How to Frame TILA Rescission in Your Pleadings

In many cases it is the homeowner or their attorney that is confused about the effects of TILA rescission. It is much simpler than what I am seeing. It is an error to present it as a claim. The simple fact about TILA rescission is generally that you are still the owner of the property, free and clear of any legal encumbrance on the title. The debt still exists but the method of collection has changed because of 15 U.S.C. §1635.

Foreclosure is impossible because foreclosure is the exercise of rights under a mortgage or deed of trust that no longer legally exists.

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The job of the forensic auditor in the context of TILA rescission, is simply to determine whether a notice of rescission was ever sent, when it was sent, when the loan agreement was consummated, and whether the notice of rescission was recorded in the county records. The report from a forensic auditor could quote 15 U.S.C. §1635 and then report on whether the notice of rescission complies with the facial elements of the statute.

If so, assuming the forensic reporter is not a title expert, the report could refer to the Jesinoski decision and opinions delivered by outside counsel that the property is owned by the homeowner, free and clear of the encumbrance. I do not believe the report should argue that the debt is uncollectible because enforcement is barred by a statute of limitations. That is a legal argument outside the purview of a forensic auditor.

The same instructions would apply to pleading by a homeowner or their attorney. The situation should be presented as the property is no longer encumbered by a mortgage or deed of trust that no longer legally exists. If the foreclosure is based upon enforcement of the mortgage or deed of trust legal standing does not exist by definition. Neither a court nor any claimant possesses any legal right or even argument to take any action in or out of court if that action is based upon the enforcement of a document that legally does not exist anymore.

In a lawsuit against the many parties who seek to enforce void encumbrances, the homeowner should seek declaratory, injunctive and supplemental relief based on the simple fact pattern that the mortgage or deed of trust has no legal existence but the defendants are using it anyway. Therefore the homeowner needs a judgment from the court declaring that the defendants have no right to enforce a document that has no legal existence, issuing an injunction against the defendants preventing them from taking any action in or out of court based upon rights that no longer exist, and granting the homeowner money damages, if applicable.

The prima facie case for the homeowner is simply that the notice of rescission was sent, and that the statute makes rescission effective by operation of law, and that the defendants are proceeding as though they still have a right to foreclose or to collect the debt contrary to the method for collection described in 15 U.S.C. §1635.

I think the problem could be that lawyer’s favor pleading a violation of statute and therefore present TILA rescission as a claim. This is a mistake. It is an event. The pursuit of a foreclosure is not, in my opinion, a violation of the TILA rescission statute. It is the pursuit of a claim that does not exist. The claimant does not exist is the right to foreclose. The claim that still exists is the right to collect on the debt.

There is only one party category that possesses the right to collect on the debt under the TILA rescission statute, to wit: it is a party who has paid value for the debt and therefore owns it. Theoretically the party to brought the foreclosure could be owners of the debt, but usually that is not the case. Usually they are concealing any information about the identity of the owners of the debt. The can only get away with that if a notice of rescission has not been sent. It is only the notice of rescission that removes and cancels the original loan agreement containing the right to foreclose.

Therefore any pleading, motion or argument from a party whose legal standing was dependent upon the existence of the mortgage or deed of trust must be ignored unless they first establish that they still have legal standing because they paid value for the debt and they own the debt, or because they are authorized representatives of an identified owner of the debt.

While I have stated on these pages that any facially valid notice of rescission triggers the effects of 15 USC Section 1635, it is evident that the courts, including the US Supreme Court, will take the position that only notices sent within the three year period of expiration stated in the statute have any chance of being considered. But that is the ONLY occasion in which a notice of rescission can be ignored.

As stated by many bank lawyers, ignoring notices of rescission that are properly sent within the three year expiration period will likely eventually produce a result where the parties seeking to enforce the mortgage or deed of trust can neither enforce the encumbrance nor the debt. Those bank lawyers have warned about negative effects on the derivative infrastructure that is built over such loans if the debt can no longer be enforced because it is barred by statutes of limitation. The banks chose to bully their way through this.

In my opinion the outcome of all this doubt and uncertainty is clear. Eventually the investment banks will pay a very heavy price for ignoring lawfully sent notices of TILA Rescission sent within three years from the date that the loan documents were signed.

 

87 Responses

  1. clarencespence, it’s clear you have no answers for your insane comments, and instead of trying to act more like an adult, you revert to the behavior of a 5-year old. Your aberrant behavior is becoming more and more obvious. If you’re not on medication you should be.

  2. Woo, woo, Norman – woo, woo!

  3. Actually bigmouth, Plofchan not only won based on the pleading I wrote, but Property Movers won the case after it was proved people lied in the proceeding.

    This is why scammers like you, who won’t identify themselves only give part of the story, that’s how you rip people off.

    Nonetheless, you still are trying to obfuscate the point I made in the previous post that several hundred post Jesinoski case were lost their homes forevermore making your ridiculous arguments. You frauds are all alike, can’t stick to the subject matter at hand.

    Hundreds of judges and legal scholars are wrong, but a mental lightweight like you is right. What a buffoon!

  4. Bye, bye, Norman Bradford. I’m outta here.

  5. “T. L Anderson told us, you use aliases to hide your identity…”

    So, T.L.Anderson – who appears to be a published author on either fracture engineering or romance stories, as the case may be, tells you that I’m actually Neil Garfield using an alias, and it must be true because it supports the particular axe you’ve been grinding?

    You see, that’s your problem, Storm – you make up facts and law when it suits you – but, that’s not how the legal system works.

    In fact, courts particularly dislike such make-believe, Storm.

    You should have learned that lesson by now – ‘course, it’s the attorneys working with you who take the hit for actually using your fantasy facts, so why would you care?

    Any attorney dealing with you better check and re-check your “facts” before bringing them before a court – as attorney Thomas Plofchan found out when he tried to use your un-verified allegations of fact and ended up being disciplined by the Virginia bar for it.

    Remember that, Storm?

    Here, I’ll attach the bar opinion in case you forgot and need a reminder about what can happen to an attorney using your “services”:

    https://www.vsb.org/disciplinary_orders/plofchan_opinion.pdf

    Obviously, you are someone who can’t help but make up “facts”, Storm. That means you lack honesty and integrity. Buyer beware!

  6. T. L Anderson told us, you use aliases to hide your identity, when failing to answer real questions regarding your misunderstanding of how rescission actually works. If you’re not Garfield stop hiding and identify yourself bigmouth.

    It’s clear your not legally literate whoever you are. You’ve never won a foreclosure case, if so prove it. Every legally literate person and sane person understands how rescission works, but you.

