It appears that I have struck a nerve with many of the people who seek to prove me wrong in my “theories.” They are facts, not theories. And as explained by yet another attorney writing an article for the banks and bank attorneys, it is up to the “bank” side of the equation to do anything about rescission. The borrower need do nothing except send the notice. If the “bank” side does nothing they do so at their own peril — not the homeowner’s peril. READ THE STATUTE and the unanimous decision by SCOTUS in Jesinoski v Countrywide.
Although trial judges treat the matter as unsettled or even settled opposite to the express wording of the statute and the only case that matters, the issues raised defensively by the “bank” side relative to TILA Rescission are plainly without merit and well-settled by statute and SCOTUS.
The article below seeks to point out that the TILA Rescission statute allows a court of competent jurisdiction to change the order of things — if petitioned to do so. She avoids the obvious problem: that nobody has filed such a suit because they (a) don’t have standing and (b) they are winning anyway by playing to the bias of judges.
“A borrower may effectuate rescission “by notifying the creditor.” 12 U.S.C. § 1635(a). The United States Supreme Court held in Jesinoski v. Countrywide Home Loans, Inc. that a borrower need only send written notice to a lender “in order to exercise his right to rescind”; it is not necessary for the borrower to also sue for rescission to “exercise” the right of rescission. 574 U.S. ___, 135 S.Ct. 790, 793 (2016).”
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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SeeLaw360: When to Consider Modifying TILA Rescission Procedures
- If someone is giving you advice or analysis and they don’t have a law degree and some experience practicing law, ignore them.
- READ THE STATUTE YOURSELF: 15 USC §1635.
- READ THE ONLY CASE THAT MATTERS: Jesinoski v Countrywide, decided by the highest court in the land — the Supreme Court of the United States. (SCOTUS)
- Be prepared for push back because that is working for the “bank side.” They are wrong and they know it but they are still convincing judges to ignore the wording of the statute and ignore the word of the boss of bosses (SCOTUS).
- A court decision that does not vacate the rescission is no decision at all. The courts have been careful to avoid this obvious issue. Since the rescission is effective when mailed (or delivered), that is the moment when the loan contract is canceled, and the note and mortgage rendered void. Any court that moves forward despite rescission is exceeding its jurisdictional authority as there is no longer subject matter jurisdiction.
There many shills and well intended people out there on the internet who have strong opinions about TILA Rescission. Nearly all of them have no law degree and no experience practicing law and lack any useful knowledge about court procedure. They should be ignored. Even the “bank” lawyers ignore them.
Their erroneous points come down to this:
- if the disclosures to the borrower were complete, then rescission doesn’t count
- it is up to the borrower to make TILA rescission effective.
- if the borrower cannot tender the principal back then the rescission is not effective.
- the TILA statute allows courts to change the order of duties of the “bank” side and the borrower side.
All four points are dead wrong because of due process. You can’t get relief unless you plead for it. So far the “bank” side has convinced judges they don’t need to file a pleading to get rid of an effective TILA Rescission. That is going to change.
The statute contains no presumptions that the disclosures are complete. In our legal system that means that a party with standing must bring an action that requests relief from rescission on the grounds that disclosure was complete. And they must bring such an action timely under the TILA Rescission Statute (i.e, within 20 days).
TILA rescission is effective at the moment of mailing or delivery by operation of law (i.e., the TILA Statute). The Supreme Court has already ruled unanimously that no lawsuit or other action is required by the borrower on the issue of rescission. Sending it means the loan contract is canceled and the note and mortgage are void.
No tender of money or property is required by the TILA statute in order to make rescission effective. This is not a theory. This is what the statute says and what the Supreme Court of the United States says. You can disagree with it all you want but the matter is legally settled.
The fact that the statute allows the court to reorder the statutory duties and obligations does not mean anyone asked the court to do so. If they did, the borrower would be entitled to due process — i.e., time to respond to the new order of things. Obviously that pleading is not going to submitted by the borrower. Just as obviously that pleading must be filed seeking relief from the rescission and allowing due process — i.e., litigation over whether the sending of the rescission was lawful but only in the context of a pleading filed by a party with standing.
And that is the point. There probably is no party with standing once you strip away the note and mortgage. The owner of the debt is most likely unknown. And that is where we are. Eventually SCOTUS will rule again on TILA Rescission. If the next ruling is consistent with their last ruling they will once again strike down the procedures and substance of court rulings that ignore the existence of the TILA rescission which was effective by operation of law, from the moment it was sent or delivered.
