Livinglies's Weblog

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Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.

A few hundred dollars well spent is worth a lifetime of financial ruin.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

The attorney might be on the right track but for the wrong reason. There literally is no question about the meaning of the TILA Rescission statute 15 USC §1635 because the highest court in the land said there is no question. And without any question there is no room for interpretation. See Jesinoski. 

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The plain wording of the statute says that once the notice is sent the OLD loan agreement is replaced with a NEW statutory mandatory loan agreement. This is the factor that is missed by most lawyers and judges on trial and appellate courts. The wording of the statute is clear and it is effective by operation of law the moment the notice is dropped in US postal Service mail.

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It’s not a declaration that the deal is completely gone. It is a change in terms required by statute. Banks have ignored it at their peril but so far successfully.

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The courts have strained themselves in their rebellion against this statute because they don’t think so much power should have been vested in each borrower by the legislature. So the judges answer to the problem is to pretend that the legislative branch did not say what it said. SCOTUS thought it was putting an end to that nonsense in Jesinoski but most judges continue to ignore the mandate of both Congress and the Supreme Court.

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 So there we are. In simple terms the average person who has sent a notice of rescission has title to property that by operation of law has no encumbrance thereon.  But the OLD encumbrance from the OLD loan agreement is still in the County records. I think the recording of the notice of rescission is sufficient to bring an action in mandamus against the county recorder’s office to remove the encumbrance from the chain of title, but I can offer no guarantee that a court will order that, even though it is legally and morally correct.

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In order to do that properly I think it would be prudent to first send a demand letter to the county recorder asking that the encumbrance be removed and asking for whatever instructions they would give in accomplishing the removal.