Posted on April 14, 2015 by Neil Garfield
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RESCISSION PACKAGE: The volume is so high that we are able to provide discounts up until the April 14 cutoff date. Send your email to email@example.com and fill out the form at TILA or COMBO registration form — No Obligation to Purchase
The ONLY loans that we reject as candidates are those in which the homeowner has never sent a notice of cancellation or rescission of the loan and where (a) judgment has been entered or (b) where the judicial sale occurred. If you DID send a notice of rescission BEFORE judgment or judicial sale, you are still eligible for our program even if judgment and sale has occurred.
FOR GENERAL INFORMATION
Somehow, despite the unanimous and unequivocal decision penned by Justice Scalia for the the US Supreme Court, people are still not getting it. The burden of proving a bad rescission is on the banks and if they don’t do it within 20 days, the questions are over. But lawyers and homeowners refuse to take yes for an answer, even when it comes from a unanimous Supreme Court, the highest court in the land the final word on any subject.
Instead of the Banks bringing the required lawsuit to challenge the rescission within 20 days which in nearly all cases expired long ago, homeowners and lawyers are letting themselves get ensnared with interpretations of TILA that might prevent a homeowner from thinking he or she can send of enforce a notice of rescission that would have been enforced — if they had only asked.
Since 2007 I have repeatedly said in connection with foreclosure defense, don’t accept the burden of proof. Hundreds of judges and thousands of lawyers expressed their contempt for my analysis, which they called wishful thinking. Events have proven me right in every respect. The courts are increasingly finding for the homeowner in foreclosures.
AND the rescission remedy is exactly what I said it was — a nuclear bomb in finance that the banks cannot do anything about except try to scare people into not using it.Don’t over analyze this. Don’t accept the burden of proof. AND in this case — TILA rescission — you have specific authority NOT to accept the burden of proof. Yet lawyers and homeowners are making the mistakes of hundreds of judges before them. They are applying common law rules for rescission to a statutory remedy that is very clearly NOT common law rescission.
These are all self defeating questions, in my opinion. TILA doesn’t stop you from sending a notice of rescission nor does TILA require you to interpret the statute of limitations whether the property is primary residence, whether the loan was a purchase money mortgage etc. It only provides that as far as the actions of the homeowner are concerned, he or she need only send a letter cancelling the loan and that the letter is the same as a court order — by operation of law.All the legal arguments and questions arising out of who should have been able to send a notice of rescission are questions that the Banks must raise within 20 days of the notice of rescission. If they fail to raise those issues, the issues are waived.
The answer is technically that the act of sending a notice of rescission applies regardless of whether your particular mortgage in fact qualifies for rescission or not. If it does not qualify, the rescission is STILL EFFECTIVE until challenged by the banks within the 20 day window. We have not seen such a challenge ever filed in any court.Hence the rescission would be upheld under the US Supreme Court decision because it is effective when dropped in the mailbox and consumers of loans are not required to be lawyers or have a lawyer when they want to cancel the loan. If the rescission is improper the creditor has 20 days to make its claim. After that it is waived and the homeowner is entitled to enforce a rescission — even one that MIGHT have been determined ineffective, had it been properly challenged.
It is the technical legal procedure that puts virtually all borrowers in the driver’s seat. You only need any arguable basis for sending the rescission. Being wrong does NOTHING to effectiveness of the rescission unless a judge says so during the 20 window in which the creditor MUST file their challenge. After that it is all about enforcement of a rescission, which, by operation of law, is valid and effective despite any defects the creditor might want to point out to the court.
This is one of many examples of why the rescission package is essential and why the advice from people who know nothing about the law, nothing about the Jesinowski decision and nothing about rescission other than “what they have heard” is so important. And it is why we have received nearly a thousand inquiries about our program.
If you have a loan, it is subject to rescission.
The other issues you raise are exactly what we address in our Rescission Package analysis and report. We cannot offer you legal advice or opinions other than general information like this letter unless you are a lawyer or have a lawyer who is asking the same questions.
At the very least you should purchase my original workbook from 2008 which contains the same information that Judges and lawyers rejected but which was completely validated by a unanimous US Supreme Court 9-0 in 2015. The only thing that has changed is now we all know that all the lawyers and judges that applied rules for common law rescission were, as I have always said, dead wrong.
Filed under: foreclosure