Here are some relevant quotes from the article cited above, written by an attorney working for a firm that represents banks:
Lenders at times find themselves assessing how to handle a claim by a borrower that he or she is entitled to rescind a loan under the Truth in Lending Act (TILA). Rescission under TILA is distinct from common law rescission due to one main difference: unlike common law rescission, which requires the rescinding party to tender any benefits received under the contract back to the other party as a condition precedent, TILA allows a borrower to exercise the right of rescission before such tender must occur. This can result in putting a lender on its heels, seeking to defend against the merits of a TILA rescission claim before even knowing if the borrower can fully effectuate the rescission by ultimately tendering the proceeds of the loan back to the lender.
However, it is possible to avoid this situation, even when operating within the framework of TILA. A strategically useful but often under-utilized tool for lenders in litigation involving rescission under TILA is to seek an order altering the statutorily prescribed procedures for rescission.
Overview of Rescission under TILA
Ordinarily, under section 1635(a) of TILA, a borrower has the unconditional right to rescind a loan for three days after the consummation of the transaction, delivery of notice that the borrower has a right to rescind or delivery of all material disclosures – whichever comes later.[1] Thus, if the lender provides the borrower with the requisite material disclosures upon closing the loan, a borrower’s right of rescission under TILA is extinguished after three days.
Assuming, however, that a lender does not provide a borrower with all necessary “material disclosures,”[2] section 1635(f) of TILA extends a borrower’s right of rescission to three years after the consummation of the transaction.[3]
While common law rescission requires a rescinding party to tender the benefits received pursuant to an agreement back to the other party as a condition precedent, TILA prescribes otherwise. Section 1635(b) states that when a borrower “exercises his right to rescind under subsection (a), he is not liable for any finance or other charge, and any security interest given by the obligor … becomes void upon such a rescission.”[4] Moreover, upon the exercise of rescission “under subsection (a)” of TILA, the lender is required to return any down payments provided by the borrower and “take any action necessary or appropriate to reflect the termination of any security interest created under the transaction” within 20 days of receiving a notice of rescission.[5] Only after a lender performs its obligations under subsection (b) is the borrower required to tender back any benefits received, such as loan proceeds.[6] Notably, however, both section 1635(b) and TILA’s implementing regulation, Regulation Z, provide that the procedures for rescission under TILA may be modified by court order.[7]
Filed under: burden of persuasion, BURDEN OF PROOF, foreclosure, foreclosure defenses, legal standing, Motions, Pleading, STATUTES, TILA, TILA rescission |
Re; Neil and his rescision comments, here is the comment from my California attorney: In the meantime, I am trying to formulate an argument on the TILA question for the petition for review. The problem: there is not a single case, published or unpublished, that has accepted Mr. Garfield’s theory of Jesinoski as it relates to rescission notices sent more than three years after consummation of the loan, and a whole body of precedent outright rejecting his theory. While all of the California cases directly on point are unpublished, and while the California Supreme Court is not obligated to follow lower-court federal precedent on matters of federal law, it will if the precedent is uniform.
So, we have to point to a flaw in how the court handles precedent and argue that federal courts handle new SCOTUS precedent differently than state courts.
By the way, no court has accepted the consummation argument that consummation occurred much later than the signing of the original loan documents (here, November 5, 2004) because of table funding. The precedent is uniform the other way — the only way to avoid consummation is if the name of the lender is left blank. Also, by he way, because the loan modification executed May 5, 2008, did not completely extinguish the old loan, the modification did not trigger TILA obligations. He has been very good at keeping me in the fight but we are now about to go up against the CA supreme court as the appeals court turned me down
@ David Yes, love of my fellow man is part of why I combat the disinformation out there. Yes, it is a problem with our system that the average person doesn’t really have fair access to our courts. In civil court, if you want justice, it’s often a question of how much justice you can afford. Even in criminal court that is true; does anyone think OJ would have beaten the murder rap if he had a public defender as opposed to the dream team he had? But here’s also the truth, you have to meet the system on its own terms. To win your case, you have to realize what it is, and don’t expect it to change for you. Lawyers know this – even with law degrees they do not try to change the system to win their case. They try to fit their case within the parameters that the system says it must fit within in order to win. Good luck and embrace reality!
