RESCISSION REVIVED BY 9TH CIRCUIT COURT OF APPEALS

Hat tip to Ken McLeod and to Ron Ryan who argued endlessly that the former ruling was wrong in Arizona. Ron Ryan is a good lawyer and Ken McLeod is a good investigator. Both have years of experience investigating, analyzing and fighting illegal foreclosures.

Courts are catching on and as I have predicted, the ultimate determination of the merits of foreclosure cases are largely going to turn on the application of the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). Previously this same court held that tender of the money was required to rescind a transaction — the exact opposite of what the Federal statutes and regulations required. Now, correcting its prior error, the court says that a cause of action and defense exists by pleading rescission. Any document indicating the intent to rescind is sufficient.

The purpose of the TILA provision was to put the burden on the lender to prove that they had complied with all aspects of TILA in providing adequate disclosure and otherwise performing those acts required for a valid closing. If the defense is that the loan contract was not completed because of lack of consideration or other violations of TILA or RESPA, then the appropriate action is to send a rescission letter. It then falls on the “lender” to file an action within 20 days to object to the rescission or return all money paid by the borrower and to file a satisfaction of mortgage along with returning the canceled note. And since the allegation of no consideration leaves nothing to be tendered “back”, there is no impediment to going forward with discovery.

This forces “lenders” to essentially file a judicial foreclosure suit and prove they made the loan, they have the right paperwork and made the right disclosures. Table funded loans are going to give them a problem since Reg Z says that any pattern of conduct with table-funded loans is “predatory per se,” it is hard to imagine that this decision won’t stop the “lenders” dead in their tracks.

The requirement of tender assumed that the “lender” had actually made the loan and was the source of funds. Now the Courts are starting to realize that there was a switch at closing with the borrower and very likely a switch at closing with the real lenders — the investors who thought they were buying valuable mortgage bonds. With the borrowers the closing agent took money from an undisclosed party and then had the borrower sign documents in favor of another party. With the investors, the investment bank took money from the investors and instead of funding the trust, used the money and the documents from closing as though it were their own.

Hence the need to fabricate endorsements, assignments etc. If the “securitization” of the loan had taken place there would be a chain of monetary transactions leading up to the ultimate transfer to the trust who would have issued payment for the loan. There would have been no need to fabricate, forge, or robosign documents and certainly no loss of loans due to destruction or misplacement, because the documents would have been forwarded to the named Depository.

The result was that the burden was placed on borrowers with the least access to the real information on the loan and an easy path of defense to the party with the most access to the real facts of the loans and alleged transfers of the loan. TILA was meant to level the playing field. If the borrower invoked rescission without right, then there were consequences. This law was passed to prevent predatory lenders escaping the consequences of illegal actions simply because they had greater resources, sophistication and factual knowledge.

Be careful here. There are several types of rescission — 3 Day, 3 Year and common law. Consult with an attorney who is licensed to practice in the jurisdiction in which your property is located.

For more information call 954-495-9867 or 520-405-1688

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Merritt v. Countrywide Financial Corp.

9th circuit opinion Issued July 16, 2014

Summary: Plaintiffs filed suit against Countrywide and others involved in their residential mortgage, alleging violations of numerous federal statutes. The district court dismissed the claims with prejudice and plaintiffs appealed. The court held that plaintiffs can state a claim for rescission under the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., without pleading that they have tendered, or that they have the ability to tender, the value of their loan; only at the summary judgment stage may a court order the statutory sequence altered and require tender before rescission – and then only on a case-by-case basis; and, therefore, the court reversed the district court’s dismissal of plaintiffs’ rescission claim and remanded for further proceedings. The court held that, although the limitations period in the Real Estate Settlement Practices Act (RESPA), 12 U.S.C. 2614, ordinarily runs from the date of the alleged RESPA violation, the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the violation; just as for TILA claims, district courts may evaluate RESPA claims case-by-case; and, therefore, in this case, the court vacated the dismissal of plaintiffs’ Section 8 of RESPA claims on limitations grounds and remanded for reconsideration.

