Illinois Trial Court Overruled: Rescission IS Effective

As usual, the trial judge wanted no part of TILA Rescission. In December, 2016 the appellate court said the failure of Beneficial to respond to TILA Rescission notice within 20 days made the rescission final and irrevocable — something I have been saying to nay-sayers for 10 years.

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Hat Tip to “Cement Boots”

See TILA- Beneficial Illinois Inc. v. Parker, 2016 IL App (1st)160186

Defendant-appellant, Randall Parker (Randall), refinanced his home loan mortgage with plaintiff-appellee, Beneficial Illinois Inc., d/b/a Beneficial Mortgage Company of Illinois (Beneficial), in July 2007. In October 2008, he stopped making the required payments and Beneficial instituted a foreclosure proceeding in October 2009. In June 2010, Randall attempted to rescind the mortgage by mailing a letter to Beneficial. Beneficial never
responded and proceeded with the foreclosure litigation.

It specifically says the response from Beneficial had to be made within 20 days of the notice of rescission.

It specifically states that no lawsuit is required to effectuate rescission, thus strengthening the argument that the rescission was effective when mailed and could have been vacated by legal action but no legal action was taken.

And it shows what happens when neither party files a lawsuit to enforce or vacate the rescission within one year — the actions are time-barred after one year. So you are left with a void note and mortgage thus justifying the cancellation of the instrument in the chain of title.

Thus anyone claiming to be a “creditor” may not relyupon the mortgage or note to enforce colelction. And absed upon the wording of the statute, even if there is a genuine “creditor” in the mix, it appears that no action may be taken to enforce the debt either in any lawsuit.

The choice of the creditor to ignore the notice of TILA rescission is a dangerous choice — blocking any right to enforce a void note and void mortgage, rendered void by operation of law; and blocking any attempt to collect on the debt under any other grounds because they failed to follow the TILA statutory procedure which appears to be the only procedure available to enforce the debt.

Beneficial’s actions display stonewalling and arrogance. The clear intent was to steamroll the judge and the homeowner, preventing the homeowner from clear-cut reliefl in the Truth in Lending Act. Now they have painted themselves into a corner. There is no debt or document left to enforce.

12 Responses

  1. Jerry-
    read the Appellate court ruling. your questions have already been answered. if you don’t understand it – please hire a lawyer to interpret it for you.

  2. Watch this case carefully: Reinhart v CitiMortgage, No. 17-5454

    DISTRIBUTED for Conference of 10/6/2017.
    https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-5454.html

    Questions before the Court:

    1. In the matter of a rescission under the Truth in Lending Act under 15 U.S.C. 1635(i), does the statute of limitations under 15 U.S.C. 1635(f) act as a bar to filing of a Notice of Rescission or is the statute of limitations an affirmative defense the respondent must plead in an opposition to rescission within the 20 day statutory time limit set by the Truth in Lending Act 15 U.S.C 1635(b)?

    2. Did the court commit reversible error when it dismissed the instant action based on Truth in Lending Act considerations not before the court and failed to rule on the only issue contained in the petition, that of a request for declaratory judgment on the above statute of limitations issue?

  3. Leo –

    The Illinois case here was easy for the Appellate court because the homeowner issued the rescission letter within 3 years of the closing meeting date – so they did not have to address finding proof of performance by the contracting parties and simply used the date the documents were signed by the homeowner.

    While TILA has a “hard stop” statute of repose at 3 years after “consummation”, Neil has pointed out in the past that the moment of consummation (when all things (performance) were completed between the (real) contracting parties) has never been truly established.

    A purported creditor/servicer or foreclosing entity must bring you into court with a fresh lawsuit on that issue within 20 days of your letter – prove by admissible evidence the date of consummation, and have a judge rule that your rescission is too late and time barred. Absent that – it appears that it ought to stand.

    Many have advocated sending in a rescission letter at any time, and waiting for the other side to challenge the validity of the rescission in proper form (lawsuit). I suggest including a sentence in your rescission letter that says something like,

    “Based upon failure of XXX bank to fulfill its contract duties, this transaction remains unconsummated.”

    (always send certified mail with receipt)

    Homeowners and their attorneys have screwed up frequently by pressing forward with their own lawsuit and asking a judge to “confirm” their rescission – which always backfires.

    TILA abhors judicial intervention for proof of its own existence. TILA rescission is a legislatively created exceptional “administrative process” – not a “judicial process”. It is not common law or Statute of Frauds. The US Supreme Court unanimously backed that interpretation and put it to bed in Jesinoski (2015).

    Keep hammering this home America!

  4. Bruce, we all feel your pain. This was not my case. See the link Neil posted above for the full Appellate court analysis and ruling. That’s all I got today. Prayers are with ya.

    IMPORTANT! Let’s all pray for the people of Las Vegas who were heinously mowed down (over 500 victims) by a man who lost his mind and morals and opened fire on them like “fish in a barrel”. Donate Blood now – especially rare types – FEDEX will get it there!

