Rescission Summary As I see It

If you read my blog for the last 3 weeks or so you should get a good idea of where I am coming from on this. If you still have questions or need assistance call me at 954-495-9867 or 520-405-1688. The basic thrust of my argument is that

  1. BOTH Congress and US Supreme Court agree that there is nothing left for the borrower to do other than dropping notice of rescission in the mail. It is EFFECTIVE BY OPERATION OF LAW at the point of mailing. The whole point is that you don’t need to be or have a lawyer in order to cancel the loan contract, the note and the mortgage (deed of trust) with the same force as if a Judge ordered it. No lawsuit, no proof is required from the borrower. No tender is required as it would be in common law rescission. The money for payoff of the old debt is presumed to come from a new lender that approves a 1st Mortgage loan without fear that they will lose their priority position.
  2. Lender(s) must comply within 20 days — return canceled note, satisfy mortgage, and return money to borrower.
  3. Lenders MUST file a lawsuit challenging the rescission within 20 days or their defenses are waived. Any other interpretation would make the rescission contingent, which is the opposite of what TILA and Scalia say is the case.
  4. Therefore a lawsuit by borrower to enforce the rescission need only prove mailing.
  5. Any attempt to bring up statute of limitations or other defenses are barred by 20 day window.
  6. The clear reason for this unusual statutory scheme is to allow borrower to cancel the old transaction and replace with a new loan. This can only happen if the rescission is ABSOLUTE. It can be declared void or irregular or barred or anything else ONLY within the 20 day window. If the 20 day window was not final (like counting the days for filing notice of appeal appeal, motion for re-hearing, etc.) then no new lender or bank would fund a loan that could be later knocked out of first priority position in the chain of title because the rescission was found to be faulty in some way. This is the opposite of what TILA and Scalia say.
  7. The content of the rescission notice should be short — I hereby cancel/rescind the loan referenced above. You merely reference the loan number, recording information etc. at which point the note and mortgage become VOID by operation of law.
  8. BY OPERATION OF LAW means that the only way it can be avoided is by getting a court order.
  9. If any court were to allow “defense” in a rescission enforcement action AFTER the 20 day window the goal of allowing the borrower to get another loan to pay off the old lender(s) would be impossible.
  10. Hence the ONLY possible logical conclusion is that they MUST file the action within 20 days or lose the opportunity to challenge the rescission. And any possible defenses are waived if not filed during that period of time. That action by the “lender” or “creditor” must be an equitable action to set aside the rescission, which is already “effective” by operation of law.

The worst case scenario would be that rescission is the most effective discovery tool available. If the lender(s) file the 20 day action they would need to establish their positions as creditors WITHOUT the note and mortgage (which are ALREADY VOID). This would require proof of payment and proof of economic interest and proof of ownership and balance. Any failure to plead these things would fail to establish standing. The attempt to use the note and mortgage as proof or the basis of pleading should be dismissed easily. The note and mortgage are void by operation of law by the time the bank or servicer files its action.

In all probability the only parties who actually have an interest in the debt are clueless investors who by contract have waived their right to enforce or participate in the collection process. The problem THEY have is they gave their money to a securities broker. They can neither show nor even allege that they know what happened to their money after they gave it to the broker.

The important thing about TILA Rescission is that it is a virtual certainty that the borrower will be required to file an enforcement action. In that action they should not allow themselves to get sucked into an argument over whether the rescission was correct, fair, barred by limitations or anything else, all of which should have been raised within the 20 day window. AND that recognition is the reason why we have been inundated to prepare pre-litigation packages, analysis and reports to assist lawyers in filing actions to enforce rescissions, whether filed today or ten years ago.

Caveat: I have no doubt that attempts will be made to change the law. The Supreme Court has made changing the law impossible by a ruling from the bench, That means state legislatures and Congress are going to be under intense pressure to change this law or the effect of it. But as it stands now, I don’t think any other analysis covers all the bases like the one expressed here.

332 Responses

  1. Dwight:

    Do you want to complain about what happened? Or do you prefer to win?

    You have to come to some kind of light bulb cognition of what’s going on in your case. Let’s start with the basics. Pick one of the following:

    1. The judge is an impatient, corrupt, tyrant, OR… 2. You are a bozo (amateur) who heeded a KoolAid-Drinker’s advice.

    If you choose 1 above, I consider you a lost cause, for the time being at least, because you have not yet realized that you settled upon the WRONG STRATEGY, and used WRONG TACTICS, even though you might have had a meritorious case.

    The judge told you that you shouldn’t bring a bunch of papers to a summary judgment hearing, but he still accepted them, looked at them, and ruled on them.The judge told you point blank that your so called rescission letter didn’t rescind anything. That should clue you in. And apparently some document rebutted your claim that you didn’t get your TILA notices.

    IF you want a trial on the merit, you MUST present a cogent, MERITORIOUS answer to the complaint that shows with crystal clarity some serious faults in the loan. And you had better explain why you waited so long to bring them forth. The judge has the obligation to do what seems equitable, and he WILL NOT give you a free house, period. And if he suspects you want a free house, he will buck against the idea.

    That means you have to SHOW him that the LENDER, APPRAISER, MORTGAGE BROKER, CLOSING OFFICER, TITLE COMPANY, REALTOR, SERVICER, some lawyer, or some other party INJURED YOU AT THE INCEPTION OF THE LOAN or loan mod.

    DID YOU DO THAT?

    I guess not. Because if you had, you would have gone to trial and not to Summary Judgment.

    Rock said he’d help you. I cannot fathom why you haven’t asked him for help. You know good and well that IF someone competent examines your mortgage documents they stand a huge likelihood of revealing numerous causes of action that might convince the judge to take your case to trial.

    WHAT IS HOLDING YOU BACK??? Haven’t I offered to help you FREE? I will, you know. Just call me at 727 669 5511.

    Bob Hurt

    FREE

  2. @johngault

    You said:

    “well, color me confused. if it’s neg, they’re not entitled to f/c – under article 9? so what? they rely on 3 plus the ‘mers’ assgt of th coll instrument, say (toss the note from teh assft for a moment). Under 3, that’d be all they need, right?** why do you mention 9 in ref to right to f/c under art 3 negotiability? Are you suggesting that X is enf pursuant to 9 and if so, what is X? ”

    “X” in your example is a non-negotiable note. I’m mentioning Article 9 because you made a statement that made it seem like the pretender lender was trying to go there with you.

    This is from a brief I wrote that addressed the issue; I hope it helps:

    Here, the purported promissory note is an unconditional promise to pay money to the order of a particular person at a specific time at the time it was issued. See UCC § 3-104. Therefore, it is a negotiable instrument and enforcement of the same is governed by UCC Article 3. Id.

    Conversely, UCC Article 9 does not apply here because Article 9 governs the sale of “security interest(s)” in a particular instrument under which the particular instrument itself serves as collateral for the sale. See UCC § 9-102(a)(12)(Collateral defined as, inter alia, promissory notes). In a typical real estate transaction, a borrower gives his note and a deed of trust to the lender securing repayment of the loan using the property purchased as collateral. In such a situation, enforcement of the note against the borrower is solely governed by Article 3. See UCC § 9-109(a)(3)(Article 9 governs the sale of [security interests in] promissory notes; nothing in Article 9 suggests that Article 3 doesn’t govern the negotiation, transfer and enforcement of promissory notes that qualify as negotiable instruments).

