The reason why the decision is flat out wrong and in conflict with SCOTUS is that the statutes, 15 U.S.C §1635 and the Jesinoski decision make it irrefutably clear that TILA rescission is an event, not a claim. The statute is procedural. SCOTUS in Jesinoski unanimously said it is an event (which is what the statute says) while the 10th Circuit says it is a claim. The only “claim” is whether or not the rescission notice was sent. In this case, like all others, there is no dispute over the mailing and delivery of the notice of rescission.
This Court has made up a new doctrine out of thin air that brings them into direct conflict with the Jesinoski decision, in which the court stated that the homeowner need take no further legal action to effectuate rescission after notice is sent.
This Court states that if the bank disagrees, the event becomes a claim that is subject to res judicata and preclusion because the homeowner did not raise the issue in prior proceeding. Since TILA rescission is an event, effective upon mailing, there is no “Claim.” Hence there can be no preclusion.
As an example, if a trial judge were to enter an order, even if wrongly based like this decision from the 10th Circuit, it is effective and binding on all who are served with the order. Nobody needs to bring a lawsuit or defense in which they have the burden of proof on whether the the order was effective. It is effective because the statutes say it is effective. End of story.
TILA Rescission and a court order are identical because they derive their power from the same source — legislation. Courts may not rewrite legislation nor ignore legislation when it suits the bias of the Judge. If anyone has a problem with a court order it is their burden to try to bring the issue to court, not the person who benefited. IN the meanwhile the court order is effective, until and unless a new order is entered changing the original order.
If the bank thinks the notice of rescission was wrongful, the burden does not shift to the homeowner just because the bank says so — that would negate the entire premise of the TILA Rescission statute and the Supreme court decision in Jesinoski. The entire premise of the TILA Rescission statute was that Congress decided to load ALL burdens on the bank and NO burdens on the homeowner after notice is given.
This was a calculated decision by Congress to create an absolute bar to any stonewalling from the bank that would render the TILA Rescission notice pointless or useless — since all parties who were asserting “lender” positions would “disagree.” The committee notes clearly show that the intent was to absolutely bar banks from stonewalling or delaying the effectiveness — a fact clearly and expressly recognized by a unanimous decision of the US Supreme Court.
Courts don’t like it because of its draconian effect on banks. But the entire reason for the draconian effect on banks was to avoid the necessity of creating a new agency or division in Federal government that would be required to review all loan closings. Congress was forcing the banks into policing themselves to avoid falling through this trap door.
Assuming the loan contract was real, the bank could easily fulfill the three duties imposed by TILA Rescission. Or, they could challenge the rescission in court. If they believe the rescission notice was wrongful then they could allege their standing and allege the defects in the sending of the rescission. If they comply within 20 days then the homeowner is obligated to pay them their principal in the loan.
If the homeowner doesn’t pay the principal on the now unsecured debt there is absolutely nothing to prevent the banks from suing for disgorgement under equitable doctrines that are firmly established in common law and under statutes. If they are truly the creditor or truly represent the party who is the creditor according to valid powers set forth in written instruments, in which the creditor grants such power.
Of course this grant must come from a “real” creditor and not by some “facially valid” based upon the note and mortgage which are now void instantly upon mailing of the TILA Rescission notice. Under these facts they would get a judgment entitling them to receive all moneys allowed under the TILA Rescission statute, and if the judgment remains unsatisfied, the banks could foreclosure their judgment lien except for homestead exemptions, which vary from state to state.
According to the TILA Rescission statute and the unanimous decision of the U.S. Supreme Court there is NOTHING required of the homeowner after a simple letter giving notice of TILA Rescission is mailed. The homeowner is NOT required to see a lawyer, send another letter, file a lawsuit or another lawsuit in order to make TILA Rescission effective.
The reason why the decision is flat out wrong and in conflict with SCOTUS is that the statutes, 15 U.S.C §1635 and the Jesinoski decision make it irrefutably clear that TILA rescission is an event, not a claim. The statute is procedural. SCOTUS in Jesinoski unanimously said it is an event (which is what the statute says) while the 10th Circuit says it is a claim. The only “claim” is whether or not the rescission notice was sent. In this case, like all others, there is no dispute over the mailing and delivery of the notice of rescission.
This Court has made up a new doctrine out of thin air that brings them into direct conflict with the Jesinoski decision, in which the court stated that the homeowner need take no further legal action to effectuate rescission after notice is sent.
This Court states that if the bank disagrees, the event becomes a claim that is subject to res judicata and preclusion because the homeowner did not raise the issue in prior proceeding. Since TILA rescission is an event, effective upon mailing, there is no “Claim.” Hence there can be no preclusion.
As an example, if a trial judge were to enter an order, even if wrongly based like this decision from the 10th Circuit, it is effective and binding on all who are served with the order. Nobody needs to bring a lawsuit or defense in which they have the burden of proof on whether the the order was effective. It is effective because the statutes say it is effective. End of story.
TILA Rescission and a court order are identical because they derive their power from the same source — legislation. Courts may not rewrite legislation nor ignore legislation when it suits the bias of the Judge. If anyone has a problem with a court order it is their burden to try to bring the issue to court, not the person who benefited. IN the meanwhile the court order is effective, until and unless a new order is entered changing the original order.
If the bank thinks the notice of rescission was wrongful, the burden does not shift to the homeowner just because the bank says so — that would negate the entire premise of the TILA Rescission statute and the Supreme court decision in Jesinoski. The entire premise of the TILA Rescission statute was that Congress decided to load ALL burdens on the bank and NO burdens on the homeowner after notice is given.