    You failed to address the fact that all courts in the country post Jesinoski, have ruled your SCHIZOPHRENIC comments on rescission are utter nonsense. And regrettably, those people lost their homes that followed your insane advice and will never get them back, as evidenced by my last post on rescission.

    So, what do wacko losers like you do, you keep screaming like the loon in the nuthouse, how everyone is crazy, but them. What you fail to realize your stupid and insane lies and misinformation harms homeowners looking for legitimate help, people like you need to go to jail!

  7. Wow – I can’t believe I skimmed past this doozy right at the beginning: “clarencespence aka Neil garfield” – forget about all that other stuff, why don’t you prove this one, Storm! Can’t? I didn’t think so.

  8. “Would you like me to prove it, and embarrass you further.”

    I’ve grown bored with cutting you to ribbons, Storm, so it’s ok, you don’t have to do that; you’ve embarrassed your-self enough here to give fair warning to those who might deal with you – that’s all I was interested in.

  9. clarencespence aka Neil garfield, you’ve made all of the following claims:
    “You claimed you could rescind a purchase money loan-WRONG!!
    You claimed you could rescind any loan at anytime-WRONG!
    You claimed these mortgage transactions were never consummated, but you can rescind them anyway– SCHIZOPHRENIC!”

    Would you like me to prove it, and embarrass you further.

    Furthermore, why did you change the subject from me proving again, you have no idea what you’re talking about.

    Let’s discuss T.L. Anderson and why you’ve been caught and punished by the Fl. Bar for scamming homeowners.

  10. So you admit you made statements up you purported I to have made. Why would anyone trust you Storm – when you have so amply proven you will lie whenever it suits you?

  11. Clarencespence, the only “scumbag” is you. You continue to harm homeowners with your ridiculous misinterpretation of Jesinoski.

    1st, you don’t even understand the meaning of the word “effect.”

    “Since the Court recognized that the three-year right of rescission applies only in the absence of all required disclosures, the Court’s use of the word “effected” does not, as plaintiffs argue, mean that rescission automatically occurs upon notice. As U.S. Bank argues, Docket No. 107 at 10, plaintiffs’ interpretation would effectively create an unconditional right to rescind a loan within three years of the transaction. Such an expansive interpretation finds no support in the Jesinoski opinion or in any subsequent case applying Jesinoski. Pohl v. US Bank Dist. Court, D. Colorado, 2016 – Google Scholar

    2nd, because “Jesinoski was not an intervening change in the law that required the court to revisit dismissal of the rescission claim where the order dismissing that claim “addressed the merits of the [plaintiffs’] rescission claim and determined that [plaintiffs] were not entitled to . . . rescission.” Wane v. Loan Corp., 2015 WL 5021632 (M.D. Fla. Aug. 25, 2015); anyone like the hundreds post Jesinoski making your stupid arguments lost their homes.

    Therefore, no TILA violation you lose your home; didn’t file letter within 3-years, you lose your home; can’t tender, you lose your home, and Jesinoski doesn’t help them!

    Regrettably, anyone that’s dumb enough to listen to you and your ilk, deserves to lose their home.

  12. Here’s a reminder Storm – you said:

    ““You claimed you could rescind a purchase money loan-WRONG!!
    You claimed you could rescind any loan at anytime-WRONG!
    You claimed these mortgage transactions were never consummated, but you can rescind them anyway– SCHIZOPHRENIC!”

    I claimed none of that, you lying, cheating scumbag!

  13. I didn’t attack Garfield’s protege Charles Marshall for ripping off homeowners, the FTC did!

    I didn’t attack Garfield for ripping off homeowners, the Fl. Bar did!

    You’re not only a legal illiterate, but a hypocrite as well. The only ad hominem attack was by you warning lawyers not to use my companies services. We have a stellar reputation, you whose never won a foreclosure case, only has a reputation for not knowing what you’re talking about.

    BTW, does the name TL Anderson mean anything to you?

  14. What a surprise – Storm is attacking lawyers who make correct legal arguments that he doesn’t like.

    Storm thinks attacking the messenger will kill the message – an old familiar stalwart of subterfuge used by propagandists. Sound familiar?

    In classical logic it’s called “argument ad hominem” and Storm is absolutely addicted to it – especially when he doesn’t have a legal leg to stand on while making his false contentions concerning TILA rescission.

    Like every other BS artist in the world – when confronted with superior logic and law concerning TILA rescission – Storm wilts under the decaying mass that is his dead legal argument hoping to breathe some life into it, like a modern day Jesus resurrecting Lazarus.

    However, being dead in both logic and law, such an argument is literally indefensible, so Storm does the only thing a dishonest person can do:

    1. Makes irrelevant arguments based on cases that have been since invalidated by the US Supreme Court;

    2. Calls those who dress him down for his dishonesty nasty names; and,

    3. Personally attacks those who are right about the law over personal problems that are irrelevant to their legal positions on TILA rescission.

    You sir, are a joke who pretends (badly) to know what you are doing.

    Luckily, anyone reading this thread cannot help but see the truth about you, Storm – that you are incapable of objective thought concerning TILA rescission and are vainly married to a false narrative about it that has since been destroyed by a unanimous US Supreme Court.

  15. Neil Franklin Garfield, 5944 Coral Ridge Drive #276, Parkland, to be publicly reprimanded following a June 9 court order. (Admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. In other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request and failed to timely respond to Bar inquiries. (Case No. SC15-2162)

  16. Nice try, Storm. I’m not Charles Marshall, nor affiliated with him in any way.

    I was going to let you go, but in light of your latest post, here’s a warning to lawyers who might get involved with you – better verify everything Storm tells you – because he’s a lier.

    Thomas Plofchan found that out the hard way when the Virginia bar discipline him for parroting some BS Storm (his client) handed him.

    The Virginia bar court pointed out a plethora of problems: “the appeal is without merit, based on irrelevant and illogical arguments, and based upon factual misrepresentations to the Court.”

    Hmmm, sounds like what you are throwing my way Storm. Did Mr. Plofchan just take your woo woo legal theories and fantasies about what certain witnesses said without verifying it, Storm?

    See bar complaint: https://www.vsb.org/disciplinary_orders/plofchan_opinion.pdf

  17. Storm – you may go now – I’m done humiliating you. Just don’t let it happen again.

  18. Garfield protege nailed for scamming homeowners:
    https://www.jdsupra.com/legalnews/ninth-circuit-affirms-ftc-act-41196/

  19. “I don’t answer clown questions I’ve already answered.”

    That’s what dim-witted compulsive liers like yourself who can’t answer the question say.

  20. “I don’t answer clown questions I’ve already answered.”