  5. The bankster/servicer has to file a lawsuit within 20 days of the notice of rescission.

  6. I refinanced in July 2006, foreclosure was filed in 2008, sent rescission letter January 2009. Rescission got denied by “lender”. Then lawyer said “too bad”, and the foreclosure case went on. Had another lawyer, who did nothing (he refused to bring up the rescission in court, because he didn’t want to be the one to “open that can of worms in NM”) and I ended up with a default judgment and my house sold at auction to some “bank”. I still live in it, by the way.

    Still fighting, now based on the fact that I did sent the rescission letter. Finally had a lawyer that understood this, and guess what: he just got suspended from the bar. So now I’m trying to find a lawyer, who understands the rescission matter, and is willing to take my case that’s pending in appeal court. So far no luck. If anybody can refer me to a good lawyer, that would be great (I’m in NM).

    Judge has recently ordered me to start making payments to the “lender”, because they have been losing a lot of money during this 9 year case. Yeah, right… They’re just trying to put extra pressure on me because they know we’re hurting financially.

  7. CONSUMMATION seems also hugely important as a factor in TILA rescission.

    I wrote a TILA rescission based on there never being consummation.

    The true lender was never disclosed and my mother lacked legal capacity to execute on any paperwork or understand reality, given she was 7 years into Alzheimer’s and dementia.

  8. Can TILA rescission letter can be sent that long after loan inception?

    Thanks,

    Leo Blas
    907-350-5369

  9. Friend “Cement Boots”…So pray tell me exactly what your case resulted in? Did you really finally get your TILA recision supported by a court of law?. What court, Fed or Circul. If you have a case # I think I may still have access to Pacer Docs. Have you ever noticed my own “recision” issue and the fact that !2th Dist Fed Ct, Portland, OR, Judge Anna Brown, in fact, evicted me and gave my FREE and CLEAR equity to AHMSI, the mortgage servicing company owned, soley buy our now SECRETARY OF COMMERCE, appoint to the White House by his life long best friend who owns MarLago in West Palm and to this day is good “neighbors with Ross who stole all my $340k equity and shared it with Ocwen Financial CEO, Bill Embey who is now a fugitive from FBI/SEV prosecution for stealing our homes, same as his best friend, our Secretary of Commerce, Wilbur Ross did from me? Follow the $$$ the stench is thick in the Swamp Air in WDC! Ross is a scumbag and gutless and won’t even sue me for “libeling and Slandering him since 2009! Why, well I suppose because the ultimate defense in Libel/Slander cases is TRUTH. Ross, et al never did “own” the “note” nor the original mortgage…his lawyer, Teresa Shill testified in Polk County Circut Ct, Dallas, Oregon that she nor her client ()AHMSI, solet owned by Ross since he gobbled up Option One then formed AHMSI to “cleanse” the frauds of Option One…its all on line, google it. So you might see why I empathize with your situ and all others who lost their homes because FEDERAL COURT JUDGES REFUSED TO FOLLOW FEDERAL LAWS ( TILA 1959) to the letter of the law, and palmed off our homes to assholes, “like Wilburconman Rossbyte me, Jr” (there I have “libeled and slandered him again.. but he is chickenshit and terrified to prosecute a libel/slander suit against this 78 yr old disabled vet, because he can not ever prove in an honest Fed Ct he ever had lawful Proof of Standing” on my home. He made me a pauper and he is a cheat and a thief and I can prove that. With all of the Fresh Scum Trump has dumped into the “swamp in WDC” and come uppance tyme has arrived for Manafort, Kushner, Donny Trump, Jr, the endangered species “Great White Hunter Donnie, Jr who kills lions and elephants with his pricy Weatherby rifle his pop probably bought for him and his brother (hope he enjoys the chow in Ft Leavenworth, KS:-) and of yes our free loading private plane scammer “Dr Rice” and all those just named who suck the marrow out of our bones so they can freeload fly all over the planet, at whim and will…when the F is any one going to drain Wilbur Ross (and all his cumbag worthless cabinent cronies he gave “cush” egomaniacal positions out of Trumps “fresh swampwater”…I’ll never see a dime of my “golden yrs $$, because modern day “robber barons” hoard and hide their loot but it will bring joy to my aging aching heart to see Ross drown in Trumps Swamp!

    Please, Cement Boot,comment, reply if possible to my blog today. We suffer the same pain and wounds our federal Courts have freely put us into favoring to fatten the likes of Wilbur Ross wallet!

    Bruce R Nelson
    Banner Elk, NC

    (email “geezerkatz@yahoo.com”)

  10. Can the bank simply say, “your Notice of Recission” is time barred (it was sent in 2010, the refinance was in 2007) and we do not recognize the same as valid?”

  11. What action by bank is require of them to negate the Notice of Recission within the year?

  12. Rescission should have been recognized long ago. Too bad so many judges rewriting the laws from the bench and not recognizing what the Supreme Court ruled on rescission.

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