Don’t Let Them Fool You: Banks and Investors Are Very Nervous About Rescission

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DID YOU RESCIND?

ASK QUESTIONS TONIGHT!

What Happens When You Send a Notice of Rescission NOW?

see http://www.natlawreview.com/article/truth-lending-act-and-rescission-lessons-learned-lenders-jesinoski-v-countrywide

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?”

48 Responses

  1. I have a question up for discussion:
    We refinanced our home in 2009. Taylor Bean and Whitaker was the loan originator, but the fund to pay off the old loan was advanced by Colonial Bank (This was never disclosed to us) We never made one single payment to TBW which we have a note and mortgage with and appears as a lien holder on our title to the present date. TBW was out of business one month after our closing. TBW sold our loan to Freddie Mac, reserving the servicing right. After the shutdown of TBW, FM appointed Ceibecker17@aol.comnlar as a new servicer, but never recorded anything in the land record, all the assignment went through MERS.
    After many attempt to discover where our payment is going, we finally stopped our mortgage payment as of November 1st. 2014. In the mean time, we noticed that our loan was transferred to Nationstar again through MERS but we paid our mortgage still to Cenlar. Canlar was sending the payments to Nationstar not to Freddie Mac. Cenlar threatens us with Foreclosure.
    Question: Our knowledge and belief is that, the loan was never consummated, because the real lender was never disclosed, this was a net funded loan, fraud from the inception can I send a rescission letter to Cenlar and MERS based on those facts after 6 years? On page 8 of this order, you can learn a lot more. Borrower_Protocol_filed_02.24.10.pdf

    Please advise!

  2. no owners knew that they were contracting, in a securities transaction, so how could a homeowner know or should of known?

    so i feel until the homeowners are told that there mortgage/and note will be converted into a security certificate/bond. them what they call
    consummation of the deal/contract hasn’t taken place. so i feel anyone and all should RESCIND . ,

  3. john, all am saying is , that it would be impossible for any homeowner to know that his mortgage/and note was going to be CONVERTED TO A SECURITIES. a bond,a certificates, and dice up to 15 to 30 different tranches, meaning your mortgage was sliced into 30 different pieces, so when someone is trying to foreclose i.e. trust, then please show me were my,and what traunch is my mortgage in???

  4. John Gault- a general rule of thumb re predatory loans is that all fees, costs and charges cannot exceed 7% of the loan amount. As I recall it is 7%.
    And there are readily available and easy to read lists (short lists) of what is and is not an allowable expense, cost or fee which can be passed along to the hapless borrower.

  5. “In violation of 15 U.S.C. Section 1635(5)(b)(7), the annual percentage rate stated in the Truth in Lending Regulation Z provided at closing exceeded the tolerance for such disclosure by more than .125%.”

    should read: “exceeded the tolerance for error in such disclosure by more than .125%.”
    Someone here has said the tolerance for error is .25% on adjustable rate loans. I never heard of that, but maybe.
    The tolerance for the amt financed disclosure is generally 100.00. In other words, the amt disclosed as the finance charge can’t be low by 100 dollars or more.

    “However, in the event of a foreclosure, the consumer may exercise the right of rescission if the disclosed finance charge is understated by more than $35.”

    http://ithandbook.ffiec.gov/media/28273/occ-hb_truth_in_lending.pdf

    That discussion starts at page 7. I didn’t read it all to see what else it articulates.

    As such, re the 35.00 tolerance, in my strictly lay opinion, because / if foreclosure is in the mill, and because the tolerance for error on the disclosure of the finance chage shrinks from 100 dollars to 35 dollars, the borrower would have reason to be looking for the first time at the accuracy of the fiance charge on the tila reg z disclosure: to see if the disclosure is off by more than 35.00.

    A week or two ago, I commented on defenses available as defenses which couldn’t be made as independent causes of action. Whether or not rescission with its general limitation to three years (except for the ‘should have known’) is one such defense available after the three years by virtue of this doctrine (the one I cited). Maybe the material I linked speaks to this. Don’t know because I didn’t read it all.

    Also, there was ref to 3rd party payment in the rescission letter posted here by a reader. I seriously doubt that is a “violation of tila”. But I’m not saying it has to be to rescind (tho I seriously doubt it’s grounds whatsoever for rescission and is thus badly misplaced in a notice of rescission), only that anything has to be covered (as a bad act)
    under tila to invoke tila for rescission. If it’s not covered by tila, you might as well say you’re rescinding under tila because it’s raining.

    3rd party payment may be a defense, but then again it may not be. It depends on one biggie (at least) – whether or not the “collateral source doctrine” applies to these loans. NG might consider addressing this. I learned of the doctrine (which appears to have been borne of personal injury claims), but didn’t study it enough to say much about it, other than to posit that it appears whether or not it applies can make a moster difference in 3rd party payment as a defense.

