Rescission: Window of Opportunity for Borrowers

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NOTE THAT THIS IS FOR GENERAL INFORMATION AND EXPRESSES THE OPINION OF THE WRITER. THIS SHOULD NOT BE USED A SUBSTITUTE FOR ADVICE FROM AN ATTORNEY LICENSED IN THE JURISDICTION IN WHICH YOUR PROPERTY IS LOCATED.

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The basic premise, legally, is that a rescission letter is defined as effective when it is dropped in the mail. Of course if the defense is that there is no loan contract to rescind, then the rescission is ineffective but you get to the same result because they note and mortgage arose out of a nonexistent contract.

The key issue is that under TILA there is a very specific procedure and a small window of opportunity in which a “lender” can challenge the rescission. The Banks and their lawyers are having trouble with this and I expect that there will be changes in the law. But right now, the statute and Scalia’s opinion makes it very clear that TILA rescission is subject to an entirely different set of rules than common law rescission — the key component of which is that the “Borrower has nothing else to do” to make the rescission effective. It is effective the moment it is dropped in the mail.

And the importance of THAT is there is NO permissible “interpretation” nor “discretion” to find or even consider anything else. And THAT means that even if the “lender” or “creditor” has perfectly legitimate defenses to the rescission, the rescission is still nonetheless effective BY OPERATION OF LAW.

That language “by operation of law” is very important because it means the act of the borrower in signing and sending the notice of rescission is the same as a court order canceling the loan.

And therefore the ONLY thing that could set the rescission aside is a court order from a court of competent jurisdiction. But no court has any jurisdiction to consider the question of whether the rescission is effective, UNLESS they file a lawsuit within 20 days of the notice. This is similar to the deadlines for motions for rehearing, deadline for notice of appeal, or deadline for borrowers to challenge Notice of Sale in non judicial sale. If you miss the deadline, you are done — no exceptions.

The reason why Congress wrote the statute that way is to prevent the Banks from using stonewalling as a technique to hold up the effectiveness of the rescission. They do not have that option, they file or they lose the loan. AND after the 20 day period has expired, the ONLY thing that a Judge can consider is the borrower’s petition to ENFORCE THE RESCISSION.

Hence the “Bank” cannot bring up a defense about whether the rescission was effective when the borrower’s enforcement action is filed. Their only defense would be that they are (a) not the lender and never received any money from the borrower or the borrower’s “closing” or (b) that they performed already as required by statute — return of canceled note,filing of satisfaction of mortgage and return of all money paid by borrower and disgorgement of of all fees and costs at closing (including undisclosed compensation).

I therefore conclude that in the current statutory scheme if the Bank does not file the challenge to the rescission within the 20 day window, they can never bring it up again — no matter how patent the “defense” might appear on the documents or the notice of rescission. I am sure that the bank WILL defend by saying that the notice was not filed within the time limits prescribed by law (statute of limitations) or some that the made all required disclosures. But these are affirmative defenses and not jurisdictional issues that are obvious on the face of the applicable documents. Hence such Bank or Servicer defenses to the borrower’s enforcement action are barred  because they missed their window of opportunity to bring them up within the 20 day period in which they could challenge the rescission.

In addition, no claim can be made by anyone for money to pay the balance of the debt (which becomes unsecured the moment the notice of rescission is mailed) unless compliance is complete — return of note, filing satisfaction mortgage and return of money to the borrower.

I therefore conclude that there is nothing illegal about sending a notice of rescission on any existing loan (i.e., existing legally, having not been previously canceled by a notice of rescission). And since both the statute and the US Supreme Court both say that the sending of the notice of rescission or cancellation is effective by operation of law upon dropping a letter into a mailbox, then any loan could be subject to a notice of rescission (although I expect that some changes are being sought by banks to prevent the “abuse” of the TILA rescission).

Accordingly in my opinion, anyone who has an arguable problem with their loan origination should be able to send a notice of rescission and simply wait for 20 days, or perhaps a few more for mailing, to see if anyone sues them challenging the rescission. If they don’t sue, then there is nothing to prevent the borrower from seeking to enforce the rescission which was effective when they dropped it in the mail.

And I think that anyone who has a copy of such a rescission notice but doesn’t have either a return receipt or a response from the “lender” showing that it was received can nonetheless seek enforcement of that rescission, which was effective whenever they say it was mailed, whether dated or not. Testimony from the borrower that it was sent on, for example, October 1, 2009 is sufficient.

If the defense is that the notice of rescission or notice cancellation (SAME THING) was never received, the Bank is going to be required to prove that it was not received because of the presumption of notice upon mailing. Given the horrible record-keeping and fabrication of records that the Banks have established, the credibility of the Banks is not likely to carry the day.

In summary I think that any claim that any rescission notice is invalid can ONLY be brought in the 20 window. Any other interpretation would violate the expressed opinion by the US Supreme Court and TILA and Reg Z that “nothing further is required” from the borrower. The notice is simply effective when sent. If anyone wants to contest that, they have a short window in which to do it. I have no doubt that the Banks will defend TILA rescission enforcement actions with defenses that essentially say that the notice of void on its face for one reason or another. My point is that whatever is their point of defense is barred if they did not file the required challenge during heir window of opportunity.

Remember that issue as to the date of consummation, the statutes of limitations, the disclosures that were made are all issues predicated upon real facts and legal interpretation. TILA rescission was written so that a borrower could cancel a loan without a lawyer. That much is true. But it is obvious that the banks are not going to comply with TILA rescission requirements and that enforcement actions will be required on behalf of borrowers. Judges tend to hate TILA and they hate TILA rescission even more. But there really is no discretion and no jurisdiction here unless some Judge thinks he or she can overrule the US Supreme Court. Based upon the US Constitution, that could only work in some other country with a different law of the land.

My best guess is that the right to rescind is going to get more narrow as time goes by rather than broadening. I don’t think we will see the door open this wide ever again.

52 Responses

  1. This is all great discussion, but can you file a rescission if you are beyond the 3 years? jsmith5915@msn.com, 443 677 2799. James Smith

  2. And Dwight
    Read about the spartan warriors.

  3. Thank you Ian
    And i cant get he Irs to answer me either, i sent them info re my case(s) the point that the entity issuing the 1099a is not the lender and other points to show a financial umm.,,ill say disparity, no answers there ( its my public duty to inform the IRS, and i did) my beef is i lost my assets what the heck did they loose? and use a contractual agreement giving them the legal right to issue as ” lender” a 1099a. Well im still in court and i have a lot to argue there. And now this new supreme court ruling, the web gets weavier, just when i thought it could not possibly be more….
    And UKg fyi, 2 attorneys left me for dead i had no choice than to try this at home, never say die.

  4. Deb Wynn- right you are! And, just as a complaint filed by an out-of-business entity cannot be addressed by the court, so it is, under NY Trust law, that a REMIC which has no corpus, in other words is a nonexistent entity, cannot bring an action to seek relief as the entity has failed. As such, I don’t see how a REMIC trust which is nonexistent can grant “servicing rights” to anyone at all. As there are no mortgages in the trust, the trustee has nothing to do, so who would the servicer pass through the P & I payments to? And, for what?

  5. So, if we all won the lottery and could pay off our loan completely, who are we paying? Now, you start to see why attys do not want to tell you about payoff. I asked in the past and was told that I could not have that information except from an atty. The plot sickens…

  6. Somebody seems to be redirecting the crowd away from the Truth..

    UKG…. Its not over till the fat lady sings.

    -A-Man…Don’t dispare. .you will find your calling some day.
    Singing is not it…. pick yourself up and try again.

  7. And Dwight, I feel your pain. You’re not the first, and won’t be the last.

  8. NOTE THAT THIS IS FOR GENERAL INFORMATION AND EXPRESSES THE OPINION OF THE WRITER. THIS SHOULD NOT BE USED A SUBSTITUTE FOR ADVICE FROM AN ATTORNEY LICENSED IN THE JURISDICTION IN WHICH YOUR PROPERTY IS LOCATED.

    In other words, don’t try this at home.

  9. We refinanced our mortgage in 2005. After that there is fraud done by B of A. Could we send a notice of rescission? The loan was transferred to specialized Loan servicing in the past 6 months by B of A.

  10. Trespass … Yes I read it and left a post, thank you. I tried to hire the help I needed from attorneys but couldn’t find any who knew how to argue real foreclosure defense, I knew the arguments I wanted to present, I just didn’t know procedural law and it bit me on the ass. Hoping I can still salvage my case since my pleadings were on the vital issues of statute of limitations barring complaint & rescission sent within the 3 yr window … Maybe switch to federal bankruptcy court and. allow a federal judge to rule on both my main defenses? The BK Judge in NJ is the same one who gave the “free house”.

  11. Christine and the other gangsta’s on this blog will still have to face the Law. Bad boys bad boys what you gonna do when they come for you?
    Cyber bullying is a serious crime

  12. Ian exactly my point, one of my questions under foia request was simply what was the asset, was it in a remic now at time of receivership, before, or ever, what was the disposition of my loan/ asset, when the servicer ( or sub servicer which it should be according to that trust my loan was ( not) in) was liquidated. Got nothing as you might guess, would have to sue to try to get that info.

  13. Deb Wynn – most homeowners are dealing with a subservicer. I’m not aware of the legalities of transferring/selling servicing rights to a servicer not mentioned in the PSA. And if the trust was never legally formed under IRS REMIC rules/regs or SEC rules/regs then I don’t know how the master servicer/ subservicer has any legal right to collect payments.

  14. Nurse Ratched is leaving? Who will pass out the medications? Who will turn the lights out each night? And who will berate us each and every day for thinking wrongly about legal matters?

    Yeehaw! Crank up the music and pass the hooch! Let’s dance!

  15. They’re on their own. The few we could help got helped. Life is short for all of us us.

    I’m done.

  16. I posted about the tender thing.
    It’s presumed they loaned money and not credit.
    They know they did not loan money and can return everything you paid them, and if there was any money loaned, you can tender it back.

    But what law firm wants to be held accountable for stealing homes in the name of their client even when a notice of rescission has been sent.

    Also anything a law firm posts or states is merely opinion, they have not stated any fact nor followed it with any case law when they state their opinion, and they are licensed to lie.

    When my home was stolen there was no attorney that heard of fraud foreclosure or pretend lender, it took years for the truth to remain revealed, and now that this case is there, many lawyers will intentionally misapply their argument for rescission to ensure it remains an unsuccessful remedy for homeowners.

    Remember there are many cases that went to the Supreme Court and based on how they were argued, (botched on purpose) the Supreme Court made a ruling that could not and did not crack the veil of what could have been cracked had they argued it properly.

    It’s all deceptive practices, but if they ‘tried’, they hold some level of immunity for protecting the status quo.