    However, if the lender then wishes to use the note given to it by the borrower for collateral to secure its own loan, it can pledge or sell a security interest in the note to secure it. The lender’s lender then has a security interest in the note that it can enforce against the lender if it defaults on its loan. Upon default, the lender’s lender may enforce its security interest by foreclosing the collateral. However, the collateral is not the original borrower’s real property – it is the note itself. UCC § 9-102(a)(12).

    In the context of negotiable instruments secured by real estate, Article 9 has nothing to do with enforcement against the original borrower and everything to do with the enforcement of security interests created after the original borrower has given his/her promissory note to the lender, i.e., into the secondary mortgage market.

    This fact is evident in the enforcement provisions of Article 9; a security interest is enforceable only against an “account debtor,” or the guarantors of the same, and the secured party “may exercise the rights of the ‘debtor’ with respect to the obligation of the ‘account debtor.’” See UCC §§ 9-607(a)(1) & 9-607(a)(3). While “account debtor” is defined in Article 9 as the person obligated on an account, chattel paper, etc., a “person obligated to pay a negotiable instrument” is excluded from such definition. See UCC Article 9-102(a)(3). See “Default and Enforcement of Security Interests Under Revised Article 9” (1998-2000) 74 Chi.-Kent L. Rev. 891, 899 (“If the instrument is negotiable, the obligor is not an ‘account debtor’ and its duties are always governed by UCC Article 3, not Article 9 (emphasis added).”); See also 9-102, cmt. 5h. In contrast, “Debtor” is defined as the person “obligated on the collateral” (the promissory note or deed of trust); in the above example, the “debtor” referred to in Article 9 would be the borrower’s lender – not the borrower. Thus, Article 9 has no application to the question of whether Respondent has standing to foreclose on the property herein – even if Respondent has shown evidence that it owns an Article 9 “security interest” – which it has not.

  3. BTW Dwight, having to repeat myself over and over tells me, you’re to far gone to help, which you are because you made arguments that everyone outside of Garfieldtown knows are specious & frivolous.

    I posted this a week ago explaining why you lost and how SJ works:

    “The purpose of summary judgement is to pierce the pleadings and to assess the proof to determine whether there is a genuine need for trial.” MATSUSHITA ELEC. INDUS. CO. v. ZENITH RADIO CORP. 475 U.S. 574, 587 (1986).

    “Summary-judgement procedure is designed to isolate and dispose of factually UNSUPPORTED claims or defenses.” CELOTEX CORP. v. CATRETT, 477 U.S. 317, 323-24 (1986).

    “You’re problem was you only had: conclusory allegations, speculation, unsubstantiated assertions, and legalistic argumentation, which are no substitute for specific facts showing a genuine dispute of material fact. TIG INS. v. SEDGWICK JAMES, 276 F.3d 754, 759 (5th Cir. 2002).”

    You gave the bank your home on the proverbial “silver platter,” because you listened to the scammer/nitwits, instead of attacking the mortgage transaction (contract) as we suggested from day one.

    God save you, when your wife finds out about your monumental screwup. Like I said, you may lose more than your home; seen it happen to many a homeowner that followed scammer/nitwits and not only lost their home, but spouse as well.

    I could save you both, but I only make one offer of help, and I’m tired of wasting my time with Kool-Aid drinkers.

    Only homeowners willing to listen to proven methodologies need apply!

  4. Dwight, its obvious you don’t know how a summary judgement proceeding works.

    Moreover, your argument that ” the contract was never completed, that it was table-funded by undisclosed, concealed third parties who remain un-named, which constitutes predatory lending per se according to TILA Reg Z,” is more Kool-Aid the scammer/nitwits fed you.

  5. Rock … Isn’t there a difference between an answer to the complaint, where I deny the allegations named in the complaint that

    My answer pleadings deny 1) a loan existed and 2) I defaulted ..

    And ..

    my seperate Affirmative defenses where I allege that acts of the plaintiff make their claims invalid and unenforceable .

    Doesn’t one or both entitle me to a trial?

    Doesn’t my answer and pleading alone warrant a trial? Where I deny that a valid contract exists between us.

    How did they defeat my pleading on a motion for summary judgment pertaining to the issue of a valid contract? Without a trial? Based only on evidence of the contested note?

    Something doesn’t jive here ..they have not proved the contract was valid … In my pleading answer I asserted the contract was never completed, that it was table-funded by undisclosed, concealed third parties who remain un-named , which constitutes predatory lending per se according to TILA Reg Z … this alone shifts the burden of proof to the plaintiff .. It is their case to prove.

  6. Dwight, if you pled those matters as a defense then the burden is on you to prove.

    In an affirmative defense the burden of proof is on the defendant to prove his allegations either by the preponderance of the evidence or clear and convincing evidence, which you could do neither. Take my word for it is not evidence/proof.

    I offered to help you, as well as Christine, Bob, shadowcat et al, but you listened to the scammer/nitwits instead, and where did that get you, the same thing it got the others that listened to them–the sidewalk!

  7. Rock … That’s what Trials and due process are for, to determine if a valid contract existed, or whether it was breached by the lender.

    How the judge personally feels about why a defendant asserted two defenses, one that denied the contract and one that rescinded the contract, should not be relevant, he should rule on each defense raised on its own merits.

    The contract may have appeared to be valid on its face, but upon closer inspection and investigation it becomes evident that it was breached.

    The rescission defense is a seperate defense , and it was clearly stated and articulated in the pleadings as a seperate defense. So the judge is in error when he attempts to insert his own personal feelings into validating why he is denying a trial and due process.
    If the judge feels so strongly that a valid contract existed and no breach had occurred, then he should have no concerns or fears of a trial bearing out those truths based on the evidence.

    The same with his personal disdain for rescission .. he should have no fears or concerns of a trial and due process if he believes the plaintiff will be able to prove their case based on the evidence and testimony.

    Just because I assert 2 defenses regarding the contract, should not be a reason to deny a trial and grant a summary judgment. The judge is doing a lot of assuming on his part .. due process is what matters, not a judges personal feelings and assumptions.

  8. Dwight, I don’t know why I keep trying to help you when you’d rather listen to the scammer/nitwits. I guess I just feel sorry for you.

    Its clear, by the transcripts, this judge was bending over backwards to help you and explain how your ridiculous arguments didn’t cut it.

    The dumbest ass in the world knows that you can’t rescind a contract that doesn’t exist, but this is what you argued.

    Like I told you before, if this was a criminal case the judge would order a psychiatric exam based on your schizophrenic arguments.

  9. Bob Hurt .. I did deny that a valid, enforceable contract existed when I asserted it in my answer to the complaint. My pleadings were clear, I denied the mortgage was enforceable .. maybe my error was in falsely assuming that it would be enough to get to discovery and trial.

    The first judge (who just retired) did accept my defense which attacked the validity of the mortgage. He ordered discovery and set a trial date of May 1, 2015.

    The new judge took over on March 1, 2015 and granted the plaintiff MSJ on March 20, 2015.