    You mean you’re done trying to make pretend Jesinoski never happened?

    Good – now the adults can resume a serious discussion of TILA rescission, now that the sore loser is out of the way…

  21. “I don’t answer clown questions I’ve already answered.”

    Can you post a link to the answer to the question “what is the ratio decidendi of Jesinoski – I must have missed it the first time.

    Oh, wait – that’s right – you are a BS artist, so you were lying about answering that one.

  22. “Hundreds of judges and competent attorneys are wrong, but you’re right. ”

    No – the beliefs in your concrete block of a head goes like this:

    A unanimous US Supreme Court – the highest court in the land – is wrong, but you, a minority of bank attorneys and a bunch of political hacks in judicial robes occupying the positions of inferior judges are right!

  23. “Sorry, I don’t waste time with people that are legally illiterate…”

    Not true – you hang out with yourself all the time.

    It’s ok, Storm. I know you don’t possess the knowledge sufficient to answer a simple question like “what is the ratio decidendi of Jesinoski”.

  24. “You claimed you could rescind a purchase money loan-WRONG!!
    You claimed you could rescind any loan at anytime-WRONG!
    You claimed these mortgage transactions were never consummated, but you can rescind them anyway– SCHIZOPHRENIC!”

    Where did I say the foregoing, Storm?

    Did you let your emotions get the better of you and just make it up, Storm?

    Yeah, I thought so.

  25. You are the clown – you don’t possess the knowledge or integrity, as the case may be, to answer important questions.

    You are only interested in an agenda – to stupidly go down with the ship which is sinking because it’s weighed down with all your completely WRONG statements of the law on this issue that you stupidly made in the past.

    Then Scalia slapped you in the head with the truth – but some people need to be slapped harder than others for there to be an effect, I suppose…

  26. Cite the case that states the ratio decidendi of a case is not accorded precedential authority, Storm.

    Oh, don’t have one?

    I didn’t thinks so.

  27. What is Jesinoski’s ratio decidendi, Storm?

  28. “I don’t answer clown questions I’ve already answered.”

    Another lie.

    You have not once noted what the Jesinoski ratio decidendi is in response to my repeated questions.

  29. I don’t answer clown questions I’ve already answered. You’re projecting again. You’re like the loon in the nut house where everyone’s crazy but them. Hundreds of judges and competent attorneys are wrong, but you’re right.

    Sorry, I don’t waste time with people that are legally illiterate and want to talk law; its a waste of time.

  30. How about stating Jesinoski’s ratio decidendi, Storm?

    Or, is it impossible for you to do that?

  31. “Again, it’s you that needs to learn rescission law.”

    The rescission being discussed here is entirely contained in the TILA statute, Storm – you don’t have to like it!

  32. “You claimed you could rescind a purchase money loan-WRONG!!
    You claimed you could rescind any loan at anytime-WRONG!
    You claimed these mortgage transactions were never consummated, but you can rescind them anyway– SCHIZOPHRENIC!”

    I claimed none of that, Storm.

    Of course you could quote me if I did – which you won’t – because I didn’t claim any of that. Seriously how do you live with yourself making all these outrageous, baseless and provably false claims – actually I know the answer to that too, as noted below.

    The foregoing makes you a BS artist – a person who just makes stuff up.

    I know…maybe you confused the voice in your head for me saying those things.

    You know, a classic hallmark of mental illness is accusing those you disagree with of having a mental illness – usually when you are forced to deal with the fact that you are on the wrong side of the argument.

    Are you a bit “woo woo”, Storm?

    That’s ok – even a crazy person should be able to state right here, now and once and for all, what the ratio decidendi of the Jesinoski case was.

    I’m expecting a personal attack, rather than a well reasoned answer, so, no pressure Storm!

  33. That said, what is the ratio decidendi of the Jesinoski case, Storm?

  34. Are you done with your personal attack designed to distract from the FACT that you can’t any of the relevant questions I’ve posed to you?

  35. Your comment: ” Any law student could figure this out – why not you?

    Again, it’s amazing that HUNDREDS of judges, myself and competent attorneys know the law and interpret Jesinoski correctly; but you who’s never won a foreclosure case, let alone a TILA case is smarter than all of us.

    You claimed you could rescind a purchase money loan-WRONG!!
    You claimed you could rescind any loan at anytime-WRONG!
    You claimed these mortgage transactions were never consummated, but you can rescind them anyway– SCHIZOPHRENIC!
    You claim just by sending a letter, there has been a rescission WRONG!

    Again, it’s you that needs to learn rescission law. Everyone legally literate knows that there is no rescission until both parties are made whole, except you, and anyone dumb enough to listen to you.

  36. Storm, what was the question presented for SCOTUS review in Jesinoski?

    Was it not the following?:

    “The question presented is whether a borrower exercises this right by providing written notice to his lender, or whether he must also file a lawsuit before the 3-year period elapses.”

    Do you think SCOTUS held no lawsuit is required with the statute of repose without analyzing whether written notice was sufficient?

    That analysis would be part of the Court’s ratio decidendi – it had to be decided to reach a holding and, consequently, it’s mandatory authority – whether you or inferior judges like it or not.

  37. “…tortured logic…”

    You are not even using logic – tortured or otherwise.

    If one takes your view of Jesinoski, it is a totally miraculous case – it’s the first case SCOTUS has ever agreed to hear in which:

    1. the circuit court got it exactly right;

    2. SCOTUS decided to use its discretion to actually hear a case in which the circuit court got it exactly right; and,

    3. For the first time ever – REVERSED a circuit court that got it exactly right.

    If you disagree with the foregoing, tell me what error was the 8th circuit making that was so egregious that SCOTUS granted review? Hmmm?

  38. “clarencespence, you ask how much dicta in four pages of Jesinoski opinion, all of it except the holding-no lawsuit required in 3-year period.”

    Are you saying that the ratio decidendi of a court is dicta!?

    If not, in light of the arguments presented by the parties to SCOTUS, what was the ratio decidendi that underlies what you say is the Jesinoski holding?

  39. “clarencespence, you ask how much dicta in four pages of Jesinoski opinion, all of it except the holding-no lawsuit required in 3-year period.”

    You’ve made statements here indicating you may understand the difference between a holding and the ratio decidendi that led to the holding. Clearly, they are not the same. And, clearly, both are mandatory authority to an inferior court. So, why don’t we play a little game, since you appear to think you “know the law”, answer these two simple little questions to indicate you actually do understand the law. First, read Jesinoski. Then, answer:

    1. What is the holding?

    2. What is the ratio decidendi that led to the holding?

  40. “To obtain rescission, the borrower must show he/she will be able to tender the borrowed funds back to the lender should the court order rescission.”