    My opinions, not stated under penalty of perjury.

    Trespass Unwanted.

  17. Dwight,

    Did you see my response to your transcript in the prior post?

    Trespass Unwanted

  18. Anyone care to elaborate on servicing rights.?

  19. Im sorry folks i type faster than i can see! You get the drift

  20. Ian
    You send your payments to the servicer in good faith that the true lender benefits, so you send notice to the servicer ( servicing for the loan collecting payments that go somewhere else is my understanding and they get oaud to setvice the loan(s) so if they claim they are lender ( my 1099a they do) then filing a declaratory action in reponse to notice of rescission should not be a problem, so why didnt they do it, well i guess because they had that power of sale clause in non judicial deed of trust states, and that is another argument, because they must adhere strictly to its terms.

  21. Davidbelanger- in the TILA revision “creditor” is mentioned. Do they mean the real creditor, the fake creditor, the servicer who puts the word “lender” in parentheses after the word servicer. would say that the real, actual, HIDC with a perfected
    Chain of title must first be identified otherwise the recissions will get rid of the imposter and open the door for yet another pretender to show up with his palm outstretched.
    “You rescinded the wrong loan!” He cried, as the judge collapsed, weeping uncontrollably.
    Next: Return of the robo-court stenographers, who record perjured testimony from the witless witness.

  22. Rock who are you calling a wacko Mother F#%ker?

  23. My case isn’t over yet, the judge made errors that will be reversed by the Appellate Division if need be. Also Wells Fargo stated on the record that they only needed the borrower to sign a 3 day rescission form stating that the borrower was not rescinding in the 3 days, well they still should have included a form to the borrowers after that 3 days when the actual closing took place. The right to rescind isnt just a form for the lender to keep , its supposed to be one that the borrower gets in case they discover any violations later after 3 days. They admit that they have a form that they kept thinking the right had ended after 3 days, they are wrong and are in violation. Furthermore, in discovery they answered the interogs and demands for docs by stating that they do not have access to any docs from the original closing, so which is it? Are they liars or did they fabricate another document? I’m very confident the Appellate Division will rip this judge a new ass#@!× and I have them in a double checkmate anyway, with the SOL argument. The judge is disregarding the Supreme Court on tendering, he is not allowed to legislate from the bench and he cited old case law to do it, but the Supreme Court supercedes that old caselaw , he was grasping at straws to deny me justice. I will prevail, watch & learn Rock.

  24. In short the tender is for what is owed – to the true holder when we find out who it truely is.

  25. Rock
    Like adults lets discuss the tender thing,
    If i have a chance to refinance i need to get a payoff dollar amount, but must be substantiated trustworthy and come from the prooer party to issue a payoff amount as owed to them ( pursuant to my RESPA qwr usc title 12 2605(b) being : copies of all documents pertaining to loan application to the funding of the loan, including but not limited to the loan application, RIGHT to cancel, truth in lending statements, goid faith estimate,real property appraisal AND all required disclosures and rate sheets associated with the loan, a copy of the loan HISTORY, including all payments made and, all fees incurred, what has been paid out of escrow account, and how all payments were applied for the entire life of the loan. Of course i got the documents they chaise to let me have, and i ended up with proof of two counterfeit assignments ) anyhoo, this was my quest pre rescission because i needed the payoff balance so i needed to know the equitible setoff – they go first therefore, and that is the essence of rescission, IMHO its a challenge to expose any problems when you have good cause to suspect ( and i did) that the facts regarding the loan transaction and loan terms that were unknown by possible concealment at signing.

  26. Poor Dwight found out the hard way, that if you eat the steak, you have to pay for it.

    I guess my question is, why do people listen to some hack lawyer that’s never won a case.

    Here is a quote from Greenberg Traurig, LLP. the 3rd largest law firm in the country, that has law offices all over the world. The quote is regarding the practical implications of the Jesinoski decision:

    “While it has been suggested that this decision allows borrowers to “walk-away” from underwater loans, that is not the case. First, borrowers are rarely able to tender back the funds received – a requirement that must be met before a mortgage can be rescinded. Second, while the decision states that a lawsuit is not required for the exercise of a right of rescission, the decision does not negate the lenders’ ability to defend against the rescission notice if the borrower received the required disclosures. A borrower still must exercise the right to rescind within three days of consummating the loan or receiving proper TILA notices, so long as that time period does not exceed three years. If the lender can show that the borrower received the proper notices, a notice of intent to rescind made more than three days after closing would be ineffective. Of course, litigation is generally required to adjudicate whether the borrower received proper TILA notices.”

    Now, I can hear all of the the wackos saying they must be bank lawyers.

  27. christine re audits, when discovery is blocked how on earth can you determind they are not admissible evidence and the expert unqualified, ( that may be a hurdle if the experts methodology is flawed) it is a process that not many have managed so far, it takes this long, and we see things look different when a new decision comes out. I think overall you may be a little premature deciding on the loosers and winners. You can ofcourse have your opinion, being devils advocate makes for better pleadings IMHO.

  28. NPV,

    That’s alright. I consider the source and the fact that there still aren’t any winners on this site. And none associated with NG’s name. There are, however, countless people who’ve thrown good money after bad getting audits that have yielded… no winning case. I look for them all the time: can’t find any.

    If pointing it out is bullying, people have a really, really thin skin and a poor command of language. How could I be offended? Again, I consider the source.

    @David Belanger

    Win your case. I’ll read your prose. But for the fact that you shout my name, I wouldn’t even know you address me. Makes no difference: I’ve read enough to not waste more of my time on it.

  29. As initially enacted, TILA placed no time limit on
    consumer rescission where a creditor failed to make
    statutorily mandated disclosures about the terms of
    the loan or the consumer’s right to rescind. If a
    creditor failed to comply with TILA, the consumer
    had an open-ended right to rescind and had no
    deadline to provide notice of rescission to the
    creditor. See Consumer Credit Protection Act, Pub.
    L. No. 90-321, tit. I, § 125, 82 Stat. 146, 152-53
    (1968). In 1974,

    THIS IS WHEN WALLSTREET SAID NO WAY, LETS CHANGE THAT. AND CONGRESS DID.

    Congress amended TILA in response
    to concerns that an unrestricted right of rescission
    might potentially cloud title to residential properties.
    To address potential clouds on title, Congress added
    a new subsection (f) to 15 U.S.C. § 1635. See Pub. L.
    No. 93-495, tit. IV, § 405, 88 Stat. 1500, 1517 (1974).
    Under § 1635(f), if no government enforcement
    proceeding is pending, the consumer’s right to
    rescind “expire[s] three years” after the consummation
    of a covered transaction, or upon the sale of the
    property, “whichever occurs first,” even if the creditor
    fails to make required disclosures within the threeyear
    period.

    Although Congress established a new three-year
    expiration period,

    Congress did not alter the
    procedures for exercise of TILA’s rescission remedy,
    which were designed to make the rescission process
    uncomplicated, easily accessible, and consumerfriendly.
    A consumer exercises the right to rescind
    under TILA simply by giving written notice to the
    creditor. See § 1635(a); 12 C.F.R. §§ 1026.15(a)(2),

  30. cyberbullying is not only Chr. DNJ whats happening bro?

    NEVER AGAIN

  31. @ A-man. Who is Christine bullying? Seems to me she disagrees with the article. Right or wrong, she is merely stating an opinion. The best way to shut her up would probably be to post some of the success stories. She can’t argue that, and would probably prevent her from bullying anyone in the future.

  32. SOME OF YOU MUST READ IT AGAIN.

    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

    STICK A FORK IN THEM, IT’S ALL OVER , WELL DONE.

  33. People should give this a shot, but judges do not want to believe it because then pensions are invested in MBS.

  34. Suggest. There.

  35. Please see rule 60b FRCP, i applied it to set aside judgement which was based on incorrect facts and application of law. ( you can raise under the rule no more than 1 yr after the order fyi)

    Not an attorney but i sugguest you at least look at it.

  36. CHRISTINE ,

    PLEASE STOP IT. I UNDERSTAND that it is so simple it’s so hard for you to understand.

    no really, is is that simple. again as all ag said, it up to the banks, to file a law suit, to SAY THEY DISAGREE WITH THE RESCISSION, AND THIS IS WHY WE DISAGREE WITH IT.

    NOW IF THEY DO NOT RESPOND IN THE 20 DAYS , THEY LOSE ALL RIGHTS TO BRING UP ANYTHING. GOT THAT.. THAT’S ANY EXCUSES,the Act primary relies on private
    enforcement by consumers to deter violations and
    police creditors. See, e.g., McGowan v. King, Inc., 569
    F.2d 845, 848-49 (5th Cir.1978) (explaining that
    TILA is designed to foster enforcement through a
    system of private attorneys general). To encourage
    private enforcement, TILA provides consumers with
    remedies for both actual and statutory damages and
    awards attorney’s fees to consumers who prevail in
    establishing a TILA violation in court. 15 U.S.C.
    § 1640(a).
    In addition to damages, TILA also grants
    consumers rescission rights when they enter into
    credit transactions that pledge their “principal
    dwelling” as security. Id. § 1635(a). The rescission
    right reflects Congress’s intent to prevent consumers
    from placing their homes in jeopardy for loans and
    other credit transactions without a clear understanding
    of the potential risks of the underlying
    transaction.5 See S. Rep. No. 96-368, at 28 (1980),
    reprinted in 1980 U.S.C.C.A.N. 236, 264. To ensure
    that consumers make a deliberate and informed choice,
    and that consumers can reconsider their choice after
    full disclosure of loan terms, TILA

    DEFENSES , THEY CANT EVEN SAY ANYTHING ABOUT THE LONE BEING 5YRS,8YRS,10 YRS OLD. GOT IT.

  37. Well then dwight the supreme court had better staff up.

  38. Christine i hear you
    But my point is that when i was within my right to issue my rescission within 3 yrs after signing and explicitly, because i believed and still do there was material misrepresentation and concealment if facts to say the least, and they are now shown by this ruling to be wrong, then In my case i AM applying and ascerting the ruling of the US Supreme Court Decision, INTO my 6 year argument which i should never had to have endured according to this decision and the why? is, the banks dont want to play by the rules period. I tendered to the real true creditor – therein is the issue, especially in view of the way they assigned rights as the ” holder”.

  39. Those transcripts are from a recent case in NJ where the Judge refused to acknowledge the rescission argument made by defendants. This transcript was posted in order to see how some judges will be rejecting the unanimous Supreme Court decision. They will continue to try to legislate from the bench and twist the federal law around in order to accommodate the lenders .. this is from a real case that just happened .. it shows exactly how the judges are reacting to the TILA rescission ruling … they are in denial and refuse to accept it.
    Hoping that JG responds , he wanted to look at this. And maybe the website can bring it to NG’s attention so he can see the argument made by the judge in rejecting the Supreme Court.

