All contrary arguments are erroneous since they would insert a contingency where the statute contains no room for any contingency. The language of the statute bars any such contingency when it says that the TILA Rescission is effective upon delivery, by operation of law. If anyone wants the statute to say or mean anything different they must get their remedy from the legislature, not the courts, who have no authority whatsoever to interpret the statute otherwise. The status of any case involving foreclosure is that it does not exist. Hence the court is left ONLY with the power to perform the ministerial act of dismissing the case for lack of jurisdiction.
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So in answer to questions about putative “modifications”, eviction or unlawful detainer, bankruptcy, and TILA Rescission this is what I have written in response to some inquiries.
Should the rescission be recorded? Not necessarily but
YES. I would like to see it recorded. You need to check with the clerk in the recording office or an attorney who understands recording procedure. Generally recording a document with an old date must be attached to an affidavit that is recorded with the notice of rescission attached. The affidavit explains that the attachment was inadvertently not recorded at the time it was created.
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Should a copy of the notice of rescission be filed in the court record also?
YES. If there is any way to get the recorded document into the court record, it should be pursued.
This presents title issues because if you are recording this long after events have transpired, some of which are also recorded as memorializing transactions, fake or real. Any recorded instruments that purports to be a memorialization of a transaction before the rescission was recorded would generally be given priority.
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The lawyer sent me an answer to my notice of rescission. Now what?
Either file to enforce the duties to be performed (if you are within one year of the date of delivery of the notice of rescission), or file a quiet title action if the one year has expired. There are several different scenarios actually, but this is the one I would focus upon.
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I am getting kicked out of bankruptcy court. Now what?
Getting “kicked out” of BKR court probably means that you are back in the state court system which might open some opportunities for you to get more into the court record. (Like an old rescission).
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My property is being sold. Does that mean that I have to get out?
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They can’t get you out without filing an unlawful detainer (eviction in some jurisdictions) based upon an asserted change of title. There might be a period of time between the sale and the attempt to get you out of the home (eviction or unlawful detainer). If the property is sold to a “third party” they want want rent from you, which could allow you to stay.
The unlawful detainer action presents another opportunity to raise the issue of rescission, since the entire action is based upon a valid change of title. It also sets off potentially another round for appeal, especially on the issue of rescission. Res Judicata and Collateral Estoppel do not apply to jurisdictional issues. If the rescission was mailed then by operation of the law the note and mortgage are void.
The defense is ordinarily that the “sale” was a fabrication based upon fictional claims and was contrary to the notice of rescission, which voided the note and mortgage upon which they were relying. The time for challenging the rescission has long passed. Hence all enforcement actions after the date of the 2009 rescission are void since they were based upon various claims attendant to paper instruments that were void, effective the day of delivery of the rescission.
Note that delivery of TILA Rescission notice is complete when dropped in a USPS mailbox and your testimony that it was sent via US Postal Service is all that is necessary as foundation.
I sent 2 notices of rescissions. Is that better or worse for me?
If I was defending against your claim of rescission I would argue that sending the 2016 rescission was either an admission that the earlier one had not been sent or that it was a concession that, for whatever reason, the 2009 rescission notice had been abandoned.
Hence I suggest you put very little emphasis on the new rescission and maximum emphasis on the old rescission.
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I sent the rescission less than 3 years after the modification but more than 3 years since the alleged consummation. Hoes my rescission affect my loan in that instance?
In most cases “modifications” are not treated as new loans. But the fact that something is called a modification and it really changes everything including the “lender” it may be possible to characterize it as a new loan subject to TILA Rescission. TILA Rescission hinges on whether the “modification” was a new loan — a fact, we would argue — that must be determined by trial. Since intent is part of the analysis of a contract, this could present another opportunity to force them to admit they don’t know the identity or intent of the creditor and whether said creditor had given them authority to make a new contract.
And the underlying narrative for this approach is that as a new contract, the “lender” was required to comply with disclosure requirements at the time of the new contract, thus triggering the three day right of rescission and the the three year limitation. Under my theory, based on Jesinoski, it doesn’t matter whether the three years has expired or not.
We know for certain that the notice of rescission is effective upon mailing; it is not based upon some contingent event or claim or court order. The date of consummation is itself a factual issue that can be in the pleading of the creditor (who is the only one with standing, the note and mortgage having been rendered void) claiming that the notice of rescission should be vacated based upon the three years, the date of consummation etc.