    There wouldn’t have been a reversal of the 8th Circuit if that were true – SCOTUS would have affirmed because the only way to get that court order is to file a lawsuit. Clearly, in the Jesinoski Court’s affirmation that the statute of repose is what it states it is, such a lawsuit couldn’t be filed – it would have been too late.

    If this statement of your were correct, SCOTUS would not have decided to hear Jesinoski in the first instance.

  41. “A TILA DISCLOSURE VIOLATION BY ITSELF DOES NOT ENTITLE A BORROWER TO RESCISSION.”

    You are wrong. The only thing that creates a right of rescission under TILA is the statute that created that right. It’s in 1635(a) – no where else – and certainly not in case law.

    As an academic exercise to help you progress, why don’t you read 1635(a) to figure out who has a right of rescission UNDER TILA (rather than equitable rescission or rescission at law). Then come back here and tell me. School is in session.

  42. “…the equitable goal of rescission under TILA…”

    The rules of equity are what govern courts acting within their equitable jurisdiction, Storm. They are most definitely not what governs the legislature writing a statute like TILA, which, in accordance with Jesinoski, created it’s own kind of rescission – SCOTUS clearly rejected both rescission at law and equitable rescission as modifying or adding to TILA rescission with regard to how it is effected.

    Come on, Storm, this is basic stuff here. Any law student could figure this out – why not you?

  43. “It’s amazing that hundreds of judges, myself and competent attorneys know the law but regrettably you don’t.”

    A unanimous SCOTUS says you (and the others) don’t know – not even close – you’re still contending that the rules of equitable rescission control the plain wording of the statute!?

  44. I keep hitting them; you keep missing them, Storm.

    You are thoroughly confused on what is the authoritative part of a case. Regardless of what law you may know, you certainly don’t know this one. You can’t exclude the ratio decidendi of a case as mandatory authority and retain only the holding in cases just because you don’t like them. Since you haven’t learned what part of a case is authoritative, why don’t we start at the wikipedia level, shall we:

    “For the purposes of judicial precedent, ratio decidendi is binding…” Ratio decidendi “refers to the crucial facts and law of the case…”

    You say:

    “clarencespence, you ask how much dicta in four pages of Jesinoski opinion, all of it except the holding-no lawsuit required in 3-year period.”

    I say, what happened to what you said before?:

    “The “ratio decendi” is the reasoning necessary to reach the result.”

    You were right about that (except for the spelling).

    So now you are saying the only part of Jesinoski that is not dicta is the part in which SCOTUS stated that Jesinoski need only notify his lender of his rescission within the statute of repose – there’s no need to file a lawsuit is the only part of the opinion that is not dicta.

    What happened to your recognition that the ratio decidendi including the “reasoning necessary to reach the result”?

    You do know that a holding is merely a conclusion and contains none of the reasoning used to reach the holding, right?

    Let’s try this, what reasoning lead to the Jesinoski holding? What are the crucial facts and law of the case?

    More importantly, how could the Court reach its holding that TILA rescission is effective upon mailing notice to the lender within the statute of repose without disposing of Countrywide’s contention that TILA rescission proceeds like equitable rescission (which requires a lawsuit and court order)?

  45. clarencespence, you ask how much dicta in four pages of Jesinoski opinion, all of it except the holding-no lawsuit required in 3-year period.

    Furthermore, if Scalia followed yours or Garfield’s tortured logic he would have held there was no need to file a lawsuit, because the transaction had already been voided. However, he couldn’t do that because that’s not the law. He remanded it back to the trial court, where the lower court found there was no TILA violation in the 1st place; therefore no rescission!

    It’s amazing that hundreds of judges, myself and competent attorneys know the law but regrettably you don’t.

    As aforestated, anyone legally literate knows, the equitable goal of rescission under TILA is to restore the parties to the “status quo ante.” A TILA DISCLOSURE VIOLATION BY ITSELF DOES NOT ENTITLE A BORROWER TO RESCISSION. To obtain rescission, the borrower must show he/she will be able to tender the borrowed funds back to the lender should the court order rescission.

    Seeking relief based on nothing more than a ipse dixit allegation that one unilaterally rescinded the subject refinancing transaction pursuant to TILA. This puts the cart before the horse and evidences a fundamental misunderstanding of the operative statutes and the interrelation thereof. In essence, the right to simply walk away with a windfall of [the outstanding balance of the loan] without any further obligation. This construction not only offends traditional notions of equity, but misinterprets the procedural requirements of § 1635(b).

    There’s no substitute for knowing the law. You should understand what you’re reading before you make illogical comments, that if anyone followed would lose their homes!

  46. Let’s review, Storm.

    You said:

    “Furthermore, Scalia’s opinion was based on the “plain meaning rule,” nothing more nothing less…”

    But, Scalia said:

    “Finally, respondents invoke the common law…To the extent §1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common law practice.*

    So, obviously, Scalia recognized that Countrywide’s argument was that Jesinoski was barred from TILA rescission because the statute of repose had passed PRIOR TO JESINOSKI FILING A LAWSUIT TO EFFECT THE RESCISSION.

    Scalia recognized that the very lynch-pin of Countrywide’s argument was that the TILA rescission process should follow the rules of equitable rescission, which requires a court order to effect. THAT’S why Countrywide contended a lawsuit had to be filed within the statute of repose – a court order was necessary and if it was too late to sue for that order – rescission would be unavailable to Jesinoski and the 8th Circuit should be affirmed. That’s what Countrywide’s argument was based on and that’s why Scalia even bothered to speak of it at all.

    Keep in mind, the Jesinoski opinion is only FOUR PAGES LONG!

    How much dicta do you think is burried in those scant four pages, Storm?

    Do you think the Court’s treatment of Countrywide’s 1635(g) argument was dicta?

    For that matter, do you think the Court’s affirmation of the statute of repose [1635(f)] was dicta?

    If so, you really need to hit the books again. As has been said, “there’s no substitute for knowing the law…”

  47. “How do I know this, because I was at oral argument, and heard the bank’s, the government’s and Jesinowski’s argument’s.”

    Good for you Storm.

    Next time, you may want to also try reading the briefs of the parties.

    The problem is you apparently didn’t read Countrywide’s brief, which stated:

    “Congress enacted a statutory remedy that much more closely resembles rescission in equity—one that is not effectuated unilaterally and automatically upon notice, but rather must be decreed by a court…”

    And,

    “But, failing to engage with the consequences of these acknowledgements, they insist that Congress adopted a regime whereby “a party effectuates a rescission simply by notifying the non-rescinding party.” Pet. Br. 13; see U.S. Br. 16 n.4. That contention is simply wrong.”

