Neither God nor Rescission are Dead.

Although there are numerous actions and decisions that call into question whether TILA Rescission is effective and if so, when, the answer is clear even in the 9th Circuit where there are some decisions and even disciplinary actions against those lawyers who promote the interests of their clients by using the direct and clear wording of the Statute, The Regulations, the Appellate decisions and the US Supreme Court, to wit:

(1) Rescission is effective the moment it is mailed. The blowback from the servicer or bank is not a legal response. It can only be a lawsuit that vacates that which legally exists — a cancellation of the note and mortgage, leaving the debt unsecured and the bargaining table leveled almost in favor of the borrower. While this throws those bogus mortgage bonds into turmoil that is not the subject matter for concern in any foreclosure case or case in which rescission duties are sought to be enforced.

(2) The creditor — if there is one —- has several options. First it can acquiesce. That means it delivers the canceled note back to the borrower (hard to do when you have destroyed it), files a release of the encumbrance and pays back all the money the borrower ever paid in conenction with the loan. THEN it can make a claim for repayment but not before. Thus the note and mortgage are canceled forever and the debt is off the table until all of the three statutory duties are met. OR, the creditor can contest by filing a lawsuit stating what is wrong with the rescission and why it should be vacated. Notice that such a alwsuit has never been brought even when the rescission notice has been recorded. And that brings us to the third problem — no party has standing to bring such an action to vacate the rescission except the actual creditor. Nobody can rely upon instruments that are “void” (as per Regs) and claim standing or anything else. It is only the owner of the debt that can make a claim to vacate the rescission. And it is only the creditor who is responsible for paying the disgorgement of all money paid by the borrower. It appears that nobody wants to claim that honor. So the creditors either don’t know what is going on at ground level or don’t care or have other reasons for not producing themselves as the creditors.

(3) Simple logic dictates that the creditor could accept the rescission no matter when it was filed or the reasons for serving the notice of rescission. But in order to have that option the rescission must be effective. Otherwise there would be nothing to greet with acquiescence. Should the creditor wish to vacate the rescission, they must do so within 20 days or lose their right to demand revocation of the rescission. Hence in all cases and at all times the notice of rescission is effective, subject to the creditor’s right to seek revocation. Otherwise rescission doesn’t work at all and the banks could forever stonewall, which is precisely the what the committee notes show was intended to be impossible when the Truth in Lending Act was passed. To treat the situation any other way would mean that the rescision is effective but it isn’t.

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Hat tip to Dan Edstrom

see Barnes v Chase 9th Circuit RESCINDED and Remanded NOT for Publication 13-35716

Causey v US Bank 9th Circuit RESCINDED and Remanded NOT for Publication 10-56021

Here we find some amazing rulings from the Ninth Circuit.  One pre-Jesinoski, and the other post Jesinoski …
Causey v. US Bank (2011) [3 day rescission decided pre-Jesinoski]
But in a case where the creditor acquiesces in the
consumer’s notice of rescission or fails to respond within the 20-day response period, rescission is accomplished automatically. See id.
Barnes v Chase (8/10/2017)
Check this ruling out:
For reasons that are unclear from the record, the letter to the creditor was returned to Barnes undelivered. The loan was not rescinded, and Barnes brought suit for rescission and violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., and its requirements regarding rescission procedures against CBUSA, CHF, and LBPS.1 The district court granted the defendants’ motion for summary judgment. Because notice of rescission was properly given, we vacate the grant of summary judgment on Barnes’s claims for rescission and failure to effect
rescission and remand for further proceedings.2
Specifically, Consumer Financial Protection Bureau (CFPB) Official Staff
Commentary to Regulation Z provides: “Where the creditor fails to provide the consumer with a designated address for sending the notification of rescission delivery of the notification to the person or address to which the consumer has been directed to send payments constitutes delivery to the creditor or assignee.” 12 C.F.R. § 226, Supp. I, para. 23(a)(2); Truth in Lending, 69 Fed. Reg. 16,769-03,
16,771 (Mar. 31, 2004).
CBUSA “fail[ed] to provide [Barnes] with a designated address for sending the notification of rescission” because the address it did provide was not successfully receiving mail when Barnes sent his notice there. See 12 C.F.R. § 226, Supp. I, paras. 15(a)(2), 23(a)(2). The only remaining action for Barnes to take, per Regulation Z and the CFPB Official Staff Commentary, was to notify the servicer, which he had already done.