David Seal I do not want to be belligerent with you. I am not “advocating” that you or anyone else do anything. I am just trying to help. You must be a lawyer. I only say that because of the way you twist the truth of my words. I never said anything to anybody about them or me “not getting a loan”. You are probably correct in your assumption that a pro se litigant has little chance pleading his cause and getting his point across “winning” a foreclosure case against the big banks. But you must also look at the pitiful success rate of the lawyers union as well. And those guys are taking money from their poor unsuspecting clients that think the lawyer is going to think of them first and have no idea that their lawyer works for the court. There is no justice for the common man anymore. First he cannot afford it and second the lawyers union has obscured the “law and statutes” and third the “law and statutes” are not applied equally. The justice system has been turned into a monopoly of lawyers. If you are not a lawyer and a member of “the bar” you can not play the game. None calleth for justice, nor [any] pleadeth for truth: they trust in vanity, and speak lies; they conceive mischief, and bring forth iniquity. I find it difficult to have any respect for an attorney that represents a big bank that has repeatedly been found guilty of forging documents and presenting them to the court or opening accounts in clients names that did not ask for an account or foreclosing on military that are at war in another country contrary to the law or to badgering old folks about taking out a HELOC on their fully paid for home when they did not ask for it but were sold the idea and then taking their home if they missed a payment or taking someones home after they paid on it for 20 years. A lawyer that works for a crook is a crook in my opinion. He that justifieth the wicked, and he that condemneth the just, even they both [are] abomination to the LORD. David Seal I wish you well. For all the law is fulfilled in one word, [even] in this; Thou shalt love thy neighbour as thyself.
I am certainly interested in discussing my
Options. Great info.
@David If you know so much about how it works, how come you are advocating people claim they “didn’t get a loan?” No one with any familiarity with our laws or the banking system would make that argument with a straight face. But good luck, maybe you’ll be that one pro se litigant who wins their case without any legal education. I actually mean that seriously, as I do wish you good luck, and I have also never heard of a pro per litigant winning a wrongful foreclosure case of any magnitude, at least not in a nonjudicial jurisdiction.
Dave Seal- you are preaching to the choir. I have been educated on how it works. I realize that the banks can do as they wish and if they screw up the taxpayers will be forced to bail them out and if the homeowner screws up he doesn’t get bailed out he gets kicked out.
I believe there was a mile long stretch of case law prior to Jesinowski that said you had to file a case to rescind. Where is that case law now??
Neil and his group excepted I’m not sure what good a lawyer would have done me. From what I have seen all they do is take your money, sit on their ass and then get up and throw you under the bus and of course lose. I talked to a lawyer 7 years ago and he wanted 3k down and 1500 a month to play tiddly winks. I had a “great” lawyer for a patient 7 years ago and he said there was no way I could keep the case alive and that it was over. Well it ain’t over yet. God keeps providing a way. Please don’t take this personal if your a lawyer. I’m just talking about the ones I have had the misfortune to deal with. Heck my best man was a lawyer and an old buddy that became a judge was in my wedding. Of course those two guys had some character.
@ Lynn Tomoro – For your own sake, get off the internet. Stop listening to crackpots and people who have website to sell you things. Go to a lawyer admitted in your jurisdiction and pay them for an hour or two to give you a consult, and at least point you in the right direction. Once you start down the wrong path, it can be too late and you can cement in a bad result which could take months or years to finally happen. And the bank lawyer will be able to see it before you can (think playing chess, the more experienced can think several moves ahead of the less experienced). Truth.
@ David – You can think what you like, you can have all your pet theories. In fact, you can write them in fancy calligraphy, on parchment, and frame them in cherrywood and hang them on your wall. But there is caselaw a mile long – and no deviation from it – which deals with this issue.
The idea that “it stands to reason” that the law will be what you want it to be is a losing approach – whatever your issue. A lawyer who is competent in an area of law will know what the law actually is, and where that isn’t the case, will be able to find it. Does that guarantee you win – no. But it does guarantee that the facts you’ve got get characterized in a way most likely to get whatever relief the legal system is capable of giving you (and that may not be all the relief you want).
I get it, lawyers are expensive and sometimes it is impractical to hire one. in that case, you should get “as much legal representation as you can afford” and you should seriously consider whether you want to fight whatever court battle you are fighting. And then, it will be incumbent on you to understand legal concepts that are going to be old hat to the bank lawyers. I’ve worked on that end, and every time one of the bank’s lawyers gets a “vapor money” “I wasn’t loaned anything” “warehouse lending is bad, mkay” type of argument, they laugh a bit, relax their shoulders, and throw that case on the pile of cases they are sure to win.
You may not like what I’m saying, but I’m speaking the truth.