  6. So part of a dissertation for a court has to go something like this, all made up:

    “In 1969, Congress extended the three day right of rescission under xx.xxxx(y) by sec. 409(b)(8) to three years for violation(s) of the tila. Section 409(b)(8) states – quote verbatim but it’ll look like this: three years from when the borrower knew of the violation – OR – 2) three years from when the borrower SHOULD HAVE BEEN known. ”

    It has to first be established that the act calls for rescission after three years on certain condition(s).It says the condition is that the borrower didn’t and couldn’t have known of the violation.
    Why didn’t one know? SHOULD one have? If not, why not?
    I’m not supporting ante-3 year rescission or not supporting it. I’m just trying to point out the obstacles which imo one must overcome to
    rescind after three years before anyone gets all stoked and thinks he can rescind after three years. I’m not aware of much if any case law on point as to exceeding the three years on the basis of “didn’t know and , and couldn’t have known”. For all I know, it’ll be first impression.
    There is NO right to rescission after three years unless one didn’t and couldn’t have known of the violation when using tila as the basis for
    rescission. Having said that, I personally believe it’s a glass ceiling needing broken.
    more lay opinions

  7. David B – I don’t like that rescission letter at all fwiw. It’s all over the place, for one thing. But it’s biggest flaw is that while it attempts to describe certain acts which might violate the act, it doesn’t cite one
    part of the act the alleged act (appraisal fraud, for instance) violates.
    What is the section (or other word) of the truth in lending act violated by
    the acts or omissions complained of?
    For reference (and I’m making this up), “abc recorded a false instrument as Brighton County recorder’s instrument no. 3457872 on may 16, 2006 in violation of Florida Revised Statute 86.04(b) (the FRS which prohibits the recordation of false instruments) Said instrument was false because blah blah” if one cares to expound. This langauge identifies the wrongful act and what it violates, here a particular florida law.
    For tila, and I’m most certainly making this up, “In violation of 15 U.S.C. Section 1635(1)(a)(4), ABC failed to provide both parties with two copies each of the Notice of Right of Rescission”. “In violation of 15 U.S.C. Section 1635(5)(b)(7), the annual percentage rate stated in the
    Truth in Lending Regulation Z provided at closing exceeded the tolerance for such disclosure by more than .125%.”

    Any claim for rescission which relies on the TILA for the right to
    rescission must in fact BE one which is covered by the act. I’m mentioning this because it needs mentioning and because I’m not so sure an inflated appraisal does. An inflated appraisal is identified in other law (such as state) as predatory lending, but if it’s a violation, also, of tila, I couldn’t say. But if it is, one should state the part of the Act it violates. And by the way, covered or not, when one claims an
    appraisal was inflated, what’s your evidence? I believe it would be a mistake to make that claim, even stated as a violation of the appropriate law (whatever that is), without support. I’m not saying
    one has to support it in the allegation necessarily, because I don’t know, but I am saying you can’t just say that as if you know what you’re talking about if you don’t. Values in appraisals were imo deliberately
    overstated, but knowing that and demonstrating it are two diff things.
    Where / when the burden will be placed on the one making the claim, imo one should be ready to support the claim.

    I’m not saying a notice of rescission requires one to cite the reason or reasons for rescission. NG has opined it doesn’t. But I am saying if one is going to cite a reason for rescission (under TILA), it must be one which is covered by the Act.
    Also, I doubt I would make reference to the initial 3 day right of rescission when noticing rescission. I think the 3 day and the 3 year are apples and oranges, except to note that I think the 3 days is extended to 3 years for violation(s) of tila (the 3 day doesn’t require a reason – its mol for “buyer’s remorse” where as the 3 year is for cause).

    As to the 3 year SoL, from a 2008 appeal:

    The Court concluded, “We respect Congress’s manifest intent by concluding that the Act permits no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run.” Id.
    at 419, 118 S.Ct. 1408. Likewise, we previously have held that
    section 1635(f) represents an “absolute limitation on rescission
    actions” which bars any claims filed more than three years after
    the consummation of the transaction. King v. California,
    784 F.2d 910, 913 (9th Cir. 1986). Therefore, § 1635(f) is a statute
    of repose, depriving the courts of subject matter jurisdiction
    when a § 1635 claim is brought outside the three-year limitation
    period. Because Miguel did not attempt to rescind against the
    proper entity within the three-year limitation period, her right to rescind
    expired.”

    Right or wrong, this demonstrates the obstacles homeowners will face when trying to rescind after three years. The only salvation imo is in
    the “should have known” not addressed in this 2008 case. Why should one have known? What could one have known, for instance, as to
    the apr being off? Homeowners imo have no way to make that calculation because it generally requires a software program. So why does a homeowner now have a way to make / get a new calculation which didn’t exist then? Why is one now looking at the apr? These are questions one will likely need to answer.

    She (sic) argues that she should have been allotted an additional
    year in which to file suit after the expiration of the three-year
    period afforded by the statute. While she is correct that
    15 U.S.C. § 1640(e) provides the borrower one year from the refusal
    of cancellation to file suit, that is not the issue before us.
    Rather, the issue is whether her cancellation was effective even
    though it was not received by the Bank — the creditor — within
    the three-year statute of repose. We hold that it was not. While
    the Bank’s servicing agent, Countrywide, received notice of
    cancellation within the relevant three-year period, no authority
    supports the proposition that notice to Countrywide should
    suffice for notice to the Bank. Therefore, her right to
    cancellation was extinguished as against the Bank. When
    congressionally-created limitations on congressionally-created
    public rights and benefits completely extinguish the right
    previously created, courts are deprived of jurisdiction. Lyon v.
    Agusta S.P.A., 252 F.3d 1078, 1084-85 (9th Cir. 2001).

    The court said notice to the servicer wasn’t notice to the bank, which of course I find to be patent bs. This most definitely doesn’t address the matter of the identification of the party to be notified in view of the borrower’s ignorance of that identity because that identity has willfully been kept from the borrower. * Today, notice to the servicer imo MUST suffice as evidence to the lender / creditor. But, to be safe, I would send a QWR asking for that info. If it’s not forthcoming within a reasonable or any prescribed amt of time or one is in a hurry, then it should be sent to the servicer with or without a request to forward it to “anyone affected”.
    MERS has claimed an agency relationship with the lender, so I would also send one to them (attn: officer or legal dept?) AS WELL AS their registered agent.

