Today a Federal Judge in South Florida granted motions to dismiss (with prejudice) filed by parties against whom a homeowner had filed suit claiming that those parties should be enjoined from using the notes and mortgages in his case. The claim was based upon allegations of a recent TILA rescission and that consummation of the loan contract was a question of fact. I am the attorney of record. No decisions have been made by the client as to the next steps of Rehearing and/or Appeal.
This decision underscores what I have been saying for months as judges across the country continue to resist the idea that rescission actually cancels the loan contract and voids the note and mortgage regardless of when or why it is sent. The various conditions for rescission are (a) questions of fact that should not be presumed and (b) can only be raised by a party who has legal standing without reference to the note and mortgage. The court in this case disagreed. Based upon what we are seeing across the country, most trial courts are looking at TILA rescission the same way. AND that means that relief will only come on appeal in most cases.
So the conclusion to be reached here is that those lawyers who reject this strategy are right most probably in a trial court. Whether they are right when we get to the appellate level is another story — but, as I have repeatedly said over the last ten years, the trial judges don’t like TILA and they hate TILA Rescission. It took about 10 years for the Jesinoski case to ripen into a decision favorable to borrowers. Trial judges are still resisting the direct instruction from the Supreme Court.
Even where rescissions are sent within the three years (starting from the date of signing, not necessarily the date of consummation), Judges are continuing to ignore TILA rescissions or enter orders that deny the homeowner’s claim for relief based upon a valid, legal rescission. Even though the statute specifically provides how rescission becomes effective and when, courts don’t like it and are refusing to use it even after Jesinoski v Countrywide was decided by SCOTUS.
So the long and short of this, for now, is that I want to repeat with emphasis that rescission ought to be the simple remedy that Congress passed in a very clear procedural administration of the disclosure requirements, but it still appears that the courts and the banks are going to make it as tough as they did before the Jesinoski decision.
My opinion remains the same as 10 years ago when I first looked at TILA rescission. This was meant to level the playing field. If Judges were not so intent on reading in “facts” and “law” into the TILA rescission statute, this remedy would have been extraordinarily effective at eliminating or curtailing the number of foreclosure sales. In the end, as I predicted ten years before when everyone was saying that my “theory” about rescission was completely wrong, my opinion will most likely be upheld — AGAIN.
This is why each case must be carefully reviewed with a report that details the possible strategies and likely outcomes at the trial level, at the appellate level and ultimately at the highest level of the court system. TILA Rescission was obviously intended to be a “magic bullet” to force compliance with lending disclosures on the banks. The law did not fail. It is clear on its face. But Courts are clearly resistant to entering an order that could put other mortgage loans in doubt.
Filed under: foreclosure |
And what is the time frame of Rescinding a Re-Fi Loan which when 9 years later; APPRAISAL FRAUD, FRAUD IN THE INDUCEMENT, ACTUAL FRAUD, CONSTRUCTIVE FRAUD, ILLINOIS CONSUMER FRAUD was found to have been intentionally concealed. One day after uncovering the Frauds a letter was sent to GMAC Mortgage voiding and canceling the Mortgage. If “Fraud vitiates every transaction and all contracts” then rescission should not have a statue of limitations.
@xeviagreb I would kindly refer you to the following link for details regarding the TILA Rescission statute:
https://www.law.cornell.edu/uscode/text/15/1635
My case is being tried in a non-judicial state so I won’t hazard a guess about what occurs in judicial (I use the term loosely) states. The point in sharing what the court attempted to reason in my case was to make homeowners aware of the potential of the court to attempt a clearly unsupportable and erroneous legal finding to quash homeowners’ quest for justice.
Best regards!
Here is a link to the new rules from the CFPB called Regulation F which is coming down the pike. Very interesting and will put a big ding in the nasty debt collection industry. https://www.venable.com/cfpb-debt-collection-regulation-f-rulemaking-faqs-07-08-2014/
The banks don’t want the house….
The banks foreclose on the Estate..heirs & assigns …NOT Just THE BORROWER NAMED ON THE NOTE.
Biggest Land Heist In History!
Or….
http://www.teamlaw.org/LandPatents.htm
Truth-What Is A Land Patent-Allodial Titles-Freedom for All Seasons
http://www.FreedomforAllSeasons.org.
A Favorite of Mine .. Illinois Farmer
True Story!
He has Homestead..
She has Homestead.
His remainderman is unsecured!
Shara, Great Info! Thank You for Sharing.
Tenants …. Yes!
Life Tenants !
Be careful when filing actions to enforce a rescission, because you are invoking the courts discretion, the judges own personal discretion to rule on whether the rescission has merit and is based on valid facts. A judge can easily destroy a rescission once he has the door opened to do so. By filing for enforcement ..you are opening the door.
Also be careful how you answer the complaint …how you plead …defenses and counterclaims … If you make it appear as tho you are asking the court to validate your rescission ..you are opening the door to have the judge come in and destroy your rescission as he works in concert with the banks attorneys to reverse engineer , fabricate and ultimately undo your rescission by ruling that you never had a valid reason to rescind.
You never want to invite the judge into ruling on whether he thinks your rescission was valid and with merit.
Your main fundamental argument should only focus on the fact that the loan has been rescinded and that the creditor or real party in interest is in violation for failing to comply within 20 days and are now out of time.
This court lacks jurisdiction to proceed and ajudicate a case that is based on void instruments. The instruments were void before the complaint was filed. The plaintiff based his standing on these void instruments. The rescission supersedes the foreclosure complaint.
This is in relationship to answering a foreclosure complaint. Some of you may be involved in different circumstances which call for different tactics. I am not a lawyer .. I am just giving one mans opinion and might have misstated the best strategy theory.
