RESCISSION: When the Judge Gets it Wrong

Posted on March 14, 2016 by Neil Garfield
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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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Based upon my own experience and what has been reported to me from around the country, most trial judges are making the mistake of confusing argument and facts when it comes to TILA Rescission. They are either expressly or tacitly ruling that at best, TILA Rescission is a claim or defense — which means that in order for Rescission to have any effect, it must be litigated. This is wrong and it has been expressly rejected by both the TILA Rescission Statute, and U. S. Supreme  Court in the Jesinoski decision.
I offer the following, drafted by me, as a response to when Court’s essentially overrule the the highest and final court in the land. I suspect that the resistance by trial judges to the effects of rescission will not be resolved, in most instances, without an appellate court saying for the second time that Courts are wrong when they disregard or try to change the wording of the TILA Rescission statute.
Comments are welcome: neilfgarfield@hotmail.com

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Motion for Reconsideration on Defendant’’s Motion to Dismiss For Lack of Subject Matter Jurisdiction
  1. A trial Court has the inherent authority to control its own interlocutory orders prior to Final Judgment. North Shore Hospital Inc. v Barber 143 SO 2d 849, 850 (Fla 1962).
  2. While non-final orders were not subject to a motion for rehearing, a trial judge nevertheless had the discretion to choose to entertain such a motion precisely because it had jurisdiction to control its non-final orders prior to entry of Judgment. Commercial Garden Mall v Success Academy Inc. 57 So 3rd 982 (Fla 2nd DCA 2011).
  3. An order denying a Motion to Dismiss is interlocutory. See Nationwide Ins Co. of Florida v Demo 57 So 3d 982 (Fla 2nd DCA 2011.
  4. Here this Court heard Defendant’s Motion to Dismiss on March 10, 2016 and denied, apparently without prejudice to raise the issue of rescission as a defense, Defendant’s Motion to Dismiss for lack of subject matter jurisdiction.
  5. TILA Rescission is neither a claim nor a defense. It is a legal act that has legal effect when completed. The only factual issues are whether the rescission was sent, which in this case is undisputed. TILA Rescission is effective as a matter of law, when mailed. Its effect is to void the note and void the mortgage and trigger specific statutory duties of the “lender” under 15 U.S.C. §1635 et seq. Jesinoski v Countrywide  574 U.S. ___ (2015) and Regulation Z. C.F.R. (Federal Reserve as succeeded by Consumer Financial Protection Board).
  6. The gravamen of what was argued before the Court was that the note and mortgage, being void by operation of law, could not be the subject of any legal action.
  7. Since the Plaintiff’s entire case rested on the use of two void instruments — the note and mortgage — and there is no allegation in the Plaintiff’s complaint asserting legal standing of an creditor seeking to collect on a debt, the Court does not have any justiciable issue before it. There is no count in Plaintiff’s complaint that seeks to recover on a debt, naming as Plaintiff the owner of the debt. In this case Plaintiff admits the Creditor (owner of the debt) is not the Plaintiff. The complaint seeks solely to enforce the paper instruments — the note and/or mortgage — both of which are now void by operation of law.
  8. There is also no lawsuit by any real party in interest seeking to vacate the rescission that has indisputably been sent, received and recorded in the County records — and which has been indisputably ruled as legally effective by the U.S. Supreme Court.
  9. At the hearing it was admitted by that the owner of the debt was the “investor” who was distinguished from the Trust.
  10. The rescission that was indisputably mailed and received removes standing of the putative Plaintiff. Without the note and mortgage, only the debt remains. And the only party with standing to seek collection on the debt is the Investor, who is not party to the instant action. And according to the TILA Rescission statute such a “creditor” must either first FULLY comply with the TILA Rescission statutory duties or first file a lawsuit to vacate the rescission (which currently has the same force and effect as an order of any court of competent jurisdiction).
  11. No lawsuit demanding that the Court vacate the rescission has been filed by anyone. Yet this Court has effectively granted such relief without any real party in interest, without a lawsuit seeking to vacate the rescission sent by borrower, and without any pleading in which a [proper party seeks to remove the recorded rescission that was filed in the County records. This Court instead is ignoring the rescission as though it does not have any legal effect despite the clear pronouncements of the TILA Rescission Statute, Regulation Z, and the clear and final ruling by a unanimous Supreme Court of the United States.
