Click in to tune in at The Neil Garfield Show
Or call in at (347) 850-1260, 6pm Eastern Thursdays
DID YOU RESCIND?
ASK QUESTIONS TONIGHT!
What Happens When You Send a Notice of Rescission NOW?
In a posting by what appears to be a bank lawyer for benefit of his clients he makes it clear that the banks should be worried prospectively about the right to rescind and the manner in which the Bank can contest it. Referring to Justice Scalia’s opinion for a unanimous Supreme Court the writer says
The Court decided that the language of the statute makes clear that written notice alone is sufficient to fulfill the terms of the statute. The Court rejected Countrywide’s argument that there was a legitimate dispute over the adequacy of the disclosures that required the borrower to file suit to settle.
What the writer did NOT say is what happens to all those rescissions that were sent and ignored or responded to by letter like attorney Ralph Wutscher’s letter to me in 2008 which said “”Aurora respectfully declines your demand for rescission and other relief, and denies your allegations of misconduct and/or other impropriety or wrongdoing in connection with the Mortgage Loan.”
The plain truth now that is FINAL by judgment of the US Supreme Court is that Mr. Wutscher was dead wrong. And there is nothing he can do to make it right.
First of all Aurora is really a virtually fictitious entity created to enhance the illusion that loans were ‘removed” from the Lehman Brothers Bankruptcy (still ongoing in New York). Lehman didn’t own the loans because it was not only selling the loans multiple times in multiple marketplaces, but it was also doubling the sales by packaging credit default swaps which are derivatives of derivatives of derivatives and selling them as “mini-bonds” shortly before the crash of the investment bank. So Aurora MIGHT have the MSR (mortgage servicing rights) but it certainly didn’t own or even know who owned the actual debt, nor did it know whether the debt was paid off and replaced by new creditor under entirely different contracts, none of which was disclosed to the borrower at the alleged “closing.”
More importantly he had not received a “demand for rescission.” The Supreme Court says he received a notice of rescission which by operation of law obliterates the mortgage and the note.
And third of all — perhaps the most important — is that the questions of fact regarding the validity of the rescission notice could only have been raised if the “lender” had filed a complaint within 20 days from the date of the notice of rescission. Failure of the lender to do that waives the defenses and trying to collaterally attack it when the homeowner claims the mortgage and note are void won’t work — unless a judge wants to be reversed by the US Supreme Court. Most judges will want to side with the bank but the law is Federal law and it is the law of the land — so says the US Supreme Court.
The banks have been using procedure against the homeowners in order to achieve victory in fraudulent foreclosures. Maybe it is time to consider using procedure to defeat them. So tonight we discuss what might happen if the notice of rescission was sent out today — even on a loan that was ‘originated 10 years ago? The problem for the banks is “what would they say, if they DID file the the lawsuit within 20 days?”
Filed under: foreclosure |