    And,

    “As discussed, supra pp. 7-8, under rescission at law, the rescinding party must tender the benefits received under the contract for the transaction to be considered rescinded…Tender is required because “it would be unfair” to allow for unilaterally effective termination upon notice and “insist that the defendant give up what he got without any assurance of getting back what he gave….[I]n equity, a person suing to rescind a contract, as a rule, is not required to restore the consideration at the very outset of the litigation.”…That is because, in equity, the “action does not proceed as upon a rescission, but proceeds for a rescission.” In other words, “it is not a suit based upon the rescission already accomplished by the plaintiff, but a suit to have the court decree a rescission.”

    And, finally:

    “Congress also limited the time for bringing that action, providing plainly that the “obligor’s right of rescission shall expire three years after the date of ”closing.” Because petitioners filed their lawsuit for rescission after the end of this three-year repose period, their rescission claim is time-barred.”

    Obviously, the foregoing contentions concerning equitable rescission’s and the necessity of a court order thereon within the statute of repose period was the key to Countrywide’s argument.

    Obviously, also J. Scalia had to dispose of that argument in the SCOTUS opinion.

    Obviously, he did just that in reversing the 8th Circuit.

    Beyond obviously, then, disposing of the foregoing argument on appeal by Countrywide was how SCOTUS reached its holding – in fact, it was necessary to it.

  48. Wrong, that was not the bank’s argument. Mr. Waxman, bank’s counsel was arguing Beach and the statute of repose. How do I know this, because I was at oral argument, and heard the bank’s, the government’s and Jesinowski’s argument’s.

    Furthermore, Scalia’s opinion was based on the “plain meaning rule,” nothing more nothing less.Certainly not what you suggest.

    Again, only a total moron would believe your totally schizophrenic arguments that one can rescind a contract that doesn’t exist; that all anyone would have to do is send a letter and their contract is void, whether or not there was an actual TILA violation, whether or not it was sent 3 years from consummation, whether or not the borrower could tender, whether or not it was for a purchase money contract, etc., etc.

    Justice Scalia made clear in response to a argument made by Mr. Frederick, Jesinoski’s counsel: “you are urging that the statute creates a system in which a ­­ a creditor who has secured interest, simply because somebody comes up almost 3 years later and says, you didn’t give me two copies of this particular document, I got only one copy, and even if that’s not true, immediately the secured interest is converted into an unsecured interest. That is a huge difference. And I find it difficult to believe that that’s what Congress intended.”

    When, and if you ever win a foreclosure case, then you can admonish those of us that have, but until then you only embarrass yourself with senseless comments.

  49. Storm, you said: “The holding of a case is its “ratio decidendi.”

    No it isn’t! Did you even make a tiny attempt to figure out what the legal term means? I don’t think so!

    Ok, now i see you did make a tiny attempt to figure out the exceedingly simple concept of “ratio decidendi” because you went on to say: “The “ratio decendi” is the reasoning necessary to reach the result” and that’s actually correct.

    Good – assuming you just made a typo and meant to type “decidendi” – you have reached the proper definition of the term.

    Therefore, I will assume your second definition is what you meant to state was the meaning of “ratio decidendi”.

    “There was one question and one question only before the court, does a suit need to be filed within the 3-year period.”

    Yes, that’s true, Storm.

    Yet, you are not understanding that Countrywide was opposing Jesinoski’s argument on appeal that section 1635(a) created a non-judicial rescission right that was not dependent upon the common law or equitable rules of rescission.

    You are further not understanding that such a contention of Jesinoski was opposed by Countrywide’s argument that TILA rescission is governed by the rules of equitable rescission, which, if SCOTUS agreed, would have necessitated a filing of a lawsuit within 3 years of the loan (which Jesinoski did not do) to obtain a judicial determination concerning whether Jesinoski could rescind under TILA, in accordance with the principles of equitable rescission.

    That means, SCOTUS HAD TO DEAL WITH COUNTRYWIDE’S CONTENTION THAT THE RULES OF EQUITABLE RESCISSION REQUIRED JESINOSKI TO FILE A LAWSUIT WITHIN 3 YEARS AND DISPOSE OF SUCH CONTENTION BEFORE IT COULD REACH THE HOLDING IT REACHED!

    IN OTHER WORDS, THE REASONING THAT TILA RESCISSION ABROGATED THE COMMON LAW OF RESCISSION WAS ABSOLUTELY ESSENTIAL TO ITS HOLDING!

    Furthermore, SCOTUS had to determine that TILA’s statutory rescission abrogated other types of rescission to reach the next step in its analysis – whether Jesinoski’s mailing of a rescission notice within three years had “effected” his rescission – because Countrywide squarely defended Jesinoski’s appeal on its mistaken belief that the rules of equitable rescission required Jesinoski to file a lawsuit seeking rescission within three years in order to “effect” the rescission.

    If SCOTUS had instead agreed with Countrywide on that point, Jesinoski’s notice that he had sent to his lender would have been determined by SCOTUS to have been insufficient to effect the rescission.

    That would mean he would have been barred from rescinding due to the three year rule.

    Finally, that would mean SCOTUS would have affirmed the 8th Circuit, rather than unanimously reversing it.

    So, you see, all that analysis was absolutely needed to determine that TILA’s rescission process was not governed by court made equitable rules requiring a lawsuit to be filed within the TILA limitations period.

    Obviously, then, Scalia’s plain language that I quoted above is part of the ratio decidendi of the Jesinoski Court – that makes its precedent as binding as the holding itself.

  50. ANON, why do you suggest: “This is about the contract NOT doing what it was intended to do – pay off the prior loan.” The sole purpose of a refi is to pay off the prior loan, which it does.

    Also, don’t know if this answers your question, but a loan Servicer is the agent of the beneficiary.

  51. This is NOT about – “undisclosed third party to complete a secured transaction.” This is about the contract NOT doing what it was intended to do – pay off the prior loan. One can achieve rescission not just by TILA but also by contract fraud.

    Still no one can answer my question — why is the securities trustee NEVER legally represented? The servicer acts on behalf of the trust – and attaches the trustee name. But, the trustee is separate from the trust. They are NOT one and the same entity.

  52. I’m very familiar with “ratio decidendi,” obviously you’re not. The holding of a case is its “ratio decidendi.” The “ratio decendi” is the reasoning necessary to reach the result.There was one question and one question only before the court, does a suit need to be filed within the 3-year period. The result it does not!