    I’m confused about how one judge saw reason to go to trial .. and a new judge comes in and denies the trial and grants SJ.

    I thought when a defendant denies that a default occurred, denies that a valid enforceable mortgage contract exists .. it places the burden on the plaintiff to prove up that a valid contract exists, which would be flushed out in a trial and with the help of discovery.

    I falsely assumed that a MSJ was a difficult hurdle to clear for a plaintiff, when a defendant is pleading that the contract is invalid for whatever reason. How can a judge grant MSJ without a trial when he has not yet heard what the arguments are? Does a defendant need to prove his case in his pleadings? Do defendants need to prove their case at a Summary Judgment hearing? I thought that was what the trial was for , I didn’t realize that a SJ hearing was the trial .

    Here below is the portion of transcript where the judge addresses my defense that asserts no valid contract existed.
    in my answer and pleadings I asserted that the contract was invalid. And one of my Rescission reasons was that the APR was wrong, which was never addressed by this judge. If this was allowed to go to trial I was prepared to argue whether the mortgage contract was breached, and thus making it unenforceable. The judge apparently made his own assumptions about why I was attacking the mortgage. See below
    >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

    * Judge addressing the plaintiff’s MSJ requesting that my defense that no valid contract existed ….

    21 One remaining defense made by the defendant
    22 is number (5) that is: no contract ever existed. This
    23 defendant likely made this claim in an attempt to void
    24 the loan documents. Here, a contract did exist between
    25 the parties as evidenced by the note and mortgage.

    1 Furthermore, the defendant has argued that they tried
    2 to rescind the contract. Had there never been a
    3 contract, there really would be nothing to rescind.
    4 Furthermore, the plaintiff has shown its standing to
    5 foreclose and also establishes right to foreclose. It
    6 is also of no consequence that the defendants did not
    7 contract with their current plaintiff as the transfer
    8 of documents has occurred; indeed, the plaintiff has
    9 indicated her possession of the actual note endorsed in
    10 blank. Therefore, this defense has no merit and must
    11 be stuck from the answer.
    12 As a result, defenses hereby struck from the
    13 answer, the plaintiff is entitled to summary judgment.
    14 The case is returned to the office of foreclosure.
    15 I’ll sign the order.
    16 Thank you, Counsel.

    17 MR. BORROWER: Your Honor, I have a question,
    18 defenses. I attempted to submit exhibits showing proof
    19 of my closing documents that were missing, the notice
    20 of rescission, but your clerk didn’t take them.
    21 THE COURT: Sir, you know, to show up at a
    22 summary judgment motion and start submitting documents,
    23 —
    24 MR. BORROWER: But you questioned whether I had
    25 proof.

    1 THE COURT: It’s not fair to anybody. I
    2 can’t give you special privileges because you’re a non-
    attorney. I have to treat you like you would be an
    4 attorney. I’m not going to accept documents that I
    5 have no idea. I did some documents —

    6 MR. BORROWER: But you were ruling –
    **(Wanted to say that in his ruling he claimed he did not see any TILA violations, yet his clerk refused to make copies of my closing docs for him to review when he left the bench for 15 mins. On the record I had stated that I have the closing docs and were waving them in my hand, missing the required disclosures. Bank attorney alleged she had signed statements that we had signed after the 3 day rescission period ended, stating that we had no rescinded, but that statement is different than the TILA violation which says a notice must be given to the borrowers ..because over 3 days later an APR violation or other violation may be discovered. The judge didn’t understand this requirement of TILA , and neither did the attorney for Wells Fargo, that is why I was interrupting him)

    7 THE COURT: Sir, while I’m talking, please
    8 listen.
    9 MR. BORROWER: Okay. I’m sorry.
    10 THE COURT: You’re not going to be able to
    11 hear what I say if you’re talking over me. Nor will
    12 they be able to record what we’re saying because
    13 everything is being recorded.
    14 MR. BORROWER: I’m sorry.
    15 THE COURT: I’ve allowed you to submit some
    16 documents which I’ve copied, my clerk’s copied, taken
    17 great time to provided them to counsel. As I’ve
    18 indicated, those documents shed no light. They were
    19 just letters. No mention of rescission.
    20 In any event, I’m not going to continue this
    21 way by you submitting documents you think are important
    22 based on my rulings. I’ve made my rulings. You’re
    23 going to have to comply with the court rules. That
    24 concludes the matter.
    25 We’ll take ten minutes.

    1 MS. LENDER: Thank you, Your Honor.
    2 (Proceedings Concluded.)

  10. For dupe Dwight; you’d also better take heed to Garfield’s securitization auditor’s case:

    “In essence, Plaintiff argues that under the above-described new case law, (Jesinoski) the Bankruptcy Court came to the wrong conclusion in his case. However, “[u]nder controlling precedent from the Supreme Court and the Ninth Circuit, the fact that a judgment may have been wrong, or have rested on a since-repudiated legal principle, does not alter the claim preclusive effect of a final judgment…Plaintiff’s remedy in a case where the judgment was wrong or the law was later overturned is an appeal, not a collateral attack. See Wall v. Kholi, 131 S. Ct. 1278, 1283 (2011) (“A collateral attack is an attack on a judgment in a proceeding other than a direct appeal.”).”

    So, go ahead and listen to your “paralegal guru” and do another reconsideration motion and risk getting sanctioned and paying bank’s attorneys fees.

    All your doing is pissing away money & time listening to nitwits.

  11. For all of the scammer/nitwits who argue court doesn’t have SMJ if TILA notice sent, you’d better take heed to Garfield’s securitization auditor’s case, who lost his house making such stupid arguments:

    “Specifically, Plaintiff argues that two recently decided cases—Jesinoski v. Countrywide Home Loans Inc., 135 S. Ct. 790 (2015) and Merrit v. Countrywide, 759 F.3d 1023 (9th Cir. 2014)—show that Plaintiff effectively rescinded the loan that was the basis for the suit prior to the bank’s foreclosure. Plaintiff argues that because he rescinded his loan, the Bankruptcy Court somehow lacked subject matter jurisdiction. Reply, ECF No. 98, 11:15-20. This argument lacks merit. Even if, as Plaintiff claims, he effectively rescinded his loan and the creditor failed to take the appropriate steps, the Bankruptcy Court would have subject matter jurisdiction to adjudicate the case under the Truth in Lending Act, a federal law. Thus, this argument is unfounded and misconstrues the meaning of subject matter jurisdiction.” JAMES L. MACKLIN v. MATTHEW HOLLINGSWORTH, et al. No. 2:10-cv-01097-MCE-KJN. United States District Court, E.D. California. April 20, 2015.

  12. rciferri, you said : “in my opinion, it is good for the homeowner facing foreclosure if the pretender lender admits the note is a negotiable note, because, if it is, they are NOT entitled to foreclose the property under Article 9. By contrast, if the note is a non-negotiable note, I think they may be entitled to foreclose the property.”

    well, color me confused. if it’s neg, they’re not entitled to f/c – under article 9? so what? they rely on 3 plus the ‘mers’ assgt of th coll instrument, say (toss the note from teh assft for a moment). Under 3, that’d be all they need, right?** why do you mention 9 in ref to right to f/c under art 3 negotiability? Are you suggesting that X is enf pursuant to 9 and if so, what is X?