  12. Plaintiff lacks standing even if Defendant’s defenses based upon an untimely fabricated assignment are over-ruled.
  13. Defendants assert that this Court misapprehended argument and facts.
  14. The undisputed facts are that the TILA rescission was sent and received. The fact remains now that the rescission is effective and remains effective as a matter of law. The undisputed facts, as a matter of law, remain that the note and mortgage were both rendered void by operation of law by the sending of a letter of rescission by the alleged “borrower.”
  15. The Court’s decision was that the issue of the effectiveness of the rescission was a defense and not the proper subject of a Motion to Dismiss for lack of jurisdiction.
  16. The error asserted by Defendants is that this Court’s ruling essentially “over-rules” the Supreme Court of the United States in Jesinoski v Countrywide, a copy of which was provided to the Court  at the hearing. Defendants state the obvious: this court lacks authority to overrule the highest court in the land.
  17. To hold that rescission is a defense to be litigated flies in the face of the unanimous Supreme Court ruling that NO LITIGATION is required to make rescission effective. No Lawsuit is required. Jesinoski, Supra.
  18. Rescission is effective by operation of law. 15 U.S.C. §1635, Regulation Z. Jesinoski Supra — all of which state that rescission is effective as a matter of law when mailed and that no claim or lawsuit or ruling by any court is required by the borrower to make it effective.
  19. The effect of this Court’s ruling is to over-rule the Supreme Court of the United States and rewrite the TILA rescission statute that is a very clear and specific remedy WITHOUT  THE NECESSITY OF THE BORROWER RAISING THE ISSUE IN LITIGATION. The entire point of the TILA Rescission statute was to prevent “lenders’ from stonewalling the effect of the rescission. The rescission is immediately effective as a matter of law, when mailed.
  20. By ruling otherwise, this Court is following a rule of law explicitly rejected by the U.S. Supreme Court.
  21. This Court is following a rule of law that has been expressly repudiated by the highest and final court in the land. The effect of this Court’s ruling is to make the rescission NOT EFFECTIVE until it is raised in defense of a foreclosure and then only after the effectiveness of there rescission is litigated in a lawsuit. The U.S. Supreme Court says otherwise in a unanimous decision penned by the late Antonin Scalia.
  22. In the Jesinoski decision it was stated clearly and unequivocally that the rescission, whether disputed or not, IS effective upon mailing, without any further action on the part of the borrower. The burden of disputing (pleading and proving standing and a cause of action to vacate the rescission) falls solely and squarely on the parties who received the notice of rescission.
  23. The Jesinoski Court further explicitly stated that hundreds of trial and appellate courts across the land were wrong when they had previously ruled, as this court has just done, that the rescission was subject to litigation and that the “borrower” must bring a legal claim or lawsuit seeking to make the TILA Rescission effective..
  24. The Defendants assert that this Court’s apparent unfamiliarity with the Jesinoski decision, the TILA Rescission Statute and Regulation Z, combined with the Court’s understanding of common law rescission resulted in an erroneous ruling that was expressly and explicitly ruled out by the Supreme Court of the Untied States. This court may not read in the rules of common law rescission to a specific statutory scheme that is clear on its face.
  25. It is clear that the the Supreme Court of the United States has decided, as the Final Authority, that the TILA rescission statute is clear and unambiguous on its face, thus eliminating any right, authority or jurisdiction to read into or interpret the TILA Rescission statute. It is equally clear from the express wording of the Jesinoski decision that reading in common law rules of rescission is erroneous, as such “interpretation” was rejected by a unanimous Supreme Court as unlawful and wrong.
  26. There is no escaping the fact that the rescission is effective by operation of law.
  27. Accordingly, Defendants assert that this court has no room for interpretation or authority or jurisdiction to change or interpret the TILA rescission statute such that the borrower must raise rescission as a defense — a requirement that unlawfully denies the effectiveness of the rescission when mailed.
  28. Accordingly Defendants assert that this Court committed error by ruling that rescission was a defense requiring pleading and proof in order for the rescission to be effective as a matter of law. Defendants thus request this Court revisit the issue and correct its prior ruling.

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18 Responses

  1. Stan Burman, on March 16, 2016 at 8:31 pm said:

    Reblogged this on California Freelance Paralegal.