    That SC decision was great, but it didn’t make for open-season on
    rescission after three years. For anyone contemplating rescission
    after the three years, better be ready to defend 1) the “should have known” and 2) the banksters (bs) arguments about why you should’ve known within three years.

    *I believe the borrower could appropriately impart notice by sending the notice, if not to the servicer, than the party identified in public record (and also the servicer?) as the beneficiary. In other words, one’s reliance is appropriate because it’s based on the only Notice you have – public record. It’s imo beyond absurd to place any other burden on one party to an agreement. Further, when one is apprised of changes to servicing, the notification may provide a “send anything here” stmt.

    These are lay opinions

  8. @ Rock ,

    One little thing ,,, beginning about 1998 the banksters started , procedurally to simply assume the existing debt , not paying it off but just adding to it ,, that is why it is extremely rare to ever have a satisfaction on file after that time period. It appears that was the case with mine…. kind of like when you have hospitals or insurance companies for instance balance the books at quarter end where A , B & C decide what their net balance is rather than actually pay off each other…

  9. @ Rock ,

    Did you really mean this? ,, It goes against the SC.

    ********************
    The borrower would then tender an offer to the lender to pay off the remaining balance, for which the lender would have twenty days to accept or reject. Therefore, in most cases you’d still lose your home.
    ********************
    That puts the lender in the drivers seat ,, provided they open the books and give an accurate accounting…

    Do you really think that’s EVER going to happen?

  10. @ Rock ,

    ********you said********************
    Second, success in seeking rescission under TILA would also require the lender to return to the borrower all fees and mortgage payments made under the rescinded mortgage contract. These charges would then be set off against the principal amount of money issued to the borrower. The borrower would then tender an offer to the lender to pay off the remaining balance, for which the lender would have twenty days to accept or reject. Therefore, in most cases you’d still lose your home.

    So, its not a windfall as Garfield and the other legal illiterates would have you believe.
    ***************************************

    Tell me how this works in my case … Who is my “lender” … nobody will tell me (but I know) ,, is it Option One whose name is on the docs? Is it Bank of America who was their credit line? Was it H&R Block that was stuffing cash into the O-One channel to make their final loan commitments before they were discovered to be bankrupt? Maybe it is Wilbur Ross of AHMSI fame that bought the notes on May 1 2008 from O-One (fronting for BAC) … but that brings up the AIG 100% payoff to BAC in July 2007 … and weren’t there private contracts that further sweetened the pie for BAC? WF certainly got a cut for being the “trustee” ,, though it’s real funny how the trust records prior to the May 1 2008 sale to Wilbur Ross DISAPPEARED from the trustee database and the whole waterfall was re-initialized…

    I borrowed $245k against a $368k appraisal so I was red f’ing meat for the scammers… they initially sold my loan for that $368k and now show it as $245 in “version 2.0” of the trustee collateral files…

    Lets see …

    unpaid off original loan balance of $150 , that’s a $150k+ in my column
    Someone made a line entry of $245k credit for me ,, $245 in “their” column (we all know it’s BAC but as it’s STILL unacknowledged it’s fair game for tolling)
    AIG paid $245 to BAC , BAC was paid $368 by Deutsche and Euroclear so that’s a big $123k+ in my column
    4 years paid in by me , that’s $100k+ in my column
    misc fees at underwriting , say $15k in my column
    sale by O-One to AHMSI at 22.5% of gross , $45k+ in my column
    sale by AHMSI to OCWEN , unknown , I’ll guess about $60k+ in my column

    That initial $123k skim by bank of america , and whatever derivatives are hard to justify aren’t they?

    AND THEY ARE STILL REFUSING TO NAME MY LENDER… Cool, so I’m golden with equitable tolling…

    What’s wrong with this overview? I will win and it is because of their unwillingness to disclose ,, no disclosure , no SEC , no jail..

  11. AND ROCK, THANKS FOR THE COMPLEMENT, BROWN NOISER,

    THEY SAID THAT ALSO , WHEN I WENT TO THE SECURITIY AND EXCHANGE, SEC OFFICE. AND SAID TO KEEP QUITE.

  12. HEY ROCK, THE USSC, STATED THAT THE BORROWER INTENT WAS ENOUGH WITH THEM ( JUST STATING THE WORDS ,

    TO THE SERVICER,LENDER , I RECIND. THIS IS MY RESCSISSION NOTICE.

    SO ALL SOMEONE HAS TO DO IS SEND. THIS IS YOUR NOTICE THAT I INTEND TO RECIND THIS CONTRACT.

    SO BITE ME

  13. And that section applies to rescission-Not the entire TILA.

  14. BTW Steve, that rescission letter posted by the brown noser david belanger is beyond ridiculous. If you sent sent such a letter, you would automatically be labeled a crackpot.

  15. STEVE DO NOT BELIEVE ROCK. HE WORKS FOR BANKS. RESIND ALL.

    ROCK AND CHRISTINE, READ IF YOU WANT TO LEARN SOMETHING. FROM A HIGH SCHOOL GRAD. BUT HAS MORE COMMON SENSE THAN MOST.

    so CHRISTINE, ROCK, PLEASE GO AND READ THIS FWP, ITS SHOWS 1027 MORTGAGES, AS BEING PAYED OFF AS OF 2/2/2006. THEN ON SAME DOCS SHOW THEM SELLING ALL LOANS FOR THE INFLATED APPRAISELS PRICES. AS IN MY CASE, THAT WOULD BE $500.000 DOLLARS.

