When does the Three Years Start to Run? How the “CHAIN OF CLAIMS” is Pure Wind

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This is not legal advice on your case. Consult a lawyer who is licensed in the jurisdiction in which the transaction and /or property is located.

NOTE; THE NEIL GARFIELD SHOW WILL RESUME ON THURSDAY SEPTEMBER 10, 2015 6PM EDT
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I’m in trial mode so I just wanted to post some articles that I found interesting. My own opinion is exactly what is expressed in this article about when consummation has occurred. And that is a question of fact that is neither obvious nor a closed matter when the true creditor’s identity has never been revealed and continues to be withheld. The banks seem to want to say that the borrower has no right to learn the identity of his or her creditor, on the one hand, but that the court must assume that a valid contract exists — even without any evidence as to who the party is on the lender side.
The banks are using the argument that it is obvious that a loan from 2004 can’t possible be subject to rescission because of the three year limitations. Being obvious is not a legal theory or procedure. If they want to say that consummation occurred on a certain date then they need to prove it. The contract must be complete for the loan contract to be enforceable. That is black letter law. If I somehow trick you into signing a note and mortgage that does not create a loan contract — unless I loan you money. “it’s obvious” is no defense.
They must show not that it is obvious but that it is true. AND they can’t do that because their paperwork talks about transactions that never existed nor were consummated starting with origination and continuing up the so-called chain of claims.They will fight for the “obvious defense” simply because they don;t have a creditor and therefore they don’t have standing to even raise the issue, which is why they regularly blow the 20 day limitation on either complying with TILA statutes or vacating the rescission which is the equivalent of a court order because it is effective by operation of law according to TILA, Scalia, and everyone else.
On equitable tolling, I think that is a trap. Technically I think it ought to apply but it seems fairly clear to me that arguments about equitable tolling will probably result in decisions for the lender side. I think that is wrong. But it is reality. Concentrating on equitable tolling is going to be tough going.
But challenging whether the loan was ever consummated is much easier because ultimately the only defense they have is to show the actual transactions in which the money was loaned, who loaned it, who sold it, who bought it along with proof of payment. This challenge reflects one of the main purposes of national policy as set forth in Federal Truth In Lending Act.
What the author is saying and I agree with him is that we can stick with industry standards on when the consummation occurred and challenge whether consummation ever occurred. Either way the remedies are virtually identical. Either it is rescinded or never happened.
That is application of the same industry standards in lending as applied to borrowers — if a borrower goes into a bank and wants to borrow money based upon receivables, notes, mortgages or anything else, the prospective lender is going to want to confirm the existence or nonexistence of the receivables or loan or note and whether the borrower asserts any defenses. It is called estoppel information. If the same bank wouldn’t accept partial information, (like “business records”) from us applying for a loan why should we accept anything less from them in enforcing the loan? They set the rules. Let them live or die with the standards they invented.
I like this one from a California lawyer 4 years ago:

It seems fair to say that the Courts are not willing to find a contractual obligation exists under State Law until a true and actual lender is identified. “Pretender lenders” – as Neil Garfield calls them – and intermediary “originators” who make false representations to the effect that they are “lending money”and are your “lender” should not be sufficient to set the three year TILA rescission clock in motion.  Until the real Wall Street entity, or Wall Street Investor, or true source of the table funded loan is identified, the loan should not be deemed “consummated” under TILA and the three year right to rescind should remain open until such disclosure is made.  That is TRUTH IN LENDING WHICH IS THE WHOLE POINT OF TILA IN THE FIRST PLACE.

RESCISSION: If no lender disclosed, then there was no consummation, no loan contract

For further information please call 954-495-9867 or 520-405-1688

RESCISSION IS NOT A GIMMICK. IT IS PUBLIC POLICY! TILA is designed to punish banks who play outside the rules. It is designed to put all the power into the hands of the borrower. AND it has worked up until it stopped working with hundreds of erroneous decisions by trial and appellate courts that only got corrected by a unanimous Supreme Court opinion written by Justice Scalia. The playing field is level again. Let the chips fall where they may.