Lynn Tomorro. Send it to everybody. Send it to whoever is on your Promissory Note including MERS if its there. Send to everyone that showed up on a piece of paper that said you owed them money or they were there to collect money from you. Send them certified mail where you get a receipt back from them when they get it. Get a binder and start putting everything in the binder so you can find it easily. Read and understand every piece of paper they send you. Don’t ignore or throw away anything. Get ready for a fight, start studying or just get the heck out and start over and never use a big bank again. It doesn’t seem to matter that they have broken the law and been fined billions for doing it because we are supplying them with trillions and then the corporate US just tells them not to do it again and make sure they police themselves. Great Deal for them. Imagine a bank robber that could steal a million and be fined 100k and told to make sure he doesn’t do it again. Would that stop you?? We should do like Iceland did and jail the crooks and start over. Use a credit union.
David Seal. I would think that if I signed a contract for David Seal to lend me money and I made a promise to pay David Seal back that money with interest and David Seal does not loan me the money but Vito Corleone gives some money to someone else that claims they gave it to me that there was no contract. We could go into the fact that the promissory note was the money first given to the bank and then they deposited it and turned around and “loaned” it back but what is the point?? They are in power and they will do as they please until we stop using them for credit.
Cement. If a person makes and records a motion under the UCC (certainly a statute that is plain on its face) that is not complied with and that person is forced to proceed it would seem to me that the court has violated that persons due process rights. And of course by violating that persons due process rights could that not be considered a void judgment??
I have been thinking about sending the recession, but who do I sent it to, I am on the third mortgage servicer, Ally was the original one whom ai took the loan out with, then Countrywide to the trust, note andmortgage were sp!it didn’t go into the trust at the same time, then BOA, SPS, Shellpoint Mortgage Services, now Penn Financial Service… the only assignment I have seenis to BOA done after they filed the Foreclosure, that was number 1 foreclosure, then in 2015 an other foreclosure was filed…
but, who do I send the recession to????
Is it too late to send the recession because it’s been over three years, but a ton of TILA violations happened during the original loan and tons avter the loan….
I appreciate any belp, thanks….
Its worse in Illinois –
because of near state bankruptcy and no budget, the circuit courts were forced to lose their automatic court reporters, but the average litigant does not know about this or where to find it until they show up, then when a motion to extend time to secure an authorized private court reporter is made, it is denied, with the judge stating – Hey DumbFork we’re broke – you should have known about it”
Wham-Bam Thank you Ma’am – yer toast
Go spend more at the appellate court and get out of my face…
Does anybody know???
I made a motion to have the judge appoint a court reporter. Here is the statute I used for the motion. Tennessee version of the UCC is TCA 20-9-101. Appointment of court reporter.
Upon the trial of any cause or proceeding in any court of record, upon the request of either party, the judge of such court shall appoint a competent court reporter, who shall first be duly sworn to make a true, impartial and complete stenographic report of all the oral testimony given in trial of the cause or proceeding, as well as the rulings of the judge.
The judge did not appoint the court reporter so I asked for a continuance until he did or I did. He denied the continuance and forced me to proceed with the hearing.
Any ideas??? Seems like it is a blatant violation of my due process rights or something like that.
JD. Here is a motion to vacate a judgment I filed but the state judge just says denied so I don’t quite know what to do. However, the information is good and maybe you can use some of it or maybe somebody else can use some of it. Pay it forward.
IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE
SIXTEENTH JUDICIAL DISTRICT, RUTHERFORD COUNTY
AT MURFREESBORO
DAVID B. STARKEY ) CASE NO: 13CV-26
3624 Lascassas Pike )
Murfreesboro, TN., 37130 )
Plaintiff, Pro Se )
) MOTION TO VACATE
VS. ) VOID JUDGEMENT
) (For Lack of Subject Matter
WELLS FARGO BANK N.A. ) Jurisdiction)
IKE MOSES (AGENT OF WELLS) )
WILSON AND ASSOCIATES, PLLC )
FEDERAL HOME LOAN )
MORTGAGE CORPORATION )
DOES 1-1000 )
3624 Lascassas Pike )
Murfreesboro, TN 37130 )
____________________________________________________________________________________________________________________________________________________________
MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION TO VACATE VOID JUDGMENT
On April 4, 2016 Chancellor Wilson made judgment on Defendants Motion for Summary Judgment regarding Case 13cv-26 and Defendants Counter Claims. Plaintiff maintains that the court lacked subject matter jurisdiction to make a ruling based on void instruments using those void instruments to authenticate and base its conclusions and rulings. In Chancellor Wilsons Order granting Defendant Summary Judgment the Chancellor makes reference to Plaintiffs Void Promissory Note (Note) and Deed of Trust (DOT) 31 times to legalize his order.