Merritt v Countryside 9th circuit 09-17678-2014-07-16

 

63 Responses

  1. Who is Authorized to change the trustee in a securitized loan. US Bank National Association was the Trustee before we went into the Bankruptcy Process. Once the Bankruptcy proceedings started, Wells Fargo’s (Servicer)’s Attorneys created documents to appoint individuals within thier lawfirm as trustees. Im no attorney, but something just does not seem right about that. James 443 677 2799 jsmith5915@msn.com

  2. You are Welcome. If you didn’t get the email, let me know. Best Wishes!

  3. To mycookiejars
    Thank you. I appreciate that.
    experiencedprey@yahoo.com

  4. Experiencedprey. Post your email address and I will see if I can get you some help.

  5. I rescinded a loan in 2007. The servicer finally agreed respond after 11 weeks, when I turned down their loan offer for more money rate, 2% higher and payments of another $1000. well over out income. suddenty an un-served foreclosure, by subsidiary pretending not to know about the conflict, same matter, in the same venue. Then the back dated assignment, one year, by a party that appears to have assigned itself to the mortgage. this new assignee, assigned the non mortgage FOR the assignor, by its own representation of and for the assignor. Without substitution in the foreclosure, as judgement was decided, ignoring all I said, and claiming I did not say what I said… it became the party. after judgement, there was reconsideration. Reconsideration means civil judge moves the new party to implead since it had “bought” the loan from one of defendants./ Judge pushed and pushed until he humiliated me into taking his bogus settlement. of course they did not meet stipulations, said they would not deed in lieu, but did so… I want to do the securitization with Neil, but I do not have a NJ attorney??? anyone know a smart attorney in N J. forged mortgage, several forged HUD 1s and falsified income, 22x my income. the mortgage broker put us into back to back mortgages, and piled in debt, no sure double payments and debt that was not ours, then they refied, just found out it was a reinstated cw mortgage released after reinstatement by recontrust, in 2006. Think RBS brought it to the new servicer. then into book-entry, certificate account receivables. Need to get securitization review and new lawyer, it is a whole new set of parties that I did not have before, and it has been 8 years of agony.

  6. And for the record, their case was dismissed NOT hers. She was awarded $80,000 in legal fees! Ole Jamie Boys bonus is shrinking at a rapid rate. 🙂

  7. Someone here is FOS all the way up to their ears! The lies just keep building, eventually they will consume you! I would request you prove it since you keep notes of the posts n time n dates, but we all know that statement is not to be found because she posted No such thing! Maybe you should stick to the basics, things you can prove beyond a shadow of doubt, like my spelling. No one has any use for a lier. Get it?

  8. Thanks…the very real empathy I have for all here and everyone in this mess is profound. We are “real victims” and no one going through this should be abused, berated and intentionally insulted. This fight is heroic for those who have taken on these thugs.

    In the end, this will implode, one at a time, we will win! The vast majority of people being stolen from are not in any way deadbeats…they are real people, with lives, that have been crushed, because they believe they are somehow at fault. The emotional cost is much higher than the financial one and the lack of compassion is palpable.

    For me, there is value in every single bit of input….there is very little assistance out here. At the end of the day, if I thought it would help just one person, I’d give all I have and stand before any court and tell my story! This is no joke and anyone blogging on here saying, oh yeah, she lost her/his house, told you so…Please!

    What is in it for them to say such all over the blog? And why? Just so I am understood, I find great value in the cases that have been ruled against by the judges…there is a lot of information in them and many of them are spot on. Just because you don’t know procedure doesn’t mean your case is a loser…conversion by counterfeiting, fraud, perjury, etc…is a criminal matter.

  9. Poppy, I apologize. When someone called nasty Christine from Ohio out for her insulting and hateful comments and said, “you are a bully and give us your name.” She posted your name instead. So, now I guess she is even more egregious than we thought. In any event, the whole mortgage mess is rigged against us with forgery, fraudulent documents, fraud on the court, unjust enrichment, etc. As I have said previously, what goes up must come down, and it will eventually all come out.

  10. IN a final attempt to clear this up, in the event people do not know: I am not in any way affiliated with christine here…I do not share her belief system, thoughts or rage toward this country. My name is correct: Christine Konar, not christine from Ohio…I think calling people out here is specific and done with malice to diminish what they say and control the blog. And I fully stand on the high ground of helping others, in any way possible. christine is bright, but uses all that intelligence for all the wrong reasons.

    I have tried numerous times to share what I know…

    I have always believed helping one another is the key here. Neil has allowed a select few to slander, malign and abuse the decent bloggers. Why is a good question? My cases are all pending and I firmly assert, like UKG and some others, the judge is the key. My cases are rock solid and the information I have has real value, but I will no longer post here, due to the abuse, personal attacks and twisting of the facts.

    This cover up by the government is specific and intentional. People here are not morons, idiots or the like, they are real victims and should be treated with dignity, respect and compassion.