  2. greg, on March 16, 2016 at 5:10 pm said:

    EXCELLENT DRAFT NEIL – EXCELLENT!
    easy to edit for individual circumstances…
    thank you
    greg

  3. Deborah wynn, on March 16, 2016 at 2:06 am said:

    And they would have to give all the money they made back
    And damages

  4. Deborah wynn, on March 16, 2016 at 2:05 am said:

    Wish it were as simple as rescinding the govvy for breaking the contract

  5. neidermeyer, on March 16, 2016 at 1:30 am said:

    @ Deb Wynn ,

    That was my point also ,, it’s way past time to break up the gov’t/WallSt./CEO class monopoly which is supported by the Repubs and the ‘Rats. We the People are not considered to be “the enemy” we are not thought of as significant or worthy of any concern by the elites… we are only thought of when they need to manipulate us to maintain their power.

  6. Deborah wynn, on March 15, 2016 at 2:02 pm said:

    Neidermeyer
    I said it would be ” a start” my point is status quo is not serving us and the level of corruption is a direct result of big banks special interest agendas cant talk politics i dont pretend i know much but its time for a change thats just my opinion. Good luck with your case.

  7. neidermeyer, on March 15, 2016 at 1:28 pm said:

    @ Deb Wynn ,

    I appreciate the fight in you but don’t comprehend the “vote Communist” agenda… You do understand that under Communism the elites get stronger and everyone else is crushed… happens EVERY time… is happening now in Venezuela… What we have now is a “uniparty” ,, we need the same revolution now that we had in 1859 where the Whigs were destroyed by the upstart Republican party ,,, the current republican party is no different from the whigs in that they only offer lip service to the stated goals… it’s been that way for almost 30 years … I could say 80 years with just a few glimmers of hope but that’s debatable.

  8. Elaine Williams in Baltimore, on March 15, 2016 at 1:24 pm said:

    @Romany Life – ours was textbook too. We fought for five years, loosing our 401k AND our house. There is no justice for people like us. We are both 61 and have to start all over again.

  9. Deborah wynn, on March 15, 2016 at 1:05 pm said:

    Dear all,
    I have followed this blogg site faithfully since its birth i have seen folks come and go i have read pieces that cleArly show mental anguish ( including mine ! ) and stress and harm done by the courts and that harm by the courts is not always intentional because they have to go with what they have in front of them, judge isnt always the bad guy, sometimes they have to maintain their stance, remember federal judge is appointed For LIFE. Im writing this with the feeling of relief as well as the pain felt from the awful injustice of what i have endured for almost 7 years, i was going to fight on with the last claim i had under the issuance of a 1099a from a party that was Servicer not Lender, but that relates back to all that had been adjudicated and at least 4 judges would look very bad, i look back at how my case evolved and Neil is very accurate when he says that the banks get all the presumptions and the land recorded interests are ACCEPTED AS TRUE and the burden is firmly onnthe borrower to get past that 12b 6. It tryely is a travesty of justice, i fought an uzi with a pea shooter to put it into perspective and even though i had rescinded perfectly according to the statute, however the other rulings in the middle , well see the aforesaid, judges closed ranks. I may write my strory one day, but maybe not, i need to heal first. I know many can relate, bless you all, do what you can but i must stop now because the cost is far more than i can give. I tried, and i did learn a lot, the hard way of course. I write this not to discourage because your time is now, i was a forerunner and i am shocked to the core of my being that there is no justice unless you are the platimun card toting club member, and finally GO BERNIE.

    Thank you Neil for this forum. may all of you have success and hopefully some justice but most of all please research for experienced council who can be trusted to do the work, understand your claims and have your best interests at heart, do not go it alone because its David and Goliath, please understand that, however remember David hit Goliath in right place and in front of his army, and on that note again, BERNIE For Next president, it would be a start at least. Remember the same big banks that hedged bets against their own clients and created the housing short ( see movie ” The big Short” essential watch before you vote) are the same big banks that pay for Hiliary Clinton and her campaign, what part of more of the same and WORSE is not understood by now.

  10. Al Murry, on March 15, 2016 at 12:53 pm said:

    to David James…If you do a QRW, they will delay the answering with a letter indicating more time is needed. When you finally get the answer from them, they will still hide from your questions with stonewalling. You will have to be persistent to get an answer. I did the same with Ocwen 3 times and always the same useless answers. When you get the same answers…chances are they are hiding the information requested

  11. lms53, on March 15, 2016 at 8:38 am said:

    david james, fannie and Freddie are a façade, cover up, chances are wells is the owner, servicer and whatever else has to do with your loan. Do a qualified written request to wells, You have to dig deep to put them deeper in the hole. know what I mean.