Any judgment supported by Void instruments is Void. It is important to note that any ruling or judgment based on a void judgment is void itself. Lawrence County. v. White, 288 S.W.2d 735, 739 (Tenn. 1956). Chancellor Wilsons Summary Judgment order regarding Defendants Counter Claim for Breach of Contract in Case 13cv-26 is Void for Lack of Subject Matter Jurisdiction.
The Contract Chancellor Wilson referenced in his Summary Judgment on page 10 was a Tennessee case decided in 1911 which said: The law of this State is clear that the enforcement of a deed of trust is a “plain matter of contract” and ”the trust deed and the notes are to be construed together as parts of one contract” Lee v. Security Bank & Trust Co., 139 S.W. 690, 692 (Tenn. 1911). In Plaintiffs case both the Note and DOT are void as a matter of law due to Plaintiff’s rescission of said Note and DOT. There was no subject matter for the court to make its ruling on regarding Defendants Counter Claim for Breach of Contract. The court lacked Subject Matter Jurisdiction.
The Tennessee Supreme Court has ruled that a void judgment may be ―assailed at any time. Turner v. Turner, — S.W.3d —, 2015 WL 6295546, at *18 (Tenn. Oct. 21, 2015). In Turner, the court held that ―the reasonable time filing requirement [in Rule 60.02 of the Tennessee Rules of Civil Procedure] does not apply to bar motions [to set aside a judgment] filed under Tennessee Rule 60.02(3) [related to void judgments].
It is important to note that any ruling or judgment based on a void judgment is void itself. Lawrence County. v. White, 288 S.W.2d 735, 739 (Tenn. 1956) (noting that, when a judgment is void, ―then anything based on this void judgment would likewise be of no effect . . . [and] such a decree may be assailed at any time and it is in the same plight as though it never existed”).
Plaintiff incorporates his second amended complaint (SAC), 13cv-26, into his memorandum in support of his motion to vacate the void Summary Judgment order which is the subject matter of this motion.
Plaintiff rescinded the transaction that is the subject matter of this complaint by mailing his Notice of Rescission (NOR) by certified mail with return receipt to Defendants on January 2, 2013 (SAC #108,109,110, Ex. Q). It is a fact that Plaintiff noticed the Defendants of rescission by letter (SAC Ex. Q). A unanimous Supreme Court declared “rescission is effected when the borrower notifies the creditor of his intention to rescind.” Jesinoski, 135 S. Ct. at 792 .
The statute and regulation specify that the security interest, promissory note or lien arising by operation of law on the property becomes automatically void. (15 U.S.C. § 1635(b); Reg. Z §§ 226.15(d)(1), 226.23(d)(1).
It is a fact that Plaintiffs “transaction” has been rescinded by operation of law. Justice Scalia and a unanimous Supreme Court affirmed in Jesinoski that a TILA rescission is neither a “request” nor conditioned on court approval, but rather it becomes effective by operation of law upon notice by the borrower to the creditor. (Paatalo Case 6:15-cv-01420-AA Page 4 #9).
By operation of law, the security interest and promissory note automatically becomes void and the consumer is relieved of any obligation to pay any finance or other charges (15 USC 1635(b); Reg. Z-226.15(d)(1),226.23(d)(1). See Official Staff Commentary § 226.23(d)(2)-1. (See Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002) (Once the right to rescind is exercised, the security interest in the property becomes void ab initio).
Thus, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. (See Family Financial Services v. Spencer, 677 A.2d 479 (Conn. App. 1996) (all that is required is notification of the intent to rescind, and the agreement is automatically rescinded).
It is a fact that TILA Rescission is neither a claim nor a defense. It is a legal act that has legal effect when completed. The only factual issues are whether the rescission was sent, which in this case is undisputed. TILA Rescission is effective as a matter of law, when mailed. Its effect is to void the note and void the mortgage and trigger specific statutory duties of the “lender” under 15 U.S.C. §1635 et seq. Jesinoski v Countrywide 574 U.S. (2015) and Regulation Z. C.F.R. (Federal Reserve as succeeded by Consumer Financial Protection Board).