    THE WORDING YOU NEED TO LOOK AT. IS AS FOLLOWS.

    ISSUE DATE,BALANCEPAID TO DATE, 2/2/2006

    IF YOU DONT KNOW , LAW, ONCE A DEBT IS PAYED, IT CAN NOT BE PAYED TWICE, NO MATTER WHO PAYED THE DEBT OFF. SIMPLE.

    SO ALL 1027 MORTGAGES IN THIS DEAL. SHOW ALL BEING PAYED OFF AND THEN SOLD AS IF THEY THINK THEY OWN ALL MORTGAGES/NOTES.

    AND THEY WERE SOLD FOR THE FRAUD APPRAISEL PRICES. GET IT. NOW REMEMBER, ALL WERE INSURED ALSO, BY ALL FROM AIG,AND OTHERS, OH AND FOR THE AMOUNT OF, YUP, ALL THE FRAUD APPRAISEL PRICES..SO LETS LOOK AT TOTAL SO FAR ON A 350,000 DOLLAR LOAN/CONTRACT.

    1/ BORROWER GETS 350,000

    2/ GMAC MORTGAGE CORP/ TAKES NOTE TO FED/TREASURY AND GETS A CREDIT OF 30 TO 40 TIMES THAT AMOUNT, LETS SAY 12,000,000. THATS MILLIONS.

    3/ NOW GMACM GO’S AND SELLS THESE SECURITIZED MORTGAGE TRUSTS TO INVESTOR, FOR WHAT. YUP THE FRAUD APPRAISEL PRICES, SO HOW MUCH MONEY HAS ALL MADE SO FAR. ON JUST 1 SINGLE LOAN OF 350,000 DOLLARS?? OH FORGOT THEY COULD OF SOLD THIS AS MANY AS 10,20 TIMES. SO LETS SAY ANOTHER 20 MILLION.

    WELL I SEE ABOUT 30 MILLION DOLLARS SO FAR.

    NOW DO YOU GET IT. THIS IS WHY ALL INSURANCE COMPAMY ARE SUEING NOW, LIKE ASSURD,AIG, THIS IS WHY IN 2008 WHEN MARKET CRASHED, AIG LOST ALL BETS, IN THE TUNE OF ABOUT 25 TRILLON DOLLARS, THAT (PAULSON ) RAN TO CONGRESS TO GET THE 800 BILLION/ REMEMBER. WELL THEY ALSO GET OTHER WAYS TO PAY THAT NO ONE NOTICE,

    CHINA THAT BAUGHT MOST OF THESE JUNK, WAS CALLING IN THERE CHIPS ON THE FRAUD. SO PAULSON A VERY VERY GOOD FREIND OF CHINA, SAID DONT WORRIE I WILL GET THE MONEY. HUM HE DID. AMERICANS PAYED OFF CHINA IN THE TUNE OF TRILLIONS OF TAX PAYERS MONEY, AS TO OTHER INSURANCES, BETS THEY ALSO GOT PAYED.

    SO PLEASE GET OFF THE HIGH HORSE, IF AMERICAN KNEW THAT THEY COULD GO TO FEDS/TREAS AND GET 30 TO 40 TIMES THE VALUE OF THE NOTE, THEMSELFS, DO YOU REALLY THINK WE NEED WALLSTREET/ NO WAY.

    LIKE WALLSTREET I WOULD OF TAKEN THE 1200000 MILLION THEY GOT FROM MY NOTE, AND IN MILASECS WOULD OF MADE 10 TO 20 TIMES THAT AMOUNT. IN ONE DAY, THEN I WOULD PAY OFF THE CREDIT OF 1200000MIL, AND WALA

    AM 100 MILLION AHEAD.

    FREE WRITING PROSPECTUS PRELIMINARY POOL INFORMATION

    GMAC MORTGAGE CORPORATION
    SERVICER AND SPONSOR

    RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
    DEPOSITOR

    GMACM MORTGAGE LOAN TRUST 2006-J1
    ISSUING ENTITY

    GMACM MORTGAGE PASS-THROUGH CERTIFICATES,
    SERIES 2006-J1 (THE “CERTIFICATES”)

    prior to closing , as i now look at all doc’s i received from closing attorney last yr, on 11/08/2005. it show this gmacm mortgage trust? in all doc’s sign, on bottom left corner. so i did some investigations. hum. guess what. before signing mortgage and note, gmacm is a complete seperate company. and enitiy., inc. so the mortgage and note were already sold prior to signing mortgage and note.

    GO TO THE COLLATERAL AND READ. ALL DOCS.

    GMACM Mortgage Loan Trust 2006-J1 – ‘FWP’ on 2/9/06 re: GMACM Mortgage Loan Trust 2006-J1

    On: Thursday, 2/9/06, at 4:09pm ET · Accession #: 1352221-6-5 · File #: 333-125485-25

    Previous ‘FWP’: ‘FWP’ on 2/3/06 · Next & Latest: ‘FWP’ on 2/24/06

    in Show and
    Help… Wildcards: ? (any letter), * (many). Logic: for Docs: & (and), | (or); for Text: | (anywhere), “(&)” (near). ↓Bottom

    As Of Filer Filing For·On·As Docs:Size Issuer

    2/09/06 GMACM Mortgage Loan Trust 2006-J1 FWP 1:391K GMACM Mortgage Loan Trust 2006-J1
    Free Writing Prospectus — Rule 163/433
    Filing Table of Contents

    Document/Exhibit Description Pages Size

    1: FWP 2006 J1 Collateral HTML 939K

  16. Steve, don’t drink the Kool-Aid these scammers and legal illiterates are serving.

    Transactions to purchase or construct a residence are exempt. 15 U.S.C. § 1602(w).

