RESCISSION Revalidated in CA Decision

1sT Appellate District US Bank v Naifeh: “… we conclude that a borrower may rescind the loan transaction under TILA without filing a lawsuit, but when the rescission is challenged in litigation, the court has authority to decide whether the rescission notice is timely and whether the the procedure set forth in the TILA (sic) should be modified in light of the facts and circumstances of the case.”

The jig was up when the Jesinoski decision was rendered — courts cannot re-write the statute, although they can consider minor changes in procedure whose purpose is to comply with the statute, not ignore. it.

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

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see US BANK VS NAIFEH

In a carefully worded opinion at least one appellate court seems to be moving closer to the view I have expressed here on these pages. But they still left some simple propositions unclear.

It remains my opinion that a recorded rescission forces those who would challenge it to file suit to remove the rescission from the title record. In that suit they would need to plead and prove standing — without using the note or mortgage to do it because rescission renders them void at the moment the letter of rescission is mailed..

  1. The decision clearly says that for the rescission to be effective (deriving its authority from 15 USC §1635 and the unanimous SCOTUS decision in Jesinoski v Countrywide), the borrower need NOT file suit. That means it is effective when mailed (NOT FILED) just as the statute says and just as the late Justice Scalia penned in the Jesinoski case.
  2. The decision anticipates a challenge to rescission — which in and of itself is recognition that the rescission IS effective and that something must be done about it.
  3. But the court does not clarify what is meant when it said “when the rescission is challenged in litigation.” Clearly the decision stands for the proposition that the rescission stands as effective unless challenged in litigation. The unanswered question is ‘what form of litigation?’
  4. If we apply ordinary rules of procedure, then the decision dovetails with my opinions, the statute and the US Supreme Court decision. The rescission is effective when mailed. So the “challenge” must be “in litigation.” But whether that means a lawsuit to vacate or a motion challenging the rescission is unclear. A “motion challenging the rescission” is problematic if it does not set forth the standing of the party making the challenge and if it does not set forth the plain facts that the rescission, under law, is already effective but should be vacated, then it is trying to get the court to arrive at the position that the rescission can be ignored even if it is recorded (a condition not addressed in the opinion).
  5. The claimant challenging the rescission must state a cause of action, if the rescission is recorded, that is in essence a quiet title claim that needs to be framed as an original complaint in a lawsuit. So far the banks have been successful in getting trial judges to IGNORE the rescission rather than remove it as an effective instrument, whether recorded or not. This only compounds title problems already present.
  6. The procedural oddity here is that in foreclosure litigation the court might conclude (erroneously in my opinion) that the beneficiary under the deed of trust had standing to substitute trustee, standing to to have the trustee record a notice of default, and standing to record a notice of sale.
  7. BUT once the rescission is effective, there is absolutely no foundation for a claim of standing based upon the void note, the void mortgage and the consequential void assignments, which even if they were not otherwise void, are void now because the assignment is purporting to transfer something that no longer exists.
  8. Standing vanishes if it is dependent upon presumptions applied from the assignment, endorsement and other attributes wherein false statements are made concerning purchase and sale of the note or mortgage. The note and mortgage are void the moment the rescission is mailed. No reliance on the mortgage, note or any transfer of same can constitute standing, since those documents, as a matter of law, no longer exist.
  9. Hence STANDING TO CHALLENGE RESCISSION must logically be dependent upon the ability of the challenger to affirmatively plead that they own the debt or obligation and to prove it at a hearing in which evidence is produced. This is the holy grail of foreclosure defense. We know that 99% of the foreclosers do NOT qualify as owners of the actual debt or obligation. They are traveling on legal presumptions as alleged “holders” etc. under the UCC. If the note and mortgage don’t exist then the status of holder is nonexistent and irrelevant.
  10. This court further leaves us in a gray area when it correctly reads that portion of the statute giving the court authority to consider the options, procedurally, but incorrectly states that one of those options is that a Federal Statute that preempts state law could be “modified in light of the facts and circumstances. This is NOT contained in either the statute or the Jesinoski decision. This court is putting far too much weight on the provision of the statute that allows for a petition to the court at which the court could change some of the procedural steps in complying with rescission, and possibly by implication allowing for a challenge to the rescission in order to vacate the legal effectiveness of the rescission.
  11. ANY DECISION ON “PROCEDURE” THAT NULLIFIES THE EFFECTIVENESS OF THE RESCISSION WHEN MAILED IS ERRONEOUS.  Any such decision would effectively be eviscerating the entire statute and the opinion of the US Supreme Court. The simple rule of thumb here (heuristic reasoning) is that the rescission is and always will have been effective when mailed. The parts of the statute that deal with procedure can only be related to a party who claims to be the creditor (owner of the debt or obligation) who intends to comply.
  12. Since tender is expressly excluded in the statute and the Jesinoski decision, the change can not require the borrower to tender money — especially when the statute says that no such demand need be considered by the borrower until there is full compliance with the rescission — return of canceled note, release of encumbrance and payment to the borrower of all money ever paid by the borrower for principal, interest, insurance, taxes, and fees.
  13. Hence the changes are limited perhaps granting additional time, or maybe even to credits against what might be due from the homeowner but even that looks like a stretch. The committee notes and subsequent decisions clearly state that the intent of Congress was to prevent any bank from stonewalling the effectiveness of a rescission, which is what judges have been doing despite the Jesinoski decision and the clear wording of the statute.
  14. And this is how we know that the challenge, if brought, must be within the 20 days available for the creditor, “lender” etc to comply with the rescission. Any other interpretation would mean that the rescission was NOT effective upon mailing and would also mean that the owner of the property cannot get a substitute mortgage to pay off any legitimate claim from a true creditor. Such interpretations, while apparently attractive to bank lawyers and judges, are directly contrary to the express wording of the statute and directly contrary tot he express wording of the Jesinoski decision, decided unanimously by SCOTUS. Hence ANY CHALLENGE outside the 20 days is barred by the statute. Just like any action to enforce the TILA duties against the “lender” must be brought within one year of the mailing and receipt of the rescission.
  15. The failure of either the “lender” to comply or the borrower to enforce simply means that after one year, the rescission is still effective (meaning the note and mortgage are void) the claim for enforcement of the duties of the lender is extinguished, and the financial claim of the lender is extinguished. Hence, the infamous free house — not caused by sneaky borrowers but caused instead of malfeasant banks who continue to use their influence to get judges to re-write the law.
  16. But regardless of how one looks at this decision, the Jesinoski decision or the statute one thing is perfectly clear — vacating the rescission is strictly dependent upon timely filing of a challenge in litigation and a hearing on evidence, because the legal presumptions used in determining standing are no longer available in the absence of the the note or mortgage, which were irretrievably rendered void upon mailing of the rescission.