Any alternative theory that puts the burden on the property owner would be contrary to the express wording of the statute and the SCOTUS ruling in Jesinoski. The statute 15 USC §1635 and SCOTUS are in complete agreement: there is no law suit required to make rescission effective. It would make the statutorily defined TILA Rescission event indefinite, requiring a court ruling before any rescission would be treated seriously. In other words, the opposite of what the statute says and the opposite of what SCOTUS said in Jesinoski.
All contrary arguments are erroneous since they would insert a contingency where the statute contains no room for any contingency. The language of the statute bars any such contingency when it says that the TILA Rescission is effective upon delivery, by operation of law. If anyone wants the statute to say or mean anything different they must get their remedy from the legislature, not the courts, who have no authority whatsoever to interpret the statute otherwise. The status of any case involving foreclosure is that it does not exist. Hence the court is left ONLY with the power to perform the ministerial act of dismissing the case for lack of jurisdiction.
All this is important because we ought to be heading toward any defensive strategy that reveals the absence of a creditor. We are betting that the fight to conceal the name of the creditor is a cover for not knowing the the identity of the creditor, hence fatally undermining the authority as holder, servicer, trustee or anything else.
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What if consummation never occurred?
It may turn out that consummation between the parties to the note and mortgage never occurred. It’s important to remember that would mean the rescission is irrelevant since the loan contract does not exist. But such a finding by a court of competent jurisdiction would negate the legal effect of the note and mortgage; this is true as long as the note was not purchased for value in good faith by a buyer without knowledge of the borrower’s defenses.
In that case, the burden does shift to the homeowner and it is entirely possible that under that scenario there could be no consummation but nevertheless homeowner liability would continue on the falsely procured note and potentially the mortgage as well. The reason is simple: that is what the State statute says under Article 3 and Article 9 of the UCC, as adopted by all 50 states. The homeowner’s remedy in such a scenario would be limited to actions for damages against the intermediaries who perpetrated the the fraudulent and fictitious “transaction” in which the named lender failed to loan anything.
Filed under: BURDEN OF PROOF, foreclosure, jurisdiction, legal standing, MODIFICATION, Motions, originator, Pleading, quiet title, sham transactions, TILA rescission | Tagged: 3 YEAR LIMITATION, bankruptcy, consummation, Eviction, jesinoski, LOAN MODIFICATION, notice of rescission, TILA rescission, Unlawful Detainer |
Use the same methods as banks.
Prepare a Satisfaction of Mortgage, backdate it, and apply the same stamped signature as on the Note. Record it with the State along with an undated Affidavit which will explain that the attachment was inadvertently not recorded at the time it was created. Demand a meeting with the original lender to who stamped your Satisfaction of Mortgage to prove that it is a valid document, under the Court’s approach to banks’ foreclosures. If robo-stamped note is a valid instrument to foreclose, then robo-stamped Satisfaction of Mortgage is equally VALID under the same rulings LOL.
The SAME case law apply! How judges can hold anyone liable for transferring their properties back to themselves – with a Satisfaction of Mortgage signed by the SAME parties from non-existing companies who purportedly assigned it to the “Plaintiff”???
In fact, JUDGES must be held criminally liable for this total chaos. In my case at least SIX judges received money from Wells Fargo bank and their lawyers; and have family and friends most of whom heavily involved in banking, investments and real estate business.
Judicial corruption created a new crisis in America which will dwarf 2008
These loans are not mortgages. Thus, rescission is by TILA or by contract. Tender is not a viable option under a fraudulent contract . And TILA protects against fraud.
Mr. L — you need to go back to the basics and so-called “origination” — which is not as stated by the fraudulent contract. There lies the fraud. .
What the courts have to do is grant discovery to see exactly what is being asked to be rescinded. SCOTUS did not expect this would not occur. .
Mr. Garfield still doesn’t understand the law. And the comment that a couple hundred judges are wrong and he is right is not a legitimate argument to his nonsensical rants.
THE UNITED STATES SUPREME COURT ONLY REACHED “THE NARROW ISSUE OF WHETHER [DEBTORS] HAD TO FILE A LAWSUIT TO ENFORCE A RESCISSION” OR “MERELY DELIVER A RESCISSION NOTICE WITHIN THREE YEARS OF THE LOAN TRANSACTION,” and “nothing in the Supreme Court’s opinion . . . would override TILA’s tender requirement”. Jesinoski v. Countrywide Home Loans, Inc., 196 F. Supp. 3d 956, 962 (D. Minn. 2016), aff’d, Jesinoski v. Countrywide Home Loans, Inc., No. 16-3385, 2018 U.S. App. LEXIS 4974 (8th Cir. Feb. 28, 2018).