    Section 125(e)(1) of the Truth in Lending Act, 15 U.S.C. § 1635(e)(1), however, specifically exempts a residential mortgage transaction as defined in Section 103(w) of the Truth in Lending Act, 15 U.S.C. § 1602(w). That section defines a residential mortgage as “a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the consumer’s dwelling to finance the acquisition or initial construction of such dwelling.”

    Accordingly, it is apparent that there is no right of rescission under Section 125 of the Truth in Lending Act, 15 U.S.C. § 1635, when the transaction at issue is a purchase money mortgage. In re Tomasevic, 275 B.R. 86 (Bankr.M.D.Fla., 2001)

  17. here we go again the miserable band wagon crew.

  18. Rock,

    Keep it going.

    Best weeding tool I’ve seen so far between wishful thinkers and doers.

  19. If I had a home for $100,000 and over 10 years paid $150,000, and after rescission I got all that I paid back, and the home was valued at $120,000 and I paid it off, how is that not a way to keep the home.
    I’m trying to follow Rock’s logic that it’s a lose, but I’m not paying full attention, so I’ll just leave it alone.

    Trespass Unwanted, Creator, Corporeal, Life, Free, People, State, In Jure Proprio, Jure Divino

  20. Next question?
    Why is the debt unsecured? How did that happen?

    Oh wait….. I already gave you those answers.

    Many Blessings to All
    And to All a Good Night

  21. It is my opinion they are more scared of us enforcing the mortgages than they are of rescission.

    Otherwise why in tarnations would they fight so dag gone hard against an early payoff? Could it be they sold the PI payments/payment stream in advance and Illinois does not allow early payoff penalties?

  22. A smart kitty you are

  23. I beg to differ …. TIL does apply to purchase loans.
    Not all TIL regulations apply to purchase loans.

    You will find a TIL disclosure in every closing package… Purchase or Refinance.

  24. You see you are not supposed to know

  25. You are rescinding the contract
    You dont know if its a refi a first money or any money – it was in my case a line of credit via warehouse lender, so the recorded beny is not the actual beny.

  26. We applied for the TILA rescission on our New Mexico home but were told that our home was not considered a primary residence so we didn’t qualify?
    Is that right?
    Thanks.

  27. @ Rock

    Yes, I agree with neidermeyer I had heard or read somewhere about the TILA only applying to refinances but I’m sure that’s correct. Could you point out where in TILA it says that.

  28. @ Rock ,

    I don’t buy the “it only applies to a refi not a purchase (primary residence) argument” , it’s the Truth in lending act , not the truth in lending on anything but your home act… (mine was a refi so I am not affected either way)…

    You said ” TILA would also require the lender to return to the borrower all fees and mortgage payments made under the rescinded mortgage contract. These charges would then be set off against the principal amount of money issued to the borrower. ”

    I’m A-ok with that as are most here ,,, lets see … they never paid off my original note as evidenced by me never getting a satisfaction,,, then there’s the 100% they got from AIG in July 2007 on my MBS , then there’s 4 years of payments they owe me and on and on …

    I LOVE the way their obfuscation has extended equitable tolling… oh and that author who did the last hit piece on OCWEN really liked what I sent in as a follow up story … what makes it so tempting is that so much was reported on in major papers and ignored… easy reporting job to just go back and connect the dots..

  29. Hey A-Man ,, here’s a better one (mostly because Johnny Thunders was a famous addict and the song is real) … https://www.youtube.com/watch?v=P-M9Ymvgd0A

  30. Thanks David,

    I think that letter will be useful to a lot borrowers viewing this site. I hope points in the letter will be argued here to favor in making the letter as stronger.

    I’m sure Rock is right about TILA not applying to principal purchase.

    But, I can’t see how a borrower is to tender a loan based on an inflated fraudulent appraisal.

  31. MY RE-FI WAS FOR 350,000 DOLLARS, THE BANK WOULD HAVE TO PAY ME THE WHOLE NOTE FOR 350000 DOLLARS, ALL CLOSING FEE’S, PLUS ALL PAYMENTS MADE ON LOAN,

    ALSO PAY ME FOR ANY AND ALL MONEY THEY MADE ON SELLING MY RESCISSION LOAN, REMEMBER THE MORTGAGE AND NOTE AS OF THE DATE OF RESIND, THAT LOAN NEVER HAPPEN, SO THEY HAVE TO PAY YOU ALL MONEY THEY HAVE GOTTEN SELLING IT .

  32. HEY ROCK,

    WHEN I GET ALL THAT COMING TO ME, I WOULD LIKE YOUR PERSONAL ADDRESS TO SEND YOU A PHOTO OF ALL I GET. K

    I HAVE 3 DIFFERENT NOTES, I GOT A NOTE SIGN AND DATED THE SAME DAY WE SIGN THE NOTE, AND IT WAS SIGN OVER TO SOMEONE NOT ON ANY PAPERWORK” SO SUCK ON THAT.

    ITS SIGN, DATED, AND WITHOUT RECOURSE, AND THIS BANK/TRUST IS NO WERE IN THE SECURITZATION CHAIN EITHER. SO BITE ME.