The banks and servicers have so far been successful in pulling the wool over judges eyes, perhaps because judges have long disliked TILA and especially TILA rescission. The jig was up when the Jesinoski decision was rendered — courts cannot re-write the statute, although they can consider minor changes in procedure whose purpose is to comply with the statute, not ignore. it.

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Editor’s Comment: We are seeing more of these cases as the trial and appellate courts have finally come to earnestly question the validity of the foreclosures themselves. First they are starting with strict enforcement of required procedures.

In this case the 9th Circuit Court of Appeals reversed the BAP Panel and reinstated the finding that the pretender lender had violated Hawaii law. But they remanded as to the amount of attorneys fees and costs. That means they affirmed the violation of the pretender lender, they affirmed the consequences for such violation and affirmed the recovery of fees and costs. The Court specifically opened the door to monetary and punitive damages but refused to apply it as an automatic remedy, which in my opinion was a correct finding.

The proper course of action for this homeowner was to file a wrongful foreclosure claim (after rendition of this opinion), slander of title (perhaps) and other claims relating to monetary damages in which they prove and allege duty and damages proximately caused and measurable as a result of the violation of the pretender lender.

Just because you don’t read it or see it in mainstream media doesn’t mean it isn’t happening. Borrowers are starting to win with increasing frequency.

Hawaii 9th Circuit Case Margery Kanamu-Kalehuanani KEKAUOHA-ALISA v Ameriquest

“This case requires us to determine whether a mortgage company violated Hawaii state law when it did not publicly announce the postponement of a foreclosure sale of property owned by Appellant Margery Kanamu-Kalehuanani Kekauoha-Alisa, and if so, to ascertain the proper remedy for that violation. A federal bankruptcy court held that Appellees’ failure publicly to announce the foreclosure violated the requirements of Hawaii’s nonjudicial foreclosure procedure under Hawaii Revised Statute (HRS) § 667-5, as well as its consumer protection law, HRS § 480-2. The court voided the sale of the Appellant’s property and awarded her treble damages of $417,761.66 under HRS § 480-13 for violation of the consumer protection statute. The Bankruptcy Appellate Panel reversed, ruling that the mortgagee’s actions did not violate state law.