    As previously stated: “There have been about 500 post Jesinoski cases, all losses, where some feckless borrower made the same ridiculous arguments promoted by you and Garfield. Hundreds of judges are wrong, but someone who’s never won a TILA case, or any other foreclosure case should be followed speaks the gospel is ludicrous.” So, why would I listen to you.

  53. I see you don’t even want to learn, Storm.

    If you want to salvage a smidgen of credibility, I suggest you research “ratio decidendi” – an important doctrine that defines what is and what is not judicial precedent.

    Despite you being completely wrong on what part of Jesinoski is mandatory authority and binding precedent on the lower courts, I assume you do know that SCOTUS precedent is the highest precedent. If not – now you know.

    You do know that a lower federal court cannot invalidate US Supreme Court precedent, right, Storm?

  54. clarencespence, the quote from Scalia is NOT “binding precedence;” it was dicta, which holds no legal validity. Case law or binding precedent is made when the court’s holding resolves a contested question of law. The contested question of law was whether or not a lawsuit must be filed within the 3 year period, which the court found it did not.

    Only a complete moron would believe you can rescind a contract that doesn’t exist; that all anyone would have to do is send a letter and their contract is void, whether or not there was an actual TILA violation, whether or not it was sent 3 years from consummation, whether or not the borrower could tender, whether or not it was for a purchase money contract, etc., etc.

    There have been about 500 post Jesinoski cases, all losses, where some feckless borrower made the same ridiculous arguments promoted by you and Garfield. Hundreds of judges are wrong, but someone who’s never won a TILA case, or any other foreclosure case should be followed speaks the gospel is ludicrous.

  55. “Furthermore, rescission is a contract remedy; IF THE CONTRACT WAS NOT “VALID”, THERE IS NO CONTRACT TO RESCIND!”

    Yes, we know the lower courts don’t like reality, Storm, but you have to stop with these frivolous arguments that directly conflict with binding SCOTUS precedent:

    Here’s J. Scalia directly refuting your contention, which he had to do because it was one of Countrywide’s silly contentions it made in its SCOTUS brief:

    “Finally, respondents invoke the common law…But the negation of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity. Nothing in our jurisprudence,and no tool of statutory interpretation, requires that a congressional Act must be construed as implementing its closest common-law analogue…The clear import of §1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind. To the extent §1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.”

    Your ignorance of what is binding precedent and what is not is astounding.

    As I said before, take what Storm says with a grain of salt – he clearly doesn’t understand important legal principles like statutory abrogation of the common law and ratio decidendi.

  56. Storm Bradford stated:

    “A TILA DISCLOSURE VIOLATION BY ITSELF DOES NOT ENTITLE A BORROWER TO RESCISSION.”

    I see you are finally beginning to understand the exceedingly simple plain language of the TILA statute, Storm.

    That’s a good start – but, the rest of your answer reveals you are still struggling with the full import of TILA rescission and the impact of Jesinoski.

    You are right about your quoted statement excerpted above – it’s not a TILA disclosure violation that gives a borrower the right to rescission (I’m talking a discrete type of rescission here, Storm – a legislative creation that abrogates all common law and equitable rescission principles that conflict with it).

    What you haven’t said is what does give the borrower a right to TILA rescission.

    Section 1635(a) is what creates a borrower’s TILA rescission right – and that right is not supplemented or modified by any other statute or common law or equitable rescission rules.

    I see you are still resisting the plain language of Jesinoski and section 1635 – well, too bad Storm – if you don’t like it, lobby the legislature to change it.

    Otherwise, deal with it – you are simply wrong about TILA rescission being anything other than what Congress made it in section 1635.

    Any cases you may cite in support (yes, I know they are out there) that say otherwise lost any precedential value when the highest court in the land ruled on that point when Justice Scalia, wrote:

    “Finally, respondents invoke the common law…But the negation of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity. Nothing in our jurisprudence,and no tool of statutory interpretation, requires that a congressional Act must be construed as implementing its closest common-law analogue…The clear import of §1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind. To the extent §1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.”

    Finally, any contention you may make that this part of Jesinoski is dicta is a frivolous one that proves you don’t know what you are talking about on this point.

    All lawyers should know that all reasoning necessary to a court’s holding has the same value as precedential authority as the holding itself (see doctrine of ratio decidendi). In Jesinoski, it was necessary for SCOTUS to determine whether the rescission process established by Section 1635 could be supplemented by the common law, because that is what the losing party had contended in its brief. Thus the foregoing analysis of Justice Scalia is the highest law on that point, so you can keep all the disapproved lower court cases out of it – citing them will not change ANY of the foregoing.

    Let’s see, I guess that leaves you puffing about all the big time lawyers “you work with” who “disagree” with the US Supreme Court – well, their opinions on the matter are as frivolous as yours and litigants opposing them should make bar complaints against them for making frivolous contentions. Neither you nor them may contend in a non-frivolous way that those lower court opinions that conflict with Jesinoski and the plain language of section 1635 have any precedential authority whatsoever.

  57. Anon, law is reason, logic and common sense. If you would stop and think for just a second, you’d realize the arguments you’re parroting are nonsensical to wit: “district courts have unanimously found that a lender’s use of an undisclosed third party to complete a secured transaction is insufficient to preclude consummation under TILA.” Mohanna v. Bank of Am., N.A., No. 16- CV-01033-HSG, 2016 WL 1729996, at *5 (N.D. Cal. May 2, 2016) (collecting cases); see also Ghalehtak, 2016 WL 2606664, at *4 (holding that mortgage transaction was consummated under TILA where a lender was identified on the face of the contract, even if that lender did not ultimately fund the loan);Sotanski, 2015 WL 4760506, at *6 (holding that a LENDER’S USE OF A THIRD-PARTY LENDER DOES NOT PRECLUDE CONTRACT FORMATION); Ramos, 2012 WL 4062499, at *1 n.1 (WHERE LOAN PAPERWORK “PLAINLY IDENTIFIED” A LENDER, “THE LOAN WAS CONSUMMATED REGARDLESS” OF WHO WAS THE “TRUE LENDER”); Mbaku v. Bank of Am., N.A., No. 12-CV-00190, 2013 WL 425981, at *5 (D. Colo. Feb. 1, 2013) (because the “deed of trust identifies [] the lender[,]” “plaintiffs were obligated on their mortgage to [that lender]” without regard to any third party involvement).

    Furthermore, rescission is a contract remedy; IF THE CONTRACT WAS NOT “VALID”, THERE IS NO CONTRACT TO RESCIND!

    As to your last question, the majority of states are non-judicial states. The reason, foreclosures are contract disputes wherein the bank is alleging the borrower breached said contract. Legislators understand that contractually the borrower agreed the bank could take the property, if they failed to make payments; thus basically making it a confessed judgement where no court involvement is needed.