    CANT WAIT TO SHOW A FEDERAL JUDGE THAT NOTE, AND HAVE SOMEONE EXPLAIN IT.

    SO GO BACK UNDER YOUR ROCK AT THE BANK. YOU LOSE.

    AM NOT AFRAID TO SHOW MY HAND,NAME, ADDRESS, PHONE NUMBER. HOW ABOUT YOU???ROCK

  33. Neil,

    Could you give me a few attorneys names here in Northern California I want to start the rescision process

    Thanks

    Oak

    *Oktay “Oak” Senvardarli* Broker-Associate Residential and Commercial Real Estate

    *Wine Country Group Mason-McDuffieBy:Better Homes and Garden470 First Street East * *Sonoma CA 95476*

    * Cell:707-360-7137*

    *e-Fax:707-939-2534 Office: 707-939-2034DRE#00277165* Website: http://www.bhghome.com/OakSenvar

  34. BTW neidermeyer, besides all of the misleading info Garfield posts, you have groupies like david belanger.

    Nowhere, in that case he cited, does it say what he says the court said. He’s either lying to everyone, or he has no clue what he’s reading; either way he continues to mislead people as well!

    This is why everyone who listens to the nonsense posted on this blog has either lost their home, or in the process of losing it.

  35. STEVE HERE YOU GO, MAYBE THIS WILL HELP. WAS SENT TO ME, AND I USED IT.

    General Claims rescission Letter TO ALL PARTIES
    LETTERHEAD
    DATE: 2/26/2015
    SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED

    RE: BORROWER’S NAME AND ADDRESS, estate of William a marshall sr, Joanna lynn belanger

    LOAN NUMBER(S) min 1000697-8250313656-5 ( 825313656-5 ) min 1000375-0589117308-3 ( 0589117308-3 )

    Dear TRUSTEE (NOTE TO READER: SEPARATE LETTER TO EACH OF THE PARTIES AT CLOSING AND ANYONE ELSE YOU HAVE SUBSEQUENTLY DISCOVERED WAS IN THE SECURITIZATION CHAIN., orlans/ moran , Richard j rafferty,p.c. closing attorney., gmac mortgage corp ,residentual asset mortgage products.inc, mortgage electronic registry systems,inc. wells fargo bank,national association, citigroup global markets,inc., bear,stearns,& co. inc, trustee for GMACM Mortgage Loan Trust 2006-j1., indecomm global services.

    I HEREBY EXERCISE MY RIGHTS TO RESCIND THE LOAN TRANSACTIONS IN ITS ENTIRETY UNDER THE THREE DAY RULE, THE THREE YEAR LIMITATION, AND UNDER THE USURY AND GENERAL CLAIMS THEORIES AND CAUSES OF ACTION. BY FAILING TO DISCLOSE THE TRUE LENDER AND USING SUBTERFUGE TO HIDE THE FACT THAT THE “LENDER” AT CLOSING WAS PAID TO POSE AS THE LENDER WHEN IN FACT AN UNDISCLOSED UNREGISTERED THIRD PARTY HAD RENTED THE CHARTER OR LENDING LICENSE OF THE “LENDER “, THE LIMITATION ON MY RIGHT TO RESCIND WAS EXTENDED INDEFINITELY. UNDER STATE AND FEDERAL LAW, THE MORTGAGE IS NOW EXTINGUISHED AND YOUR RIGHTS UNDER THE TRUSTEE DEED HAVE TERMINATED. I hereby rescind the above referenced loan and/or declare it to be null and void and demand treble damages for the face value of the note, on the grounds set forth below:
    1. Appraisal fraud: The original loan transaction and application were falsified by the ‘lender’ (the party named at closing as the beneficiary under the Trustee or the mortgagee, and the party named on the promissory note that was allegedly secured by the mortgage or terms of the deed of trust), its agents, servants and employees as to fair market value of the property, the borrower’s ability to repay and the prospective terms and fees associated with the loan. At the behest and direction of the ‘lender’ the property was appraised at a much higher amount that was warranted by good appraisal practices conforming with industry standards. All parties at the loan closing, other than the borrower(s), were aware of the appraisal fraud and directly and intentionally withheld this vital information from the borrower. The borrower reasonably relied upon this appraisal, believing that the ‘lender’ was at risk and had performed due diligence and conformed with underwriting practices conforming with industry standards, when in fact the ‘lender’ was not at risk, the loan was in essence ‘table funded’ and the real lender was hidden from the borrower. Not only did the borrower not know about the existence of the real lender, but the real lender’s identify and contact information were withheld at the loan closing so that the borrower was unaware of any of the realities of the closing, nor that the ‘loan closing’ was in fact part of a scheme to issue a negotiable instrument that would be issued by the borrower (by trick and deception) and later converted to other uses and terms, including allocation of payments inconsistent with the original terms of the note and inconsistent with the reasonable expectations of the borrower. The over-appraisal conformed with an illegal scheme to defraud investors in certificates of asset backed securities that were similarly overvalued. In both instances — the appraisal of the property, and the appraisal of the securities, the true parties to the entire transaction paid and directed ‘independent’ third parties to lie about the quality and value of the ‘investment.’ For the borrower, the scheme shortened the expected life or duration of the loan transaction, and taking the appraisal fraud into consideration, along with the many undisclosed fees, resulted in an exponentially higher cost of the loan than what was estimated or disclosed prior to or at closing. Borrower was induced to pay more for the property and borrow more on the property than the property was worth.
    2. Fraud in the inducement: Borrower reasonably relied to borrower’s detriment upon the representations and good faith estimates and the duty of the mortgage broker and “lender” to act within their duties as fiduciaries and representatives of the borrowers in executing a loan that was vastly different from the loan the borrower was promised or reasonably believed to be the case at the loan closing.
    3. Fraud in the execution: Borrower reasonably relied upon the representations and good faith estimates of the parties at the loan closing and was tricked into issuing what became a negotiable security from which the participants received fees and profits far in excess of their normal remuneration. The participants at the loan closing knew that the borrower believed that the borrower was merely entering into a loan closing when the borrower, without his knowledge or consent was in fact issuing what would be used as a negotiable security to commit fraud upon other third parties.
    4. Usury: The appraisal fraud resulted in an undisclosed cost of the loan, in addition to the loss of earnest money, costs of closing and after-purchase expenses and costs that raised the cost of the loan well above standards set in this state for usury. No exemptions apply because (1) the real lender was not a bank or other registered or chartered lender nor even a party registered to do business within this state and (2) the transaction was in fact a securities transaction in which the rights of rescission were ignored and undisclosed.
    5. PAYMENT: The “lender” was paid in full before, during or immediately following the loan closing by an agent of the real lender. To this was added a fee of approximately 2.5%. If there was or is a party that is a holder in due course of the note and mortgage and who has not been paid by reserves, overcollateralization, credit default swaps, insurance, or cross guarantees, then demand is herewith made for the name(s) of such holder(s) in due course and their contact information.
    PLEASE GOVERN YOURSELVES ACCORDINGLY!
    SINCERELY.
    BORROWER(S) SIGNATURES AND ADDRESSES
    OR ATTORNEY FOR BORROWER