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I received an email from one of my most knowledgeable anonymous contributors. It raises an interesting question. If the lender was not disclosed at closing, then is a TILA rescission effective? My first answer is that if the rescission notice is sent, then the mortgage and note are nullified by operation of law unless the “lender” files a lawsuit within 20 days contesting the notice of rescission. So whether you were right or wrong, it would be my opinion that if the “lender” does not respond, the matter is closed and that is the end of the note and mortgage. And if there is no note and mortgage then anything that happens afterwards is void because you can’t get a foreclosure on a mortgage that legally does not exist even if a copy of the mortgage is sitting in county records. And a sale would also be void. That is the way I see it.

But the interesting direct answer already found in the court system is that if the lender is not disclosed there can be no consummation because there is no loan contract unless you have at least two identified parties. If there is no loan contract there is nothing to rescind. But an admission from the “lender” or a finding by the court that TILA rescission is not available because the loan contract was never consummated or did not exist leads inexorably to one conclusion: the borrower still wins. The borrower can then sue to nullify the note, mortgage, debt, foreclosure and even auction on the basis that they are void by operation of law because there was no deal. And the borrower could then, in my opinion, sue to have the banks and servicers return the monthly payments and other payments they collected on the nonexistent contract for all the money they collected. This too is supported by some case decisions where Bank of America and others have been required to disgorge money they received when they had no right to collect it in the first place.

So while there is a specific legal theory on how to deal with this issue there is also a hidden issue that probably puts the pretender lenders in the corner. In order to challenge the rescission they must file a lawsuit within 20 days asking for declaratory relief that the rescission is not effective. If their grounds are that TILA rescission is not available because there was no contract, then they are essentially arguing that the borrower can’t rescind because there was no contract. Either way they lose the deal, the mortgage, the note etc.

But that is not the only problem for pretender lenders. In order to establish standing to challenge the rescission they must allege that they or their predecessors were the real lenders and were the actual source of funding. Those allegations puts the burden of proof on the pretender lenders. They must prove the original loan and the acquisition of the loan not just by paperwork that says it happened by by showing that money exchanged hands both at origination and acquisition of the loan.

Here are the thoughts of anonymous:

“Just of interest in regards to getting into TILA rescission attempts past the 3 year mark of when loan was supposedly “consummated”, and trying to use lack of such as an argument. I came across the following case of Weintraub in 4th circuit saying, “No consummation, No TILA rescission.”  http://www.bankersonline.com/infovault/weintraub.pdf

Then you have the following theory, no consummation, TILA never tolled, good for a past 3 year-er:
(1) Ramsey v. Vista Mortgage Corp, 176 BR 183 (TILA RESCISSION IN BANKRUPTCY CHAPTER 13 CASE).  In this case, the court laid down the test of when the three year right to rescind begins to run and specifically tackles the concept of when a loan is “consummated.”  Several internal citations also help clarify this point.  Here is what the Ramsey Court said:

“When Ramsey signed the loan documents on September 13, 1989, he knew who was going to provide the financing. Courts recognize the date of signing a binding loan contract as the date of consummation when the lender is identifiable.”   The Court also cited to the Jackson v. Grant, 890 F.2d case (9th Circuit 1989), a NON-BANKRUPTCY CASE, and said: “the Ninth Circuit held that under California law a loan contract was not consummated when the borrower signed the promissory note and deed of trust because the actual lender was not known at that time. Under these circumstances, the loan is not “consummated” until the actual lender is identified, because until that point there is no legally enforceable contract.”

Now, I have to say I am more in the camp of the 4th saying that if you have no contract, there is nothing to rescind, but I guess you could say that it’s merely a discovery point and the rescission is conditionally effective until discovery is complete as to what actually occurred and can be put together by the court from the evidence (Then maybe a TILA rescission will be effective, maybe not; if not because there is no contract, what does the homeowner care? Nearly same result, plus he gets to sue for fraud and other damages suffered I guess….?), but what’s a past 3 year-er to do when arguing TILA?