We hold that (1) the lack of public announcement did violate Hawaii’s nonjudicial foreclosure statute, and (2) this defect was a deceptive practice under state law. Accordingly, we affirm the bankruptcy court’s avoidance of the foreclosure sale. However, we remand to the bankruptcy court for a proper calculation of attorneys’ fees and damages under HRS § 480-13.”

 

 

Objections and Preserving Your Rights on Appeal: From, Whose Lien Is It Anyway? by Neil F Garfield

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Editor’s Comment:

Foreclosure cases are won or lost on procedure more than on the merits of the case offered by either side. Lawyer and especially pro se litigants tend to use the right of appeal, as though it was a vehicle for entertaining evidence, objections or motions that should have been made. These make up a large percentage of the 85% of cases that are affirmed on appeal.[1]

The appellate court rarely has even the power to consider affidavits or other evidence that was not proffered and which does not show up on the record on appeal sent by the clerk of the court on the “trial” level. The appellate court is limited to what DID happen and not what SHOULD have happened. If the matter was properly raised in the lower court, then the matter may be considered by the appellate court. If not, then they must simply state that the grounds for appeal were not properly preserved for appeal and affirm the decision of the lower court Judge.

In foreclosure cases, most of the objections that should be made are known in advance and quite probably should be brought or offered as a motion in limine before the actual hearing, so that the complete focus of the court is on the issue that  would be presented by opposing counsel  and the objections raised by the borrower homeowner. In those cases, where the objections are known in advance, you should not only state that you have an objection, but the state the reasons for your objection and include a memorandum of law on the point, complete with copies of the most relevant cases.

Most of the errors that I see on the trial court level amounts to denial of due process in that the Court refuses to hear the merits or to allow the parties to conduct discovery. If that is the case in your case, you should mention it even though it is “fundamental error” that the appellate court could hear even without raising the objection contemporaneously with the subject of your objection.

This assures (along with the transcription from a court reporter) that everything about that objection was stated, presented and denied, if such is the case. It might also alert the Judge that you are ready to make such an appeal. If the objection is procedural relating to whether a proper foundation has been laid for the introduction of evidence, or whether the Court is accepting the proffer of counsel without any evidence in the record to support it, then you must make that point clearly and with support from citations in your own state. If the court refuses to hear the objections in limine then you still have the matters raised as part of the court record but you must raise the objection in the hearing or you might well have waived them unless your main point (ill advised) is that the court abused its discretion in denying the motion in limine without hearing it on the merits.

In every case I have seen reversed on appeal, there was something in the record that contradicted or nothing in the record that supported the position taken on appeal.

There are no magic words or bullets on objections. What is necessary is that you state it, without rambling on tangent subjects, with sufficient specificity so that the appellate court will understand in a flash what your objection related to, and what grounds and what law upon which you were relying. Do not combine objections. If you have more than one then state that you have 2 or more objections and proceed with the first.

The mistake I see in appeals and trial proceedings is that the attorney for the homeowner borrower remains silent while opposing counsel states facts that are not in the record (because there has not been an adversary proceeding and that you deny those facts, as they are in issue between the two sides). In many cases the Judge takes silence as a concession that the facts are true as stated and that your defense relates to something other than contesting the facts being proffered by opposing counsel.

The appellate court might agree, particularly if you are not clear in immediately identifying the fact that there was a real transaction in which money exchanged hands and then another event which involved the signing of papers but in which there was no actual transaction. The fact that the borrower believed the papers to be true while everyone else knew they were not, cannot now be used to further the fraud upon your client.

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[1] It has been pointed out by some bankruptcy court judges that out of the three possibilities for appeal of a bankruptcy court ruling, petitioners and their counsel usually bypass the appeal laterally to the sitting District Court Judge charged with hearing civil cases with Federal jurisdiction and with hearing appeals from decisions made in the bankruptcy court. Sources tell us that the percentage of reversals and remand is possibly as high as 50% when brought to the District Judge rather than the BAP or Circuit Court of Appeals.

Writ of Mandamus: The Right Procedure

submitted by Frank D’Anna

Writ of Mandate 2 Frank D’Anna

COMMENT: I don’t know if Frank got help, but however he did it, this is a fine piece of work. He obviously understands that if you want to take an appeal, you must state a reason that the trial court erred. If you want to win it, you better come up with a procedural issue that is compelling. Most appeals fail. The reason is that the Appellant wants the appellate court to say the Judge was wrong on the facts. They don’t do that except in the rarest of cases, so don’t bother.