  36. STEVE,

    NOTE: THERE ARE ACTUALLY THREE LETTERS OF OBJECTION AND RESCISSION THAT COULD BE SENT: (1) THREE DAY NOTICE OF RESCISSION, (2) THREE YEAR NOTICE OF RESCISSION AND (3) GENERAL CLAIMS NOTICE OF RESCISSION OR NULLIFICATION. IN ALL CASES, THE NOTICE SHOULD CONFORM TO STATE LAW AS TO FORM, SUBSTANCE AND METHOD OF MAILING. GENERALLY IT SHOULD BE SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED. IN ADDITION, A FILING OF LIS PENDENS OR NOTICE OF PENDENCY TOGETHER WITH YOUR NOTICES AS ATTACHMENTS WOULD GUM UP THE WORKS ON THE PROPOSED SALE AND PROBABLY FORCE THE ACTION TO CONVERSION FROM NON-JUDICIAL SALE TO JUDICIAL SALE. THE ADVANTAGE IN CONVERTING TO JUDICIAL SALE IS THAT THE TRUSTEE OR “LENDER” MUST FILE A COMPLAINT AND ALLEGE THINGS THAT WILL EXPOSE THEM TO LIABILITY BECAUSE THE ALLEGATIONS ARE NOT TRUE. IT KEEPS THE BURDEN WHERE IT BELONGS — ON THE “LENDER.”

    The three day rescission letter should go out to everyone you know or think has anything to do with this loan. The pretender lender who is on the note, the mortgage broker, the trustee, any attorneys, any name you have for mortgage servicer, aggregator, investment bank, SPV, etc. Even if they respond with ‘we have nothing to do with this loan’ you have narrowed it down. More likely you will get a more tentative (we are looking into it) because they don’t know whether a specific loan is tied to a specific pool, SPV or mortgage backed security.
    The point being that failure to disclose the real parties in interest at the loan closing and failure to disclose the fees paid to those real parties behind the curtain that the borrower didn’t even know was there, they deprived the borrower of the knowledge of who he should send his rescission letter or other claims and objections to.
    They can argue that the rescission letter is effective if sent to the pretender lender. But is it? And if they do argue that, have they opened yet another door? How do we now that beyond them just saying it? At best they have placed the borrower in the untenable position, now having discovered that there was a real lender and that the lender he had at closing was a pretender lender paid a fee for pretending to be the lender in what is referred to in the industry as a table funded loan of not knowing who to pay, not knowing who has authority to communicate with him, and not knowing for sure to whom he should address objections and claims.
    By having insurance contracts, credit default swaps, cross guarantees, and buyback provisions as the ‘note’ moved through the chain of securitization, combined with the right to replace one loan with another, all mixed in with the fact that the buyback/substitution requirement is rarely enforced, there is no way for them to know with certainty whether the specific loan, even if initially assigned to a specific pool, is still in that pool, or has been supplemented with another note, or has been satisfied by one of the third party guarantee contracts.
    In addition, the overcollateralization and reserve pools, and the hierarchical pledges between divisions (tranches) of the SPV corporation means that contractually, hundreds (perhaps thousands) of people had their loan payment assigned to pay off your payments if they were in a tranche below the one to which you were assigned without your knowledge or consent.
    And even if you did make payments, your payments might just as well have been allocated to other loans in tranches above the one your loan was assigned to. With the AIG Federal reserve bailout, there is no question that there is insurance coverage on a lot of these loans. Why should ANYONE get paid twice? Is AIG asserting the right to recover under the note and mortgage? No

    © 2015 Microsoft Terms Privacy & cookies Developers English (United States)

  37. did everyone really read what was posted. SO AGAIN IF ITS BEEN 10 YRS FROM CLOSING , BUT JUST FOUND OUT OVER PAST YEAR OF ALL THE FRAUD IN OUR MORTGAGE, 3 DIFFERENT NOTES, STATING A BLANK ENDORSEMENT, ON WITH NO ENDORSEMENT, THEN ONE WITH A DATED AND SIGN ENDORSEMENT BACK IN 2005 FROM DAY OF CLOSING SHOWING A FINIANCIAL INSTATUTION NOT ON ANY PAPERWORK OR HAD NO KNOWLAGE OF.