22 Responses

  1. Gorty. I am not a lawyer but I think you can rescind by sending in your notice. Nobody is going to lay down for you and you will undoubtedly have to defend or enforce that rescission.

  2. Cement Boots. I have consistently denied consummation in pleadings and complaints. The citations I posted were from a case that I referenced above the text. All done in an effort to show an example of how , so far, all judges/courts are ruling on this matter. Thanks again for your discourse. Perhaps it will help us in the end.

  3. CementBoots – Thank you. and your information may help me regarding the illegal acts of Judges and Attorneys involved with among other violations that of dealing in unregistered securities. Your information is well taken. However, I have a family that I am responsible for and I have learned that one can only go so far with regards to defending his rights and exposing the illegal/treasonous acts of those “in power”. I again thank you for your enlightenment and share in your frustration. It reminds me of a line from “no country for old men” that went something like “if your beliefs have brought you to this end what good were they”. Said right before he “eliminated” his opposition.

  4. Dr David

    If what you posted was a quote from your case – your Achilles heel is this:

    “Plaintiffs do not dispute that they consummated the Mortgage before February 8, 2006, the date they executed the Deed of Trust. (DOT at 15; see Compl. ¶ 1.)”

    You must NEVER presume or admit that the proposed transaction was consummated at the closing table!!! YOU MUST object, deny and demand proof of WHERE and WHEN and HOW and by WHOM the proposed transaction was finalized in every way, leaving nothing left to do.

    If there is no proof that the named lender on the contracts (Notes/Mortgages/DOTs) ever funded the transaction – then the named lender is not a party to the transaction and it was not consummated – least of all by them.

    The named lender (originator) is nothing more than a fancy broker or conduit for some unknown 3rd party investment pool which may have funded your transaction when you made your application (table funding) or never funded it at all, simply doing computer book entries making it seem funded.

    Never admit the the named lender was a lender! Make them prove it!


    The Seventh Circuit Court of Appeals held that the Circuit Court of Cook County is a criminal enterprise. U.S. v. Murphy, 768 F.2d 1518, 1531 (7th Cir. 1985).
    The United States Supreme Court recently acknowledged the judicial corruption in Cook County, when it stated that Judge “Maloney was one of many dishonest judges exposed and convicted through ‘Operation Greylord’, a labyrinthine federal investigation of judicial corruption in Chicago”. Bracey v. Gramley, case No. 96-6133 (June 9, 1997).

    Since judges who do not report the criminal activities of other judges become principals in the criminal activity, 18 U.S.C. Section 1, and since no judges have reported the criminal activity of the judges who have been convicted, the other judges are as guilty as the convicted judges.

    The criminal activities that the Federal Courts found in the Circuit Court of Cook County still exist, and are today under the care, custody and control of Judge Greylord II (Chief Judge Donald O’Connell). The Circuit Court of Cook County remains a criminal enterprise.

    Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act, or for their administrative/ministerial duties. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act, he is performing a ministerial act.
    Judicial immunity does not exist for judges who engage in criminal activity, for judges who connive with, aid and abet the criminal activity of another judge, or to a judge for damages sustained by a person who has been harmed by the judge’s connivance with, aiding and abeting, another judge’s criminal activity.

    The Illinois Supreme Court has held that “if the magistrate has not such jurisdiction, then he and those who advise and act with him, or execute his process, are trespassers.” Von Kettler v. Johnson, 57 Ill. 109 (1870)
    Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is “without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers.” Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

    The Illinois Supreme Court held that if a court “could not hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, – it had no authority to make that finding.” The People v. Brewer, 128 Ill. 472, 483 (1928).

    When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law,and are engaged in treason (see below).

    The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that “not every action by a judge is in exercise of his judicial function. … it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse.” When a judge acts as a trespasser of the law, when a judge does not follow the law, the judge loses subject-matter jurisdiction and the judges orders are void, of no legal force or effect.

    The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that “when a state officer acts under a state law in a manner violative of the Federal Constitution, he “comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” [Emphasis supplied in original]. By law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person).

    In Illinois, 705 ILCS 205/4 states “Every person admitted to practice as an attorney and counselor at law shall, before his name is entered upon the roll to be kept as hereinafter provided, take and subscribe an oath, substantially in the following form:

    ‘I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability.'”