The best appeal is to be able to say and show IN THE COURT RECORD that you didn’t get your day in court, which is to say that the trial judge refused to hear your case on the merits. Any other appeal will get “Per Curium, Affirmed” without comment.

The second best appeal is to imply that the trial judge was tone deaf and ruled based upon presumptions he wasn’t allowed to make. D’Anna’s appeal is a combination of the the two approaches. They both amount to the same thing: you were not heard on the merits and the trial judge prejudged the case based upon incorrect presumptions.

Speaking in legalese this means that the trial judge presumed that YOU had the burden of proof and allowed your opposition, over your objection, to introduce information that was not authenticated, verified or given proper foundation to be taken into evidence. In many cases there is no evidentiary hearing. Your case is a denial of the allegations of the oppositions whether they have filed (judicial states) or they haven’t filed them (Non-judicial states).

The mistake repeatedly made in the trial court is acceptance by the borrower that the borrower has some burden of proof regarding the standing of the opposing party, whether the opposing party is a real party in interest, and whether the note was properly assigned or ever made it into the “Trust.”

This is just plain wrong: There is only party actually seeking affirmative relief — the one who wants to enforce the note and foreclose on the property. The party seeking affirmative relief is the ALWAYS charged with pleading a case upon which relief could be granted and ALWAYS required to prove each and every allegation. The allegations and the proof must line up with the elements of their cause of action as stated by statute, the rules of civil procedure and previous common law decisions.

In non-judicial states these errors are magnified. Because the law is universally misapplied, a party can foreclose through power of sale even if they would have no right to foreclose judicially. That is not the law and if it was the law it would be unconstitutional.

  • The fact that the forecloser ignores the basic elements of law does not shift the burden of pleading or the burden of proof onto the borrower.
  • The fact that the borrower/debtor must bring an action seeking injunction or restraining order to stop the non-judicial sale does not change the burden of pleading or the burden of proof.
  • Once the denial or objection is registered in any fashion, the Trustee in a non-judicial state and the mortgagee in a judicial state MUST, under all conditions, plead and prove their case in a court of law.
  • Non-judicial election is simply not available.

BUT HERE’S THE RUB: IF YOU DON’T OBJECT TO WHAT THE COURT IS DOING, YOUR OPPOSITION IS GOING TO ARGUE, MANY TIMES SUCCESSFULLY THAT YOU WAIVED THAT ARGUMENT. BUT JURISDICTIONAL ISSUES CAN BE HEARD AT ANY TIME EVEN IF THEY ARE FIRST BROUGHT UP ON APPEAL.

Mortgage Meltdown and Foreclosure Defense

Good comment, which I edited slightly for readability:

 

  • Hey Jose, run your case by the trustee who more than likely will not do a thing; 
  • request for leave to file the case in C Court, not to worry about the lender, 
  • he will remove to Fed Court. 
Lost Note, fight it long, hard and strong! They must produce the original copy,  do not accept less; also, make them produce payment history and history of charges;  they have committed fraud, so, you have the one up! They sold you a bag of C_ _ _  here…the property at any price was more than likely overvalued by the lenders appraiser and  the unsustainable market conditions for which all we innocent, were lead to slaughter  by government lies, i.e., housing markets are sustainable and growth is sustainable, both lies!  Investigate your judge and his rulings and get a membership to pacer to track your case because clerical errors do happen and no one but you, is responsible for your case under bap!  Check out your judges rulings, look for similar trustees to always be presenting their cases,  if there is justice financial disclosure information about the judges, gov courts pensions  and retirement accounts etc., and, as to if they contain any of the mortgage hedge funds.  Go to your judges hearings to see how he rules and for whom he rules; check out the judges  former partners and law firms prior to them becoming a judge, look to see if they represented  any of your creditors or most of your creditors or your lender, servicer, title company etc.  My most important advise to you is not to lie during your bk, before or after….about anything…. in, leading up to, after or during your bankruptcy, sounds like you are upper middle class  so do not hide any…assets as with your charges of mortgage fraud, they will be seeking  a smoking gun….and the gun will get turned on you the accuser first!  You will not have to hide your assets as most of your assets are protected  as long as you do your schedules correctly.  Your case appears to be an asset recovery case and the courts should either allow you time  to pursue your legal claims or, have the trustee litigate your claims for you,  noting you could be in an area that is devoid of these corrupt bankruptcy rings,  just be on guard at all times and follow behind your public servants, the judges and trustees  as the are human and can be mislead!

 

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