    SO I SHOULD BE A ABLE TO RESIN THE WHOLE DEAL, RIGHT

    THE WAY I SEE IT IS THAT THEY OWE US AMERICANS MILLIONS ON OUR OWN MORTGAGE NOTES THEY STOLE AND USE TO UNJUSTLY ENRICH, THEMSELVES. NOW THAT IS TO THE POINT.

    (2) Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money,

    or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.

    (3) If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph,

    WHEN THE CREDITOR HAS COMPLIED!!!!!!!

    SO ONLY WHEN THEY ( CREDITORS) PAY YOU THE BORROWER ALL MONEY THEY HAVE GOTTEN SO HOW ABOUT THE 30 TO 40 TIMES THE VALUE THEY GOT WHEN THEY BROUGHT YOUR MORTGAGE NOTE TO TRES/FED, ???( YOUR NOTE) OF 350,000 DOLLARS, THEY WOULD OF

    GOTTEN AT LEASE 12,000,000 ( MILLON )…. SELLING YOUR MORTGAGE/NOTE 10 TIMES 20 TIMES OR MORE FOR THE FRAUDULENT, APPRAISAL PRICES. AND PAY YOU BACK ALL PAYMENTS MADE. THEN AND ONLY THEN WILL YOU THE BORROWER HAVE TO TENDER ANYTHING. BUT WAIT, LOOK AT BELOW.

    TENDER ITS REASONABLE VALUE!!!!!!!!!!

    the consumer shall tender the money or property to the creditor or, where the latter would be impracticable or inequitable, tender its reasonable value.

    At the consumer’s option, tender of property may be made at the location of the property or at the consumer’s residence. Tender of money must be made at the creditor’s designated place of business. If the creditor does not take possession of the money or property within 20 calendar days after the consumer’s tender, the consumer may keep it without further obligation.
    James L. Macklin, Managing Director
    Secure Document Research(Paralegal Services/Legal Project Management)
    Agent for Charles T. Marshall, Esq. (SBN 176091)
    917 Tahoe Blvd #201 A

  38. STEVE, I WILL PUT ON THE ONE I USED, WRONG RIGHT, WHO KNOWS, BUT AS LONG AS IT SAY I RECIND. AND THIS IS A RESCSISSION .

    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.” Massachusetts legislators , an mass courts have agreed as to follow the same
    course of action as to this case. specially now that the supreme court of the united states of America, has made it clear, that this case is law.

  39. neidermeyer, I’ve explained it many times in other ludicrous posts. Since you asked nicely you deserve an answer.

    First, TILA does not apply to loans that a mortgagor takes out to purchase their principal residence. However, it does cover any other loan sought that involves the principal residence (i.e. refinancing).

    Second, success in seeking rescission under TILA would also require the lender to return to the borrower all fees and mortgage payments made under the rescinded mortgage contract. These charges would then be set off against the principal amount of money issued to the borrower. The borrower would then tender an offer to the lender to pay off the remaining balance, for which the lender would have twenty days to accept or reject. Therefore, in most cases you’d still lose your home.

    So, its not a windfall as Garfield and the other legal illiterates would have you believe.

  40. David,

    Like the QWR letter, as long as it wasn’t written on a payment stub it was considered a valid request. However, the lender disagreed to what an actual Qualified Written Request letter was.

    If the recommendation is send out a recession letter than I hope someone posts what a solid valid letter should look like. I hate spend years debating over what would be a ‘qualified written’ Recession Letter

  41. STEVE, NO , THE BANKS ARE GOING TO GET THE RUN AROUND, AS THEY HAVE 20 DAYS TO DO SOMETHING , OR IT’S OVER.

    AND YOU CAN GO TO COURT AND TELL THE JUDGE NOW, WELL I SENT THEM A RECIND LETTER, AND THEY SAID NOTHING,

    PEOPLE WAKE UP.. THE U.S. SUPREME COURT JUST MADE IT CLEAR, THEY KNEW WHAT WAS GOING ON, AND SAID TO THE BANKS, AND TO ALL JUDGES IN COUNTRY.

    START FOLLOWING THE LAW.

  42. If the originator didn’t provide disclosure to the borrower and the borrower who had no knowledge of recession rights had otherwise attempted to notify the servicer within the three year statue, through perhaps an audit or QWR letter stating all the loan errors still be able to rescind?

    Won’t the new servicer simply respond again that they had nothing to do with the originators actions and provide the contact address to some defunct orignator. Sounds like another Merry-Go-Round with certified letters.

  43. Twisted Sisters I wanna Rock

    Hey Rock is it Crack? or Meth? I suggest rehab

    NEVER AGAIN

  44. @ Rock ,

    Mr. Garfield is agreeing with a unanimous Supreme Court ruling…

    Would you care to elaborate on what is “factually and legally incorrect!”.

  45. i sent out 25 certified letters return receipt . to all party in securitization,psa,closing attorney,trustee,servicer,and lawyers office, treasury dept,fed dept,irs, dtcc,dtc,sec, etc etc.

    lets rock

  46. Obliterates the mortgage? B.S. And besides, the debt remains, even if it becomes unsecured.

  47. Another post that is factually and legally incorrect!

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