.

    2 – Next problem she told me ..is that I stopped paying Wells Fargo after I rescinded, she said I should have continued paying them until they responded to the rescission. She said I had no right to stop paying my monthly mortgage payments under TILA rescission…and that I have now lived in the house all these years without paying Wells Fargo.

    3 – Next she says that the State trial court is a court of equity and it has a right to do what it deems is fair in their eyes. Its not fair that you stopped paying just because you mailed a rescission letter.

    4 – They want to know if I can tender the 180,000 back if the court recognises my TILA rescission. She says my 20 day argument does not seem fair to the attorneys in the office, they feel that the lender paid my prior lender off when they refinanced my house, and now they have nothing..and I have both the house and never tendered. This is not fair or equitable in their opinion.

    5 – She disagrees that I was harmed or injured by them ignoring my rescission…my house may have been worth 300,000 at the time I mailed my rescission, and if I owed 180,000 in tender it would have left me with 120,000 in equity …but just because the value has dropped over the course of these years back to 230,000…she says that drop in value would have happened anyway, regardless of them ignoring the rescission. I told her that I would have been able to refinance but now I cannot refinance ..they have ruined my credit and destroyed the equity that I once had available at that time.

    Legal Services doesn’t seem to think Jesinoski changed anything. This is what I’m saying about the legal community in general, most lawyers still cannot wrap their heads around a statute that protects the borrowers from bad pretender lenders …even the advocates for distressed homeowners cannot accept the fact that a borrower should get the property if the TILA rescission is ignored.

    So it looks like I will be going to court on Nov. 20 with no help from legal services …

    My other arguments in the alternative are … Standing ..due to the Fannie Mae website still showing they own my loan and MERS also confirms it on their website that FNMA is the owner.

    But WELLS FARGO fabricated an Assignment of Mortgage that says they purchased the debt for a sum of money and will enforce to collect all amounts due. This fabrication is a misrepresentation and is not valid. It is a fraud document …the Fannie website is admissible evidence and supports our argument that WF never purchased the said loan and is bringing a fraud upon the court.

    Also the 6 year statute of limitation argument …NJ statute states that 6 years after a note is accelerated to maturity ..it becomes void.

    WF argues that they can still foreclose on the mortgage because it’s maturity date is 30 years later and was not accelerated by the foreclosure.

  27. You can’t wonder why WALL STREET thinks they can control the destinies of others when they can make people believe our personal & private lives is their business when it’s not.

  28. OBAMA said THIS WAR ON WOMEN, & no matter what the context, the personal private lives of women don’t involve him or no one.

    That was one example of PSYCHOLOGICAL WARFARE by WALL STREET EXECS to try & make people think other people can barge in on them under FALSE PRETENSES.

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

    1) Neil’s Living Lies Call at 6:00PM Eastern (347) 850-1260… on Blogtalk Radio

    2) Our interactive Q&A call, “Garfield’s Goose & Friends” on TalkShoe with your host, greg – begins every Thursday night at 6:45PM Eastern, 15 minutes after the conclusion of 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 line TO SPEAK; ASK QUESTIONS AND CONTRIBUTE…
    computer access will ONLY allow you to hear and type into the blog (Not Speak)…

    all are welcome!

    if you would like to receive a weekly email reminder of the call…
    please email the host at: [lawman@gmx.us]
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  30. It kind of seems like their overriding themselves because they contradict every law of this land.

    They ignore well ruled CASE LAW like it never happened.

    They’re obviously trying to dictate their own FRAUD to cover up they destroyed their own evidence of it.

    They say they have the right to “INTERPRET THE LAW” (MARBURY V MADISON), & the founders rolled over in their graves the day that happened.

  31. wonderful and awesome citations…
    Stupendous Man – Defender of Liberty, Foe of Tyranny, on November 11, 2015 at 5:09 pm said:

    This isn’t news.

    major man-hugs

  32. These FILTH have foreclosed, fraudulently, on veterans; active soldiers, in the field.

    The “Trusts” are empty.

    The Taxman has been cheated…

    Of course, it wasn’t the lawyer filth and banker filth that created these conditions…

    Instead, it is the minorities; people of color; claiming things that aren’t true; this is what has undermined our fiscal condition…

    According to the filth: the bankers, “We the criminal, banking filth, can create wars under false conditions and then foreclose on the warriors we subjected to the fight under false pretenses…

    “Of course, the minorities did this, We the banking filth and our banking filth attorneys never expected to take the homes of servicemen and women…

    “That is just a natural consequence of subjecting them to a fight, We, the banking filth, and our children, will never be forced to endure…

    “The warriors should have known better…

    “After all, they are the morons that are protecting our, banking filth, way of life”.

  33. This isn’t news.

    Courts have frequently been refusing to enforce the rules of procedure, and evidence, refusing to enforce state, and/or federal, statutes and regulations, and refusing to rule in accordance with state, and federal, precedent and authority for some time now.

    The prevailing attitudes of trial courts seems to be 1) “If you don’t like my decision, and you can afford it, you can take it up on appeal,” 2) “You want me to rule for you? Try and make me. I dare you,” and/or 3) “I can get away with whatever you can’t stop me from doing.”