As the Supreme Court of the United States (SCOTUS) ruled: Section 1635(a) nowhere suggests a distinction between disputed and undisputed rescissions, SCOTUS 574 U. S. (2015). And if a dispute arises about the validity of a particular rescission notice, or about what consequences should flow from the notice, litigation to resolve that dispute can be commenced after the specified period for exercising the rescission right has ended. See, e.g., Sherzer, 707 F.3d at 264; Cocroft v. HSBC Bank USA, No. 10 C 3408, 2012 WL 1378645, at *2-4 (N.D. Ill. Apr. 20, 2012); Keiran v. Home Capital, Inc., 720 F.3d 721, 731-735 (8th Cir. 2013) (Murphy, J., concurring in part and dissenting in part), petition for cert. pending, No. 13-705 (filed Dec. 9, 2013).
The Supreme Court of the United States has ruled that a rescission is effected upon mailing of the rescission notice and that the Note and DOT becomes automatically void and of no effect. It has also ruled that a creditor that disputes the validity of the rescission notice must file a declaratory action with the court to litigate the validity of the notice.
Because section 1635 is written with the goal of making the rescission process a private one, worked out between creditor and debtor without the intervention of the courts,” Belini v. Wash. Mut. Bank, FA, 412 F.3d 17, 25 (1st Cir. 2005), it “does not even contemplate the necessity of judicial intervention to effect rescission. On the contrary, the section creates legal remedies which have binding legal effect absent any court action.” Sosa II, 498 F.2d. at 121.
Whether the right to have sent the notice had expired, or whether the right to rescind the putative loan is not well-grounded because of other theories (e.g. timely, purchase money mortgage…) are all questions of fact and potential grounds to vacate the rescission — as are potential defenses to a suit to vacate involving other theories (e.g. consummation, not a pure purchase money transaction, table funded, undisclosed lender, securities transaction …). These are all questions of fact to be determined by a suit to vacate the rescission that is brought by a party with legal standing.
The lower courts of this United States are bound to adhere to the Supreme Court’s interpretation of Federal Law. People v. Fountain, 2012 IL App (3d) 090558, ¶ 23 (this court is bound by our supreme court’s interpretation of federal law “unless and until that conclusion is revisited by our supreme court or overruled by the United States Supreme Court).
The Promissory Note (Note) and Deed of Trust (DOT) associated with Plaintiffs transaction are void as if they do not exist, and they cannot be used or referred to in order to base decisions regarding Summary Judgment on Defendants Counter Claim.
Chancellor Howard W. Wilsons Order of Summary Judgment for CASE NO: 13CV-26, signed on April 4, 2016 was based on a void Note and void DOT and Chancellor Wilson based his arguments entirely on a void Note and Deed of Trust using them as “evidence” to make Summary Judgment. The court lacked subject matter jurisdiction to make a ruling based on void instruments as evidence to support those rulings.
Subject matter jurisdiction fails: if a judge does not follow statutory procedure, and where the judge does not act impartially, Armstrong v Oucino, 300 Ill 140, 143 (1921), Bracy v. Warden, U.S. Supreme Court No. 96-6133 (June 9, 1997).
The present case is controlled by the opinion in Tennessee Marble & Brick Co. v. Young, . . . 163 S.W.2d 71, 75[(Tenn. 1942)] wherein it is said: ―A decree may be assailed because of invalidity at any time. A void decree is in the same plight as though it never existed.”
A void judgment is not entitled to the respect accorded a valid adjudication, but may be entirely disregarded, or declared inoperative by any tribunal in which effect is sought to be given to it. It is attended by none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for any purpose or at any place. … It is not entitled to enforcement … All proceedings founded on the void judgment are themselves regarded as invalid. 30A Am Jur Judgments ” 44, 45.
It is on these principals, in part that the Plaintiff, seeks remedy from the court in the form of action vacating the Void Judgment set forth by Chancellor Wilson regarding Defendants Counter Claim for Breach of Contract in Case 13cv-26 and all subsequent resulting actions of that judgment.
Respectfully submitted, All Rights Reserved
___________________________
David
CERTIFICATE OF SERVICE
I hereby certify that on this _______ day of ________, 2017, a true and exact copy of the foregoing was sent via U.S. Mail, postage pre-paid, to:
Brittany Bartley Simpson
Baker Donelson Bearman Caldwell and Berkowitz, P.C.
211 Commerce St., Ste 800
Nashville, TN 37201
All Rights Reserved:
____________________
Agent: David Plaintiff Pro Se
@ David – You posit the question “Do you know for a fact that your bank loaned you money – do you have a cancelled check?” Allow me to say this is one sure-fire way to lose the point you’re trying to make AND at the same time convince the court you have nothing to say worth listening to. If funds were provided, electronically, by check, in any way, the court is going to consider that the borrower was loaned money. There’s a metric Sh&* ton of caselaw on that issue. Same with “Vapor money” arguments and arguments which criticize warehouse lending, securitization, fractional reserve banking etc. Sure-fire way to be a loser.