Additionally, Jesinoski did not overturn Third Circuit precedent that “A NOTICE OF RESCISSION IS NOT EFFECTIVE IF THE OBLIGOR LACKS EITHER THE INTENTION OR THE ABILITY TO PERFORM, I.E., REPAY THE LOAN.” Sherzer v. Homestar Mortg. Servs., 707 F.3d 255, 265 n.7 (3d Cir. 2013). JESINOSKI ALSO DID NOT TAKE AWAY A COURT’S DISCRETION TO MODIFY THE RESCISSION PROCEDURES. See 15 U.S.C. § 1635(b) (stating that the rescission “procedures prescribed by this subsection shall apply except when otherwise ordered by a court”) (emphasis added); see also 12 C.F.R. 226.23(d)(4) (stating that the rescission “procedures outlined in paragraphs (d)(2) and (3) of [§ 226.23] may be modified by court order”) (emphasis added).
Jesinoski did not eliminate TILA’s requirement that defendants tender the property’s reasonable value to fully effectuate rescission, nor did it eliminate the need for good faith when serving a notice of rescission.
I left ph mx (Bruce Nelson) and have endlessly tried to get to your website screen..and lo and behold it says (to purchase this site click here, etc?????!!!!! I would sincerely appreciate a consult to see if I can aford services I am clearly a victim of portland , or 12th Dist fed (Chief Justice Mossman) and Judge Anna Brown who gave my $340k EQUITY to AHMSI/OCWEN/HSBC in August od 2014…FOUR FULL YRS AFTER 12th Dist Circuit Ct (Polk County, OR awarded this property me encumbrance free as Wilbur Ross JR sccammed his AHMSI, via Homeland, Via “AHMSI/OCWEN/HSBC and reversed Judge Horners ORDER to surrender due to TOTAL LACK OF PROOF OF STANDING..Garfield should have blogs from me going back into 2009. Late 2009 he ordered this propert under TILA strict law providing recourse under TILA to award home to me because WILBUR ROSS JR, (scammer in chief) sole owner of AHMSI, via Wells to Opt One to AHM(?) to AHMSI (then the corrupt Ross Jr $ YRS LATER got Judge Mossmans corrupt Judge ANNA BROWN to revers the 4 yr earlier award to me tossing me out forcefully making me an instant pauper (and in 2018 I remain a pauper due to the corrupt Sec of Comerce (Trumps BEST friend!) “mamabing the give away sans any proof of standing. I suffer to this day, all pro se as I am dead broke) My case should be LANDMARK but it seems every one chooses to assit the ultra wealthy (on backs of a gazillion homeowners) with no mortgage no proof but te fact is is a ROYALTY ELITE having stolen billions of $$ from mid clas Americans, most whp are penniless this day and have no way to fight this cheap suede shoe (Harvard) grad who is ass sucking close to the “DONALD” and no doubt in my m ind he has “assistd ” Trump in nis Carribe bank AND Deutche Bank OFF SHORE SCAM TAX HAVENS for Russia, and many other corrupt Carribe banks as well..I am a pauper, I am unable to fight this bastard by myself. IF, HUGE IF you will hear my story and not posit statute of limits but find a way to get my $340k AAG Rev Mort appraised home in early 2014 when the HAMMER of the rich and famous crucified me. If you don’t care about this, fine just let me know and I will just die a pauper due to criminal misbehavior inviolation of very recent SCOTUS orders to every Fed Ct re homes given to entities (Ross, etc al) from approx 2006 to beond 2014. How are poor ever hope to fight the WHITE HOUSE…they live a sheiled protected life in my humble opinion. I expect no MIRACLES. Ros Jr, AHMSI, OCWEN should be punished uner RICO, with approval.I am sure of SCOTUS unless Ross Jr or his buddy Trump controls to SCOTUS! I have defamed, libeled and defamed Ross Jr for since 2010 to date trying to get the prick to SUE me (ala QB &, UK case ( anthoiny hopkins lead actor) It ain’t funny and I am very sincere. I would beg Ross to sue me as TRUTRH is my only defense. If he won, WTF do you think he would get from me???!!! Respectfully, Bruce R Nelson, PRO SE, 26 CPinetop Circle Banner Elk, NC 28604 frm 2014 to 2018 so far) at 79 the handwriting of God is on my wall?
Dealing with an “old” perfected rescission now. Will keep everyone up on the progress. The new action just filed in Calif attacks a litany of events that were [if you follow SCOTUS] VOID. We shall see…..
Steve at CRD….818.453.3585