    Many of the opinions reversing trial court rulings in foreclosures … are reflective of blatant abuse by the trial courts.

    Recent examples I can remember (just off the top of my head, and as someone not in the legal profession in any way I shouldn’t be able to remember ANY of these, much less have read and comprehended them to start with):

    Colon v JP Morgan Chase, FL 5th DCA, Case No. 5D14-1191. The 5th DCA opined “the court erred in entering the summary final judgment because no competent evidence was presented to refute his affirmative defense that Bank failed to satisfy the notice
    requirement of paragraph 22 of the mortgage. We agree and reverse.” The rules of evidence are not hard for the trial courts to comprehend.

    Jelic v LaSalle, FL 4th DCA, No. 4D13-4040. The 4th DCA opined “We find merit in Homeowner’s argument that the bank lacked standing to foreclose at the time the complaint was filed.” At this point standing, or the lack thereof, is not a difficult issue for the trial courts to comprehend.

    Poor Jelic won another appeal last week, Jelic v. BAC HOME LOANS SERVICING, LP, f/k/a COUNTRYWIDE HOME LOANS SERVICING, L.P., No. 4D14-516. ” The Bank has failed to establish its standing to foreclose.” Again (the 4th DCA used the word “again” several times, and also pointed out that it was repeating itself) standing, or the lack thereof, is not a difficult issue for the trial courts to comprehend.

    Boumarate v HSBC Bank, FL 5th DCA, Case No. 5D14-1379. Note this was also Boumarate’s 2nd appellate victory. The 5th DCA opined “Here, the trial court found that the Bank proved entitlement to enforce because “they [i.e., the Bank] have possession of the note, that’s all they need.” The trial court’s ruling was erroneous. In order to enforce a negotiable instrument, the Bank must prove more than mere possession—it must prove its entitlement to enforce the instrument at
    the time of loss. The Bank, in this case, was unable to do so. The copy of the note introduced into evidence was payable to Novelle, not to the Bank, and it did not contain any indorsements. Nor was there any evidence of an assignment; in fact, the Bank’s sole witness did not know of any assignments or indorsements and could not otherwise explain how the Bank was entitled to enforce the note. In sum, the Bank failed to reestablish the lost note because it failed to prove by competent, substantial evidence that it was entitled to enforce the note at the time of its loss. ” The Florida UCC is not difficult for trial courts to comprehend, and again neither are the rules of evidence.

    Cardona v Nationstar Mortgage, LLC, FL 4th DCA, No. 4D14-1609. Here the 4th opined “the trial court erred in allowing the bank’s witness to testify about the content of business records not introduced into evidence, and in finding the bank proved standing. We agree with the homeowners on the first issue and reverse.” Again the rules of evidence (business records, and witness testimony) are not difficult for trial courts to comprehend.

    BANK OF AMERICA, N.A., v Smith, Ohio First Appellate District, APPEAL NO. C-130306. Here the 1st opined “In her first assignment of error, Smith argues that Bank of America failed to meet its burden under Civ.R. 56 by failing to properly submit evidence establishing that there was no genuine issue of material fact for trial. We agree.” The reversal was based on failings of plaintiff to provide extrinsic authentication of documents. The rules of evidence are not difficult for trial courts to comprehend.

    So, this isn’t news.

    It would be news if a trial judge was disciplined, or even removed from office, for egregious error, or engaging in a pattern of misconduct.

  34. Nothing but numbers,bodies,by the millions demanding our rights and if it doesnt happen soon then we all are doomed.All about those pension fund holdings,such bs.My 3 trips to court so far have made me so hopeless so real fast,first second times was a custody/time arrangement and my lawyer,a women who was referred by a girl I was seeing,1st time all good 50/50 I was pleased.Though I had been having my son more like 90% as mom worked a lot,next trip judge cut me out of every other week,I had to go to his school and tell him that I wouldnt be able to pick him up and that was not good.
    After court Im at my lawyers office and she is talking and mentions that her and the judge have been on and off lovers and that recently he has been trying very hard to get some,his wife is pregnant with twins,but that she has been telling him to piss off.
    Now I was in shock still when she was running her story and mid way through the two weeks of no sleep,freaking out thinking I would never see him that whole story hits me and then get it.Wow what a day that was.
    Judges are bad people these days is my point in sharing,mom and I have been good friends for years now,its a bitch.

  35. Are not actions as those described above grounds for a Title 42 action? These judges are obviously in violation of their oaths of office. They are in essence PREVENTING homeowners from using …rescision…for a defense against unlawful foreclosure because what should be a shirt and to the point process is drug out for months and …Years…as in jim maklins case. Homeowners are barely surviving. We cant afford the litigation for long drawn out court fal da ra that SHOULD be cut and dried for the homeowner

  36. There’s no excuse for these judges or any public official. Even they have benefited from our struggle when courts were being shut down and their pensions were saved with lawsuits and settlements with investors.