Thank you David.
JD. SCOTUS has determined it is effective upon mailing within 3 years of consummation and of course some failure to supply required documentation. Consummation is a question of fact and should be determined after the party contesting the rescission shows that they are the creditor and files a declaratory action to have the rescission vacated within a 20 day period beginning from when you mail the rescission notice. You might ask yourself if you know for a fact that the bank on your Note lent you any money. Do you have a cancelled check from the bank? Do you have a wire transfer receipt?? Probably not – so there is a question of fact regarding consummation which starts the time clock ticking for the 3 years. Some state law says the transaction is consummated when one becomes contractually obligated. To answer your question I have not yet seen a rescission honored by the judicial system past the 3 year window. That does not mean it has not happened. Its a long hard road JD. If you aren’t up for a lifetime fight perhaps bankruptcy properly applied to the situation would be the easiest route. Neil has a lot of information on strategic bankruptcy.
Has anyone sent in rescission after the 3 years and have it effective? I’ve been contemplating sending just to see if they will answer. The most recent servicer involved took up their cause about 3 years ago. The chain of title is messed up at best.
I think I understand that if the borrower cannot tender the orinclioke back, then the rescission is not valid.? So you must be able to offer up the principle to get out of the loan? That’s my understanding. I’m not a lawyer. I read that you can’t just cancel a debt with a recession notice unless you are prepared to pay the principle on the loan.
I got a WF SETTLEMENT check for $32 after they charged me $470 for inspection fees
Thanks Ian.
For 99% of homeowners, the idea of trying to use TILA rescission as a “foreclosure defense” is just a bad idea, because it won’t work.
David,
I would 1099 your bank for their “loss” on the “forgiven debt”. Copy the IRS on this one. I believe the IRC means actual
Losses, not paper losses, or losses which were covered by TARP or TALF vehicles. But keep
Plugging.
I don’t think anyone is going to draw arms to stand up for displaced homeowners. At least they are not physically hanging us. But all the Judges do look like George Wallace standing on the school steps saying there is not going to be any TILA enforcement here!!!
To those atty pals who state to me on the phone or in emails that Jesinoski/SCOTUS is meaningless in the face of existing case law… please bring me your citations from cases after 1/15/2015 upon which you base your opinion. Anything decided before 1/15/2015 arguing against the unifying SCOTUS unanimous decision in Jesinoski no longer bears fruit.
This is starting to remind me of the civil rights era SCOTUS decisions which were fought tooth-and-nail by the states and only finally enforced at the point of a gun by an Executive Branch willing to use our US Marshals and Military to enforce the law of the land (SCOTUS) and shut down the local/regional tortfeasors/treasonists/ transgressors.
Thank you! –
‘CementBoots
It is all well and good to speculate on what someone says and what he or she thinks. The facts as I see them are that the courts and the banks attorneys disregard TILA rescission. They confiscate the home and sell it making rescission a mute point. It does us no good to be correct in our analysis if it can not be justly administered. So where does that leave us?? I guess we all know. Oh by the way I got a big settlement check from the wagon train people yesterday for settlement on a class action suit they lost. I don’t know what I am going to do with all that money. I am going to have a hard time spending $6.45 all in one place. LOL
One more thing. The article by the Atty says
1) “Lenders at times find themselves assessing how to handle a claim by a borrower that he or she is entitled to rescind a loan under the Truth in Lending Act (TILA).”
This shows that Attys and judges still think TILA Rescission is a “claim” they can rebut and not a fact of law beyond their reach – unless of course they timely file a suit with a pleading to have it vacated.
2) The Atty also never uses the word “creditor” only “lender”, making the presumption that they are equal.
3) Also, she admits that there is a 20 day period for the lender to take action “or else”, but in fact it must be the bona fide’ creditor with proof of owning the actual debt.
Since the rescission is already effective prior to a final judgment in the foreclosure case, the subject matter has been pulled out from under the plaintiff leaving them nothing to stand upon absent the note and mortgage (or DOT). It is likely that no response was given within 20 days.
4) She also says, “Notably, however, both section 1635(b) and TILA’s implementing regulation, Regulation Z, provide that the procedures for rescission under TILA may be modified by court order.”