……. if it turns out that consummation did not occur because the bank willingly withheld the table funded partners identity, or alternatively was acting as straw-man for undisclosed investors, and was using their money directly instead of funneling through the REMIC to purchase the home loan (therefore it really was not a buy-sell transaction, it was a disguised buy using duped investors money who expected a legitimate buy-sell to occur, but REMIC was not properly funded), then what angle do you think is best for TILA- Leave consummation out of the initial argument, and hang your hat on equitable tolling if past 3 year mark, or keep it in and argue both points”

And here is an article I found that describes the process of rescission. I think some of the issues presented might not be entirely correct, but it is definitely one point of view that deserves consideration.

The procedural question of whether a notice of rescission can be challenged outside the 20 day period provided in the Federal Truth in Lending Act is something that lawyers need to consider before they tell a client they cannot rescind. If there is an arguable basis for sending the notice on the belief that it is proper, then the defenses to the rescission can only be raised by operation of a legal proceeding — in a court room.

Hence, it is my opinion, that while there are risks in doing so, the sending of a notice of rescission that is based upon incorrect assumptions does not mean the rescission is void. Quite the contrary, in my opinion.

The receipt of that rescission means there is no more mortgage and there is no more note until a court says otherwise. And the court can’t say otherwise unless the “lender” brings a lawsuit to challenge the rescission within 20 days of receipt. Since there have been no such lawsuits filed to my knowledge it therefore appears to me that all notices of rescission that were ignored or “rejected by letter” had the effect of making the mortgage and note permanently void by operation of law without any lawsuit needed to enforce that presumption (see US Supreme Court decision written by Justice Scalia).

Some people or perhaps most people regards this strategy as a gimmick. But Congress passed it to avoid a super size regulation system with thousands of agents. It was designed to punish banks who screwed with the system so they would essentially police themselves. Obviously that premise didn’t work until now. It is national public policy not a gimmick.  They gave the “lenders” a very short window to undo the damage if they thought the borrower was wrong but if we read the plain words of the statute and the plain words of the Supreme Court, if they don’t do it within the 20 day window, they have lost the loan. They might still theoretically be able to collect on the loan but only if they can prove they loaned the money or paid for the debt. Their action would essentially be for unjust enrichment. And it would be unsecured.

Right of rescission lets you back out of some loans

Federal law gives you a cooling-off period when you get a home equity loan or line of credit, or when you refinance with another lender.

It is called the right of rescission. It allows you to rescind, or cancel, some types of home loans and walk away without losing money.

The right of rescission provides a three-day period when you can back out of the loan before you get the borrowed money, no questions asked. Within 20 days, the lender must give up its claim to your property as collateral and must refund any fees you paid.

A law called the Truth in Lending Act, which is designed to shield borrowers from unscrupulous lenders, grants the right of rescission. The law is intended to thwart smooth-talking loan officers who try to fleece elderly or unsophisticated borrowers out of their money and even their homes.

The law also protects consumers from themselves. The homeowner who takes out a home equity line of credit to buy a car, then thinks it over for a couple of days and decides that such financing would be a bad move, can rescind the loan. Likewise for the homeowner who takes out a home equity loan, then finds a better deal a day or two later. The homeowner can rescind the first deal within three business days and take the second.

Right doesn’t apply to all loans
The right of rescission is not available for all mortgages. Most importantly, there is no right of rescission for a mortgage made to buy a house. Borrowers and lenders can get tangled up in whether a mortgage is a purchase loan. Take, for example, the way financing is set up for many built-to-order houses. You get a short-term construction loan while the house is being built; then, after the house is finished, you pay off the construction loan with a permanent mortgage. You don’t have a right of rescission with either loan because both are considered purchase money.

The right of rescission also is not available when you refinance your loan with the same lender, when the house in question is not your primary residence (in other words, if it’s your vacation home or an investment property), if you borrow the money for your business, or if you’re borrowing from a state agency.

That leaves a lot of situations where you do have the right of rescission: when you refinance your mortgage with another lender and when you take out a home equity loan or line of credit (unless it’s part of a “piggyback loan” designed to avoid paying mortgage insurance).

