Short Explanation of TILA RESCISSION vs Common Law Rescission

Quiet title is a lawsuit not a motion. It must be worded correctly to fulfill the elements required for the court to consider the demand for quiet title. Otherwise it will be dismissed.

For quiet title to apply the mortgage must be void not just unenforceable. TILA Rescission is a statutory remedy that is different from common law rescission. Sending of TILA rescission notice by U.S. Mail means that delivery is presumed. If delivery occurred or is presumed the TILA Rescission is effective. Just the opposite in common law rescission based upon fraud. At common law, sending a notice of rescission based upon fraud is only the first step in a long litigation process.

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One must be careful NOT to file a lawsuit or motion seeking to have the court declare it is effective. Either the notice was delivered or it wasn’t delivered. If U.S. Mail is used d delivery is presumed. If it was delivered it is effective. That is what the statute says and that it was SCOTUS said about the statute. The matter should be closed, but judges are resisting following the directive of the highest court in the land from which there is no appeal. (See Jesinoski v Countrywide).

If the notice of rescission is sent within three years of apparent consummation then there is no doubt that it is effective. If it is sent more than 3 years after the note and mortgage were executed then there is a split of opinion. I believe it is still effective until the rescission is vacated by a court order. In either case — before and after the three years — courts are reluctant to apply it.

The appropriate lawsuit could be framed in allegations that the defendants should be stopped from attempting to enforce the void loan documents or stopped from harassing the borrower using the void note and void mortgage. Both are rendered void by virtue of the notice of rescission.

If the lawsuit is filed within 1 year of the date of the notice of rescission it could also include allegations that the defendants (if they are lenders) failed to comply with the three statutory duties in the TILA rescission statute. Or, if they are not lenders nor representatives of the lender that they committed multiple violations of TILA, RESPA and FDCPA as well as fraud and negligence and of course uttering false instruments and recording instruments that are false or fraudulent.

TILA RESCISSION is an statutory event not a claim. No lawsuit is proper to declare an already legally effective instrument to be effective. It happened on the day of mailing. Best to use U.S. Postal Service for the notice.

Common law rescission is a claim not an event. In that sense they are procedural the opposite of one another. A lawsuit is required and the pleader must prove the allegations which ordinarily means that they must prove fraud by clear and convincing evidence.

We can help evaluate your options!
Get a LendingLies Consult and a LendingLies Chain of Title Analysis! 202-838-6345 or info@lendinglies.com.
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave a message or make payments.
OR fill out our registration form FREE and we will contact you!
https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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10 Responses

  1. I’d like to know if ANYONE can point me to a Jesinoski TILA rescission victory where the homeowner didn’t file a lawsuit. Cases interpreting Jesinoski uniformly hold that one must file a lawsuit within a certain time period after the rescission notice is sent (the deadline for which can either be 3 days after closing for most, or 3 years at the longest). I’m all ears.

  2. Any good winning case Quite Title in California ?

  3. ANON- thanks for the verification. My memory gets a bit weak after all these years of this bs. Neil’s post about the tax courts underscoring what we have known or at least surmised, triggered my response. Who gets the tax credit? Who is the injured party, the real party in interest, the mortgagee, the lender, the creditor? In other words, who is ultimately able to declare a “loss” on these bogus “mortgages”? I remember watching some grim-faced newscaster in 2007 when the meltdown began, that the banks woes were due to “subprime mortgages”. Within seconds, I thought to myself, “the banks sold all of them- how can they have losses on something they sold? They may have had 50-100 billion in the pipeline which they were unable to sell, but in a 17 trillion dollar economy, that is just a rounding error. A couple basis points”.
    And here we are, 10 years later.

  4. […] via Short Explanation of TILA RESCISSION vs Common Law Rescission — Livinglies’s Weblog […]

  5. ioiet notices to Wilbur Ross AHMSI, trhey just deny they never go them, Same wit QRW.. they fru por ses out then shit on them run to Fed Ct and the corrupt +Fed Ct Judges just dismiss pro ses with predjudice to go die on the vine…Any one whoever cared to read my bolgs shoul know what i am saying now..ITS useless for indigent victims of Wilbur Ross.sorrry but in my case I sent 3-6 retrurn rec

  6. Ian — you are absolutely correct. Only correction is — FDCPA –is the federal law. May be state laws for what you cite. Fair Debt Collection Practices Act. But, you are 100% correct in all you write.

  7. ANON- we have gone over this before, to wit: when You call your “mortgage servicer”, actually a sub servicer , you hear ” this company is a debt collector, and this is an attempt to collect a debt. Any information provided will be used for that purpose…… ”
    Debt collectors only collect charged-off or default debt. This debt has been purchased for 2 cents on the dollar. Read online a couple issues of Default Servicing News, the industry trade journal, and you will see news items about how Ocwen or Nationstar or any one else purchased $800 million of non performing mortgages from such and such a bank for 15.2 million or similar. But regardless of what these news items say or what the servicers put forth, all they are buying is the MSRs, or mortgage servicing rights.
    You are current on your mortgage, and you are sending payments to a company which by law can only collect
    On charged-off debts. To add fuel to the fire, the FDCRA ( fair debt and credit recovery act) only deals with charged off debt. This is debt for which the company charging it off gets a 100% dollar-for-dollar credit against income at tax time or quarterly. (Although the mechanism
    For doing so may not be so straightforward)
    So: get a mortgage from a brick and mortar bank in your hometown, pay your mortgage, and see if they ever call themselves a debt collector.

  8. Judges ignore. Do the homework. And, not just the current “loan.” Go back.

  9. If anyone needs pro se litigation assistance for this rescission, TILA or quiet title issue please contact us at your earliest convenience at sncr.defenders@yahoo.com or call us at 818.453.3585. Consumer Rights Defenders is here for you offering free consultations. Ask for Steve or Sara when you reach out. Have your proof of rescission ready to discuss when you call.

    *This is a paid post and is not an endorsement by Neil Garfield.

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