    In Illinois, a judge must take a second oath of office. Under 705 ILCS 35/2 states, in part, that “The several judges of the circuit courts of this State, before entering upon the duties of their office, shall take and subscribe the following oath or affirmation, which shall be filed in the office of the Secretary of State:

    ‘I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the State of Illinois, and that I will faithfully discharge the duties of judge of ______ court, according to the best of my ability.'”

    Further, if the judge had enlisted in the U.S. military, then he has taken a third oath. Under Title 10 U.S.C. Section 502 the judge had subscribed to a lifetime oath, in pertinent part, as follows:

    “I, __________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; …”.

    The U.S. Supreme Court has stated that “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).

    Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the Supreme Law of the Land. The judge is engaged in acts of treason. Having taken at least two, if not three, oaths of office to support the Constitution of the United States, and the Constitution of the State of Illinois, any judge who has acted in violation of the Constitution is engaged in an act or acts of treason (see below). If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason.

    Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)

    Any judge or attorney who does not report the above judges for treason as required by law may themselves be guilty of misprison of treason, 18 U.S.C. Section 2382.

  6. Cement Boots- LOL! One of my favorites is “Taking care of Business” by BTO

    CB- I believe… Help my unbelief.

    Perhaps it is a judge I have had to deal with in State Court that coaches the Banks and rules for them at every turn that causes my dismay.

    I agree with you and Neil on the way “it should play out”

    However, I have not found any Judge that has ruled in favor of our opinions on the statute with regards to timelines and residential mortgage loans. The Judges seem to rule on their opinion as opposed to requiring the creditor to file declaratory suit to vacate the rescission.

    But I intend to point out Jesinoski and the clear reading of the statute.

    Being pro se the district judge should aid me with some procedure flaws but I really don’t expect that consideration.

    I am ready for the details !

  7. From which song should I quote to describe your mental blocks with the things you THINK you are fighting? All has been asked and answered… You were hearing – just not listening… (IMHO)

    “Blinded By The Light” – Manfred Mann
    “We Don’t Get Fooled Again” – The Who
    “Another Brick In The Wall” – Pink Floyd
    “I’ll Be There/Reach Out” – The Four Tops
    “The Grand Illusion” – Styx
    “Freewill” – Rush

    Listen and get back to me when you’re ready for the details…


    Lohse v Deutsche Bank TC 2016 USDC ED CA
    1. Timeliness of TILA Rescission
    For the following reasons, plaintiffs’ claim for rescission of their Mortgage under TILA is time-barred. (See Mot. at 1-2.) Plaintiffs allege that their August 21, 2015 notice of rescission that was sent to Nationstar properly rescinded their 2006 Mortgage pursuant to TILA section 1635. (Compl. ¶¶ 10-12.) Section 1635 provides borrowers an unconditional right to rescind certain loans “until midnight of the third business day following the consummation of the transaction or the delivery of the [requisite disclosures under TILA], whichever is later, by notifying the creditor” of their intention to rescind. 15 U.S.C. § 1635(a). Creditors are required to notify borrowers of this right to rescind and to supply them with the forms necessary to exercise that right. Id.; 12 C.F.R. § 226.23(b)(1) (listing the form and content of the disclosures required to satisfy notice of the right to rescind).
    Under section 1635, “if a lender never makes the required disclosures, the `right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first.'” Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 792 (2015) (quoting 15 U.S.C. § 1635(f)); see also 12 C.F.R. § 226.23(a)(3) (“If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation.”). Section “1635(f) completely extinguishes the right of rescission at the end of the 3-year period.” Beach, 523 U.S. at 412; see Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir. 2002) (“[S]ection 1635(f) represents an `absolute limitation on rescission actions’ which bars any claims filed more than three years after the consummation of the transaction.” (citation omitted)).
    In order to have effectively rescinded their Mortgage under TILA section 1635, therefore, plaintiffs were required to invoke their right to rescind within the statutory three-year period after consummation of the Mortgage. “Consummation means the time that a consumer becomes contractually obligated on a credit transaction.” 12 C.F.R. § 226.2(a)(13). Plaintiffs do not dispute that they consummated the Mortgage before February 8, 2006, the date they executed the Deed of Trust. (DOT at 15; see Compl. ¶ 1.) Consequently, even assuming that defendants did not provide the requisite
    disclosures, plaintiffs’ right to rescind the Mortgage expired, at the latest, on February 8, 2009.
    Plaintiffs here sent their rescission letter to Nationstar on August 21, 2015, well outside the three-year limitations period. (Compl. ¶ 4, Ex. A.) As a result, their notice to rescind was untimely by more than six years, and their rescission claim under TILA is therefore time-barred. Jesinoski, 135 S. Ct. at 792 (“[There is] no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run.” (citation omitted)); Miguel, 309 F.3d at 1164-65 (“Because [plaintiff] did not attempt to rescind against the proper entity within the three-year limitation period, her right to rescind expired.”).
    Plaintiffs also point to no authority for their contention that defendants’ failure to respond to their August 21, 2015 rescission letter within twenty days resulted in a waiver of their right to contest plaintiffs’ rescission under TILA. (See Compl. ¶ 7; Opp’n at 4 (Docket No. 10).) Contrary to plaintiffs’ assertions, TILA does not impose an obligation on the lender to bring a lawsuit against the borrower within twenty days where the borrower provides the notice of rescission outside the three-year statutory period. Miguel, 309 F.3d at 1165; see also Yamamoto v. Bank of New York, 329 F.3d 1167, 1172 (9th Cir. 2003) (holding that neither TILA nor its implementing regulations establish “that a borrower’s mere assertion of the right of rescission has the automatic effect of voiding the contract”).
    The Ninth Circuit has further ruled that TILA “§ 1635(f) is a three-year statute of repose, requiring dismissal of a claim for rescission brought more than three years after the consummation of the loan secured by the first trust deed, regardless of when the borrower sends notice of rescission.” McOmieGray v. Bank of Am. Home Loans, 667 F.3d 1325, 1329 (9th Cir. 2012). Section 1635(f)’s three-year period is thus not subject to equitable tolling. Id. at 1329-30; Miguel, 309 F.3d at 1164-65; see Balam-Chuc v. Mukasey, 547 F.3d 1044, 1048-50 (9th Cir. 2008) (explaining that unlike a statute of limitations, a statute of repose is not subject to equitable tolling).