  40. New Jersey is a judicial state…….. Dumbkopf

    Cyber bullying is a serious crime

    NEVER AGAIN

  41. “…conditions to be argued Christine, the court will then decide on the merits of the argument.”

    My point exactly. Suit has to be filed regardless. Despite what Scalia stated, banks will not voluntarily honor the rescission. They will have to be compelled to enforce it… in court! Which means that people will have to file. But watch out if they file a frivolous action. That is going to come back, bite them and probably draw blood.

  42. This is the actual transcripts from my recent hearing, where Wells Fargo had motioned for summary judgment right after the other Judge B. retired, Judge B. wanted a trial based on many of the material issues still in dispute. This new Judge who took over seemed to have his mind made up before the hearing that he would grant Wells Fargo the MSJ. He already had his lengthy decision written up prior to the hearing, he already had his reasons written on paper before hearing the arguments on rescission, 2 notes one with a stamp, one without, a forged MERS fraud assignment, Washington Mutual Bank last known HIDC, docs stating that Fannie Mae was now the owner, etc. Borrowers had refinanced in 2004 with Commerce Bank, who endorsed the note to Washington Mutual Bank ..Wells Fargo became servicer of loan in 2007 right before the rescission letter was mailed on July 1, 2007. Borrowers were current thru June of 2007. They did not default because they rescinded while they were current on the payments, their first non-payment was July of 2007 when the letter of rescission was mailed. This was now the second attempt at foreclosure by Wells Fargo, in the answer to this complaint Defendants used the NG answer and denied the default, denied that any valid transaction occurred at origination. Defendants wanted the burden of proof to be shifted to the plaintiffs to prove that a valid legal loan took place at the origination. But Defendants also asserted Rescission in this answer and counterclaim .. stating that we had rescinded in 2007 prior to any alleged default having occurred. We also assert that it is not proper to foreclose on a void note and mortgage, and furthermore , a foreclosure demands that a default occurred, but our rescission protects us from having been deemed to default, you can’t be deemed to be in default if the TILA act says to stop paying your monthly obligations after mailing the letter. This new judge replaced the old foreclosure judge who wanted this to go to trial. This new judge came over from criminal court and seemed to have his mind made up before the hearing. They called me the night before and told me not to arrive at the normal 9 am time for motions to be heard, ours was pushed back to 10:30am .. and his decision was already written out before the hearing took place. Transcripts of hearing below …… THE COURT: Wells Fargo Bank versus BORROWERS. 2 All right. Enter your appearance. 3 MS. LENDER: Good morning, Your Honor. 4 Ms. Lender from Reed Smith for the plaintiff Wells 5 Fargo Bank, N.A. 6 THE COURT: All right. Sir, and your 7 appearance? 8 MR. BORROWER: Good morning, Your Honor. 9 Mr. Borrower acting pro se for myself and my wife, 10 Mrs. Borrower. 11 THE COURT: All right. I know that this is a 12 motion for summary judgment and cross-motion. Let me 13 hear from defendant first, and then I’ll hear from 14 plaintiff. 15 MR. BORROWER: Thank you, Your Honor. In the 16 original answer to the complaint we denied that a valid 17 transaction took place. So, Wells Fargo — it’s our 18 assertion that they’re not the true party in interest 19 here. That’s important to understand that. We’re not 20 admitting to default at this point. We want them to 21 prove the transaction history, especially because of 22 the fact that Washington Mutual went out of business in 23 2008. It’s very — it’s vital to a foreclosure that 24 they’re able to connect the dots of ownership of the 25 title. Title has to be transferred legally in order 1 for a holder of the note to foreclose. 2 So, since the beginning, we’ve been asking 3 for discovery. We’re not getting it. We want to see 4 proof of a transfer of title. They now contend that 5 Fannie Mae is the true party in interest, and they’re 6 representing Fannie Mae. Fannie Mae has never been 7 established in any of these two foreclosure complaints 8 as the true party. And — because of the question of 9 Washington Mutual going out of business and the 10 questionable notes that have come in. They certified 11 the notes without endorsement stamps, and then after 12 the fact, they found the note with the endorsement 13 stamp. That raises enough issues of material fact that 14 we feel summary judgment should be denied at this 15 point. 16 We also have other issues we’d like to 17 discuss. 18 THE COURT: I’ll hear all your — I’ll hear 19 all your arguments right now, sir. 20 MR. BORROWER: Okay. All right. The main 21 thing that happened was after we answered and showed up 22 for the initial conference, the plaintiff filed a 23 motion to strike all — most of our affirmative 24 defenses and counterclaim. I asked for oral arguments. 25 We came in for oral arguments. Unfortunately, I feel 1 that I didn’t get a fair chance to argue my points in 2 court. I guess, a judge has discretion whether he can 3 just base his decision on the papers, but I felt that 4 since I asked for oral arguments, I should have been 5 given that chance. 6 THE COURT: Well, rather than talk about the 7 past, just talk about what you have today. 8 MR. BORROWER: All right. So, getting up here, 9 I filed a motion to reconsider, even though it’s very 10 late, on the affirmative defense order that struck my 11 defenses and counterclaim. The reason is that new 12 evidence has been found that goes towards the Court 13 making an error by dismissing that counterclaim and 14 defenses. 15 One error would be the recent Supreme Court 16 decision on rescission. That wasn’t available at the 17 time we had oral arguments. And also that just came 18 out in January 2015. That was one of my counterclaims 19 and a couple of my affirmative defenses that were 20 struck. Now, the Supreme Court has cleared that issue 21 up. That should have been allowed in. 22 Also, other — 23 THE COURT: You’re — specifically you’re 24 talking about your notice of intent to rescind. Is 25 that what you’re talking about? 1 MR. BORROWER: Right. 2 THE COURT: On TILA claims? 3 MR. BORROWER: That was stated in my answer to 4 the complaint. 5 THE COURT: Right. I mean, at the heart of 6 that TILA claim, even if I were to accept that you 7 provided notice to rescind, I don’t see anywhere you’ve 8 tendered the amount owed under the disbursements. I 9 think you received, what, $232,000? 10 MR. BORROWER: Yes. 11 THE COURT: Have you made any tender to 12 $232,000 to plaintiff? Do you have that money to 13 tender? 14 MR. FRAZEE: Yes. 15 THE COURT: You do? You have that money in 16 an account somewhere? 17 MR. BORROWER: No. I’m saying yes to the fact 18 that you asked have we ever tendered. We have the 19 option to tender property or money. 20 THE COURT: None of the case — well, 21 $232,000 you have to tender the disbursements made to 22 you at the time of the loan. That’s under the case law 23 of Guillame. So, even assuming, which I’m not doing, 24 that the handwritten notes that you provided me 25 provided sufficient notice under TILA within the three 1 years, I would still have to find that you had $232,000 2 which you’ve tendered in offer in return for the 3 mortgage and recording. 4 MR. BORROWER: Well, that’s where Justice 5 Scalia more or less clarified that issue. He said that 6 the trial courts have misunderstood that the first — 7 he said that the lawmakers — Congress wrote the act as 8 a protection for borrowers, that would not force a 9 borrower to go to court. Everything, as long as the 10 two sides came to an agreement — 11 THE COURT: Right. Well, you’re talking 12 about something different. I’m talking about the 13 notice. I said even assuming that that notice that you 14 provided — and what Scalia said was that the notice 15 doesn’t have to be by way of a complaint. It can be by 16 way of a notice, which is sufficient to provide the 17 bank notice that you intend to rescind. 18 MR. BORROWER: Right. 19 THE COURT: Even if I were to assume that, 20 you have not provided me any evidence that you have 21 $232,000 to tender to the plaintiff — 22 MR. BORROWER: Well, see, Justice — 23 THE COURT: — which you’re required to do. 24 MR. BORROWER: I feel the Supreme Court 25 directly spoke to the fact that the first step to the 1 process after the rescission notice is put through, the 2 very next step is that they have to step forward within 3 20 days and act. They failed to do that. 4 THE COURT: Well, under Guillame, which is 5 the case that — the New Jersey Supreme Court case. It 6 says even if rescission is available, the defendant has 7 to come forward and provide evidence that you have the 8 ability to tender that $232,000. That you will tender 9 that $232,000 back to the plaintiff. 10 So, I’m just saying even if I were to find 11 that the notice was sufficient which I — quite 12 frankly, I do not, but even if I were, the ultimate 13 place where you’re trying to get to, you can’t get 14 there anyway. You don’t have $232,000 to tender. 15 MR. BORROWER: Well, I would have to disagree 16 only based on the way the act is written. 17 THE COURT: You haven’t shown me anything. 18 You haven’t shown me. 19 MR. BORROWER: Okay. 20 THE COURT: I’m saying you’ll have to agree 21 with — for now, you’re going to have to agree with my 22 interpretation of the law. 23 MR. BORROWER: Well, just like the commentary 24 of the — there’s an agency, a Federal agency called 25 the Consumer Financial Protection Bureau. They’re 1 charged with overseeing TILA and its implementation. 2 They have spoken on these cases that ended up in 3 federal court. And they absolutely line up with the 4 Supreme Court. 5 The first thing that needs to happen is the 6 bank has to respond some way somehow within 20 days to 7 show that either they disagree — you can’t jump to the 8 next step and say, oh, the borrower needed to send a 9 written notice, plus they needed to go chase down the 10 bank and offer the tender. That’s not how it’s 11 written. It’s specifically written that they need to 12 act within 20 days. At that point, if they disagree, 13 they can bring it to court, a judge could then 14 adjudicate it based on do I have either the property or 15 the money to tender. 16 You know, we have the option to tender the 17 property. That’s clearly written in the act. You 18 know, they can give back our payments, we could give 19 them the property and the two parties go their separate 20 ways. 21 THE COURT: Essentially, that’s what’s 22 happening in the foreclosure. They’re seeking the 23 property. If you want to do a deed in lieu of 24 foreclosure, you could talk to the bank about that. 25 Essentially, that’s what they’re doing. They’re 1 looking for their property back. 2 MR. BORROWER: Well, the problem with this is 3 that they are in non-compliance with the Federal 4 statute that protects borrowers. 5 THE COURT: Well, now you’re jumping to 6 something else. 7 MR. BORROWER: Yeah. Well, I’m just saying 8 that that — 9 THE COURT: And that’s something that you 10 maintain which, you know, — 11 MR. BORROWER: We have spent the past eight 12 years trying in good faith to even deal with them. We 13 were told by the lawyers that we seeked help with and 14 even Judge B (just retired) mentioned it at one of the 15 hearings that there was no allowability for what we’re 16 attempting to do now. In the past, it was always the 17 borrower needed to tender first. And without that, the 18 issue was — 19 THE COURT: Well, not only in the past, but I 20 think now the current law, as Guillame in the most 21 recent Supreme Court case — 22 MR. BORROWER: What date was that decided, 23 because I feel that the Supreme Court disagrees with 24 the fact that any court demanded that the — that case 25 may arise out of an actual dispute where the plaintiff 1 brought it to court. And if they did it within 20 2 days, well then, that’s understandable that the judge 3 would turn to the borrower and say do you have the 4 tender, because it’s being adjudicated. 5 THE COURT: No. The point is is that what 6 the courts have found is that it would be — it 7 wouldn’t be fair to require the bank to give the 8 security — to discharge all the security and then 9 stand and wait for you to pay the money, because then 10 what would happen is people that were in second 11 positions, everybody else would move up. It would be – 12 – it would work an injustice to the bank to require 13 them to relinquish their security without any kind of 14 guarantee that you’re going to give them the money. 15 MR. BORROWER: I understand. And that’s been 16 the thinking of the courts all along, and that’s why 17 this Supreme Court decision was, you know, so 18 important; that they told the courts that’s not the 19 spirit of that law. It was a protection for borrowers. 20 THE COURT: All right. So, that’s your 21 primary argument. Anything else, sir? 22 MR. BORROWER: Well, that’s the argument. And, 23 of course, I have more proofs from after we sent the 24 recision notice in. The following weeks after that, 25 they respond with letters. 1 THE COURT: Well, I’ve read all your papers. 2 I’ve read the documents. Anything else you want to 3 argue, sir? 4 MR. BORROWER: Yes. Also, the statute of 5 limitation argument. One thing that the Court didn’t 6 address at my motion to dismiss based on statute of 7 limitations was — there were two points: (1) is that 8 New Jersey statute clearly, by operation of law, makes 9 the note unenforceable six years after the plaintiff 10 accelerates. 11 THE COURT: That’s the bankruptcy judge that 12 says that, which I’m not bound by that. 13 MR. BORROWER: Well, no. The New Jersey 14 statute says that. 15 THE COURT: Well, the New Jersey statute says 16 that it is six years from the maturity date as listed 17 in the — that’s the 2009 statute — as listed in the 18 mortgage or 20 years from the default. It doesn’t say 19 — it doesn’t do what Judge Kaplan said in the 20 bankruptcy. You kind of ignored that part of the 21 statute. What he said is when they accelerate, it’s 22 six years from that acceleration date. And if you do 23 that, it does create a problem in a case like this 24 where the complaint is filed, it’s accelerated and then 25 it’s dismissed. What would be the maturity date on 1 something like that? It’s dismissed. Clearly, the 2 defendant benefitted from the dismissal, right? But 3 yet, they were still under that — they were punished 4 possibly. 5 MR. BORROWER: That’s why under contract law 6 with the clause that’s available to them in contract 7 law, nobody forced them to initiate or trigger an 8 acceleration. They also have the power to de- accelerate. So, if they feel that this case wasn’t 10 ready and we couldn’t win the case, now there’s a 11 dismissal, they need to act on that to make sure their 12 six years doesn’t run out. They don’t do that. 13 THE COURT: Which points out the problem with 14 Judge Kaplan’s decision, because that is a moving 15 target that is very — really near impossible to hit in 16 many of these cases. And that’s why the other courts 17 that have considered it have not decided it the same 18 way Judge Kaplan has. 19 MR. BORROWER: And I just wanted to add one 20 last thing to that. Judge Kaplan, though, was trying 21 to differentiate between two issues; one is the note 22 and one is the mortgage. They come forward claiming 23 they want to foreclose. They’re not here trying to 24 enforce the note for money. They want the property. 25 But I think they all consent that the note, by New 1 Jersey statute, is unenforceable, but they’re feeling 2 that they still can enforce the mortgage. That could 3 be looked into by the Appellate Division. I guess 4 they’re reviewing Judge Kaplan’s decision now. I’m not 5 sure if it’s New Jersey or federal — 6 THE COURT: It’s not — it’s no more — it’s 7 no more an authority that I consider making my 8 decision. It’s not mandatory on me. 9 MR. BORROWER: All right. 10 THE COURT: All right? 11 MR. BORROWER: And then the other issue would 12 be the denial. I’m seeking the Court to deny granting 13 them the relief of summary judgment mainly because 14 there’s real issues of material fact. Like I discussed 15 earlier, it’s important because of the mystery of 16 Washington Mutual going out of business. And nobody 17 has ever shown that this note actually was transferred 18 or the title was transferred. And the issue that my 19 homeowner’s insurance, I just discovered, has the first 20 mortgagee listed as Trust Bank. 21 Now, it’s common knowledge that Fannie Mae, 22 who the plaintiff contends is the true owner at this 23 point, Fannie Mae is absolutely involved in mortgage- 24 backed securities. If at some point they purchased our 25 mortgage and invested it, who knows what happened. The 1 note may not even exist anymore. It could be invested. 2 But that opens up a cause for deeper discovery. The 3 insurance, homeowner’s insurance company, told me it’s 4 been like this since — as far back as they see. 5 THE COURT: I don’t want you to tell me what 6 other people tell you. 7 MR. BORROWER: All right. 8 THE COURT: All right. Anything else, sir? 9 MR. BORROWER: Well, at this point, I’ll rest. 10 And, you know, I just feel that there’s enough issues 11 also with the affidavit that they presented. I don’t 12 think it lives up to the threshold that the Appellate 13 court has set, you know, just referring to business 14 records and not really showing the important, crucial 15 documents of when and how anything was transferred. We 16 don’t even have a date when this stamp came in. The 17 stamp came in after the case began at the first 18 complaint. 19 First, there was a note with no stamp. Then 20 the stamp came in, but the problem was the stamp is 21 from a company, Washington Mutual, that was already out 22 of business two years. And at the first complaint, 23 Judge B (just retired) did agree that that’s an issue that 24 needs to go to plenary hearing. When did you get the 25 stamp put on the note because the bank that supposedly 1 put it on is out of business two years, and you have no 2 date. So, that’s something to consider also. Thank 3 you. 4 THE COURT: All right. Thank you. 5 MS. LENDER: We’ve tried to address all of 6 these issues in our moving papers and the response to 7 defendant’s various cross-motion. But just so the 8 record is clear, I heard the defendant say that no one 9 — or everyone consents that the note is unenforceable. 10 And I just want the record to be clear that that is 11 nothing that we have ever said or admit. And I don’t 12 know what the reference to Fannie Mae is because the 13 plaintiff here is Wells Fargo. And I don’t see 14 anything asserted in our papers that Fannie Mae is the 15 true plaintiff. We’ve never taken that position. 16 I understand that the defendant doesn’t 17 believe Wells Fargo has the note or something strange 18 happened. And that’s why in November, I wrote to him 19 and said we have the original note in my office. You 20 just need to call and you can come and look at it. And 21 the mortgage, I have it all in the vault here. And 22 he’s never — he’s never — 23 THE COURT: And copies have been provided in 24 your papers. 25 MS. LENDER: Pardon? 1 THE COURT: And copies of the note have been 2 provided. 3 MS. LENDER: Yes, they are. And the note’s 4 endorsed in blank. And I currently hold it. It’s in 5 my office. You can come look at it. He’s never come. 6 So, if there is an issue that the defendants don’t 7 believe that it exists, again, it’s at my office. And 8 it’s been there, and it’s been made available, but you 9 can’t oppose a motion for summary judgment by just 10 standing up and saying I don’t believe you. 11 And on this notice of right to rescind, 12 obviously, we would contest the validity of that 13 handwritten note. That’s dated from 2007. But it’s 14 important for the Court to also hear that obviously the 15 defendants don’t have a right to rescind. And they 16 both signed notices of right to cancel, swearing that 17 they received two copies of the notice of right to 18 cancel. And then they signed the notice of right to 19 cancel again on the day that they got $22,000 out. The 20 disbursement date on the loan, they took $22,000 out 21 and the closing agent had both of the defendants come 22 in and re-sign the notices saying — 23 THE COURT: After the alleged notice to 24 rescind. 25 MS. LENDER: Right. So, they — 1 THE COURT: They took more money out, is what 2 you’re saying, after their notice to rescind? 3 MS. LENDER: I’m sorry. No. I’m saying the 4 closing happened October 19th, 2004. The time to 5 cancel is three business days. After that three 6 business day period had passed, October 25th, the 7 defendants went back to the closing agent and re-signed 8 the notice of right to cancel saying we didn’t cancel 9 so that they could get the cash out. So, I mean, the 10 documents speak for themselves. And I have copies if 11 the Court needs them, but there is no right to cancel, 12 no right to rescind after the three-day period. And 13 both defendants already said that they were not 14 cancelling within that three-day period in 2004. 15 THE COURT: All right. I think what — I 16 think what he’s arguing is the three-year period, right 17 to rescind under — under misrepresentation. 18 MR. BORROWER: Well, also it’s Federal law that 19 — we have our closing documents we’ve always kept. 20 There was never a right to rescind notice given to us 21 which is a Federal law that protects borrowers. They 22 claim that they did give them to us. This is a 23 rebuttable presumption that is allowed for deeper 24 discovery. 25 We clearly have the actual good faith 1 estimate sent by the bank, all the closing documents, 2 the two sets of documents given, one to my wife, one to 3 myself. Nowhere was there ever the notice of 4 rescission rights included. And that’s a violation 5 that extends your statute of limitations to three 6 years. 7 THE COURT: That’s your argument, right? 8 MR. BORROWER: Yes. 9 THE COURT: And you’re arguing also that you 10 provided that notice to rescind within that three 11 years, is what your other argument is. 12 MR. BORROWER: Well, yes. That I mailed it in. 13 THE COURT: Based on that handwritten note, 14 which — 15 MR. BORROWER: And also by their responses to 16 the rescission. They sent me letters dated right after 17 that July 1st letter that we sent. So, I mean, they 18 don’t just send letters saying, you know, blah, blah, 19 blah, we discussed — we’re discussing this problem 20 with you on the telephone, maybe we can work something 21 out. We have documentation supporting the fact that we 22 did send a rescission letter. So, that hasn’t yet been 23 introduced into the record, but I would like to do that 24 before we leave today. **(ALSO ATTEMPTING TO SUBMIT THE TILA VIOLATIONS EVIDENCE INTO THE RECORD RIGHT HERE, LATER JUDGE SAYS HE DID NOT SEE ANY TILA VIOLATIONS, THE CLOSING DOCS FOR REVIEW) 25 THE COURT: So, you had emails or letters 1 from them acknowledging the right of rescission within 2 the three years. 3 MR. BORROWER: They didn’t mention the word 4 rescission, but right after our July — 5 THE COURT: But why haven’t you provided that 6 information? If you had this information, why — 7 MR. BORROWER: When I opened my statement just 8 now, I said that I have more documentation I’ve come 9 across. 10 THE COURT: Well, what I’m going to do is I’m 11 going to ask you — just so that counsel is not working 12 at a disadvantage, just if you could provide them to my 13 clerk. My clerk will make copies and give them — 14 MR. BORROWER: And also that — 15 THE COURT: We’ll take 15 minutes. 16 MR. BORROWER: Okay. Thank you, sir. 17 (Off the record – On the record.) *(BORROWER had attempted to have the court clerk copy all of the closing disclosures too in order to submit them into the record showing that they TILA violations existed, as per no notices of right to rescind were included. The clerk refused to copy the docs supporting the TILA violations, later the judge would say he saw no evidence of any violations.} 18 THE COURT: All right. Back on the record 19 with Wells Fargo versus BORROWERS. Before we left, there 20 were some documents Mr. Borrower said that he had which 21 he maintains acknowledged the receipt of his notice of 22 intent to rescind within the three-year statute. 23 Counsel, had an opportunity to look at those 24 documents? 25 MS. LENDER: Your Honor, thank you. I 1 received an August 27th, 2007 letter from Wells Fargo 2 home mortgage addressed to BORROWERS (phonetic) 3 . A Wells Fargo home mortgage monthly mortgage 4 statement addressed to BORROWERS dated June 5 20th, 2007, two pages. And loan information report 6 that’s handwritten “Fannie Mae owner”, and it’s noted 7 created June 13th, 2014. I don’t know where that came 8 from. 9 None of these documents reference a right to 10 rescind or acknowledge receipt of any letter in 2007. 11 I don’t know what they have to do with the right to 12 rescind issue. 13 MR. BORROWER: If I could, Your Honor. 14 THE COURT: Okay. 15 MR. BORROWER: I’d like to state that no bank 16 in the past, I guess, ten years has ever sent a 17 correspondence admitting that a borrower has rescinded. 18 They specifically ignore the rescission. 19 THE COURT: Well, I don’t know if you have 20 the ability to say something like that. I don’t know. 21 There probably is many rescissions to start with and 22 whether you’re familiar with all of them would be whole 23 other thing. 24 MR. BORROWER: The fact of the matter — the 25 one document, they had no reason in August 27th to sent 1 a correspondence stating that they spoke to us about a 2 problem. That’s the issue I’m trying to make that they 3 did reach back. There was something that came up, 4 because up until June mortgage statement, we were 5 current. The first time we attempted to rescind was 6 July 1st when that payment was due. That supports our 7 argument that we did send a rescission letter, because 8 July 1st was the first missed payment. And that was 9 followed up by communications back and forth between us 10 and Wells Fargo. 11 Also, the fact that the Fannie Mae statement, 12 we never did discuss my motion to compel discovery. I 13 have a document here that was never submitted to the 14 record. It’s Wells Fargo’s response to defendant’s 15 demand for production of documents.(this is already in the record and was included as an exhibit to my opposition to MSJ) 16 THE COURT: I’m not going to get in the habit 17 of allowing you to start introducing things at these 18 motions. Everything is supposed to be in front of me 19 so I can make a decision. 20 Now, what request for discovery that you have 21 would make a difference of the fact, given that they 22 have the note, it’s undisputed that you received — it 23 was delivered to you and that you’re in default. Tell 24 me what discovery that you are seeking is going to make 25 a difference with regard to that. 1 MR. BORROWER: Because there’s — you’ve heard 2 them right here on the record state that they don’t 3 know anything about Fannie Mae. 4 THE COURT: Well, they have the note. 5 Notwithstanding anything about Fannie Mae, they have 6 the note. 7 MR. BORROWER: Well, they have to — 8 THE COURT: Under law they can proceed with 9 foreclosure with that note. 10 MR. BORROWER: I disagree with that. 11 THE COURT: All right. And that’s the issue 12 I’ll decide then. 13 MR. BORROWER: I would like to state that a 14 holder of the note must establish by what authority 15 they come forward. You can’t just wave the note around 16 because anybody can find a note and make a copy. You 17 have to be able to establish — you know, rebuttable 18 presumptions if they’re raised. I raised a definite 19 valid rebutt due to the fact that there were 20 inconsistencies and discrepancies with their stamped 21 endorsement. I mean, they submitted that into a court 22 proceeding without the stamp. And then two years 23 later, it magically appears. I don’t believe a 24 foreclosure would be just at this point without a 25 little bit deeper discovery into — 1 THE COURT: Well, let me ask you this: do you 2 disagree that they have the original note? 3 MR. BORROWER: Yes, I do. 4 THE COURT: And what do you base that on? 5 MR. BORROWER: I base it on the fact that it’s 6 common knowledge out there based on the fact that — 7 THE COURT: You can’t base it on common 8 knowledge. 9 MR. BORROWER: Okay. 10 THE COURT: Based on what? 11 MR. BORROWER: Based on the State of New Jersey 12 and the Chief Justice Rabner and the Attorney General 13 and Judge Jacobson all agreeing that the integrity of 14 the judicial system is at stake, because it’s a known 15 fact, according to 50 attorney generals across this 16 country, that they’ve been attempting to submit faulty 17 documents, fabrications. This goes to consent order – *(I was quoting from the Robo-signer scandal where NJ threatened to shut down all 5 big banks for submitting faulty, fraudulent, fabricated documents into NJ foreclosure courts, NJ Highest Courts and Judges were saying it threatened the integrity of NJ Judicial System And they were quoted in all newspapers). 18 THE COURT: Sir, let’s go to the heart of 19 this. The heart of this is is you don’t dispute that 20 you received $232,000, right? 21 MR. BORROWER: Well, I’m disputing who did I 22 receive it from. I know it wasn’t from Wells Fargo. 23 THE COURT: Let’s say this. You don’t 24 dispute that you received $232,000 as part of a 25 mortgage and note, correct? 1 MR. BORROWER: That’s correct. 2 THE COURT: You don’t dispute that you failed 3 to pay your mortgage obligation. 4 MR. BORROWER: I do dispute that. 5 THE COURT: So, you’re saying that you paid 6 it up until today? 7 MR. BORROWER: No. I rescinded July 1st. That 8 was the first missed payment. I did not default. By 9 operation of law, that note and mortgage became void. 10 The Federal government mandates that they return the 11 cancelled note to me. 12 THE COURT: Let me ask you this: so if I were 13 to rule in your favor today and say you have the right 14 to rescind, you have $232,000 to give to them? 15 MR. BORROWER: Well, no. Here’s what — 16 THE COURT: No. That’s not my question to 17 you. Do you have $232,000 to give to them? 18 MR. BORROWER: I have a home that’s worth at 19 least that much. 20 THE COURT: That’s what they’re trying to do. 21 That’s what this whole thing is about. They want that 22 home in exchange for the money. 23 MR. BORROWER: But here’s the problem with 24 that. What they need to do if they want to adjudicate 25 a Federal rescission law that they ignored for eight 1 years is they can’t come in the back door under a 2 foreclosure and have a foreclosure judge attempt to 3 adjudicate an eight-year old non-compliance. They’ve – 4 – 5 THE COURT: Well, you’ve lived in the house 6 for eight years, right? 7 MR. BORROWER: Yes. 8 THE COURT: And you haven’t paid anything. 9 MR. BORROWER: According to the TILA law, it 10 says that I have every right to live there. If they 11 don’t return your note and mortgage, it says if another 12 20 days goes beyond the first 20, it says you can keep 13 it with no further obligations. That’s written right 14 in the Federal act. 15 THE COURT: Okay. 16 MR. FRAZEE: You know, they did not comply. 17 THE COURT: So, your application really at 18 the heart of it, you want this house for nothing. **(My mind went blank and I didn’t have a response ready for that question, I didn’t have my end-game exit strategy ready, I was getting worn down by his badgering and questioning) 19 MR. BORROWER: Well, no. I would rather this 20 go before a Federal court where they — no. They 21 should be forced to file their own complaint to come 22 against my rescission and let the proper court take 23 care of this issue. It’s a Federal law that they — my 24 argument is they didn’t comply with it in the statute. 25 Twenty days went by, they never responded. 1 THE COURT: All right. I understand your 2 argument. 3 MR. BORROWER: Now, as far as where we are 4 today, I don’t believe it would be just for you to 5 issue a foreclosure based on a void mortgage and note, 6 which by operation of law under the Federal authority 7 was voided before they ever filed a foreclosure 8 complaint. 9 So, for you to say, oh, let’s foreclose 10 today, you really need this to be adjudicated, the 11 rescission issue. You should probably dismiss this 12 case would be my opinion. Let them bring an action 13 against my rescission and let the chips fall that way, 14 you know, because — 15 THE COURT: Well, that was my question. Do 16 you have $232,000 to give to them for rescission? 17 MR. BORROWER: I understand this TILA, the way 18 it’s written, it doesn’t demand that you — it gives 19 options. 20 THE COURT: Humor me. Do you have $232,000 21 to give to them? That’s a yes or no. 22 MR. BORROWER: If I sell the house, I’ll have 23 more than that. 24 THE COURT: Well, if you — 25 MR. BORROWER: That’s why it gives the option 1 to a judge, you know, when the parties come together 2 and they — within the first 20 days, if they were to 3 come oppose this, and you were satisfied that I did 4 send the rescission letter, how you would adjudicate it 5 is by working out a deal. If he puts the house up for 6 sale, will you allow six months? He’ll give you the 7 cash. Or do you want to return his payments, three 8 years worth of payments, and take the property instead? 9 That’s where a judge would come in to help facilitate 10 the Federal act. 11 At this point by them ignoring it, Congress 12 never wanted to give them an incentive to ignore a 13 rescission letter. They should not be rewarded by 14 doing nothing and then eight years later saying, I 15 guess, we’re ready to adjudicate this rescission 16 letter. No. The Federal law stated that they would 17 pay a severe price if they chose to ignore. This is 18 the same as non-judicial foreclosures where the 19 homeowner has a choice. You either respond or it’s 20 going to be done outside of a courtroom. That’s how 21 this act was written. It was written that it doesn’t 22 have to take place in the court if — 23 THE COURT: I understand. You said that. 24 Anything else, sir? Okay. 25 MR. BORROWER: Just the fact of my discovery, I 1 feel that it does say, according to Wells Fargo’s 2 responses, that — from Wells Fargo’s company, not from 3 the attorneys, that Fannie Mae is the owner, but they 4 have no way to confirm anything about my closing 5 documents. That’s right in their response from Wells 6 Fargo. And that goes to the issue of the TILA 7 disclosures that were missing. So, in their own 8 response to me, they claim that they’re just the holder 9 of the note, they’re the servicer. They really have no 10 access to the original closing documents. So, that 11 does raise an issue of material fact. 12 THE COURT: All right. 13 MR. BORROWER: Thank you. 14 THE COURT: You care to be heard further? 15 MS. LENDER: Just so the record is clear, 16 Your Honor, I’m not a liar. I have the original note. 17 It’s been made available. So, I don’t appreciate the 18 common knowledge of fabricating documents. That’s not 19 happening here. And I have never fabricated anything 20 and submitted it to the Court. Definitely not in this 21 case. 22 And I hear that Mr. Borrower keeps believing 23 that he sent some handwritten note in 2007. He doesn’t 24 have a right to rescind the loan, and Judge B (retired) 25 already told him that in September. 1 And every time we come to court, it’s a new 2 issue. Now he wants us to dismiss the case. There’s 3 been multiple motions for reconsideration. He hasn’t 4 paid. The loan is due for October 2007. I mean, I 5 don’t know what else we need to do. DECISION 6 THE COURT: Okay. All right. Plaintiff has 7 filed this motion for summary judgment. The defendant 8 has opposed this motion for summary judgment, made 9 cross-motions first to reconsider the striking 10 affirmative defenses and counterclaims. Second, 11 reconsider the order denying the motion to dismiss due 12 to statute of limitations. Three, dismiss June 2007 13 rescission letter and, four, compel discovery. 14 In October 9th, 2004, the defendant executed 15 a note in favor of Commerce Bank in the amount of 16 $232,000. To secure the note, defendant executed a 17 mortgage in favor of Mortgage Electronic Registration 18 Systems, MERS, as nominee for Commerce Bank on the 19 property located at 123 Any Road, Any Town, 20 New Jersey. 21 On October 8th, 2007, MERS, as nominee for 22 Commerce Bank, assigned the mortgage to Wells Fargo. 23 The assignment was recorded on October 10th, 2008. The 24 defendants defaulted on the loan by failing to make 25 payments on July 1st, 2007. Complaint and foreclosure 1 was filed September 25th, 2007 under docket number F- 2 25290-07. 3 This matter went to final judgment, but the 4 judgment was vacated and the case was dismissed without 5 prejudice in October of2007. Defendant made some 6 payments in 2008 and 2009 bringing the payments current 7 to October 1st, 2007. The plaintiff then filed another 8 complaint and foreclosure on May 9th, 2014. Defendant 9 filed an answer/counterclaim on June 27th, 2014. The 10 plaintiff was granted a motion to dismiss the 11 counterclaims and affirmative defense, defenses 12 numbered 2, 3, 8, 9, 10, 11, 13, 14, 15, 17, 18, 20, 13 21, 22, 23, 25, 26, 29, 30, 31, 32 and 33 with 14 prejudice. 15 The Court will address defendant’s cross16 motion and then the plaintiff’s motion for summary 17 judgment. The defendant has made a motion to 18 reconsider the order striking affirmative 19 defenses/counterclaims. On September 19th, 2014, the 20 Court ordered the dismissal of defendant’s 21 counterclaims and affirmative defenses, as indicated, 22 with prejudice. 23 In New Jersey a motion for reconsideration 24 can be made pursuant to Rule 4:49-2. This rule states 25 that: 1 “A motion for a re-hearing or reconsideration 2 seeking to alter or amend a judgment or order shall be 3 served not later than 20 days after service of the 4 judgment or order upon all parties by the party 5 obtaining it. The motion shall state with specificity 6 the basis on which it is made, including a statement of 7 matters or controlling decisions which counsel believes 8 the Court has overlooked or as to which it has erred 9 and shall have annexed thereto a copy of judgment or 10 order sought to be reconsidered and a copy of the 11 Court’s corresponding written opinion, if any.” 12 And that’s Rule 4:49-2. 13 “Furthermore, to succeed a motion for 14 reconsideration, the Court must grant relief in 15 consideration of Rule 4:50-1. The rule is designated 16 to reconcile the strong interest in final judgment and 17 judicial efficiency with the equity — with the 18 equitable notion that courts should have authority to 19 avoid an unjust result in any given case.” And that’s 20 Mancini v. EDS, 132 N.J. 330, 334 (1993). I’ll omit 21 the internal citations. 22 “The trial court determination under the rule 23 warrants substantial deference and should not be 24 reversed unless the results are a clear abuse of 25 discretion.” 1 And I’ll also omit the internal citations of 2 the case. 3 The defendant has made the motion to 4 reconsider out of time, first of all. The defendant 5 had 20 days to follow the order on September — 6 following the order on September 19th, 2014 to make the 7 motion. Furthermore, the defendant has not annexed to 8 his motion a copy of the order which he seeks to have 9 reconsidered. They’re technical violations. 10 Therefore, the defendant has not complied strictly with 11 New Jersey 4:49-2. 12 Moreover, if the Court were to overlook the 13 procedural deficiencies in the motion, it must be 14 denied for the substantial reasons: that is, the Court 15 does not find any adequate basis for which to overturn 16 the Court’s prior decision. The burden to succeed 17 under the rule is high, as evidenced in cited 18 decisions. The Court originally barred the claim under 19 the Truth In Lending Act or TILA claim as being brought 20 out of time, past the three-year statute of 21 limitations. 22 Defendant now claims that they did exercise 23 their right to rescind the loan contract within the 24 three years providing what is a handwritten document 25 which purports to be notice. The United States Supreme 1 Court decision in Jesinoski also relies on that. In 2 Countywide v. Home Loans, 135 Sup. Ct. 790 (2015) case 3 which holds that: “The borrower may notify the lender 4 in writing of their intention to rescind the loan 5 within the three-year statute of limitations rather 6 than forcing the borrower to file a complaint within 7 the three-year statute of limitations.” 8 However, the Jesinoski court also stated in 9 its decision that: “This regime grants borrowers — 10 this regime grants borrowers a non-conditional right to 11 rescind for three days after which they may rescind 12 only if the lender failed to satisfy the act’s 13 disclosure requirements. But this conditional right to 14 rescind does not last forever, as the court indicated. 15 That’s where the lender fails to make the required 16 disclosure, the right of rescission shall expire three 17 years after the date of consummation of the transaction 18 or upon the sale of the property, whichever comes 19 first.” And that’s the Jesinoski at 792. See also 12 20 C.F.R. 226.23. 21 Therefore, this three-year statute of 22 limitation right only exists if the defendant was not 23 given the property disclosures. The note and mortgage 24 very clearly on their face recite the material 25 disclosure required by the law, Section 12 C.F.R. 1 226.32 stating: “The term ‘materials disclosure’ means 2 the required disclosures, the annual percentage rate, 3 the finance charge, the amount financed, the total 4 payments, the payment schedule and disclosure 5 limitations referred to in section 226.32(c) and (d), 6 and 226.35(b)(2).” 7 The defendant has not identified the missing 8 disclosures which would justify the statute of 9 limitations to continue to run and three-year 10 limitations either initially in the motion before Judge 11 B (just retired) or in this motion to reconsider. Even if 12 defendant were to show that the conditional three-year 13 statute of limitations were to apply, defendant lacks 14 sufficient evidence to first show that they properly 15 effectuated the right to rescind. 16 Defendant has submitted a handwritten copy of 17 a letter that is dated July 1st, 2007 and simply titled 18 “Truth In Lending Act Rescission Notice”. The Court 19 has no way to properly ascertain nor could anyone 20 properly ascertain whether this letter was actually 21 mailed, made or received by plaintiff to effectuate the 22 rescission. 23 The defendant’s failure to provide 24 substantive support for his assertions notwithstanding, 25 the defendant asserts that the rescission of the loan 1 would simply discharged the note and mortgage. While 2 this would be true, to rescind the note — the loan, 3 the defendant would need to return the loan proceeds to 4 plaintiff which amount to over $180,000. 5 The Supreme Court has stated in U.S. Bank v. 6 Guillame, 200 — 209, pardon me — 209 N.J. 449, 481- 7 482 (2012) that, “TILA sets forth a procedure for 8 homeowners to tender the property that he or she has 9 received from the lender, citing to the U.S. Code, 10 citation omitted. 11 “Although the statutory language calls for 12 rescission by the lender prior to homeowner’s tender of 13 the balance of the loan, federal courts have held that 14 TILA need not be interpreted literally as always 15 requiring the creditor to remove its security interest 16 prior to the borrower’s tender of the proceeds.” And 17 that’s Yamamoto Bank of New York vs. Bank of New York, 18 329 F.3d 1167, 1171 (9th Circ. 2003) 19 “Courts adjudicating TILA claims have 20 discretion to deny recision if the homeowner cannot 21 tender the property that he or she has received from 22 the lender.” See American Mortgage Network, Inc. v. 23 Shelton, 46 F.3d 815, 821 (4th Circ. 2007) holding that 24 once the trial judge in his case determined that the 25 Shelton’s were unable to tender the loan proceeds, the 1 remedy of unconditional rescission was inappropriate. 2 Also, Yamamoto, Super 328 F.3d 1172, footnote 3 5, noting: “Authority holding that rescission may be 4 conditioned on borrower’s repayment of the loan 5 proceeds.” 6 And Williams v. Homestake Mortgage Company, 7 968 F.2d, 1137, 1142, (11th Cir. 1992), stating: “In 8 the context of rescission under TILA, the courts should 9 consider traditional equitable notions including 10 whether the borrower has the ability to repay the 11 principal amount. 12 Federal Deposit Insurance Company v. Hughes 13 Development Company, 938 F.2d 889, 890 (8th Cir. 1991) 14 stating that: “TILA gives Courts discretion to 15 condition rescission upon the debtor’s prior return of 16 the principal.” 17 Brown v. National Permanent Fed Savings 18 Association, 683 F.2d, 444, 447, 221 U.S. App. D.C. 19 125, 125 (D.C. Cir. 1982) holding that: “A court may 20 condition the granting of rescission upon plaintiff’s 21 repayment of the principal amount of the loan to the 22 creditor.” Internal quotations and citations omitted. 23 See also Rudisell v. Fifth Third Bank, 622 24 F.2d 243, 254 (6th Cir. 1980) holding that: “Since 25 rescission is an equitable remedy, the court may 1 condition the return of money to the debtor upon the 2 return of the property to the creditor.” 3 See also Powers v. Sims and Levin, 542 F.2d 4 1216, 1221 (4th Cir. 1976) holding as follows: “That 5 surely, the Congress did not intend to require a lender 6 to relinquish its security interest when it is now 7 known that the borrower did not intend and were not 8 prepared to tender restitution of the funds expended by 9 the lender and discharging the prior obligations of the 10 borrowers.” And that’s the case at 1221. 11 Additionally, defendant does not adequately 12 address the other claims and defenses which were 13 dismissed pursuant to the order of September 19th, 14 2014. Therefore, for the reasons stated, defendant’s 15 motion for reconsideration September 19th, 2014 order 16 is denied. I’ll note that the purported notice of 17 rescission did not include any reference to the monies 18 being returned or any indication that they had the 19 monies to return. I find that it is insufficient. 20 Defendant’s motion to reconsider the order 21 denying the defendant’s motion to dismiss under the 22 statute of frauds, in addition. Defendant seeks 23 reconsideration of the February 20th, 2015, order which 24 denied the defendant’s motion to dismiss the complaint 25 under the statute of frauds. In this motion for 1 consideration, the defendant is again subject to New 2 Jersey Court Rules 4:49-2 and 4:50.1. The motion was 3 filed on March 20th, 2015, and was within the requisite 4 time frame for a motion to be filed for reconsideration 5 under 4:49-2. However, the defendant has not attached, 6 as indicated to seek reconsideration, the order for 7 which they seek reconsideration. It’s stated within 8 the specificity the basis for the motion is made. 9 The defendant has not supplemented the 10 argument to provide a basis for which relief can be 11 granted under the rule. In the prior motion, defendant 12 argued that the six-year statute of limitations under 13 N.J.S.A. 2A:50-56.1a began at the time the loan was 14 accelerated in 2007. The defendant relies on 15 Washington v. Specialized Loan Servicing, L.L.C., a 16 2014 bankruptcy case Lexus 4649 which is a non17 published opinion by the United States Bankruptcy Court 18 for the District of New Jersey. There, the court ruled 19 the maturity date for the purpose of the statute of 20 limitations is the acceleration date. 21 This Court noted at the time that the 22 Bankruptcy Court’s decision was not binding for two 23 reasons: first, the case is unpublished; and, second, 24 the New Jersey Superior Court Chancery Division is not 25 bound by decisions made by the Bankruptcy Court in that 1 regard. Thereafter, the Court ruled that the 2 Washington decision was not persuasive in making its 3 decision. The maturity date as set forth in the 4 original note and this date does not change regardless 5 of acceleration rights held by the plaintiff. 6 And the Court cited to, and I’m citing to 7 generally, Garruto v. Cannici, 211 N.J. Super 8 unpublished Lexus 1436 (App. Div.) The Court applied 9 the plain language of the statute which stated that: 10 “An action in foreclosure residential mortgage shall 11 not be commence six years from the date fixed in the 12 making of the last payment or the maturity date set 13 forth on the mortgage.” N.J.S.A. 2A:50-56.1a. 14 The Court ruled, therefore, that the 15 plaintiff may bring the action within six years of the 16 maturity date of the loan. Here, the maturity date in 17 the note is November 1st, 2034. And the statute of 18 limitations, therefore, extend six years following that 19 date to November 1st, 2040. Furthermore, the Court 20 denied this motion on the alternative grounds that the 21 motion to dismiss had not been properly brought before 22 the Court. 23 Plaintiff correctly asserts that the statute 24 of frauds and affirmative defenses had been dismissed 25 with prejudice by order of the Court on September 19th, 1 2014. The defendant could not, thereafter, bring that 2 defense by way of motion to dismiss. In conclusion, 3 the defendant has not provided adequate grounds for the 4 Court to reconsider the order entered on February 20th, 5 2015, and the motion is denied. 6 Defendant also makes a motion to dismiss the 7 complaint due to defendant’s 2007 rescission letter. 8 This motion dismissed as being brought now upon the 9 same facts and basis as the TILA claim which was 10 dismissed with prejudice on September 19th, 2014. The 11 defendant cannot at this time make a motion to dismiss 12 the complaint on the basis of a counterclaim that has 13 previously been dismissed in an attempt to subvert the 14 court rules or procedure. 15 Even considering a motion to dismiss, the 16 defendants fail to satisfy the standard for dismissal. 17 Under Rule 4:6-2e: “A claim can be dismissed for 18 failure to state a claim upon which relief can be 19 granted if the complaint states no basis for relief and 20 the discovery would not provide one. Dismissal of the 21 complaint is appropriate.” 22 See Camden County Energy Recovery 23 Association, LP v. New Jersey Department of Environment 24 Protection, 320 N.J. Super 59, 64 (App. Div. 1999) 25 Aff’d. 170 N.J. 246 (2001). “However, reasonable 1 inferences are to be accorded to the non-moving party” 2 — I’ll omit the internal citations otherwise noting 3 Printing Mart Morristown v. Sharp Electronic 4 Corporation. 5 “In determining a motion to dismiss under 6 this rule, the Court may only consider whether the 7 complaint states a cognizable cause of action,” Reider 8 v. State Department of Transportation, 221 N.J. Super 9 547, 552 (App. Div. 1987). 10 “Dismissal is mandated where the factual 11 allegations are palpably insufficient to support the 12 claim.” And that’s Reider, 552. 13 While defendant may wish to have the 14 complaint dismissed, they have not pled a basis — may 15 wish not to have it — they have not pled — made a 16 sufficient basis to deny the dismissal. 17 Furthermore, the Court has dealt with the 18 decision issue at length already, disposing of such 19 argument despite the defendant’s improper procedure, 20 and, therefore, the motion is denied. 21 Defendant’s motion to compel discovery. The 22 defendant has made a motion to compel discovery. New 23 Jersey Court Rules 1:6-2c states that, “Every motion in 24 a civil case in Chancery Family Part not governed by 25 Paragraph (b) involving any aspect of pretrial 1 discovery or the calender shall be listed for 2 disposition only if accompanied by a certification 3 stating that the attorney for the moving party has 4 complied with certain requirements and is personally 5 conferred by the attorney for opposing counsel.” 6 The defendant certified his motion that they 7 have advised the attorney for the opposing counsel or 8 the party if appearing pro se by letter that if I will 9 make this motion, otherwise, if you don’t comply with 10 my discovery request. However, defendant does not show 11 the letter to support the certification. The plaintiff 12 further argues that not only has the defendant not sent 13 a letter in advance of the motion, but they did not 14 know that the defendant had an outstanding discovery 15 issue because they were not notified of such until the 16 cross-motion was filed. 17 The defendant has also failed to specify 18 exactly what discovery they are seeking to be 19 compelled. The defendant in their brief states, “We 20 have not yet received the full discovery that we should 21 have due to the plaintiffs objecting to most, if not 22 all, of our interrogatory questions and requests for 23 documents.” 24 The Court cannot understand this or what 25 deficiencies the plaintiff has committed in producing 1 discovery. Furthermore, plaintiff argues that they are 2 not required to produce discovery on the claims and 3 defenses that have already been dismissed with 4 prejudice six months ago. 5 The defendant has not properly brought the 6 motion to compel discovery. This Court finds, as their 7 certification is deficient and the defendant has not 8 identified to the Court what discovery is deficient. 9 Moreover, given the proofs in possession of plaintiff, 10 it is unclear what the discovery would produce given 11 the plaintiff is in possession of the note. And the 12 other important prima facie aspects of the case have 13 been proven through the certification which I’ve 14 accepted. 15 Plaintiff’s motion for summary judgment. The 16 plaintiff seeks summary judgment on the remaining 17 defenses raised by defendant. Their answer, the 18 defendant has opposed this motion. Pursuant to New 19 Jersey Court Rule: “Summary judgment may be granted if 20 there is no genuine issue as to any material fact 21 challenged, and that the moving party is entitled to a 22 judgment or order as a matter of law.” And that’s Rule 23 4:46-2. 24 Also, Brill v. Guardian Life Insurance. I’ll 25 omit the citation. 1 “New Jersey Supreme Court has put forth the 2 standard for determining whether or not summary 3 judgment should be granted stating that: “The judge 4 must consider the elements of the non-moving party’s 5 substantive case and decide whether the competent 6 evidence, evidential materials presented when viewed in 7 the light most favorable to the non-moving party are 8 sufficient to permit a rational fact-finder to resolve 9 the alleged disputes issued in favor of the non-moving 10 party.” And that’s Brill at page 540. 11 “In an action for foreclosure, the only 12 material issues are the validity of the mortgage, the 13 amount of the indebtedness and the right for the 14 mortgage to restore the mortgage premises.” And that’s 15 Great Falls v. Pardo. I’ll omit the citation. 16 “The prima facie right to foreclose is made 17 upon proof of execution, recording and non-payment of 18 the note and mortgage.” That’s Stork v. Floormore 19 Corporation. (phonetic) Again, omitting the citation. 20 Under Rule 4:64-1c(2): “An answer to a 21 foreclosure complaint is deemed to be non-contesting if 22 none of the pleadings responsive to the complaint 23 either contest the validity or priority of the mortgage 24 or lien being foreclosed or create an issue with 25 respect to the plaintiff’s right to foreclose on it,” 1 as stated otherwise in Old Republic. 2 “If the defendant’s answer fails to challenge 3 the essential elements of the foreclosure action, the 4 plaintiff is entitled to strike the defendant’s answer 5 as non-contesting. Where the answer in defense failed 6 to challenge the essential elements of the mortgagor’s 7 right to foreclose and fail to impose a validly 8 cognizable defense, the mortgagee is entitled to final 9 judgment of foreclosure.” See Met Life v. Washington 10 Adam Associates, 159 N.J. 484 (Sup. Ct. 1999) 11 Pursuant to the Rules of Court, affirmative 12 defenses must be pled with specificity. Rule 4:5-4 13 requires a specific statement of facts for each 14 separately-pled affirmative defense. In the context of 15 a foreclosure action, the party seeking to foreclose a 16 mortgage must own or control the underlying debt.” 17 That’s Bank of New York v. Rationis. I’ll omit the 18 citation. 19 “Plaintiff must have either physical 20 possession of the note or an assignment of the mortgage 21 that predated the original complaint to have standing.” 22 That’s Deutsche Bank v. Angeles. Omitting the 23 citation. 24 The plaintiff has brought this motion to 25 strike the following defenses as numbered in the 1 answer: (1) the complaint failed to state a claim; (4) 2 damages caused by others, not the defendants; (5) no 3 contract ever existed; (6) any wrong was the result of 4 plaintiff’s own conduct; (7) estoppel; (12) failure to 5 attach the required documents; (16) violation of Fair 6 Foreclosure Act; and (19) failure to attach required 7 documents; (24) failure to attach required documents; 8 (27) notice — notices were not sent by authorized 9 person; and (28) standing. 10 Plaintiff argues that they have shown a prima 11 facie right to foreclose upon the property. Plaintiff 12 has shown their prima facie right to foreclose as the 13 loan documents were executed, the mortgage was recorded 14 and there was a default on the loan. Therefore, the 15 defendant’s defense stating that the complaint does not 16 state a cause of action must be struck. The plaintiff 17 also asserts that they have standing — asserts that 18 they have standing to foreclose. They contend that 19 they were in possession of the note prior to the 20 foreclosure complaint. They were assigned the mortgage 21 from MERS as nominee of Commerce Bank on October 8th, 22 2007, which assignment was recorded on October 10th, 23 2008 — pardon me — in 2007. This is included in the 24 plaintiff’s certification. 25 “To have standing to bring a foreclosure 1 action, the plaintiff must show that they were either 2 in possession of the note or assigned the mortgage 3 prior to the filing of foreclosure complaint.” See 4 Deutsche Bank v. Angeles. 5 The plaintiff has shown that the assignment 6 was made and recorded prior to the foreclosure 7 complaint. Defendant argues that the legal title never 8 transferred from MERS to Wells Fargo by stating that 9 the date of fabrication recording are different. And 10 this is, “The date of fabrication recording are 11 deficient. Together with discrepancies of the note 12 fabrication, no dates of when the note was sold, 13 stamped, transferred, et cetera.” See defendant’s 14 brief. 15 The defendant also questions the validity of 16 the note and also its chain of title. The defendant’s 17 argument is difficult to follow by this Court and 18 dissect. However, the Court, after reading the briefs 19 of defendant, does not find that there is any apparent 20 fraud or issues or even evidence of any apparent fraud 21 or issues with regard to the plaintiff’s standing. 22 The defendant also discredits the plaintiff’s 23 certification in support of their motion for summary 24 motion. Defendant argues that the plaintiff does not 25 have the person who created the records making the 1 certification of — accuracy of such to the Court. 2 However, the business records exception to the hearsay 3 rule applies. The plaintiff submitted a certification 4 made by Elisa Depp (phonetic) who is the vice president 5 of loan documentation for plaintiff Wells Fargo. A 6 certification can be made based on the business records 7 hearsay exception to the records which are pursuant to 8 regular business practice records was made at or near 9 the time of the event being recorded and the 10 circumstances and methods of preparing the records 11 justify its admission into evidence. It was made by 12 somebody with actual knowledge of the event at the time 13 of its entry. That’s also Rule 1:6-6 Business Record 14 and 803c(6). 15 Ms. Depp has certified that she is familiar 16 with the type of records maintained by the plaintiff 17 and also the procedures in which producing and 18 maintaining these records within Wells Fargo. Ms. Depp 19 has certified that the records are made at or near the 20 time of the occurrence of the matter by persons with 21 personal knowledge of the information recorded. Ms. 22 Depp has certified that she has personally reviewed the 23 subject documents and the certification including the 24 note, mortgage and assignment. Therefore, the 25 certification submitted by the plaintiff is admissible. 1 The plaintiff also states that the original 2 note and mortgage are being held at their counsel’s 3 office, Reed Smith, in Princeton in New Jersey. The 4 plaintiff contends that the defendants have been given 5 an opportunity to come and inspect the documents, but 6 the defendants have chosen not to avail themselves of 7 this opportunity. 8 The Court finds that because of the reasons 9 stated in defendant’s defense brief and based on the 10 standing, the answers — that the answers in the 11 defendant’s answer must be stricken and affirmative 12 defenses. 13 Plaintiff argues that there has been no 14 violation of the Fair Foreclosure Act. The plaintiff 15 certifies that the notice of intent to foreclose was 16 sent out on April 1st, 2014, more than 30 days prior to 17 the filing of the foreclosure complaint on May 9th, 18 2014. 19 The defendant, in their opposition, does not 20 address this defense. The Court is, therefore, 21 satisfied that plaintiff has complied with the notice 22 requirements set forth in the F.F.A., and as such, the 23 defense is stricken. 24 The plaintiffs argue also that defendant has 25 not supported his defenses; that is number (4) damages 1 are the fault of the third party; (6) plaintiff caused 2 its own damages with any basis of fact. The defendants 3 have failed to oppose the plaintiff on these counts in 4 the summary judgment motion. The Court finds that both 5 of these defenses should be struck from the answer. 6 The plaintiff argues similarly that defendant has not 7 opposed their motion for summary judgment as to 8 defenses on (7) estoppel and (12), (24) and (27) 9 failure to attach documents. 10 The plaintiff argues that the doctrine of 11 estoppel is to be used very infrequently and only when 12 circumstances demand its use to bring equity to the 13 parties. Defendant has made no showing of its use 14 here. Further, the plaintiff argues that they have 15 attached all the required documents. The defendant has 16 not made a specific objection to this outside of their 17 abstract discovery demand which has already been 18 discussed at length in this opinion. Therefore, the 19 defense (7) of estoppel, (12), (24) and (27) for 20 failure to attach documents are hereby stricken. 21 One remaining defense made by the defendant 22 is number (5) that is: no contract ever existed. This 23 defendant likely made
  43. i am thinking that the 9 th circuit has now been shown the way. Make no (more ) mistake.