Cash-out refi rules
Things get complicated if you do a “cash-out refi” — refinancing for more than you owe on your current mortgage, and taking the difference in cash. If you do a cash-out refi with the same lender, you have the right to rescind only the cash-out portion; if you do a cash-out refi with a different lender, the entire amount can be rescinded.

It doesn’t matter what kind of home you have: if it’s a single-family house, a condominium, a floating home or a manufactured home permanently anchored to land you own, you have the right of rescission.

A borrower must exercise the right of rescission within three business days of signing the loan papers, receiving all the loan disclosures, and getting a copy of the notice that there is a right of rescission. Usually, all three of those requirements are met on the same day; if they aren’t, the clock starts ticking only after all three conditions have been satisfied.

When the clock ticks …
That clock ticks only on business days. Much has been written by federal regulators about what counts as a business day. In general, every day is a business day except Sundays and federal holidays. Saturday counts as a business day, even if the lender’s office is closed on Saturdays. The right of rescission expires at midnight concluding the third full business day after the papers are signed and all other conditions are met. So, for example, if you close a home equity loan on Thursday, the clock starts ticking Friday, continues to tick on Saturday, stops on Sunday and resumes on Monday. The right of rescission ends Monday at midnight.

To exercise your right of rescission, you must inform the lender in writing — a phone call won’t do. The letter doesn’t have to be postmarked by the deadline — you merely have to drop it in a mailbox by the deadline. That means that if your right of rescission ends at midnight Saturday night, and you mail the letter just before the deadline, and Monday is a federal holiday so the letter isn’t postmarked until Tuesday, you still have rescinded the loan.

Not surprisingly, the loan officer might call after the rescission period has ended, just to ask if you’re still going ahead with the loan.

It is possible to waive the right of rescission so you can get the money immediately, but only in emergencies. To stay out of trouble with regulators, your lender is unlikely to let you waive the right of rescission unless the loan officer is convinced that you truly have an emergency and you’re not simply impatient. Examples of acceptable emergencies: your roof has blown off in a storm and you need a home equity loan right now to pay for a repair, or you need the money immediately to pay for a medical procedure.

 

Rescission: Equitable Tolling Extends Statute of Limitations

For further information please call 954-495-9867 or 520-405-1688

Important Message: This blog should NEVER be used as a substitute for competent legal advice from an attorney licensed in the jurisdiction in which your property is located.

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see http://openjurist.org/784/f2d/910/king-v-state-of-california-d-m

The most popular question I get here on the blog and on my radio show is what happens when the three year statute has run? The answers are many. First is the question of whether it ever started running. If the transaction was not actually consummated with anyone in the chain of parties claiming rights to collect or enforce the loan it would be my opinion that the three day right of rescission has not begun to run. That would be a remedy to an event in which the note and mortgage (or deed of trust) has been signed and delivered but the loan was never funded by the originator any creditor in the chain of “ownership.” The benefit of the three day rescission is that you don’t need a reason to do it. But in order to do that you need to be careful that you are not stating that there was a closing because that would be consummation and therefore the right to rescind unconditionally ran three days after that “Closing.”

Second is the three year statute of limitations. The same reasoning applies.  But it also raises the question of non-disclosure and withholding information. The rather obvious delays in prosecuting foreclosures on alleged “defaults” are clearly a Bank strategy for letting the 3 year statute run out and then claim the homeowner cannot rescind because the closing was more than 3 years ago. That is where the doctrine of equitable tolling comes into play. A party who violates TILA and fails to disclose material facts and continues to hide them from the borrower should not be permitted to benefit from continuing the violation beyond the apparent statute of limitations. People keep asking why the banks wait so long to prosecute foreclosures. The answer is that it is because they have no right to do so and they are running out the apparent statute of limitations on rescission and TILA disclosure actions.

Third is a procedural issue. According to TILA the “lender” who receives such a notice of rescission is (1) obligated to send it to the “real” lender and (2) must file a declaratory action against the borrower within 20 days in order to avoid the rescission. If they don’t file the 20 day action, they waive the objections they could have raised. So far I have not heard of one case in which such an action has been filed. I think the reason for that is that nobody can file an action in which they establish standing. Such a party would be obliged to allege that they are the “lender” or “creditor” as defined by TILA. That means they either loaned the money or bought the loan for “valuable consideration” just like it says in Article 9 of the UCC. Then they would have to prove that allegation before any burden shifted to the borrower to answer or file affirmative defenses against the action filed by this putative “lender.”