    And don’t think because the judge has ruled against you it is over, you say when it is over! Even if or when your property is taken the litigation can continue for years. Winning is a very subjective matter…all is not lost because the thugs “think” they have gotten away. Equitable tolling is an issue with torts and common law recession as Neil says, one of the few things I agree with. And let’s not forget the contract…the securitization matters with regard to standing and the party suing you! Final Note: UKG…says let’s call this what it is: Counterfeiting, forged documents and perjury…in a nutshell! You bet!

  11. Louise aka Loser. You are grasping at straws again. And you wonder why people aren’t lining up to help you? Scratch!

  12. G, please read the new rules on the CFPB that came out this Jan. 2014. Will be very enlightening.

  13. Mycookiejars aka Stripes: Christine posted that herself some months ago, and I made notes.

  14. Poppy aka Christine Konar. Never Mind!

  15. You are Welcome Gabriel. Best of Luck to You!

  16. Wrong Christine Louise. Oh My Heavens! ROTFLMBO!

  17. Konar v. Ocwen NC Learn how to spell. Discretion I will find it anyway. It is not surprising that Christine does not want to help others. She made that amply clear on other occasions.

  18. You need to post your email address and the info will be sent to you at her discression.

  19. Yes, ole christine is always right! Not in this instance I’m afraid…joke is on her. Research as I have said many times before…the most important part of any conversation….LOL My-oh-My same shit-different day…how’s your case going? Remember the damages are in them taking the property unlawfully! FYI: my house is great, doing some upgrades as I type! Keep listening to her…to your peril. Bye-Bye…

  20. Post the full name of the case so that we can read it. Thanx.

  21. What case is that? Where? What State?

  22. Ut Oh! Judgement issued against Chase! My Friend Christine went for the juglar and aorta. I like her Style! Congrats! Let’s All Give Her A Big Hand! Hip Hip

  23. You mentioned MERS has no authority to assign the DoT (mortgage) They just did 8 years after the cut-off date in my case.

  24. If they aren’t on the phone looking to hire an attorney in the jurisdiction the property is located after all that,, I don’t know what will. My Bladder is Empty.

  25. 1. The Note. 2. The Note and Mortgage together. Pisses Me Off!

  26. MERS has authority to assign the note as nominee for the lender. But because the note and the mortgage was seperated they have no authority to assign the mortgage. Especially under the pretence of authority of All trustees and or benificaries. Pisses Me Off!

  27. Plaintiff as a non borrower sayeth, the Note the Defendent refers to, is the Plaintiffs note as one half of the estate.

  28. O yes that too. California Supreme court said so…!

  29. Poppy, they are all debt collectors. They all run a business that uses illegal tactics to collect debt if they even own the debt. Their paperwork is notoriously fraudulent, forged and feeble. My latest BS assignment assigns only my mortgage and not the Note from an entity that went out of business in 2007 to a trust that closed in 2006 and does not exist. All this dated October 2013 with squiggles by the same person over lines with different names, i.e. forged.

  30. Ocwen is the scumbag debt collector for your trustee. Mr Scott Anderson, a man wearing many hats. Poof!

  31. WB Poppy! Dag Gone It Christine was Right. You lost your home to the state. Why didn’t you listen to me and pay tax n ins? GRR! How are you?

  32. My $.02 Ocwen is a debt collector….

  33. How did you look for it? Who is yours?

  34. Deb, did you find the RPII? I did. Most would jump for Joy, it Pissed Me Off! 😦

  35. IMHO, Ocwen Loan Servicing is a criminal enterprise. I cannot believe they are allowed to do business. The answering services it has are not even in the State but in India. When you talk to them and ask for their employee number, they say they cant. It is company policy. They give you a false name to top it off.

  36. You are Welcome Gabriel, now get yourself an Attorney! Deb, after the. Ibantz ruling, I’ve always known by daughters house was in jererdy to the previous owners claims to the property. I watch your case closely.🙂 keep up the Good Work!

  37. Deb,
    From whom are you requesting the 1099A and C forms? From the IRS? Is there a specific way to request them?

    Thanks

  38. I am planning on sending certified letter to CFPB re all the krap that Ocwen is doing esp. not replying to 3 certified letters re $55 illegal fee in violation of court-ordered settlement agreement.

  39. Many Blessings To All!

  40. Title reports run about $100. 🙂 . A Good Attorney, Priceless!

  41. Nope still waiting Louise. I also asked for 1099c. Nothing yet. I referenced my lawsuit and a few other things .

  42. Now Vicky the Real Trustee believed that the trustee deed she granted as Trustee was (to) be made out to hubby n me as on sales contract. She knew nothing about a trustee deed supposidly granted by her to my hubby n the law firm that represented her deceased parents. She did not give them POA to sign for her as Trustee. The house was the final sale for the estate and she thought her parents trust was closed in 2007. Imagine That? Lawyers needing Lawyers.

  43. @mycookiejars
    Thanks = )

  44. The very same company who took title after the bank FC on the previous owner.

  45. After 3 diffrent parties and the closing of NC BK in June the new party in my daughters 8yr old rescission case is the asset co. Imagine That?

  46. Wild Deeds. No Trust until its filed! But then again you have to own it if you want to convey it, Right? Ut Oh! Title still in deceased seller estate trust and the Trustee happens to be the asset co . One in the same. . . the one on the unfiled WD. Made me think . . HMMM. Butt butt after the sellers death their daughter became trustee of the trust. Any guesses why she and I going after her parents attorneyV

  47. Oops intrest. Not inrest.

  48. Real Party In Inrest. RPII

  49. My husbands net worth is 1.4 million (their #s not mine) of which I am benificiary with right of survivorship. They snookered us into believing we were signing a mortgage and giving a lien on a property we thought we got title to. When in fact the life estate was put into trust whereby another party used our assets to gamble and enrich themselves unknowst to us. The plender aka asset co holding unfiled WD.

  50. Educate me please; What is RPII?

  51. Deb, did you get a a response from the IRS?

  52. Right cookie and since at THAT time before I discovered more material facts that meant exactly what you proffer my intent was to find the RPII.

  53. I am looking forward to see them do time for their Crime. An Assignment of DOT was recorded in the land records dept. 8 years after the cut-off date by Lee Lisa Vang. I think she may have worked for LPS before but now works for Indecomm Global Services or Wells Fargo (not clear yet). But claims to be assistant secretary for MERS. IT was notarized by Sandra Jean Kinnunen who I know works for Indecomm Global Servicess. Yet she also holds many titles for many servicers. They should be thrown in jail for a long time.

  54. LPS pissed me off when I found out how they were using our acknowlegements. That was the clincher to My decision for early retirement. But the Buttwipe who forged my signature to the mortgage will do the Time for the Crime!

  55. That my Friends is why my husband and I needed seperate attornies. Lucky for us the transaction is void from the get go. BOA is MOOT! Anything following Nothing is MOOT!

  56. You don’t tender that kind of money to a non party to the. Transaction or a party who has no authority to file a satisfaction of mortgage. And when you have multiple parties with different accounting figures and a forged contract with different terms than the one you signed you hire an attoreney! Of course you want the RPII to step forward!

  57. When I asked who the investor of my Loan was five years ago ( before I knew about securitization illusions “switcheroo” guess who I am in relation to your debt type game” in court
    I got ” Wells Fargo is the investor of your loan” and ” you must not contact them” this came from servicer who says they are lender on 1099a – now where does the trust come in ? This is why I rescinded to flush the real party in I retest out. If I tender minus equitable setoff then they must account for it, that is why it was done because they were covering up- same here I but some BS reason why I could not do that and no accounting. Since then I have 3 different amounts given as owed I’m talking a lot if variance, they don’t seem to be able to make up their minds who is who and what us owed. I decided to get the IRS involved.

  58. Thanks. We always need the actual lawsuit not the comments or synopsis. Need them so that you can use them as exhibits or citations in pleadings.

  59. My daugher divorced 5yrs ago. She Got the house in the divorce settlement. The mortgage is only $32,000 more than her annual salary. And she has Equity, not underwater. She to pays an Attorney and not RENT!. Justice is Slow, but its Coming!

  60. Louise, as did my daughter and son n law after finding that New Century had taken a FHA and conventional loan on their purchase In early 2007. Any guesses who put the money down n made repairs? The seller was Ocwen for USBank FC. They responded and said they failed to state a proper recission claim and followed up (tried to cover up) with a FC. 8yrs n going. The kids were fresh out of collage at the time and their credit tied up since then. I just signed the title of the Jeep over, I’m da Banker to them. Hang in There!

  61. The link to Merritt v. Countrywide is broken. I have seen in courts wherein the judge does not or will not even consider TILA and RESPA. I personally sent in a rescission letter years ago and nothing came back.

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