  58. legisman – the point in accounting is not the violation itself, but, rather, whether actual “funding” ever occurred by the securitization.

    If we were told the truth when we “signed” with a non bank originator, most of us would never have signed.

    We can’t undo what was done. We can try to point out that the “contract” was not valid in the first place. And, rescission is simply a part of that.process.

    You seem to be quite knowledgeable. Can you answer the question as to why trustees are not represented in courts? That is, the “trust” is directly represented by the servicer — even though the trustee is named as part of the trust. Understand about indemnification, but that should not negate actual trustee representation. Cannot find one case where the trustee is actually represented.

    Thanks .

  59. Clarence Spence, Garfield has never won a TILA case nor anyone else that’s followed his misinterpretation of the Jesinoski case. Every court in the country, post Jesinoski,where that argument was made lost their home! So, you need to stop parroting his nonsense.

    A TILA DISCLOSURE VIOLATION BY ITSELF DOES NOT ENTITLE A BORROWER TO RESCISSION. To obtain rescission, the borrower must show he will be able to tender the borrowed funds back to the lender should the court order rescission.

    “[A] foreclosure court has the discretion to deny rescission under TILA if the defendant cannot tender the balance of his or her loan.” US Bank Nat’l Ass’n v. Guillaume, 209 N.J. 449, 483 (2012). Defendants argue that the United States Supreme Court has recently ruled to the contrary. Jesinoski v. Countrywide Home Loans, Inc., 574 U.S. ___, 135 S. Ct. 790 (2015). The Supreme Court ruled that a homeowner must notify the lender in writing of rescission within three years, but need not sue within that time period. Jesinoski, 574 U.S. ___, 135 S. Ct. at 792. 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).

  60. I hope you all take what Storm states with a grain of salt.

    Storm is the same guy who was posting here some time ago under the name “Rock” stating that a rescission is not effective upon mailing like the plain wording of TILA and the plain wording of the highest case law authority states.

    He believed that the rules of either common law or equitable rescission governed TILA rescission despite the plain language of TILA clearly abrogating the common law by statute with its unique rescission method (as duly noted by SCOTUS in Jesinoski).

    Hey, Storm, do you still believe that a TILA rescission is only effective when a bank “accepts” it?

    Are you going to have to hear SCOTUS say that a TILA rescission is effective upon mailing again before you allow yourself to come to that realization?

    And, don’t go citing a bunch of cases from lesser courts than the US Supreme Court about it because the highest authority has already stated otherwise.

  61. Storm said in response to the citation to “Modern Money Mechanics” by the Fed: “No, the only reliable source is the law and the holdings of courts.” So if a court doesn’t state that the leaves on a tree are green, your own perception must be ignored, right, Storm?

    The cited booklet contains a statement of fact concerning the nature of money made by the Fed – but, you apparently don’t think the Federal Reserve Bank is an authority on the nature of money – you need a court to tell you what money is – LOL – despite the fact that it’s not the courts that create money – it’s the banks!

  62. Kalifornia – you said:

    “@ ANON FYI: “Storm Bradford” is the pseudonym of the other bob (not Bob G.)”

    Actually, Storm Bradford is an actual person who is also known as Norman Bradford.

    He is not Bob Hurt – they are two different people.

  63. Sorry to pee on your parade, but a GAAP violation is not a viable claim: Torne v. Rep. Mortg., LLC, 2010 WL 1904507 *3 (D. Nev. 2010)(.

    Moreover, there’s no private right of action: “The boilerplate recitation of the provision requiring FDIC-regulated institutions to comply with GAAP accounting rules, 12 U.S.C. § 1831n(2)(A) … is highly questionable, given that courts, including this Court, have repeatedly held that a private right of action does not exist under those provisions.” Ruiz v. Saxon Mortgage Servs., No. CV09-2766, 2009 WL 1872465, at *1 n.1 (C.D. Cal., June 29, 2009).

    Stupid arguments like the ones posted lose homes to foreclosure.

  64. @ corruptionpedia2

    Review FASB 133 & 140 (now 860).

    Then, query “fannie mae fasb” and read the links.

  65. But will respond to corruptionpedia2, – can’t control myself to not respond at all. .

    Excellent points – corruptionpedia2, — Accounting — when did we lose it?? Where is the ACCOUNTING?

    Not here – nor there.

    Thanks.

  66. Kali – Thank you!! Will not respond. Thank you.

  67. Cool. Now how about this one? Banks are subjects of GAAP.

    https://www.investopedia.com/terms/g/gaap.asp

    Means Generally Accepted Accounting Principles .

    GAAP must be followed when a company distributes its financial statements outside of the company. If a corporation’s stock is publicly traded, the financial statements must also adhere to rules established by the U.S. Securities and Exchange Commission (SEC).

    GAAP covers such things as revenue recognition, balance sheet item classification and outstanding share measurements. If a financial statement is not prepared using GAAP, investors should be cautious.

    Also see Adequate assurance of due performance UCC 2-609 is for the sale or purchase. If you demand adequate assurance of due performance, the other party must give assurance in 30 days or the deal is off for purchases.

    § 2-609. Right to Adequate Assurance of Performance.

    (1) A contract for saleimposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.

    Which is kinda replicate Fair Debt collection Practices Act – but just a very few borrowers ask for a Validation of Debt and ever more rare for Adequate Assurance of Performance…

  68. Federal Reserve Bank of Chicago – Page 6:

    …”What they do when they make loans is to accept promissory notes in exchange for credits to the borrowers’ transaction accounts.”

  69. No, the only reliable source is the law and the holdings of courts.

  70. Is Federal Reserve booklet a reliable source of information? Look at page 6

    https://upload.wikimedia.org/wikipedia/commons/4/4a/Modern_Money_Mechanics.pdf

  71. corruptionmedia2, you never got your answer from Anon because he has no details.

    Moreover, all of this nonsense that the bank never really lent money is scammer nitwittery parroted by their “useful idiots.”. The courts call it the “vapor money theory.”