  9. MB on the Bubble-


    IMHO- to your questions… (opinion – not legal advice)

    its why we NEVER make a motion to ask the judge to rule on whether or not there was a timely or otherwise valid rescission.

    we TELL the judge there was a rescission, we provide evidence of same, and show evidence (or lack of) that the other side didn’t comply by returning the cancelled note and mortgage and money or by filing a lawsuit to challenge or demand a reversal of steps 2 and 3, within the time allotted in the statute.

    if the judge argues that it is past the 3 year statute of repose, tell the judge that he is not the plaintiff (or defendant) and you object to him practicing law from the bench.

    tell him that the other party did not raise that issue in a lawsuit within 20 days, and that there is no convincing evidence in the court as to IF or WHEN a true consummation occurred.

    tell him you cannot rely on a signature date because it is obvious that the named lender was only acting as a broker/originator who never loaned anything to you and that SOMETHING ELSE REMAINED TO BE DONE (e.g. funding by an undisclosed stranger to the transaction) for the transaction to be consummated (and you NEVER agreed to that form of a transaction).

    the other side must be forbidden (by timely objections) from bringing a defense in YOUR suit for DECLARATORY JUDGMENT of Execution of Notice of Rescission (just make the judge rule that you sent it when you did) by challenging said rescission after the 20 days elapsed.

    once a rescission has been executed, there is no subject matter for a foreclosure court to hear, and if the plaintiffs and judge proceed to judgment anyway, those judgments are void for lack of subject matter jurisdiction. At that time you first Motion To Reconsider to give the trial court judge a chance to undo his wrong – then if that fails – appeal.

    if there is a valid debt you truly owe, it must then be remedied by whomever holds that debt filing a new lawsuit against you in equity as an unsecured debt – with real proof that they hold that debt (not the void note or mortgage).

    then you file BK and have it discharged or a different form of payment- and never give them back a security in your house.

  10. I’ve been under the impression one could not rescind while a Les Pendens is pending. Is that true?

  11. Reblogged this on Mario Kenny.

  12. I would have to try to figure out how to answer the consumated question. I cant be sure.

  13. Vicky – it appears that the TILA statute says 3 years from “consummation” of the transaction/loan. The word “consummation” is bantered about and re-defined for political convenience of banks under many state statutes, yet the basic definition of “consummation” is: “the point at which there is proof that something is complete or finalized (e.g.) the consummation of a sale.

    Do you have any proof that your transaction was finalized? What date was that? (my first indication of any suggestion that my re-fi might have been consummated on my alleged re-fi was a filing of satisfaction of the original loan – FOUR [4] years after the re-fi closing!)

