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I am hearing reports that Judges are entering rulings based upon the “note holder” and other spurious premises in connection with the application of the rescission rules under the Truth in Lending Act (TILA). It is obvious that the Judges still don’t get it or don’t want to, both of which are perfectly understandable because the rules under TILA are VERY different from the the rules governing common law rescission.
Any ruling predicated on the note or mortgage after rescission is wrong unless it recognizes that there is no note or mortgage anymore. They became void by operation of law (i.e., the same as if a court order was entered) the moment the notice of rescission was dropped in the mail. The issue of when or whether the rescission is effective is OVER by operation of law. It’s done. Stick a fork in it.
There is no burden of proof for the borrower to make the rescission effective. And if the Borrower does sue to enforce compliance with TILA that is an enforcement action, the same as one would seek to enforce a judgment or order that has already been entered. At that point, unless the servicer or bank had filed a lawsuit challenging the rescission as a creditor (because the note and mortgage no longer exist) WITHIN THE 20 DAY WINDOW measured from the date of notice, the creditor has no right or standing to challenge the rescission itself or whether it should be considered effective.
ATTORNEY PRACTICE HINT: I think it is very important to say something to the effect “Judge, I understand your thinking on this and hundreds, perhaps thousands of judges agreed with you — until the US Supreme Court said otherwise a few weeks ago. This is not common law rescission. The note and mortgage cease to exist when the notice of rescission is dropped in the mail.”
The only way for an alleged lender or creditor to prevent an enforcement order being entered against them is to file a lawsuit contesting the notice of rescission within 20 days of the notice and to ask for an injunction. But in order to do that they would have to say that they are in fact the creditor — i.e., prove the actual debt due without the note and without the mortgage — because the note and mortgage ceased to exist by operation of law.
When that borrower drops the notice into a mailbox it is the same thing as a Judge entering an order. There is nothing left for the borrower to do and nothing left that the borrower can do to make the rescission effective. Most courts held that the borrower had to file a lawsuit or tender payment or both before the notice of rescission could be effective.
The unanimous decision of the Supreme Court in Jesinowski was that all those judges were wrong. And of course this court lacks jurisdiction or authority under the US Constitution to countermand a Supreme Court decision. There is no requirement of a lawsuit —the rescission is effective upon notice and notice is effective when it is dropped into a mailbox. There is no requirement of tender either.
The borrower may be obligated on the debt (after deductions for unpaid amounts from the creditor) but ONLY AFTER the creditor has complied with the three elements of mandatory compliance — return of the canceled note, satisfaction of the mortgage in the county records, and return of all money paid by borrower starting with the origination of the loan and continuing up to the date of rescission. Assuming a creditor has complied with TILA and now wishes to collect on the debt, THEN the creditor steps forward alleges the debt by showing proof of payment, not self-serving documents like assignments and endorsements. And if the creditor proves the debt, the debt is unsecured.
The purpose of TILA rescission was intentionally to provide consumers with a quick easy remedy that didn’t require a lawyer to cancel the loan. The Supreme Court ruling is that the statute means what it says. And the statute says that the note and mortgage are immediately nullified by operation of law (same as a court order) when dropped in the mailbox.
And the reason for that is the whole reason behind the Truth in Lending Act — to level the playing field between tricky sophisticated banks and unsophisticated borrowers who didn’t and don’t receive the information they needed to choose lenders or make a decision about which loan they would choose to take from which lender.
It was recognized by the framers of this law that in order for the old lender to get paid (assuming they could prove the debt without the note or the mortgage which no longer exist) the existing note (even if still held by anyone) and the existing mortgage of record (even if recorded in the county records) MUST be void in order for the borrower to get a new loan to pay off the old debt. Otherwise it would be impossible fro the borrower to go out and get a substitute loan.
And since it was obvious that the banks would ordinarily stonewall the rescission if they had the chance, Congress gave them no chance to stonewall. And that is why they made it such that the rescission becomes legally effective, voiding the note and mortgage the moment it is dropped into a mailbox.
The only way out for the banks is (1) after full compliance with the requirements of TILA (return of note, satisfaction of mortgage and disgorgement of all money received and paid in connection with the loan) to either ask for payment of the debt (once they prove it) or (2) to file an action in Court within 20 days of the notice alleging that they are the creditor (but they can’t rely on the now nonexistent note and mortgage) and alleging that the rescission should be set aside.
The lawsuit by the bank is akin to a motion to set aside judgment. That is where Judges are making errors and continuing to issue rulings that are wrong. The rescission is already effective if it was sent. There is NOTHING left for the borrower to do to make that rescission effective. Hence even if the lender wants to challenge whether the rescission was sent, they would have to do so in their own lawsuit brought within the 20 day window.
Filed under: foreclosure Tagged: | rescission, TILA