  44. The sentence neil wrote is:
    “The notice is simply effective when sent” by operation of law.
    Simply put the “the notice is simply effective when sent” it is SELF ENFORCING by operation of law because if nothing offered to rebutt within 20 days ( declaratory action) then consider it enforced ( as in court order)

    (Not an attorney lay opinion based on jesinoski decision)

  45. conditions to be argued Christine, the court will then decide on the merits of the argument.

    Im looking at some old stuff and so a bit off topic but soooo part of it all because when you get down to the who and the how , ( hence they cant get back to you in 20 day window of rescission by filing for a declaratory relief thereto) but they can robo sign about 750 docs/ day )
    as far as my case is concerned – and thats all i can compare because the particularities of each individual case will be at issue, so,
    Have you all read (because you should,) the deposition if ERica Johnsen Seck robobsigner, by attyTomas Ice,
    Look at those answers, then think about them in context of what you have with your cases, the players the assignment dates, abcd transfers that were not. Ask yourself how and who had control of the asset, to authorize the next man, im thinking of the liquidating of certain entities and sale of ” certain assets”.
    The issue i have with this new ruling and dont get me wrong im in as far as using it to my advantage wherever possible, its a big gun, but, if the contract deed of trust and note is rescinded all the other malfeasances will not come to light to a jury trial. Im brain stormin sorry if it offends anyone, not the intention.

    http://www.propublica.org/documents/item/july-2009-deposition-by-erica-johnson-seck-of-onewest-bank

  46. Neil knows best. I am only giving my layman’s opinion.

    In non Judicial States do the County recorders have to record now? especially in California. Because up until now the County Recorders would not let us record (only Notice of Intent to Preserve interest attached with notices).

    I think because we are in non judicial states after the uncontested Recission the county recorder must record and if they dont then we need to only force through a lawsuit against the county recorder not the banksters.

    Food for thought laymans opinion

    NEVER AGAIN

  47. I also think that Judges that dont comply will find themselves in a lot of trouble.

    Judges do not like it when the lower level judges dont listen to what they say.

    NEVER AGAIN
    LET MY PEOPLE GO.

  48. FROM ATTORNEY GENERAL, CHRISTENE,

    the Act primary relies on private
    enforcement by consumers to deter violations and
    police creditors. See, e.g., McGowan v. King, Inc., 569
    F.2d 845, 848-49 (5th Cir.1978) (explaining that
    TILA is designed to foster enforcement through a
    system of private attorneys general). To encourage
    private enforcement, TILA provides consumers with
    remedies for both actual and statutory damages and
    awards attorney’s fees to consumers who prevail in
    establishing a TILA violation in court. 15 U.S.C.
    § 1640(a).
    In addition to damages, TILA also grants
    consumers rescission rights when they enter into
    credit transactions that pledge their “principal
    dwelling” as security. Id. § 1635(a). The rescission
    right reflects Congress’s intent to prevent consumers
    from placing their homes in jeopardy for loans and
    other credit transactions without a clear understanding
    of the potential risks of the underlying
    transaction.5 See S. Rep. No. 96-368, at 28 (1980),
    reprinted in 1980 U.S.C.C.A.N. 236, 264. To ensure
    that consumers make a deliberate and informed choice,
    and that consumers can reconsider their choice after
    full disclosure of loan terms, TILA

  49. AS NEIL SAYS 20 DAYS, OR THEY HAVE NOTHING.

    No. 13-684
    IN THE
    Supreme Court of the United States
    ON WRIT OF CERTIORARI TO THE UNITED STATES
    COURT OF APPEALS FOR THE EIGHTH CIRCUIT
    LARRY D. JESINOSKI, et ux.,
    Petitioners,
    V.
    COUNTRYWIDE HOME LOANS, INC., et al.,
    Respondents.
    ERIC T. SCHNEIDERMAN
    Attorney General
    State of New York
    BARBARA D. UNDERWOOD*
    Solicitor General
    STEVEN C. WU
    Deputy Solicitor General
    CECELIA C. CHANG
    Special Counsel
    120 Broadway
    New York, NY 10271
    (212) 416-8020
    barbara.underwood@ag.ny.gov
    Counsel for Amici Curiae
    BRIEF FOR THE STATES OF NEW YORK, ARIZONA, ARKANSAS,
    CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, INDIANA, IOWA,
    KENTUCKY, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN,
    MINNESOTA, MISSISSIPPI, NEVADA, NEW HAMPSHIRE, NEW MEXICO,
    NORTH CAROLINA, OREGON, RHODE ISLAND, TENNESSEE, VERMONT,
    WASHINGTON, WEST VIRGINIA, AND THE DISTRICT OF COLUMBIA,
    AS AMICI CURIAE IN SUPPORT OF PETITIONERS, most of ALL ATTORNEY GENERALS IN THE COUNTRY AGREE WITH,.
    NEIL GARFEILD, AS ALL OF YOU MUST READ THE BRIEF SUBMITTED TO THE

    UNITED STATES OF AMERICA, SUPREME COURT.

  50. I think the Supreme Court of the Land also sent a message that Legislating from the bench is not cool. And this will appy to UCC etc…..

    Enough is Enough.

    NEVER AGAIN

  51. Christine Cyber bullying is a serious crime.

  52. “And THAT means that even if the “lender” or “creditor” has perfectly legitimate defenses to the rescission, the rescission is still nonetheless effective BY OPERATION OF LAW.

    That language “by operation of law” is very important because it means the act of the borrower in signing and sending the notice of rescission is the same as a court order canceling the loan.”

    OMG! Is that ever misleading! There are frickin’ conditions to meet! People are going to get Oh so screwed if they swallow that one! I’m waiting for the first batch of those unsuccessful rescissions with homeowners sanctioned and assessed banks’ legal expenses. Yep. The new door to the promised land… The thing is: 11,000 people started their “promised land” journey. Only forty came out alive. It’s going to be the same thing here.

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