    Frances Kenny Family Trust v. World Savings Bank, No. C04-03724 WHA, 2005 WL 106792 (N.D.Cal. Jan. 19, 2005) (sanctioning plaintiffs and rejecting their “vapor money” theory); Carrington v. Federal Nat’l Mortgage Ass’n, No. 05-cv-73429-DT, 2005 WL 3216226, at 3 (E.D.Mich. Nov. 29, 2005) (finding “fundamentally absurd and obviously frivolous” plaintiff’s claim that the lender unlawfully “created money” through its ledger entries); United States v. Schiefen, 926 F.Supp. 877, 880-81 (D.S.D.1995) (rejecting arguments that there was insufficient consideration to secure the promissory note, and that lender had “created money” by means of a bookkeeping entry); * * * Rene v. Citibank, 32 F.Supp.2d 539, 544-45 (E.D.N.Y.1999) (rejecting claims that because lender did not have sufficient funds in its vault to make the loan, and merely “transferred some book entries,” the lender had created illegal tender). Baird v. Cty. Assessors of Salt Lake & Utah Ctys. 779 P.2d 676, 680 (Utah 1989)) (finding that the provision in art. I, § 10 of the United States Constitution is not a directive to states to use only gold or silver coins, but is “merely a restriction preventing states from establishing their own legal tender other than gold or silver coins”

    In addition to rejecting arguments that creditors have created “vapor” money through bookkeeping entries, courts have further rejected the “legal tender” argument. See, e.g., Thiel v. First Federal Savings & Loan Assoc. of Marion (N.D.Ind. 1986), 646 F.Supp. 592, 596 (“A check issued by a mortgagee need not be `legal tender’ for the loan to be valid. Far from suggesting any fraudulent conduct, the drafts issued by the Savings and Loan in this case accomplished the only conceivable purpose of the transaction: they allowed [plaintiff] to buy the properties at issue”); Rene v. Citibank (E.D.N.Y. 1999), 32 F.Supp.2d 539, 544 (“there is no requirement that a loan must be made with legal tender before a court will deem it valid”); Nixon v. Individual Head of the St. Joseph Mortgage Co. (N.D.Ind. 1985), 615 F.Supp. 898, 900 (“a bank or mortgage company check can be converted into legal tender. * * * It represents a liability of the company, so that the Mortgage Company has in fact given something of value — it’s promise to pay the face amount of the check”).

  72. Kalifornia, you continue to show you have know what your talking about. This is what scammers go around telling dupes like you.

  73. @ ANON

    FYI: “Storm Bradford” is the pseudonym of the other bob (not Bob G.) that was banned from LL. He is a scientologist, so don’t bother chasing his rabbit.

  74. PS. Frankly, i don’t think notes ever left the place either. Digital pieces of photocopied Notes did. Banks call it logical partition

  75. ANON: If you know details and what happened after they signed – share it with the rest of us.

    WE need to fix the system. They will not allow us to do anything until we will power ourselves with the KNOWLEDGE.

    Banks wants to use as like compost worms – produce them “green gold” and live in dirt and darkness

  76. Storm – you do not know the details. Don’t think Bob G would agree with you. No one paid for anything. But not going to try to convince you.

    Any “funding” was only “cash out.” Details? I have. No one knows what happened when they signed — I do know what happened. Not that it gets me anywhere – as corruptionpeida2 says – up against courts who will cover. The system is deep.

    And rescission? Here is what I was told — still purchase money — that is, not subject to rescission. Reported as same. Purchase money. Purchase money loan not subject to rescission. Ok — so am I still subject to purchase money when there were refinances from the purchase money over thirty years earlier? Yep – that is what the court tells me. No rescission.

    Why – “mortgage” never left original location. “Note” in whatever form it may be – traveled to many places. Wish I was a “note.” Love travelling.

    Thanks Guys – great input.

  77. 12 CFR Section 226.23 — Right of Rescission

    23(h) Special rules for foreclosures
    Paragraph 23(h)(1)(i)

    Section 226.23(h), which implements section 125(i) of the TILA, contains special rescission rules that apply after a foreclosure action has been initiated. Section 226.23(h)(1) allows a consumer to rescind a loan in foreclosure if a mortgage broker fee that should have been
    included in the finance charge under the laws in effect at consummation was not included. Section 226.23(h)(2) contains a separate finance charge tolerance of $35 for loans in foreclosure; such loans may be rescinded if the finance charge was understated by more than $35. Comment 23(h)(1)(i)-1 is intended to clarify the relationship between these two provisions.

  78. Did you really get a loan when you contracted to borrow money from the bank to pay for your home? Or was it just an exchange (your note for cash), but the bank called it a loan? Or did two loans occur?

    When you entered into a loan contract with a bank, you signed a note or contract promising to pay the bank back, and you agreed to provide collateral that the bank could seize if you did not repay the loan. This contract supposedly qualified you to receive the bank’s money. But did the bank provide ‘full disclosure’ of all of the terms of this agreement? Read the following and decide for yourself if the bank was acting in ‘good faith’, that you received ‘valuable consideration’, and that your ‘signature’ on that agreement is valid.

    http://www.usa-the-republic.com/banks/The_Great_Banking_Deception.htm

  79. The person who paid the value for the debt was the original creditor, the borrower who signed the loan

  80. Seems it is the conservative, corporate Supreme Court is ignoring the definition of consummation and contract. Continuation of too big to fail for toxic derivatives.

  81. Maybe Bob G would also agree your comment is nothing but double speak that makes absolutely no sense.

  82. […] Source: How to Frame TILA Rescission in Your Pleadings […]

  83. Strom and Bob G. Agree. But, the note on non bank origination is not really a note — it is a debt falsely name a “note.” Now, anyone can make a note to pay anyone anything. But, the note is false if the “note” does not do what it is supposed to do — pay off the prior note. This was not done. At least, not by the borrower’s “note.” . Restructured debt is all one has.

    Paying value for the note is not good enough if the borrower signed the note without the money being used for the intended purpose – pay off prior “note.”

  84. Bob G, actually that’s the law everywhere.

    Your comment that “Neil has finally come around to the conclusion as most of the rest of us have that the notice of rescission must be filed within three years of the loan closing.” Is too little too late, because hundreds if not thousands have lost their homes listening to his factually and legally incorrect rhetoric!

  85. Hey, Storm – do you still believe that TILA rescission is governed by the rules of common law or equitable rescission rather than the plain language of the statute and the plain language of the unanimous Jesinoski Court, i.e., that a rescission is not effective until the “lender” “accepts” it?

  86. Mr. Bradford is correct, at least in NY that is the law.

    As for everything else in the post, it seems as though Neil has finally come around to the conclusion as most of the rest of us have that the notice of rescission must be filed within three years of the loan closing. I think that that would exclude practically 99.999% percent of everyone in foreclosure or that have gotten a notice that foreclosure is imminent.

    Bottom line: the post was probably a waste of good electrons.

  87. Your statement: “There is only one party category that possesses the right to collect on the debt under the TILA rescission statute, to wit: it is a party who has paid value for the debt and therefore owns it.”

    The courts have found this statement to be factually and legally incorrect. There is no requirement to “own,” only possess the note!

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