  37. 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:

    1) Neil’s Living Lies Call at 6:00PM Eastern (347) 850-1260… on Blogtalk Radio

    2) Our interactive Q&A call, “Garfield’s Goose & Friends” on TalkShoe with your host, greg – begins every

    Thursday night at 6:45PM Eastern, 15 minutes after the conclusion of 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 line TO SPEAK; ASK QUESTIONS AND CONTRIBUTE…
    computer access will ONLY allow you to hear and type into the blog (Not Speak)…

    all are welcome!

    if you would like to receive a weekly email reminder of the call…
    please email the host at: [lawman@gmx.us]
    with the subject line: “please add me to the goose!”

  38. thanks Greg for pointing this out to me
    – Neil

  39. Dwight,

    I want to be careful. This is not an easy process. I have spent years and hundreds of hours researching and preparing. It’s not for the faint of heart.
    I just want to encourage you and others similarly situated to keep fighting. This is an incredibly unfair blow to be dealt in this life.
    But stay the course. It sounds like you might try the FBI if the judge(s) have been so unfair.

  40. State case law and consumer state laws as well as protection for the homeowner.

  41. BLD…What arguments prevailed for you in those cases?

  42. Let’s face it – it all depends on the judges’ retirement investment and mutual fund selections. Those judges invested in riskier funds, like PIMCO (with higher MBS percentage) for example, are more likely to go rogue on homeowners and side with the banks. They think they are protecting (imaginary) assets.

  43. BLD. Congrats! Procedure & Supporting Case Law
    & An Attorney. People who are harmed get Attorneys.

    Blaming the Judges gets you Nowhere ! Useless!!!!!!

  44. Sorry…your judge recused.

  45. While this has been prevalent in too many cases with homeowners, many are beginning to win and win punitive damages after being unlawfully foreclosed on.
    In our last motion we filed, I watched as our attorney skillfully argued case after case law. He was excellent as the bank went for the jugular.
    The judge ruled in our favor because of the cases he sited. In any hearing we have had so far, the judge has ruled in our favor.

    It sounds like you need to have your recused.

  46. I wholeheartedly agree with you, DwightNJ

  47. Change does not come easy Just ask the Veterans

    You have to name the Judges and shame these Bullies out of our communities what do you do when the judge is near or past retirement and has nothing to lose


    In this article they didn’t name one judge

  48. Reblogged this on Alina's Blog.

  49. DwightNJ,

    Well said. You have hit the nail on the head.

  50. I reached out to Jeff Barnes and emailed him the transcripts from my case a couple months ago, showing him the proof of how the judge in my case was defiant towards the U.S. Supreme Court and disregarded what Justice Scalia said in the courts decision in Jesinoski.

    This is why I get so frustrated and short with the posters here who keep placing the blame on the homeowners to “work harder to find caselaw that supports your arguments” … No, this isn’t about citing caselaw, this is about unfair judges holding a personal bias against homeowners.

    The judicial system is broken, the checks and balances are not working.

    We have a national emergency in the judiciary right now, it has been hijacked by defiant and untrustworthy judges who oversee foreclosure cases. Jesinoski exposed how long it’s been going on, and to what degree homeowners have been denied justice all these years.

    We all know whats at the root of the problem …the root cause of the injustice is due to the judges believing the homeowner shold NOT prevail, even when those judges know and understand that the banks have committed crimes, never consummated valid, legal loans, never had standing, etc., etc.

    The Judges are well aware of the truth ..but they still feel as though the homeowners should lose their properties despite the evidence. This has become something personal to these judges. They do not care that the banks violated the federal Truth in Lending Act by tricking innocent homeowners into fraudulent mortgage scams which created a windfall of profits for those banks. There is no injury to the pretender lenders.

    But the judges believe that the homeowners are getting a free house.

    And this is where the problem lies, the Judges are sitting on their bench in courts of equity, holding onto their misguided views that despite the lenders Ponzi scam mortgage practices, the equitable thing to do would be to treat this as the borrower defaulted and can’t get a free house.

    And now with Jesinoski …these same courts , with their pompous, egotistical judges ..who go thru life with a sense of power that nobody around them ever calls into question ..they downright refuse to accept being exposed that they have been wrong. They have been unfair. They have disgraced the positions they were entrusted with. That all of this will tear away at their ego and pride if they admit they’ve been wrong.

    So what we now have going on in foreclosure courts is a runaway train thats been hijacked by the judges …They are no longer obeying their sworn duties to uphold the laws of the land ..they have become up the renegade lawless ones who need to be removed and punished.

    So you see …when we have people show up on this board and point fingers at the homeowners ..accusing them of not hiring the right attorney …or not attacking the mortgage ..or not finding the caselaw to support their arguments .. well it just sounds ridiculous when we all know the dirty truth, that the judges are the problem, they always have been the problem ..and they will defiantly continue to be the problem until they are reprimanded or removed from the bench.

    And up until that happens …we the Defendants will be forced to fight with both hands tied behind our backs as if we are in a court in Syria being run by a group of Isis terrorists …this is what our nation has become …a land of lawlessness, of big banks and institutions that we were told are too big to fail.

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