However by not being specific, she allows the reader to believe that any court proceeding (like a foreclosure case) is as good a place as any to move to challenge the TILA Rescission and get a court order re-ordering the 3 steps and moving tender to the top.
I think this is incorrect but hope that Neil can provide more specific clarity as to why.
Ok great article, but still, there’s an issue here.
The typical “TILA rescission plaintiff” is someone who had a loan originated many years earlier, who has been fighting foreclosures for several years, and no mention of a rescission claim. Then “BAM” all of a sudden, they hear of Jesinoski or hear of TILA rescission and they suddenly have a memory and awareness of having rescinded their loan in a timely manner (3 days or 3 years) under TILA and can prove they sent it (sure they can, but okay let’s go with it for now).
And, for an intervening period of years, they’ve been paying on their loan.
In addition, they’ve never filed suit.
Courts generally say that once you’ve “rescinded” you have a year to file suit to enforce it. If you wait another several years, make payments for a few years, then litigate a bunch of other claims which don’t succeed, and all of the sudden “discovery” you in the distant past rescinded your loan in a timely manner – well, you (1) look like a scam artist, (2) have a huge credibility problem, but more importantly, (3) can’t do a darned thing about it because of the one-year post-rescission SOL.
Where am I wrong?
In the section above the editor states:
“Their erroneous points come down to this:
2. it is up to the borrower to make TILA rescission effective.”
(this is true, not an error)
Small but important – I believe the editor meant to say that the lenders and courts erroneously believe:
2. it is up to the LENDER OR COURT to make TILA rescission effective.
We keep getting closer and closer to unlocking years of corruption, abuse, and racketeering on behalf of nasty lenders like Bank of America, Chase, Citi, Wells Fargo and others but we need a national push and the backing of the once very inept and inefficient CFPB that has now been headed by a very good man in Mick Mulvaney. Let’s hope he is a much better and understanding leader than old Condray who did little to nothing to help millions of people like me.
I had five loans that were supposedly initialed, and “table funded” by Countrywide Home Loans between the years 2002 and 2009. B of A took over CW supposedly back in 2008, but they have been totally unable to provide any actual, true proof whatsoever, other than facial, fabricated, forged, phony and even “robosigned transfer documents like the one Michele Sjolander executed and was actually used by the phony, “pretend lender” Bank of America and crooked lawfirm of Janeway law that was fined over 650,000 for their foreclosure tactics back in 2016!
I have nearly five feet of undisputed proof on all this with the five loans phony B of A made claim to and they even “service transferred” thee of the loans too their crooked “co-conspirators” in Shellpoint Mortgage and Seterus AND they did finally offer phony, “in-house” modifications after nearly 4 years (I started asking for help back in late 2009 when I had to starting paying out nearly $11,000 per MONTH for my mom’s full 24 hr. care that ended in late 2016 when she passed away at 95 years old).
I hope the new administration and various people will now take a close look at all this and especially all the racketeering on behalf of Bank of America as referenced in the 10th Circuit Court Ruling against Urban Settlement Services and Bank of America in the George et al. V. Urban Settlement Services and Bank of America when the 10th Circuit Court ruled against Bank of America and for good reason- I have undispurted proof of all this in nearly a five foot stack of correspondence on behalf of over 25 people who purported “to be from the office and the president and ceo and a one point of contact”!!!! All the phony “in-house modifications” by merely extending the loans out to 50 + – years at the same high interest rates is clear proof of this and the documents that appear to be phony, fabricated, forged, and robosigned- certainly never recorded and the very phony supposed assignments are a real piece of work.
I am providing this again to all the people who make claim they can help me and millions of others who have been wrongfully abused, lied to, and wrongfully foreclosed upon!!! Semper Fi.
Reblogged this on California freelance paralegal.
Perhaps we are getting closer to justice and perhaps we are not. I rescinded the transaction and it was ignored. I motioned for judgment on the pleadings due to the rescission and the bank not having a copy of the note and DOT to rely on and it was denied. I motioned for a dismissal due to lack of subject matter jurisdiction because of the rescission and it was denied. I opposed their summary judgment motion because the transaction was rescinded and they ignored it. Now I am fighting them on 200k worth of damages they have been awarded while yet again ignoring the rescission. They kicked me out of the house ignoring the rescission and now they have been awarded 200k worth of damages (I am appealing). Oh, they offered to knock off 100k if I would sign their non disclosure contract. And I just got a 1099 from the IRS collection agency saying the bank has “forgiven” debt and of course I am supposed to report that as INCOME on my tax return. That all sounds like Justice doesn’t it? NOT