  12. Ian, on March 15, 2016 at 6:46 am said:

    Pat pritchard- you
    Have to be careful here. If you had a cashout refi you need proof that there was anything to refi. Apart from the smoke amd mirrors, if your “lender” claimed to be refinancing a 200k “mortgage” chances are there was no mortgage. Just a small cashout refi amd a bunch of misleading paperwork.

  13. pat pritchard, on March 14, 2016 at 10:00 pm said:

    Hi. I am still waiting for answer to my question: If I file for rescission in Wisconsin do I have to pay them all money loaned back, probably minus the fees and interest? If so, right away? If that’s the case it would not work for us, as it sounds like we would lose house any way, if they are true lender. Pat

  14. DC, on March 14, 2016 at 8:04 pm said:

    Look at the pension fund holdings of the judges and you will see why they rule in favor of banks,the message is loud and clear that “We The People have no real say any longer.

    You see that in the courts,legislature,statutes,the thousands of bills passed every few months by governors,and all are meant to part the people from their property and money.

    Change will come when we insist and demand that it come,and that will take numbers and organization.
    We the people are actually paying these folks salaries while they devise ways to take more from us,you tell me does that sound strange?

  15. Social Apocalypse (@SocialApocalyps), on March 14, 2016 at 12:44 pm said:

    By the way: Here is our appeals case if you would like to read it:
    https://www.courts.wa.gov/appellate_trial_courts/coaBriefs/index.cfm?fa=coabriefs.searchRequest&courtId=A02
    Baker v. PennyMac et. al. in Washington State Court of Appeals Div II. It was heard (without argument) on February 23. We are awaiting a ruling.

  16. davidjames, on March 14, 2016 at 12:40 pm said:

    Lord I wish i could find a lawyer in AZ who understood this stuff! FREDDIE MAC WAS THE INVESTOR, WELLS FARGO THE SERVICER AND WELLS FARGO FORECLOSED ON ME NOWHERE WAS FREDDIE MAC PRESENT ON ANYTHING.. SO DOES THAT MEAN I CAN FILE FOR RESCISSION? SINCE THE INVESTOR IS SUPPOSED TO BE THE ONE WHO CAN FORECLOSE ON ME? FREDDIE MAC OWNED MY MORTGAGE ACCORDING TO WELLS FARGO? THE ONLY THING THAT WAS EVER RECORDED WAS BY WELLS FARGO AND NEVER TRANSFERED TO FREDDIE MAC? SOMEONE? I LOST A HOME AND OVER 200K IN DOWNPAYMENT AND PAYMENTS OVER 3 YEARS THX TO THE FAKE HAMP PROGRAM THEY FORCED ME INTO.

  17. Social Apocalypse (@SocialApocalyps), on March 14, 2016 at 12:34 pm said:

    It costs an UNREAL amount of money in legal fees to chase these cases as a borrower. This, in my opinion, IS the ace that the servicers have: most can’t afford to do it, so we have very little case law to support us. Sad. We have tried so hard, for SEVEN YEARS to access the rescission remedy on a mortgage that was NOT in default, we did everything right, and we lost our house. It’s beyond the reach of most, and my opinion, so far, rescission is not a useful remedy to homeowners. It IS judicial, unfortunately. We have spend $100K on legal and we are still fighting, and will continue to fight. Hopefully our case will help put the remedy in reach of borrowers in the future. It’s a great remedy, IF the courts would take the time to actually LEARN about it. Most have NO IDEA what it is, and don’t bother to try.

    We will report back when we hear the ruling on our appeals case.

  18. Romany Life, on March 14, 2016 at 12:18 pm said:

    We are awaiting an opinion on our case in the Washington State Court of Appeals, Div II “Baker v. PennyMac, et. al.” on this very thing. Our rescission is undisputed, (Case is identical to Jesinoski) and we filed a motion 60(b) to ask the court to reverse on Jesinoski. She refused citing “a change in the law is not an extraordinary circumstance”. Obviously there was NO CHANGE IN THE LAW. She would not reverse herself. But. put very simply: It is impossible that we could have rescinded, we were denied our right of rescission BECAUSE the court ruled in opposition to the law. I would ask the court, “Well, how SHOULD we have done it then?” I would love to hear their answer. If the court of appeals rules against us then we will continue to litigate as much as possible. Ours is a textbook case and we still cannot get through court.

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