CAVEAT: The doctrine of equitable tolling is remedial as is the statute, but it is fairly strictly construed. I’m am quite confident that the best we will get from the courts is that the 3 day and 3 year rules and other limitations in TILA starts running the moment you knew or should have known the facts that had been withheld from you at “closing.” The fact that you are not a lawyer and did not realize the significance of this will not allow you to delay the start of the statute running after the date of discovery of the facts, whether you understood them or not.  But this is a two-edged sword. The current practice of objecting to any QWR, DVL or discovery question without answering the truth about the claimed chain of ownership or servicers on the loan corroborates the borrowers allegation that the parties are continuing to withhold this information. So a well-framed TILA defense might serve as the basis for enforcing your rights of discovery and rights to answers on your Qualified Written Request or Debt Validation Letter.

Additional Caveat: The doctrine of equitable tolling has been applied with respect to the one year statute of limitations on TILA disclosures but it remains open as to whether it would be otherwise applied. From the 9th Circuit —

“Section 1640(e) provides that “[a]ny action under this section may be brought within one year from the date of the occurrance of the violation.” We have not yet determined when a violation occurs so as to commence the one-year statutory period. See Katz v. Bank of California, 640 F.2d 1024, 1025 (9th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 314, 70 L.Ed.2d 157 (1981). Three theories have been used by other circuits to determine when the statutory period commences: (1) when the credit contract is executed; (2) when the disclosures are actually made (a “continuing violation” theory); (3) when the contract is executed, subject to the doctrines of equitable tolling and fraudulent concealment (limitations period runs from the date on which the borrower discovers or should reasonably have discovered the violation). See Postow v. OBA Federal S & L Ass’n, 627 F.2d 1370, 1379 (D.C.Cir.1980) (adopting “continuing violation” theory in some situations); Wachtel v. West, 476 F.2d 1062, 1066-67 (6th Cir.), cert. denied, 414 U.S. 874, 94 S.Ct. 161, 38 L.Ed.2d 114 (1973) (rejecting “continuing violation” theory, statutory period commences upon execution of loan contract); Stevens v. Rock Springs National Bank, 497 F.2d 307, 310 (10th Cir.1974) (rejecting “continuing violation” theory); Jones v. TransOhio Savings Ass’n., 747 F.2d 1037, 1043 (6th Cir.1984) (applying equitable tolling and fraudulent concealment).”

Hats off to James Macklin who sent me this email:

Hang on to your hats fella’s…in Sargis’ ruling … back in 2012…he confirms the equitable tolling principles of TILA as I had argued…just saw this again while reviewing…to wit:
“The Ninth Circuit applies equitable tolling to TILA’s … statute of limitations (King v. California, 784 F.2d 910, 914 (9th Cir. 1986).
“Equitable Tolling is applied to effectuate the congressional intent of TILA.”, Id.
Courts have construed TILA as a remedial statute, interpreting it liberally for the consumer.” (Id. Citing Riggs v. Gov’t Emps. Fin. Corp., 623 F.2d 68, 70-71 (9th Cir. 1980).
 Specifically the 9th Circuit held: “[T]he limitations period in section 1640(e) runs from the date of consummation of the transaction but that the doctrine of equitable tolling may, in appropriate circumstances, suspend the limitations period until the borrower discovers or had the reasonable to discover the fraud or non-disclosures that form the basis of the TILA action.” 
Gentlemen…I give you proof positive that the statute tolls and the fact that the term “consummation” is also subject to broad interpretation as we know…the loan could not have consummated if what we allege is found to be true… However, the non-disclosures language used by the 9th Circuit gives rise to possible myriad rescissions upon discovery of those non-disclosures…
James L. Macklin, Managing Director
Secure Document Research(Paralegal Services/Legal Project Management)
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