This was a calculated decision by Congress to create an absolute bar to any stonewalling from the bank that would render the TILA Rescission notice pointless or useless — since all parties who were asserting “lender” positions would “disagree.” The committee notes clearly show that the intent was to absolutely bar banks from stonewalling or delaying the effectiveness — a fact clearly and expressly recognized by a unanimous decision of the US Supreme Court.
Courts don’t like it because of its draconian effect on banks. But the entire reason for the draconian effect on banks was to avoid the necessity of creating a new agency or division in Federal government that would be required to review all loan closings. Congress was forcing the banks into policing themselves to avoid falling through this trap door.
Assuming the loan contract was real, the bank could easily fulfill the three duties imposed by TILA Rescission. Or, they could challenge the rescission in court. If they believe the rescission notice was wrongful then they could allege their standing and allege the defects in the sending of the rescission. If they comply within 20 days then the homeowner is obligated to pay them their principal in the loan.
If the homeowner doesn’t pay the principal on the now unsecured debt there is absolutely nothing to prevent the banks from suing for disgorgement under equitable doctrines that are firmly established in common law and under statutes. If they are truly the creditor or truly represent the party who is the creditor according to valid powers set forth in written instruments, in which the creditor grants such power.
Of course this grant must come from a “real” creditor and not by some “facially valid” based upon the note and mortgage which are now void instantly upon mailing of the TILA Rescission notice. Under these facts they would get a judgment entitling them to receive all moneys allowed under the TILA Rescission statute, and if the judgment remains unsatisfied, the banks could foreclosure their judgment lien except for homestead exemptions, which vary from state to state.
According to the TILA Rescission statute and the unanimous decision of the U.S. Supreme Court there is NOTHING required of the homeowner after a simple letter giving notice of TILA Rescission is mailed. The homeowner is NOT required to see a lawyer, send another letter, file a lawsuit or another lawsuit in order to make TILA Rescission effective.
Filed under: foreclosure |
Neil,
I rescinded my mortgage multiple times….years and months before my foreclosure….by mail…
I bought the house in 07 and rescinded in 2010, 2011, 2012, 2013, 2014..
Does this Rescission only work on 2ndary loans (Refinancing) or for Primary home loans also..
My rescission was on my primary loan…and the judge is ignoring my evidence of my rescission…
you finely see wicked men do not know justice the system the laws the very people the run the government are evil men and women, that will not hear the pleading of the poor. the very people they have robbed. these very people make the laws, you expect evil people to give justice. we as a nation need to realize justice is not going to come in for of a gavel dropping then all a sudden everything is OK. no sir it will not it will come in the form of this nation finely standing up and saying you will hear us not discard us nor toss us aside like last nights meatloaf, you will hear us or we will come to you to where you live pull you from your home where you all reside put you all on trail for your crimes. your Judges will be all God fearing men that will not take no pity, no tears, nor your pleading for leniency. thy will suffer there fate that they made for them self’s. the time of them seeing them self’s as kings and queens that oppress the porn, weak, and helpless so let justice rain and the Lord god shine over this nation again. sincerely Michael A. Figueroa Jr.
On Mon, Jul 3, 2017 at 1:36 PM, Livinglies’s Weblog wrote:
> Neil Garfield posted: ” 10th Circuit Bad Decision on rescission: Pohl v US > Bank “Courts are still inventing doctrine out of whole cloth allowing banks > to escape liability and responsibility for their wrongful acts. This > decision is so far off the charts that it will mos” >
This is a bad decision that is made even worse by the fact that this decision has been officially published which means that it is now binding authority in all Courts under the jurisdiction of the Tenth Circuit Court of Appeals. The worst part is that Judges in other areas of the United States that tend to favor the big banks will cite this case as persuasive authority.
The eighth circuit is also challenging Scotus, in Keiran vs HomeCapital, 15-3437. Directly behind Keiran ,is Jesinoski coming back for the second try. The eighth circuits record on Tila Rescission is horrible ,when it comes to construing the statute In favor of consumers,instead of the lenders. The new profound, unheard of hurdles that the panel creates in Keiran , are mind blowing. Keiran is currently on petition for rehearing EnBanc,and WILL be petioning for certiori,if the eighth circuit does not come to its senses.
And I thought the 9th Circus was ridiculous! These morons never cease to amaze!
I’m having to argue the same BS in my own reply brief in the 9th; A TILA RESCISSION IS A REMEDY, NOT A “CLAIM,” “CAUSE OF ACTION” OR ANY OTHER BUNCH OF CRAP THESE IDIOTS PROFESS IN ORDER TO RULE FOR THEIR BANKSTER BUDDIES. (In my case the convolute “claim” even more mixing up what a bankruptcy “claim” means compared to “claim” in its common use; “claim upon which relief can be granted” (“cause of action”) along with whatever else opposing counsel and trial court can pull out of their respective asses to obfuscate the term. Pathetic displays continue unabated.
As far as authority in the 9th, see: Hafiz v. Greenpoint Mortg. Funding, Inc. (N.D. Cal. July 15, 2009) 652 F. Supp. 2d 1039, 1048 [rescission is a remedy, not a claim]; and, Briosos v. Wells Fargo Bank (N.D. Cal. Aug. 25, 2010) 737 F.Supp. 2d 1018, 1025-1026 discussing Beach, Id. at 417 [re, a “right of rescission, not a claim for rescission”].
The only replacement for legal research are corrupt judges who don’t give a shit and rule from the bench! Disgusting, all of it!
The courts definitely need some more discipline.