Why Borrowers Have the Right to Rescind under the Truth In Lending Act

In my opinion any foreclosure judgment or foreclosure sale that took place after a notice of rescission was sent and delivered is completely void and should be treated the same as a wild deed. This is particularly true in cases where courts have ignored the rescission completely and failed to issue an order effectively vacating the rescission. And it is particularly true where the rescission notice was sent within three years of consummation (assuming there was consummation). As with any wild deed, the actions and events subsequent to the void foreclosure judgment and/or void sale are also void. The effect of a rescinded loan is to make the note and mortgage void by operation of law effective the date of mailing or delivery. Void means they don’t legally exist.

Where the rescission was sent within three years of the purported consummation and was completely ignored  I am positive that SCOTUS will agree. And it is at least doubtful, if not legally impossible, that any subsequent law passed by any state legislature could effectively ratify a court’s action where it had no subject matter jurisdiction. In plain language, if the effect is the same as a wild deed, the only way title can be divested from homeowners would be through various state laws governing adverse possession (usually used in boundary disputes, but nonetheless applicable). Absent that, homeowners who have sent notices of TILA Rescission remain the legal owners of the property, even it goes back many years.

The banks know and understand this. They have lobbied extensively and successfully in state legislatures to bar or limit actions to “take back” title. By doing so they distract from the main issue, to wit: homeowners already have title by operation of law and thus need make no claim in court or otherwise. That was the whole point of the TILA Rescission statute as confirmed by SCOTUS in Jesinoski.

Bankers are rejoicing over the nearly universal rejection of TILA Rescission in trial and appellate court — with the notable exception of the Supreme Court of the United States, (SCOTUS) who unanimously ruled in Jesinoski that (a) the statute was constitutional, (b) that the statute was clearly worded thus barring “interpretation”, (c) that no lawsuit was needed to make rescission effective, and (d) that the rescission notice is effective on the date of delivery (mailing, if USPS is used).

Any “logic” or rationale that leads to a result contrary to these points is equally void and without merit simply because it is the law of the land from Congress and from the highest court in the land — SCOTUS. All adverse decisions and arguments are based upon the premise that the statute runs against the grain of personal beliefs that borrowers should never have that much power. Without aggressive enforcement of the consumer rights enunciated in TILA, the rights and protections of the statute and regulations are effectively revoked leaving consumers in the same position they were in back in the 1960’s when the law was considered and passed.

While I am certain that SCOTUS will slap down all the courts of the country who tried imposing limits and restrictions on TILA Rescission, just as it did in Jesinoski, that doesn’t mean that that all cases would be reversible based upon Jesinoski and the next decision.

This is especially true when a court considers TILA Rescission as a claim instead of an event effective by operation of law — just as the statute says it is. The effect on procedure and burdens of proof is enormous.

If you regard it as a claim asserted by the borrower, then the borrower must prove that the rescission was properly sent and for good reasons.

If you regard it as an event, then it is the “lender” who must file a claim seeking to set it aside. The TILA Rescission statute and SCOTUS both state the same thing: rescission is an event that is effective upon mailing (delivery).

The burden is clearly on the party claiming to be a lender to file a claim seeking to vacate the rescission which has same effect as a court order or statutory law. But they must plead and prove standing without using the note and mortgage as the foundation for their assertion of legal standing.

Let us help you plan your TILA RESCISSION strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

===========================

In the 1960’s Congress was faced with a problem. The banks were forever seeking ways to deceive borrowers in increasingly complex loan transactions. Congress was passing TILA, but in order to have any effect in protecting consumers, a compliance enforcement mechanism was needed.

One choice was to create a massive new federal government agency to enforce compliance with the new Truth in Lending Act (TILA). Nobody took that seriously because of the huge expense and logistical problems in analyzing the closing statements on each loan and selectively auditing loans during their term to see if the disclosures were correct or had been false or misleading. Tens of thousands of people would need to be hired, trained, and educated. Systems would have had to be invented to keep track of the huge amount of data that would be collected.

The other path was to create a self activating mechanism that would impose draconian penalties on lenders who violate the law and spirit of TILA. Faced with virtual loss of the loan the banks would scrupulously comply. The extraordinary provision gave consumers the right to rescind the transaction if they believed they had been deceived — i.e., that the disclosures were absent, false or misleading (all of which apply to loans during the great meltdown leading up to the 2008 crash).

Key to the effectiveness of the statute is that there was no requirement that the borrower had to be right, inasmuch as this would enable banks to stonewall even further. Nothing was required except that the borrower send a notice of rescission. The entire burden thus falls completely and solely on the “lender” to apply to a court of competent jurisdiction to vacate the rescission, which was effective by operation of law, upon mailing or delivery.

Congress rejected any notion that consumers had to go see a lawyer or a court in order to get redress for the consumer’s perceived grievances. Hence the TILA Rescission statute was passed stating that the rescission was effective by operation of law upon delivery (or mailing). 