    **but poss of a bearer note, no matter how you crack, it doesn’t est a right to the coll instrument ftr.

  13. And all of that, Dwight, should clue you in as to what does not work in disputing foreclosure. The only things that matter are:

    1. Did you sign a note and mortgage/DOT? 2. Did you receive money? 3. Did you breach the note? 4. Did someone else breach it, defraud you, or commit some other tort, legal error, or regulatory breach FIRST, such as at the inception of the loan.

    YOu don’t see that other stuff in the list because it does not matter. And you have ABSOLUTELY IGNORED ITEM FOUR ABOVE.

    Until you rinse the assignment, securitization, foreclosure fraud KoolAid out of your mouth and drink in the refreshing elixir of Mortgage Attack, you will wallow in misery with no hope of succor or relief.

    READ and HEED, Dwight. I have given you the key to the kingdom of damage awards and negotiated settlement: MORTGAGE ATTACK.

    Call me if you want FREE help with that.

    Bob Hurt 727 669 5511

  14. @johngault responding to his message of April 24, 2015 @ 5:45 p.m.

    You said:

    “kudos. Not that I’m someone who should’ve or could’ve caught that, but at any rate, I didn’t. But btw, could save me and others a lot of work, then could that be true of a former bearer note now with a special end to the claimant? Note is to abc who endorsed to efg who made blank end to current claimant, say? Where transfer of possession is a requisite, why would it be any different?”

    It seems to me that a bearer note may be converted to one with a special endorsement and vice versa. See UCC 3-109(c) & 3-205(c).

    It also seems to me that, in the case of multiple indorsements of the note, if the last indorsement is a special indorsement, one other than who the note was specially indorsed to will need to provide more evidence than his mere possession of the note to show he has standing to foreclose as a non-holder in possession of the note with the rights of a holder.

  15. @johngault

    Sorry I have taken so long to respond, but I’ve had some technical difficulties in the last few days.

    You said on April 24, 2015 @ 6:48 p.m., the following:

    “This was the finding in Boyko.
    Claimants show up with notes mostly endorsed in blank. But for some reason(s), while generally claiming to rely on art 3, they yet want the notes assigned (transferred) to the trusts and the way they’re doing that is to show it being transferred in the instrument which assigns / transfers the ben interest in the collateral instrument (by ‘mers’ to boot). Without looking, this may qualify as movement pursuant to article 9 (yet they cite 3; is this likely because of all the times they relied on it in the past and or may want to in the future?)”

    I think they want to have it both ways to cover themselves. Also, I believe you are right that they have most often in the past contended that the note is a negotiable note.

    What’s good for the issuer of the note (homeowner), and bad for them, is the fact that Article 3 is all about negotiable notes, rather than non-negotiable notes. In my opinion, it is good for the homeowner facing foreclosure if the pretender lender admits the note is a negotiable note, because, if it is, they are NOT entitled to foreclose the property under Article 9. By contrast, if the note is a non-negotiable note, I think they may be entitled to foreclose the property.

  16. @ Bob Hurt, regarding your comment on April 24, 2015 @ 3:34 p.m.:

    First, I’m sorry this is coming so late. Due to some kind of technical glitch I don’t understand, I have been unable to post since early Friday, April 24, 2015.

    In my opinion, it really comes down to proof. For Aurora to show it is entitled to enforce the note it must show it is a holder, was transferred the rights of a holder by one who was a holder or one who was given the authority to transfer the rights of a holder or shown that it can take shelter under the rights of a previous holder. Due to the definition of the word “holder” in Article 1 of the UCC, Aurora cannot enforce the note as a holder because the special indorsement to Residential prevents it. However, if there were evidence Residential had indorsed in blank (or to the order of Aurora) and delivered possession of the note to Aurora with the intention of giving Aurora the right to enforce the note, then that would tend to prove Aurora was a holder and prove its standing to foreclose the collateral.

    As you point out, even someone in wrongful possession of a note may enforce a note. However, without proof one in wrongful possession (or otherwise) has the rights of a holder, there would be no proof that person is entitled to enforce the note as a non-holder in possession with the rights of a holder.

    In contrast, I believe proof of mere possession of the note may be good enough to show Aurora had the right to enforce the note if the note were indorsed in blank for Aurora to prove it is a non-holder in possession of the note with the rights of a holder.

    If Aurora had proffered a power of attorney from Residential giving it the rights of a holder, I believe that would have been sufficient proof to show Aurora was entitled to enforce the note and had standing to prosecute the foreclosure, despite the special indorsement to Residential preventing Aurora itself from being a holder (as you pointed out, an agent may enforce the note for the holder).

    The foregoing constitutes an analysis under Article 3. However, I understand that Aurora may have rights as an assignee of Residential under Article 9. Yet, even more problems of proof arise under Article 9 and I don’t think (from the transcript) that Aurora met its burden of proof in that regard.

    Further, if the note were determined to be a negotiable instrument and there were evidence that the note was transferred from Residential to Aurora giving Aurora the right to foreclose the collateral under Article 9, the note still would not be enforceable against the property and, consequently, any interest of Aurora acquired thereby would not give it standing to foreclose the property.

    Finally, if all necessary elements were proven that Aurora acquired a valid Article 9 security interest in the note from Residential AND it was determined that the note was non-negotiable, I believe Aurora could enforce the note against the property and, consequently could prove its standing to foreclose the property.

  17. Dwight, why don’t you file this brief, I’m amazed the scammer/nitwits haven’t already suggested it.
    http://dailycaller.com/2015/04/23/fck-this-court-georgia-woman-files-legendary-court-brief/

    Its about as useless as everything else those morons have told you.

  18. Dwight, “Unfortunately ..the lawmakers wrote the UCC-3 and UCC-9 in a completely whacked out way, that bounces around and zig-zags back and forth, snakes and weaves and wobbles in its language so much .. that most people have a hard time following or understanding what the hell it all means.

    That’s true, however people with legal acumen have no problem understanding it.

    You got this part right: “At the end of the UCC day .. it appears that nothing really matters…They have boiled it all down to the party foreclosing has what they purport is “The Note & The Mortgage.” That’s why homeowners need to attack the mortgage transaction (contract), the only PROVEN methodology that works–PERIOD!!!

    You listened to the scammer/nitwits Garfield, rciferri, Gault, trespass, neidermyer, how’d that work out for you?

    BTW, if you listen to your “paralegal guru” scammer/nitwit be prepared to be sanctioned.

  19. DwightNJ said….

    Chains of title? They don’t care.
    2 Notes .. fake or authentic? They don’t care.
    Table funded loan, predatory per se? They don’t care.
    MERS? They don’t care.
    Multiple transfers with no HIDC ? They don’t care
    No real party in interest established? They don’t care.

    The universally adopted attitude from the courts is and always will be….You took out a loan, didn’t you?

    They don’t care which faction of the securitization industry reaps the reward. Your previous comments concerning your home’s equity….that doesn’t concern the judiciary either….just let them have it all. No need to do the math. It’s simply more runway foam.

    Years ago on LL, I pointed out a white paper from Temple Law Review that was disseminated to the judiciary as a roadmap on the foreclosure crisis. In that lengthy study of the underlying facts of the crisis, the end result read….

    As a high percentage of mortgages likely have deficiencies associated with the assignment processes, courts need to be careful how they deal with the neglect-based defenses. While some judges may be quick to punish the mortgage industry and the financial institutions that were largely responsible for the current financial crisis, judges need to realize that foreclosures are a significant and important part of today’s economy.

    Did you get that? Foreclosures, in general, are a substantial factor in an improving economy. Improving for whom? This goes hand in glove with every faux attempt from the Obama administration, that is, allow foreclosures to continue unabated, actually expedited, while at the same time constructing elaborate Potemkin villages that would fool the masses into believing all that can be done is being done, when nothing could be further from the truth. In actuality, nothing whatsoever is being done save for the continuation of the crime spree. Watch the right hand while the left pilfers.

    Temple Law ends by saying that if the bank’s case is just too pooch screwed, judges should rule against them, but without prejudice, allowing them to get their paperwork together (read: counterfeit) and come back for another bite.

    From my viewpoint, nothing short of revolution will stop this. But, this must be stopped.

  20. Trespass … Thank you , very good & informative insight. I’m meeting with my foreclosure defense paralegal guru this week to discuss the gameplan now that his office has had time to review the records. He had told me right up front that I had a mess once he initially glanced at it, he’s very sharp and knows his stuff , but he had said his strategy will probably be in first trying to repair the damage thru motions to reconsider ..repairing it for the appeals court more than to try and convince the lower judge to change his mind .. but the key to filing motions for reconsideration is that you have to be raising proper and acceptable reasons for the reconsideration motion. Otherwise he can just deny it outright.

    One of the reasons for a reconsideration is “new evidence found” as in the Supreme Court Jesinoski decision .. My judge acted like I had no valid reason to file a motion to reconsider, he kept saying my rescission was already dismissed by the other judge back in Sept 19, 2014 …

    But when the other judge had dismissed my rescission defense and counterclaim in 2014 .. the Supreme Court had not yet come out.

    So in my opinion I had every right to file a late un-timely motion because one of the reasons for allowing a late reconsideration is exactly like the situation presented here, where a higher court clarifies the issue at hand, and in doing so has validated the defendants affirmative defense and counterclaim .. that they should be allowed, and that it was wrong to dismiss them.

    But this judge complained and whined about the late motion .. as if he doesn’t understand that the real point isn’t the late motion , the real point is that the defendants due process rights were being denied by the unjust dismissal of his defenses.

    And Rocks post about Article 9 … Charles Reed has been saying all along that Article 9 plays an important part in this , but he says that somebody should be required to show receipt of a purchase somewhere along the chain.

    Unfortunately ..the lawmakers wrote the UCC-3 and UCC-9 in a completely whacked out way, that bounces around and zig-zags back and forth, snakes and weaves and wobbles in its language so much .. that most people have a hard time following or understanding what the hell it all means ..

    At the end of the UCC day .. it appears that nothing really matters. All that matters seems to be that the banks can foreclose regardless of any issue raised by the borrower victims.

    The UCC is a tower of Babylon doctrine , a collection of babble spewed out as a smoke and mirrors magic trick to be performed by the magician judge and his little trustworthy assistant bank lawyer as they make the house disappear on the stage called a court room.

    Chains of title ? They don’t care.
    2 Notes .. fake or authentic? They don’t care.
    Table funded loan, predatory per se? They don’t care.
    MERS? They don’t care.
    Multiple transfers with no HIDC ? They don’t care
    No real party in interest established? They don’t care.

    They have boiled it all down to the party foreclosing has what they purport is “The Note & The Mortgage” …

    Nothing else matters to the courts ..they have an answer for everything.

    It’s not even a reality based method of adjudication .. there are very few trials allowed on the issues . The victims of the mortgage meltdown and the foreclosure travesty that has followed are being denied their rights .. both .. 1) due process 2) equal protection

  21. For you scammer/nitwits still arguing MERS and PETE status; here’s another case explaining the law:

    http://mersinc.org/judicial-decisions/1010-ma-hoyt-v-bac-home-loan-servicing/file

  22. This should clear up any discussions regarding the transfer of notes:

    “While, in many cases, the person entitled to enforce a note is also its owner, this need not be the case. The rules that determine whether a person is a person entitled to enforce a note do not require that person to be the owner of the note, and a change in ownership of a note does not necessarily bring about a concomitant change in the identity of the person entitled to enforce the note. This is because the rules that determine who is entitled to enforce a note and the rules that determine whether the note, or an interest in it, have been effectively transferred serve different functions:

    • The rules that determine who is entitled to enforce a note are concerned primarily with the maker of the note, providing the maker with a relatively simple way of determining to whom his or her obligation is owed and, thus, whom to pay in order to be discharged.

    • The rules concerning transfer of ownership and other interests in a note, on the other hand, primarily relate to who, among competing claimants, is entitled to the economic value of the note.

    In a typical transaction, when a note is issued to a payee, the note is initially owned by that payee. If that payee seeks either to use the note as collateral or sell the note outright, Article 9 of the UCC governs that transaction and determines whether the creditor or buyer has obtained a property right in the note. As is generally known, Article 9 governs transactions in which property is used as collateral for an obligation. In addition, however, Article 9 governs the sale of most payment rights, including the sale of both negotiable and non-negotiable notes. With very few exceptions, the same Article 9 rules that apply to transactions in which a payment right is collateral for an obligation also apply to transactions in which a payment right is sold. Rather than contain two parallel sets of rules – one for transactions in which payment rights are collateral and the other for sales of payment rights – Article 9 uses nomenclature conventions to apply one set of rules to both types of transactions. This is accomplished primarily by defining the term “security interest” to include not only an interest in property that secures an obligation but also the right of a buyer of a payment right in a transaction governed by Article 9. Similarly, definitional conventions denominate the seller of such a payment right as the “debtor,” the buyer as the “secured party,” and the sold payment right as the “collateral.” As a result, for purposes of Article 9, the buyer of a promissory note is a “secured party” that has acquired a “security interest” in the note from the “debtor,” and the rules that apply to security interests that secure an obligation generally also apply to transactions in which a promissory note is sold.

    Section 9-203(b) of the Uniform Commercial Code provides that three criteria must be fulfilled in order for the owner of a mortgage note effectively to create a “security interest” (either an interest in the note securing an obligation or the outright sale of the note to a buyer) in it.

    • The first two criteria are straightforward – “value” must be given and the debtor/seller must have rights in the note or the power to transfer rights in the note to a third party.

    • The third criterion may be fulfilled in either one of two ways. Either the debtor/seller must “authenticate” a “security agreement” that describes the note or the secured party must take possession of the note pursuant to the debtor’s security agreement.

    o Thus, if the secured party (including a buyer) takes possession of the mortgage note pursuant to the security agreement of the debtor (including a seller), this criterion is satisfied EVEN IF THAT AGREEMENT IS ORAL or otherwise not evidenced by an authenticated record.

    o Alternatively, if the debtor authenticates a security agreement describing the note, this criterion is satisfied even if the secured party does not take possession of the note. (Note that in this situation, in which the seller of a note may retain possession of it, the owner of a note may be a different person than the person entitled to enforce the note.)

    Satisfaction of these three criteria of Section 9-203(b) results in the secured party (including a buyer of the note) obtaining a property right (whether outright ownership or a security interest to secure an obligation) in the note from the debtor (including a seller of the note). REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE
    UNIFORM COMMERCIAL CODE APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES NOVEMBER 14, 2011.

  23. Penal Code, Penal Law, Criminal Law
    Crimes against Public Administration
    Perjury, Bribery, Obstructing Justice, Harboring Escape, False Statements, (crimes public officials can commit)
    Official Misconduct 18USC242 every state has it codified

    If a public official, acting under the color {meaning pretense of his authority) , exerts or purports to exert an authority he does not expressly have [Malfeasance in office] or fails to perform a duty he is required to perform [Misfeasance in office] and in the process denies a citizen in the full and free access to the enjoyment of a right it is a Class A Misdemeanor Federal and State

    Who has authority to rule, not in accordance to the Supreme Court ruling, and in the process deny you the right to due process or any other right, including the right of rescission?

    Malfeasance
    Intentional conduct that is wrongful or unlawful, especially by officials or public employees. Malfeasance is at a higher level of wrongdoing than nonfeasance (failure to act where there was a duty to act) or misfeasance (conduct that is lawful but inappropriate).

    Misfeasance
    The incorrect, improper or wrongful performance of a lawful act. See, e.g. Bennis v. Michigan, 517 U.S. 1163 (1996).

    Trespass Unwanted

  24. How many motions of reconsideration can you file, and if there is no limit, will you be able to file another regarding the affidavit.

    I believe the court is no place to protect one’s right to property.

    I also believe that a rescission is a matter of law and no judge can keep a contract valid once a notice of rescission is sent.
    If the notice was sent and the bank failed to respond within 20 days, it matters not about the tender because the lender would have to bring a suit if it wanted the tender, needed, could prove it had a right to the tender, and it was not available.

    I believe that ruling itself is enough to complain on the judge, because the supreme court made it’s initial decision about the power of the rescission and then added the other information regarding it.
    No where does it say the rescission had conditions, the settling of the account, who gets the house, who has to tender, is after the contract is void by rescission.

    The rescission, once sent it is valid and enforceable, creates the follow-on obligations.

    There are people who are filing judicial complaints, bar grieving attorneys, filing criminal complaints and criminal charges and having grand juries investigate the activity of judges, lawyers, prosecutors, and others as they are not taking this lightly when someone interferes with their right.

    There are people who go into court and think a judge, cares about them or their case, or the information they bring to the suit. The judge does not care except to not be overruled in an appeal, and care to not have criminal complaints as that will interfere with them achieve a higher political office. They don’t care if their decision robs you of a right under some color of authority, or some color of law.

    There is more than one way to protect your right.

    The court is one door. If you want to beat on that door, then one thing is to know the rules, and another is to know how to bring an action, and another is to know how to keep coming back, cause it’s not over until it’s over.

    If you are going to know their rules and if you are going to step into their world it means not filing or answering anything too late, I have seen that lock out many people, as Plaintiffs and as Defendants; they fail to demand a new trial, a trial de novo, or fail to object to a decision in a timely manner. Even as this judge issued a decision, what is to say you can’t file an objection or a motion that he take judicial notice (I guess that’s the term, I don’t know legal things) of your rescission and that it was in effect at the time it was mailed and that it is after the contract is void that the issue of tender and property comes into focus and it is after the creditor responds withing 20 days and sense the servicer/ lender or whoever didn’t respond within 20 days, it is presumed they are not the creditor which extends the time of rescission as the contract had not been consummated until the creditor is known per TILA.
    Many fail due to lost time or wasted time after the initial trial, or they fail to notify the court of their intent to appeal in time, or to demand a new trial, in this particular case he said the motion to reconsider was “out of time”, should have been brought within 20 days of the original order, and he mentioned what appears to be a rule that when you want an order reconsidered it has to be attached to the motion, and it appears it was not.

    They do not help people who do not know their legal world, and they say we agree to everything they do to us when we do enter their world, so it is best to be heard if you can, and that’s usually only on paper that’s why a court reporter is important, they never hear words spoken, they only move by paper, and people like to speak to protect their interest in their world, but corporations have no voice, there are only representatives so a corporation makes it’s intentions known only by paper.

    As for the 3 years time barred, seems he issued an opinion from the bench, that is my opinion, he relied on the documents on their face, but I’m not sure if those documents can be considered the evidence that identified the real creditor, had it stated MERS, he would have easily been proven wrong, so I believe, there is error in that decision, I just don’t know what you can do about it. Had the creditor not been revealed and it’s not obvious on the document unless the named beneficiary was defined as ‘creditor’ and not ‘lender’, then the loan was not consummated and the three year clock did not start.

    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.

    What it appears you have here can either be a crime or a contract dispute.

    If it’s a contract dispute, then the judge has determined by his ruling who was required to receive the remedy to close out the contract so both parties can walk away amicably and purportedly equitably

    If this is a crime, where people are making false claims, denying you your rights by law, filing false documents in the public record, stealing property, misrepresenting your interest without your expressed consent and without a valid contract or agreement that allows them to ignore your defenses, then you will have to think about the avenues you can pursue to make known a crime has taken place to protect your interest and prevent further harm.

    It’s going to be how you perceive what has happened to you and what you do next.

    A particular scene in the Matrix when Morpheus was captured, and Neo and Trinity went to go get him?
    Morpheus taught Neo and Trinity how to fight for their rights and how to defend their rights, but Morpheus was still caught up in the system even as he knew so much.
    Trinity wanted to know why Neo thought that his plan to rescue Morpheus work

    Neo told her, “because it had never been done before”

    So, can you submit another motion for reconsideration, can there be a reopen based upon new facts or evidence, can there be the jurisdictional challenge of standing since the rescission is in effect when sent, so no one can foreclose with standing if they didn’t bring a suit within 20 days of the notice, I mean step outside of your case, read everything as if you were a stranger, read it backwards if you have to, question every sentence, find something, and keep up the good work.

    I’m rooting for you.

    As I said, they say we agree to everything they do to us in court, so if you agree, you’ll follow one path for your remedy, and if you disagree, you’ll make known what needs to be known so you get your remedy.

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

  25. In my Answer to the Complaint which I filed in June of 2014 , (prior to the Jesinoski decision) 2 of my affirmative defenses were about the TILA Violations .. my rescission defenses and counterclaim clearly stated that I had mailed the rescission letter on July 1, 2007 ..
    The counterclaim clearly stated that the lender had failed to include all required notices and disclosures including the “Right of Rescission” notice in my closing documents . It also stated that the APR was not correct.

    I also submitted a sworn affidavit stating that we had mailed the rescission letter on July 1, 2007 .. and explaining that our closing documents were missing the TILA Right of Rescission notices.

    The judge never acknowledged my affidavit in his decision.

  26. Here is the portion of the judges decision regarding my motion to reconsider the granting of plaintiffs motion to strike my affirmative defense and counterclaim on TILA RESCISSION …

    This new judge denies my motion to reconsider TILA Rescission as a defense that was dismissed on Sept 19, 2014 with prejudice.

    My reason for reconsideration was the fact the Supreme Court had only recently decided Jesinowski on Jan, 13, 2015 ..

    Here is what the judge had to say about it …

    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.

  27. JG … I’ll be able to answer your questions better as I start to receive my scanned documents from all proceedings. Below is the rest of the transcripts that got cut off from the judges decision in the recent motion for summary judgment , where he fully explains why he is not granting me my cross motions regarding the rescission , the standing issues, etc. that I had tried to raise … See if you notice anything that he said that might be an opening for me .. thanks

    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 this claim in an attempt to void
    24 the loan documents. Here, a contract did exist between
    25 the parties as evidenced by the note and mortgage.

    1 Furthermore, the defendant has argued that they tried
    2 to rescind the contract. Had there never been a
    3 contract, there really would be nothing to rescind.
    4 Furthermore, the plaintiff has shown its standing to
    5 foreclose and also establishes right to foreclose. It
    6 is also of no consequence that the defendants did not
    7 contract with their current plaintiff as the transfer
    8 of documents has occurred; indeed, the plaintiff has
    9 indicated her possession of the actual note endorsed in
    10 blank. Therefore, this defense has no merit and must
    11 be stuck from the answer.
    12 As a result, defenses hereby struck from the
    13 answer, the plaintiff is entitled to summary judgment.
    14 The case is returned to the office of foreclosure.
    15 I’ll sign the order.
    16 Thank you, Counsel.

    17 MR. BORROWER: Your Honor, I have a question,
    18 defenses. I attempted to submit exhibits showing proof
    19 of my closing documents that were missing, the notice
    20 of rescission, but your clerk didn’t take them.
    21 THE COURT: Sir, you know, to show up at a
    22 summary judgment motion and start submitting documents,
    23 —
    24 MR. BORROWER: But you questioned whether I had
    25 proof.

    1 THE COURT: It’s not fair to anybody. I
    2 can’t give you special privileges because you’re a non-
    attorney. I have to treat you like you would be an
    4 attorney. I’m not going to accept documents that I
    5 have no idea. I did some documents —

    6 MR. BORROWER: But you were ruling –
    **(Wanted to say that in his ruling he claimed he did not see any TILA violations, yet his clerk refused to make copies of my closing docs for him to review when he left the bench for 15 mins. On the record I had stated that I have the closing docs and were waving them in my hand, missing the required disclosures. Bank attorney alleged she had signed statements that we had signed after the 3 day rescission period ended, stating that we had no rescinded, but that statement is different than the TILA violation which says a notice must be given to the borrowers ..because over 3 days later an APR violation or other violation may be discovered. The judge didn’t understand this requirement of TILA , and neither did the attorney for Wells Fargo, that is why I was interrupting him)

    7 THE COURT: Sir, while I’m talking, please
    8 listen.
    9 MR. BORROWER: Okay. I’m sorry.
    10 THE COURT: You’re not going to be able to
    11 hear what I say if you’re talking over me. Nor will
    12 they be able to record what we’re saying because
    13 everything is being recorded.
    14 MR. BORROWER: I’m sorry.
    15 THE COURT: I’ve allowed you to submit some
    16 documents which I’ve copied, my clerk’s copied, taken
    17 great time to provided them to counsel. As I’ve
    18 indicated, those documents shed no light. They were
    19 just letters. No mention of rescission.
    20 In any event, I’m not going to continue this
    21 way by you submitting documents you think are important
    22 based on my rulings. I’ve made my rulings. You’re
    23 going to have to comply with the court rules. That
    24 concludes the matter.
    25 We’ll take ten minutes.

    1 MS. LENDER: Thank you, Your Honor.
    2 (Proceedings Concluded.)
    3 * * * * * * * *

  28. Trespass … You have a much better understanding of the tangled web of the corrupted judicial system than I … people ask me, “if the United States Supreme Court just pointed out that the courts have had it wrong for so many years…how is that even possible?” ..

    The vast majority of society has no understanding of how and why state courts get away with disregarding the laws of the land, the due process rights of citizens using those courts, etc, etc.

    The foreclosure travesty of justice brought to light by the Wall St. crimes uncovered by the mortgage meltdown investigation, sheds a little light on how deep the corruption runs in our judicial system, govt, justice system, etc.

    The system has already admitted that they will do anything to prevent the victims of the mortgage Ponzi Scheme from winning their cases and getting the “free house”.

    MERS assignments are now off limits to argue …even when fraud is evident. So they change the rules and move the goal posts as we go, fraud was never allowed in the courthouse doors prior to this.

    The system seems to be broken, there is a lack of oversight of checks and balances that should have prevented TILA rescission being rejected by courts for so many years .. how does this happen? Where a federal Act is twisted and perverted by state court judges for so many years without anything in place to prevent such an utter disregard and abuse to go on …it takes years and years for the abuse to finally come to light in Jesinoski ? There are no other agencies in charge of oversight of federal laws implemented to protect the borrowers who were not only victimized by the lender ..but then abused later by the court .. Nobody watches or cares unless some poor family finally fights it all the way to the supreme court? Theres got to be a better way … In criminal courts everyone is afforded legal representation ..in the chancery courts citizens are facing the equivalent of the death penalty in losing their homes and wiping out their entire financial safety net, yet the courts happily turn a blind eye to the lenders faulty docs, broken chains of title, failure to show full discovery, entering settlements with the attorney generals of 50 states not to prosecute them, etc.

    Most courts don’t want to hear these issues ..the fear of stigma and being ridiculed by their peers , the free house stigma, the losers all deserve to lose their houses mentality ..the hate for homeowners outweighs the need to preserve integrity of the system.

    God Bless Justice Scalia for showing a little compassion for victims of a broken judicial system.

  29. dwight: **So now my note became a specially endorsed note?

    jg: looks like it

    2) 2007 – Wells Fargo became servicer

    3) 2007 July 1, 2007 Rescission letter mailed
    jg: tp whom and how?

    4) Sept 25, 2007 Foreclosure filed ..no note attached, no assignment
    jg: by whom?

    5) Oct 8, 2008 MERS Assignment of Mortgage recorded in town

    6) The MERS assignment is back-dated to Oct 8, 2007 , has a forged signature for the notary , includes 3 known robo-signers w/ LPS

    jg: how exactly is it back date (diff notary date? diff eff date stated than execution date? how does an assgt bear 3 diff signatures? I can’t speak to “known robo-signors”- not my thing ex that mers – as a matter of law – is liable for their acts and unbelievably hasn’t been held accountable. But really, imo, ANYone who signs in mers’ name and isn’t a real mers officer (hired by mers, paid by mers, overseen by mers, accountable directly to mers) is a rob-signor.

    7) Oct 2008 .. Washington Mutual goes under , my loan was not one of those purchased by Chase ..I was being told Fannie Mae owned it

    jg: by whom and in what manner (phone?) keep notes anywhere?

    8) 2010 .. Oct .. I file motion to dismiss due to lack of standing and fraud.

    jg: in what case did you do this in what venue?