As a compliment to rescission…I highly recommend homeowners research absolute ownership of their land under Federal Land Patent/Homestead. When I brought forth the existing land patent in my name, on July 17, 1998, I went into Far West Bank, here in Utah, and asked for a loan; I then preceded to tell the loan officer my land is under a Federal Land Patent. The loan officer was confused at that point and had to speak with the Loan Processor. I was then informed that banks cannot make loans against ‘patented land’. I knew this BEFORE I asked for the loan, so I requested it in writing and they gave me a letter stating such, on their letterhead! After rescission has been mailed (especially after the servicer has filed foreclosure), one must bring the Federal Land Patent/Homestead forward in one’s own name, and file a Certificate of Acknowledgement with Indefeasible (look up definition of indefeasible) Title (even if foreclosure has started). Google Land Patent and a plethora of information will populate, or google, WHAT IS A LAND PATENT? and Allodial Title Via Land Patent; you will be amazed to learn that under a ‘Warranty Deed’ (color of title), you are nothing more than a ‘tenant’ paying to a feudal system! You need to secure TRUE LAND OWNERSHIP as a sovereign individual, which is exempt of collateral attack, liens, taxation, etc. These land patents go all the way back to the presidency of George Washington, and have been signed and awarded by the president of the United States, to the heirs and assigns FOREVER! You just have to bring it forward in your name as an ‘assign’, and it cannot be refuted! Like rescission, they can only be challenged in a Federal Court, and no land patent case has ever lost! You will discover organizations online that help people in EVERY state secure their land patent/homestead for less than one mortgage payment! This is vital, because the ‘powers at be’ have put our land up as collateral to secure the national debt. When the ‘economic bubble’ bursts (I believe within the next six to twelve months, at best), you will be fighting with the country who claims THEY were given your land by possibly the Federal Reserve (which is NOT a part of our government, but a private corporation, like the IRS). You have to show that the ‘feudal system’ could not put YOUR LAND up as collateral, as it is sovereign! This is the only way to prove one has absolute ownership of their land and it is NOT a part of the collateral package secured by those supposedly running the show! Here is the CERTIFICATE OF ACKNOWLEDGEMENT…copy it to a blank WORD document; your name goes in the first three blank lines, with the exception of your land patent number. Fill in your state and county in the blanks provided. The notary fills out the bottom, and you will have to ad one more witness to YOUR document (it would not allow me to do it on this site). File it with your county recorder’s office along with all of your other documents for the Land Patent. They charge for this service, but it is money well spent! Running your notice in the newspaper may be the most expensive part. You can find free forms at the very end of the google site, “Allodial Title Via Land Patent” THE FINAL SOLUTION TO PROPERTY TAX. Just follow the instructions!
CERTIFICATE OF ACKNOWLEDGEMENT
DECLARATION OF INDEFEASIBLE TITLE
I, ___________________________, the living human, with Indefeasible Title to my land and lawful owner of the landed estate known as the Homestead of________________________, and its real property and interest, under the seal of Federal Land Patent #_______, am recorded as the assignee/grantee on the Federal Land Patent for the real estate described on the attached certified copy of said warranty deed (color of title).
It is my freewill act and endeavor to execute this acknowledgement of my acceptance of the Land Patent/Homestead and lawful ownership of the property under the terms of the Land Patent/Homestead (to its heirs and assigns forever). I ask that the record on file in the office of register of the deeds, and any previous Certificate of Acknowledgement (if applicable) be updated to show my acceptance of the Land Patent/Homestead, as lawful owner of the real estate/land.
All of my other real property and interest attached to this real estate is to be immediately returned to me.
Done under my hand and seal of my freewill act and deed/endeavor.
___________________________
______________________________
Witness
______________________________
Witness
STATE OF ________________________ }
COUNTY OF ______________________ }
On this ____ day of _____________, 20__, before me the subscriber _____________________, personally appeared to me known to be the living human described in and who executed the foregoing instrument and acknowledged before me that he executed the same of his freewill act and endeavor.
@Ken: I’m in attempted wrongful foreclosure litigation in a nonjudicial state. My case includes TILA rescission. Please be aware if you are seeking to enforce TILA rescission the banks are going to try and counter your complaint with a one year statute of limitations (SOL) for bringing TILA enforcement action. The banks will then contort the SOL if you don’t act to improperly convey to the courts as grounds for them to win on their Motion on the Pleadings. Don’t be surprised if the banks argue it and the court agrees with them. If you wish to avoid that wave of BS make sure you have your complaint filed before one year elapses.
There are benefits to not filing before the one year elapses. I would consult with Neil on that however and then make an informed decision.
FIGHTING IS WINNING!!
Well this is unsettling. I live in WA State and we sent our letter of rescission in April 2015, the bank ignored it and two months later, the trustee filed a Notice of Default. We are planning to file an action to enforce the rescission within the next month, along with a laundry list of actions for damages against the various servicers we have had (we are on our 4th). Neil’s case described above sounds like he was using the rescission as a defense against foreclosure(?) and not a rescission enforcement action on his client’s part?
How can we educate trial courts and force them to follow the law??
Anonymous ,
You’re right ,, I read that wrong… but the sooner this is thrown into appeals ,, plainly stating the judge made an error of law… the sooner this mess gets escalated the better.
Neidermeyer … Isn’t NG saying that he lost? And that his client needs to now decide whether to file for rehearing or appeal? Sounds like the federal court ruled in the banks favor.
Check judges financials do due diligence I wonder what you’ll find
NEVER AGAIN
Looks like we are going to need some real cases decided in favor of rescission as it is written by Jesinosky and the Supreme Court. Don’t these judges read the cases that come out of the Supreme Court?
Great News Neil , can we have the docket?
Thank you
Sent from my iPhone
>