For years the banks had internal controls that usually assured compliance, although there were some major exceptions. Then starting in the 1990’s the banks embarked on a scheme that required  violations of the protections afforded by TILA. When people sent notices of rescission they were frequently ignored or “contested” by a letter.

In court, judges were driven by a fear that such power delivered into the hands of borrowers with little to lose might destroy the entire socio-economic fabric of the country and that the “sanctity of contract” must be upheld. Accordingly judges began to “interpret the statute thus imposing limits and restrictions that effectively denuded the primary objective of the legislation — to punish participants in the lending process for withholding disclosures or making false and misleading disclosures.

In short, as pointed out by SCOTUS in the Jesinoski decision  judges were attempting to legislate from the bench by proclaiming what the judge thought the statute should have said. SCOTUS truck down all the restrictions and limitations invented by the courts and appellate courts that affirmed such decisions. Still judges try to avoid the draconian results on “lenders” that were intended by Congress and President Johnson. And so the real truth about these loans and these foreclosures is still emerging very slowly.

The practice pointer here is that lawyers should not present rescission as a claim for any relief except perhaps enforcement of TILA Rescission duties imposed on lenders. The relief has already been granted by Congress. Don’t fall into the trap of alleging the rescission as a claim in a complaint or in affirmative defenses. The proper motion is a motion to dismiss. In the absence of an actual pleading setting forth standing and the timely contest (20 days) of whether the rescission should have been sent, the “lenders” either must admit they are not lenders or comply with the three duties imposed by delivery of  TILA Rescission:

  1. Return of moneys to the homeowner/borrower
  2. Return of the canceled original note
  3. Cancellation and release of the mortgage recorded in public records.

It is only after the lender has complied or a court has vacated the borrower’s rescission that the creditor or obligee can demand money from the homeowner/borrower. But here is the rub: Under TILA Rescission, there might to recover money arises from either timely compliance with the statue or an order vacating the rescission. The right to receive money under TILA Rescission arises from the rescission statute, not the debt, note or mortgage. If no claim has been made under TILA within 1 year, then the debt is unenforceable. And no claim can remade without compliance with the TILA Rescission statutes.

 

 

 

 

 

6 Responses

  1. https://livingliesthetruth.com/ exposes Garfield’s lies and incompetence.

  2. Read Mr. Cox, below….good points made.

  3. The problem Neil is that the courts either don’t grasp the TILA restitution sections [which is unlikely] or refuse to enforce them especially where bona fide purchasers of the reclaimed property buy it after the foreclosure sale. The statutes protect BFP’s [likely even if the sale was totally void], and overcoming the protections in place can be a colossal undertaking. If the property is not returnable, try to seek restitution AS IF the rescission was perfected and tally the sum you paid to the bank and sue for that amount and for the fraud associated with the taking of the money from the borrower, and not complying with federal statutes protecting the borrower. If you need help or some direction toward litigation call Consumer Rights Defenders at 818.453.3585 and ask for Sara or Steve.

  4. 50 years later we have the technology! Gov’t officials and banksters claim it is impossible to review or too costly to do things right while at the same time chief corporate criminal Chase, they do have a felony or other criminal violation to their credit, are pushing fully digital mortgages. And didn’t they get hacked big time? Anyone keeping their mortgages or $10 savings w these crooks deserves to get screwed again!

  5. One of the problems is with the term “claim” lying lawyers and stupid judges mix (obfuscate) with how the term actually applies. A TILA rescission is NOT A BLOODY “CLAIM” it is a REMEDY. Seeking damages for failure to comply within the 20 day deadline by the statutorily defined “creditor” (see, 15 USC 1602(g)), can be a “claim” but not the rescission itself which contrary to idiotic rulings in many courts and coopted/corrupt lawyers (who rarely if ever have a legal services agreement with the the “parties” they claim to represent, notwithstanding most the times such do not exist as named, especially as described for a “securitized trust” which is another term most these guys have no clue what it actually means) renders the rescission “automatic” as a matter of law. (citations omitted).

    What we’ve recently discovered in our research is all these lawyers, servicers, trustees, trusts, etc., are merely agents and sub-agents of each other not one with an LSA with the principal party which if you go down the rabbit hole, is actually the Fed. Government (through Fannie and Freddie, admitted agents of the Govt. and these banksters sub-agents of Fannie, Freddie et al. and of each other, not one authorized under virtually all State contract/B&P/Statutes of Fraud Codes to have a legal services agreement(s) with the principal (in virtually all cases intentionally concealed) in writing.

    The smoke and mirrors continue; lawyers bring fraud on the court for lack of candor therewith or doing their required due diligence before filing any papers in these cases (Fed. R. 11 violation among others).

    The judicial “system” is a corrupt corporate money machine… at best; there is no “rule of law,” “due process,” “stare decisis” (replaced with “the weight of authority” … gag….) or property rights any more. Suborning perjury; counterfeiting; forgery and fraud… the new “normal.”

  6. Excellent article!

Leave a Reply

%d bloggers like this: