Banks Struggling with Notices of Rescission

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

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We are starting to get a peek at the strategy the banks will employ in dealing with notices of rescission. In one case the homeowner sent the notice of BOA, who answered that they received it (one problem solved) and that the new servicer is Ocwen (whose business practices have been the subject of a cease and desist order for failing to comply with prior “settlements” and “consent judgments.”)
The obvious strategy of the banks is to try to raise issues that the foreclosure judge can rule upon, in which the notice of rescission is declared void WITHOUT the required lender lawsuit seeking declaratory relief from the rescission — an absolute 20 day requirement under the Truth in Lending Act (TILA). And no matter how much philosophical discussion might ensue, this is precisely why TILA was drafted and passed by Congress and signed into law by the president — all in the wake of the savings and loan scandal that shook the industry in the 1980’s and put over 800 bankers in jail. As the US Supreme Court ruled in a unanimous decision written by Justice Scalia a couple of weeks ago TILA is specific consumer remedy that must be strictly construed.
When they tell you there is another servicer they are trying to re-start the 20 days to file a lawsuit they don’t want to file containing allegations they don’t want to allege, and requiring proof they cannot satisfy. It won’t work. So far, so good. They will probably try to say you sent it to the wrong “servicer” and that therefore your notice of rescission was invalid.

The foreclosure judge will be inclined to accept any argument against the effect of rescission. But TILA is very specific, it is Federal law, and the CFPB regulations under Dodd-Frank make it pretty clear that the shell game won’t work with respect to the notice of rescission. AND their response corroborates your position that they have been continually withholding the information that should have been disclosed at the fake loan closing.

According to CFPB regulations they are all servicers and they are all “good” for service of the rescission letter. You COULD send a COPY of the letter you sent to BOA to Ocwen Certified, return receipt requested. My suggestion is do not send a brand new letter. The clock is ticking. After 20 days has passed we will move to dismiss on the basis of the rescission. The so-called “old servicer” has an obligation to forward the letter to the lender and any other servicers. The 20 days, in my opinion, keeps running from the date of the mailing of the notice.

The long and short of it is that once the notice of rescission is sent (certified mail, return receipt requested) you are now in process on this strategy. The best is that (a) they won’t respond at all which your lawyer can argue they waived the defenses because of the statute of limitations contained in the Truth in Lending Act (TILA) for failing to file the required lawsuit within 20 days or (b) they will write back threatening something, which is not the response called for by TILA or (c) they will bring a lawsuit to declare your rescission void. No matter how this turns out I see it as being potentially beneficial to the homeowner.

If they sue then they need to establish standing and allege facts that they are not being required to allege and prove in foreclosure actions. They have been fighting against being required to plead or prove those facts for 10 years. So we can safely assume they can’t allege those thing and they certainly can’t prove those things.

By “those things” I mean ownership and balance. They have to allege they are the lender or they are representing a lender and SHOW that authorization. Contrary to foreclosure actions where courts have been incorrectly ruling that they only need to prove they are holding the paper, the Declaratory action that must be filed to counter your notice of rescission must allege and prove the identity of the “lender” (i.e., the party who loaned you the money or a true successor — i.e., a successor who actually purchased the debt and wasn’t simply a naked recipient of the the bogus paperwork).

Either way you are

(a) going to get rid of the mortgage and note and you will receive a ton of money just for what you paid the pretender lender at closing or the transferees of the bogus paper — which means that you cancel the note, void the mortgage so it is no longer in your chain of title — AND a receive a ton of money for the payments you made for interest and principal on a monthly basis going back to the inception of the fake loan closing, AND/OR

(b) going to get a ton of information that the foreclosure court might not otherwise allow you to reach in discovery (request for admissions, interrogatories, request to produce, depositions) .

My guess is that they are not ready to file any such lawsuit and will try arguing to the foreclosure judge that they didn’t need to because the rescission letter was defective on its face — usually the statute of limitations or the failure “to identify the violations in the letter.”

On that last point, there is no doubt in virtually all cases across the board that the notice letter need only state your rescission. Any reason for the rescission becomes a question of fact later only if the “lender” challenges the rescission letter within the 20 day period.

As to the statute of limitations, it doesn’t apply if the “lender” withheld the information that should have been disclosed. THAT is a question of fact, and THAT too must be brought up in their lawsuit (which is the ONLY way to comply with TILA on a TILA rescission).

But they will try to lure the state court judges into ruling on the sufficiency of the notice of rescission. The state court judge will be tempted to do it because he or she will see that the house is about to become free of the of the mortgage and that the lender will owe money to the borrower — two results the judges still dislike.

That strategy might work a few times but it won’t work long, in my opinion. TILA is a specific, explicit statutory remedy that cannot be interpreted in the context of common law rescission or any other rescission for that matter. The Court is required to treat these “lender” arguments (and even the question of whether the presenting party is in fact a “lender’) as a question of fact that MUST be raised in a separate lender collateral action seeking declaratory relief in a separate lawsuit.

31 Responses

  1. @ iwnatmynpv,

    The Kurds are our friends. There is a great book, “The End Of Iraq”. It forecast partition long before it was popular to admit a lost cause.

    There will never be a Jeffersonian democracy in the region we call “Iraq”; a cobbled-together collection of misfit states and culturally incompatibles; heirs not-so-much to the residue of the once Hashemite kingdom of the Hejaz as more the heirs to Western treachery in the aftermath of Anglo-French colonial misrule and Sykes-Pichot.

    Moreover, the Kurds are sitting atop Kirkuk, which, by the way is their ancestral holy land. It also happens to be where the third largest oil reservoir is located; as yet untapped.

    The Kurds boast the “Peshmerga” – those that face death; some of the finest fighters in the region.

    I never meant to suggest I feel “Sunni” Saudi Arabians are our “friends”, instead, merely allies.

    “The radical muslims want to kill us all because of their hatred for western culture.”.

    That may be true…

    If you were an indigenous and your religion precluded you from sex until you could provide for your prospective mate with the appropriate dowry, you might feel frustration also…

    Or, if instead, a Catholic, like me you would probably stretch the rules and answer to God later.

    I’m not sure if you have noticed it but sex is a big hit. It is also true that young men wish to provide for their families and be successful.

    The Western Oilmen have been exploiting the mineral resources of that region since forever and they oftentimes bring in foreigners to perform the work, to the exclusion of millions of frustrated young men…

    Come to think of it, “hatred” may not be a strong enough word.

    And don’t kid yourself, the bankers are on the ropes and a convenient war will more than suit their purposes. 30,000 Sunni extremists posing as an international terrorist threat is a “put-up” job.

    The real extremists are the Sauds whose ancestral coat of arms embraces their family name while linked through crossed Scimitar of their religious obeisance to Wahabism.

  2. @ michaelkeane – none of those folks in the middle east are our friends. We may act as a paid acquaintance to several of these states, but hardly friends.

    They may not have a bulkhead in south jersey – but one need go no further than Newburgh to NY to see that we have the same off-limit zones as France. Does not mean all Muslims are bad. But when Tim Mcveigh went on his rampage – I had no problem investigating all of the lads associated with him.

    McVeigh was a murderer who killed innocent people because of his hatred from the federal government. The radical muslims want to kill us all because of their hatred for western culture.

    This is not a diversion tactic, the timing of events may be diversionary – but the hatred is very real, and they hate us all equally.

    I do remember that 90 of the hijackers on 9/11 were of Saudi decent – “with friends like that – who needs Dick Cheney, er, i mean enemies.”

  3. Okay, jimmy rivera, this is for you fwiw. NG said in his post:

    “On that last point, there is no doubt in virtually all cases across the board that the notice letter need only state your rescission. Any reason for the rescission becomes a question of fact later only if the “lender” challenges the rescission letter within the 20 day period

    I’m sorry I had nothing to contribute toward this post. But, I can say this:
    I don’t agree that the letter need only state the rescission (but I’m no auth on this). Why the heck would anyone want to put fuel on the fire by leaving it out of the letter? If it were ME, I’d put it in the letter. But a caution: one’s reason could become the subject of an argument just as easily. Kind of a catch-22, depending on the actual language of the Act. So best thing to do imo is if you’re going to state a reason for your rescission, make darn sure the reason exists and that it’s consistant with grounds for rescission. It’s my limited understanding that upon
    notice of a borrower’s rescission, the lender must do certain things within a set amt of time. That includes returning anything of value the borrower gave the lender: points, fees, payments made to date and so on. When those funds are returned, they should come with an
    accounting. This accounting should also include a stment of the amt the borrower must then tender.
    As to argument out of the lender regarding the expiration (or not) of the statute of limitations as to the rescission, in my unknowledgeable opinion, a letter out of them stating they won’t rescind because one is beyond the s of l (or whatever) won’t cut it. I feel they must rescind or become liable for not doing so. But in reality, what will likely happen is they’ll send such a letter and thereby force the homeowner, the consumer, to be the party to bring suit. In my also unknowledgeable opinion, they have provided grounds for a separate cause of action: failure to rescind (in addn to the cause of action for the rescission itself). But, unless an army of people work on ways to pile up sanctions and support for the causes of action for that failure to rescind, the issues before the court will be limited to whether or not rescission is available. The bottom line of all this is the homeowner will be the one to have to bring suit, right or wrong. My thoughts are if that happens, they should be made to pay.
    Two causes of action:

    1) failure to comply with x,y, and z of the tila act
    (they didn’t refund monies, reconvey dot, whatever is their
    tila mandate to do)

    2) rescission pursuant to tila, which right for (specific) cause is established by a,b,c (not the xyz above) of the tila act

    If it’s necessary to allege and establish damages (no opinion) for the first one, darn well better have them lined up.

    these are strictly lay opinions – ask a lawyer or 10

  4. I take it Jimmy does not have an attorney. Another bites the dust.

  5. @ iwantmynpv,

    “… we the people must exterminate the radicals …”.

    Why? Has ISIL established a beachhead in New Jersey I am not aware of?

    If so, I’m in.

    In the next sentence you say, “… the banking families have been the cause of more deaths … etc.”.

    Well, that is precisely what they are attempting to do yet again by trying to inflame Americans into another misadventure to “exterminate (ISIL) radicals”.

    The people bent on stealing your homes are intent upon creating a distraction. They are insolvent. The international central banking system is insolvent.

    First they over-speculated in “Sub-Prime”; then , in order to capitalize their losses they created 682 Trillion as owed to “Notional Derivatives”.

    Rand Paul knows it and started spouting off about it and then, quite suddenly, he stopped.

    One of the first people to try and explain the 682 Trillion Dollar shortfall was, in fact, Rand Paul… and then, he stopped.

    I don’t wonder why he stopped. He was told to allow the war-mongerers yet another chance to change the dialogue.

    ISIL are “Sunni Muslims”. The Sunnis have historically been our allies; specifically the Saudis.

    The difference between “Sunnis” and “Shias” and the bone of contention between them is the claim to how close their “sect” is as a direct relative of the prophet Mohammed; one claims ancestral heritage through a daughter; the other through an uncle.

    This division has allowed the Western Central Banking “Troika” to exploit that difference and switch from “cold-war era proxy wars” to the new paradigm: “Sunni-Shia proxy wars”.

    Evidence: Iran (Shia) – Iraq under Sadam (Sunni-led) 10 year war that spent MILLIONS of lives.

    ISIL, despite the NEW BUSH they are trying to plant in the white house, and his statement they number some 200,000, only number some 30,000.

    The Kurds, if properly supported, will have them for lunch.

    The Iraqi army numbers some 300,000 and was trained by the world’s leading military industrial complex – US. If they opt-in, they will have to hope the Kurds leave enough ISIL on the plate before lunch is over.

    The central bankers, worldwide, are under assault, and rightly so. They are trying to distract millions while stealing their homes. People in Europe “get it”. They are not going to succumb to “Austerity” so that Wall Street can sneak out the side door.

    Let the local Sunni regimes, Kurds and Shia Sects “exterminate” ISIL. We The People should focus on Exterminating the Central Bankers.

    We The People must force money out of our politics… PERIOD.

    We The People must force our politicians to repudiate the current central banking paradigm.

    We The People must expose the foreclosure fraud and the corresponding derivatives taken as “bets” you will default on your loan payments.

    The good news is there are alternative currencies available to the insolvent “Federal Reserve Notes” and prosecuting the bankers will restore the rule of law.

    We seem to have aggravated Geraldo’s brother. Someone should explain to him the recent Supreme Court ruling is not about “a new recession” as it is about defeating the phony banker recession through “rescission” of the international central banking criminal scam.

  6. No wonder we can’t make any headway, with all you weirdos taking all that shit.

    Doesn’t anyone have any comments about the topic of this post?

    Can I at least get Dan Edstrom, Livinglies Emeritus to comment?

    Or even you; Neil?

    WTF?

  7. Do you know how to read?
    This post is about the new recession ruling by the supreme court

  8. @michaelkeane

    So, we have Rand Paul – he will never get more from the one party system that hides behind two brand names. “The illusion of choice”.

    I am voting for the guy if he runs. he need to change his foreign policy a bit to reflect that truly sadistic muslim terrorists do exist and that we the people must exterminate the radicals, but he definitely understands that the banking families have been the cause of more deaths and civil instability in the world than all religions combined.

  9. Desktop originator / desktop underwriter – agency swim lane

  10. “TITLE 12 — BANKS AND BANKING
    CHAPTER 27 — REAL ESTATE SETTLEMENT PROCEDURES

    12 U.S.C. § 2605. Servicing of mortgage loans and administration of
    escrow accounts……………

    k) Servicer prohibitions

    (1) In general — A servicer of a federally related mortgage shall not

    (A) obtain force-placed hazard insurance unless there is a reasonable
    basis to believe the borrower has failed to comply with the loan
    contract’s requirements to maintain property insurance;

    (B) charge fees for responding to valid qualified written requests
    (as defined in regulations which the Bureau of Consumer Financial
    Protection shall prescribe) under this section;

    (C) fail to take timely action to respond to a borrower’s requests to
    correct errors relating to allocation of payments, final balances for
    purposes of paying off the loan, or avoiding foreclosure, or other
    standard servicer’s duties;

    (D) fail to respond within 10 business days to a request from a
    borrower to provide the identity, address, and other relevant contact
    information about the owner or assignee of the loan; or

    (E) fail to comply with any other obligation found by the Bureau of
    Consumer Financial Protection, by regulation, to be appropriate to carry
    out the consumer protection purposes of this chapter.

    (2) Force-placed insurance defined — For purposes of this subsection
    and subsections (l) and (m), the term “force-placed insurance” means
    hazard insurance coverage obtained by a servicer of a federally related
    mortgage when the borrower has failed to maintain or renew hazard
    insurance on such property as required of the borrower under the terms of the mortgage.

    (l) Requirements for force-placed insurance — A servicer of a
    federally related mortgage shall not be construed as having a reasonable basis for obtaining force-placed insurance unless the requirements of this subsection have been met.

    (1) Written notices to borrower — A servicer may not impose any
    charge on any borrower for force-placed insurance with respect to any
    property securing a federally related mortgage unless —

    (A) the servicer has sent, by first-class mail, a written notice to
    the borrower containing —

    (i) a reminder of the borrower’s obligation to maintain hazard
    insurance on the property securing the federally related mortgage;

    (ii) a statement that the servicer does not have evidence of
    insurance coverage of such property;

    (iii) a clear and conspicuous statement of the procedures by which
    the borrower may demonstrate that the borrower already has insurance
    coverage; and

    (iv) a statement that the servicer may obtain such coverage at the
    borrower’s expense if the borrower does not provide such demonstration of the borrower’s existing coverage in a timely manner;

    (B) the servicer has sent, by first-class mail, a second written
    notice, at least 30 days after the mailing of the notice under
    subparagraph (A) that contains all the information described in each
    clause of such subparagraph; and

    (C) the servicer has not received from the borrower any demonstration of hazard insurance coverage for the property securing the mortgage by the end of the 15-day period beginning on the date the notice under subparagraph (B) was sent by the servicer.

    (2) Sufficiency of demonstration — A servicer of a federally related
    mortgage shall accept any reasonable form of written confirmation from a borrower of existing insurance coverage, which shall include the
    existing insurance policy number along with the identity of, and contact
    information for, the insurance company or agent, or as otherwise
    required by the Bureau of Consumer Financial Protection.

    (3) Termination of force-placed insurance — Within 15 days of the
    receipt by a servicer of confirmation of a borrower’s existing insurance
    coverage, the servicer shall —

    (A) terminate the force-placed insurance; and

    (B) refund to the consumer all force-placed insurance premiums paid
    by the borrower during any period during which the borrower’s insurance coverage and the force-placed insurance coverage were each in effect, and any related fees charged to the consumer’s account with respect to the force-placed insurance during such period.

    (4) Clarification with respect to Flood Disaster Protection Act — No
    provision of this section shall be construed as prohibiting a servicer
    from providing simultaneous or concurrent notice of a lack of flood
    insurance pursuant to section 4012a(e) of title 42.

    (m) Limitations on force-placed insurance charges — All charges,
    apart from charges subject to State regulation as the business of
    insurance, related to force-placed insurance imposed on the borrower by or through the servicer shall be bona fide and reasonable……”

    This is a take out. The entire thing might be worth a read.

  11. I’ve always felt, without justification, that the target was the Euro.
    On March 31, 08 it was at 1.5785 v the dollar. Today it’s at 1.1179.

  12. dwynn – win, lose, or draw, I want to tell you again how much I admire your tenacity.

  13. Thank you shadowcat.

    I googled it after posting here and I was surprised it came up and explained it pretty well. …

  14. You request it in discovery Java.

  15. Desktop Underwriting system.

  16. Bottom Line Obama is a DEMAGOGUE.

    NEVER AGAIN

  17. NPV. What is see DO/DU ???? Thanks

  18. @ iwantmynpv,

    I didn’t “forget” anything. It is an annoying habit I have.

    The point is: It is within our power to question the present solvency of those who are stealing our homes.

    The first step is to define the problem; a pre-requisite to any solution to any dilemma.

    A don’t feel I am out on a limb attempting to explain both political parties as lap-dogs of the bankers.

    The unique ability of the electorate is that it is structured in such a way that change can take place. I think you and I last left it at shorting the banks, even as you suggested We should start right away.

    I couldn’t agree more.

  19. @ The A Man,

    The real problem the “Federal Reserve” has is the American People.

    They are parasites on our financial system and they have become so through misdirection and fraud.

    America will become irrelevant when We The People fail to hold the central bankers in this country accountable. Central bankers elsewhere are already under assault, most notably in Greece and the PIIGS countries (Portugal, Ireland, Italy, Greece and Spain).

    The central bankers have already attempted to force the Chinese to “float” their currency on the international currency exchange, to no avail. The Chinese are not so stupid.

    Once any country is so foolish as to agree to let international speculators to devalue their currency, the game is up and the bankers win.

    The central bank in this country was used as a model to create the IMF and World Bank. The American Dollar was adopted in 1942 as the “International Reserve Currency”, or, “Sovereign Currency”.

    Because this is true, the American Dollar is the pre-eminent currency on the planet and it underpins all the other currencies internationally.

    Unfortunately, most Americans are unwilling to commit themselves to understanding how it is our financial system is supposed to work. I can only suggest everyone read “The Web of Debt”, by Ellen Brown.

    Right now, in this moment, the central banks are all, insolvent and are expecting to take your house through foreclosure in order to give themselves the appearance of solvency.

    The answer is: repudiate the central banks, repudiate their phony debts and reinstate the “Greenback” because it already exists in our national treasury as a viable alternative to the bankrupted central bankers and their equally bankrupted, “Federal Reserve Notes”.

    Presently, the bankers are propping up the stock market against the day they intentionally decide to take it down.

    The British Pound is fixing to create a new surrogate: Australia. The bankers have decided to shift their focus to the Pacific Rim Countries with the Pound and Australian Gold leading the way.

    That way they can begin the systematic exploitation of China and India without the bother of an economically viable middle class in America to get in their way.

    This is the purpose of the TPP; another “free trade agreement” designed by international central bankers to target and destroy the American middle class.

  20. @ michael keane – you forgot about the New Deal and Social security. Who do you think we borrowed the money from for Roosevelt to set in place the infrastructure projects that put the folks back to work.

    It would have been impossible to instill a tax and the FRC was not lending America any money until we instilled the fractional gold standard and set up a revenue source to pay the interest on the debt / loan they made to Treasury / we the people.

    Since raising income or excise tax at that time was impossible – they instead created a new revenue stream called Social security. They called it an entitlement and than proceeded to steal the money every year to pay the interest on the debt owed on the Treasury Notes we issued to the FRC.

    50 years from now – folks will look at socialized healthcare and realize that it was put in place to take more from the folks that can least afford it.

    I keep telling you… mortgages are a segment of the banks business – they will pay as an industry about another 100 billion in fines and some bullshit homeowner programs designed to fail, but ultimately, they have moved past mortgages, and we are not rivals, we are the aftermath.

  21. So we shall see what they do
    I think it might be interesting.

  22. Oh i have thrir responses but they were well outside the 20 days but i still informed them if they want to argue to file a declaratory action
    I have it all

  23. Michael Keane

    The real problem the Federal Reserve has is China and India.
    Once these two countries establish a middle class. America becomes irrelavent.

    The US Government went after Steve Wynn and Milken Sheldon Arrison. What did they do?

    MACAU twice as large as Las Vegas. The US Government and the banksters thought they could run Las Vegas. Well they did to the ground.

    Teddy Roosevelt and his Anti Semite Franklin Roosevelt who let the jews die in the Concentration camps.

    Back then India and China were nothing. Now they (we) have a real problem.

    NEVER AGAIN.

  24. Technically Neil is right. Sorry Rock. I was witness in such a case and the servicer did exactly as Neil describes above. The outcome was favorable to the borrower. I wrote the rescission letter myself for the borrower.

  25. Can someone please tell me how the loan service agent’s are taking the entire write-off for principal reduction before it is forgiven.

  26. Java, they only claim they own the note that was originated on that date, see DO / DU. It passes desktop they buy it, it’s that simple..

  27. @ The A Man,

    Both parties are in thrall to the intentionally mislabeled, “Federal Reserve”.

    If you call yourself a donkey or you call yourself an elephant,
    Do US all a favor and realize you are irrelevant.

    The game is fixed through banker’s tricks,

    And anyone with half a knows can tell just by the smell of it.

    The American Dollar must be preserved. The only lawful way to do so is to repudiate 100 years of fraud sheltering amidst the currency created as “Federal Reserve Notes”.

    Then, We The People should force our politicians to a “Loyalty Pledge” wherein they publicly acknowledge the falsehood that is the central banking system.

    Then, We should begin prosecuting bankers.

    Article 8 in the Constitution explains congress has the power to “coin” the money of the US…

    NOWHERE does it say, “Private bankers, with ties to foreign countries, have the power to create money, out of thin air, on computer screens and then hold American Taxpayers accountable for the result”.

    The “Federal Reserve Act” was created, through sleight of hand in 1913 and it is presently, an insolvent disaster.

    The 16th Amendment was also created in 1913 and it was designed to use American Taxpayer Money to pay private bankers to mislead generations of our politicians.

    Taxes, I feel are necessary because the US has adopted the role of “International Policeman” and until We The People regain control of our government there will be no change.

    In 1953, international bankers and oilmen from British Petroleum orchestrated a coup against a democratically-elected Iranian Colonel named “Mossadeq”. The British enlisted the aid of the American CIA to do their dirty work for them.

    The grandson of Teddy Roosevelt, “Kermit” Roosevelt, led the CIA and British response to Mossadeq and his promise to “nationalize” the Iranian oilfields; he promised the Iranian people they would collect on the oil riches beneath their feet.

    Of course, British oilmen couldn’t have that happening, so, the rest is history.

    Nowadays, the bankers just steal people’s homes without “due Process” and the misguided want to blame one political party or the other.

    It is past-time We The People gain an understanding of the big picture and force money out of our politics so truth can take its place.

  28. Mine was done timely properly backed up with numerous cease and desists and cited in my lis pendens, ( which was exponged) i have requested the ninth circuit view the case en banc in light if this new decision from the US Supreme court.

  29. Lets face it our government under Obama supports the Banksters and Iran.

    NEVER AGAIN

  30. How could Fannie or Freddie claim to be the “owner” of the mortgage on the day the loan closed ????
    Why would the one and only original Servicer/Lender change the loan number the month after inquiring about a modification?
    Why would their original foreclosure paperwork show a trust as owner or mortgage yet Fannie says they own mortgage ?
    What is a recission actually trying to accomplish? Return of down payment? All payments from day one ? Cancel of note/mortgage ?

  31. This post is factually and legally incorrect.

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