    If there is no proof of “finalization of all necessary elements of your transaction” (e.g. consummation) – then you might honestly hold a position, ‘base on information and belief’ that perhaps it has yet to be consummated.

    Maybe your 3 year TILA clock has not even started?

    Be aware. Be forewarned.

  14. Cement Boots I agree with you and Neil. Is there any judge or jury that has supported this with a favorable ruling?? Being “timely” should be a question of fact to be litigated (in my opinion). I can only hope that the judge will follow the statute as it is written. Miracles happen

  15. Ok tgeyhave 20 days to file suit. How long does a homeowner have to write the letter of recission?

  16. MB on the Bubble –

    20 days… 20 days… 20 days… is all they get to challenge the validity of a TILA Rescission Notice by filing a L A W S U I T.

    There is a presumption of law that the filer of such Rescission has the right to do so unless timely challenged in court. (did I say 20 days?)

    Absent such lawsuit the alleged creditors (or other actors) statutorily acquiesce to the sequential terms of TILA Rescission without any court re-ordering the sequence (which would have been available to them if thy had sued).

    From that moment on – they are scofflaws!
    There is no secured interest in any property!
    They have no right to challenge the Rescission!

    As Star Trek’s Seven of Nine might say – “You must comply”.

    Any Homeowner that takes any “bait” from their adversary after filing their Rescission to do anything other than “stand pat” and await compliance is a FOOL.

  17. @ Dr. David: It is likely game, set, match in their favor if in fact your rescission notice is found to be NOT TIMELY. You have virtually no chance of advancing your case if your TILA Rescission falls outside the statutory requirements for filing.

    Sorry but I would hate to see you spinning your wheels on that mistaken belief.

  18. Can anyone tell me what is cosidered “timely” notice?

  19. In federal court now. Must respond to motion to dismiss. Rescission sent and recorded outside the 3 year window. No response from “lender” at time of rescission. Their Motion to dismiss my claim to enforce rescission is based on my rescission not being “timely”. I need guidance of argument that the rescission is effective on mailing even if “lender” doesn’t think it is timely or warranted. Maranatha

  20. Ed:

    Good morning. At first glance this appears to be an answer to my prayers. I confess however that I have not read each case thoroughly yet. I was so excited by this news that I had stop right away and share this with you. The excerpt below from the Barnes case seems to lend credence to my suggestion that we bring a new case listing Freddie MAC as the principal, if not sole defendant. Causey has been out since 2011. I’m not sure how much it has bolstered the TILA argument but it appears to be useful on its face.

    2 Fannie Mae (substitue Freddie Mac in our case) became a creditor after the three-year statute of repose date passed. Any claim against CBUSA can be brought against Fannie Mae as an assignee of CBUSA’s interest, and should not have been be dismissed. See 15 U.S.C. § 1641(c) (“Any consumer who has the right to rescind a transaction under section 1635 of this title may rescind the transaction as against any assignee of the obligation.”). 3

    Causey’s holdings seem to make plain what is supposed to happen after the 20 day statutory time frame elapses.

    I know that we both have differences with some of the viewpoints Neil has espoused. His most recent capitulation really threw me for a loop. Neil’s misgivings are inconsequential however to what this recent Appellate decision seems to ratify about TILA Rescission.

    I pray that you can properly leverage whatever benefit might be derived from this recent development! I look forward to your expert analysis. Have a great day!!



  21. Also see, U.S. Bank N.A. v. Naifeh (Cal. Ct. App. 2016) 1 Cal.App.5th 767, 769: “[A] timely notice of rescission automatically renders the security interest void under section 1635(b) where the creditor acquiesces in the rescission or ignores it.”

    Merritt v. Countrywide Fin. Corp. (9th Cir. 2012) 759 F.3d 1023, 1030 [under the procedure set forth in 15 USC 1635(b), “‘all that the consumer need do is notify the creditor of his intent to rescind,'” and the “‘”agreement is then automatically rescinded”‘”]; Sherzer v. Homestar Mortgage Services (3rd Cir. 2013) 707 F.3d 255, 258 [“rescission occurs automatically when the obligor validly exercises his right to rescind;” Williams v. Homestake Mortgage Co. (11th Cir. 1992) 968 F.2d 1137, 1140 [agreement “automatically rescinded” when consumer notifies the creditor of his intent to rescind] and of course Jesinoski.

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