    9) Wells Fargo opposes by submitting copy of note which has no stamp in blank from Washington Mutual ..it is a copy of the original note that was specially endorsed from Commerce to WaMu. ..
    *** I objected to the note and said that Wells Fargo would need it endorsed to them by Washington Mutual, but they went out of business 2 years ago ***

    jg; chase bought wamu’s assets but not your loan, you say? so wf, the now-former-servicer of a now defunct note owner, submits first no note and then a note end to wamu. Was wf the only plaintiff named in the suit? did wf try to prevail on poss of a note with a spec end to somene else? well, yeah, looks like it. should’ve been end of story, right? did you move for sj or ? the note itself evidenced their lack of interest. imo.
    I just think those notes are unenforceable x by someone, if anyone, who can evidence he bought wamu’s assets with a description sufficient enough to identify your note.

    10) Wells Fargo asked for a continuance, 3 months later came back to court with a different note w/ stamp in blank from WaMu, Jan. 2011

    11) I object and question how this stamp was added by WaMu in 2011when they went out of business in 2008 … Wells Fargo contends they found the correct note after looking for it … I argue that they had already certified the other note as the true authentic note ..

    jg: they should be stuck with that certification. if not, they should be
    sanctioned or something.
    The old judge who just re.dered a plenary hearing to bring in witneses from WF to testify about the note and other issues of standing. The MERS forged assignment constituted a void was my argument.

    12) WF kept adjourning for a year , finally in Nov. 2011 they asked for the complaint to be dismissed.
    jg: guess they didn’t want to get nailed. too bad you didn’t know that if you filed a mtn for sj, they could not have voluntarily dismissed. being uneducated at the time, you prob didn’t opp the dismissal.

    Remember the same old judge was on the bench when they came back again in this new complaint …he wanted this to go to trial on the standing issue as he stated at the Feb. 20 hearing .. But he retired in Mar. 2015 .. On March 20 the new judge granted summary judgment for Wells Fargo ..despite the evidence of 2 notes again, and the same forged MERS assignment which is a nullity. In reply to my QWR, the servicer Wells Fargo sent me a copy of the true authentic note in their possession, it did not have the stamp in blank from Wamu.

    In my exhibits I included the note from the QWR dated June 2015 , which WF says is the true note.
    you must mean an earlier year!
    but do you mean post-second complaint?
    The law firm shows a different note with the stamp in blank.

    Isnt this an issue of material fact which should have prevented the judge from granting the MSJ in favor of plaintiff ?

    jg: yeah, in my opinion and I’d call it error. Everything you describe wf doing imo was done by them in bad faith. Look up bad faith when litigating and since raising a new issue on appeal ‘isn’t popular”, see if you’ve cited it by any other name or by implication. Litigating in bad faith is not nothing. I’d cite it anyway.
    But you’re seeing how difficult it is for many homeowners. bad faith, lies, perjury, falsely influencing a court, self-executed ‘mers’ assignments.
    as to your allegation you never received the notice of ror at closing, you pretty much had to rely on proving a negative. but you haven’t said: did they or did they not produce that notice signed by you on the day of closing (NOT the one you signed when you picked up your dough. if you only signed at i don’t wish to foreclose, it’s in your favor that it’s not signed above where you ack receipt. Even if it’s signed i don’t want to rescind, that just speaks, if anything, to the 3 days. Getting the notice of r o r 6 – 7 days after closing doesn’t get it. If you’ve sworn you didn’t get it, like in an aff or decl properly submitted, the court must have accepted it as true unless the other guys have proved otherwise by submitting and getting authenticated the notice of r of r bearing your signature on the date of closing or somehow. As in weidner’s case someone linked here, it should be very hard for them to get it in that you signed anything at your closing (tila, or anything: “subject to the rules of evidence”). in my lay opinion.
    I wish I could be more help. You seem to be up against a party with no standing in the first place. If no standing, they obviously can’t argue jack – there’s no one to argue against your rescission or argue for enforcement if you can successfully challenge the two notes at this point, a lay opinion expressed without all the facts / all the pleadiings. there’s a non-profit in nj that’s been highly effective – i think the initials are lsnj – legals services of new jersey? seek out (ms) a sullivan and or mark malone. They kicked em good in ukpe. If you can’t get to sullivan or malone, find ukpe on loan – it’s around – and see all the attorneys involved. I believe they were the ones who exposed some mongo law firm doing robo-signing, so at least you wont have to explain that hummer!.

  30. Sorry DwightNJ, I give you all the credit.
    I did not go as far as you did.
    I do not know legal things.

    I have been listening to the rule of law radio show and jurisdictionary show for the past few years, even archives.

    From what I have listened to, the objections that were ruled against without proper judicial overview are the things the appeals court overturn. They are strictly procedural, if no objections are raised, they cannot be presented in appeal, and if there is a cause of action, all the elements have to be met and if a judge failed to rule properly when all the elements are met, they appeals court will see in your favor.

    It’s not clean for people who don’t know legal things, and so when I deal with them, then and now, I make all my complaints outside their system of control so it does not appear I in any contract or obligation with persons I don’t know, and so I am not compelled to perform the obligations of contracts I didn’t enter into knowingly, willlingly, and intentionally, and so people who do not have power of attorney over me or my interests do not get to file papers and make decisions to rob me without it being ov public knowledge and complaint, with state Attorney general for their business practices, the bar association, bar grieving the attorney for misrepresentation of fact so he can collect a paycheck while stealing my property, with the CFPB and the FTC,

    I have original complaints with them from day one, and when I recently went back with new complaints, let’s just say, the previous one has not gone away, and it sheds new light on what I said then which is true today.

    In 2008 and 2009, it was the norm to hit the web and lodge complaints and now it’s the norm to ‘take your chance’ in court which is a closed system and complaints go in but they don’t come out. NO one audits their records or review their practices if everything stays within their boundaries.

    I do not like being compelled to go there to prove a negative (impossible) to keep my right to property.

    They say, she owes me. Same as if you DwightNJ said I owe you.
    I say, I do not.
    They say prove it. Uh yeah, DwightNJ, how do I prove I don’t owe you money when I don’t even know you. You are unknown to me?

    That’s the problem I had with their system and I took my blinders off and started complaining like heck to every agency that had a complaint form.

    I have the utmost respect for you and the others who are pulled into this tangled web as we each have our eyes blinded and the instructions for how to get out of it, is complex and distorted.

    Trespass Unwanted.

  31. BH: “For this purpose [to secure repayment], Borrower irrevocably

    grants and conveys to Trustee, in trust,

    with power of sale, the… property… Borrower is seised of the estate and has the right to grant and convey the property.”

    Yes, not to the lender, although it secures payment to the lender/beneficiary. That’s why it’s called a deed of trust. As stated, the trustee holds legal title for the benefit of the lender (who has historically been the ben) and the homeowner retains equitable title. Imo this conveyance should state that it’s to the trust, not the trustee.
    If you formed a trust for your kids, say, would you transfer your assets to the trust or the trustee?
    But in these mers mortgages, it’s transferred to mers, which to me is unbelievable if for no other reason than that mers is a shell corporation
    (it’s just a software program owned by another corporation, is it not?) and while this shell corp is allegedly authorized to do x,y, and z, it actually does none of that x to the extent member employees could be determined to be legitimate officers of the corp. But even then, those member employees (and the zillion robosigners) didn’t take their marching orders from mers, who has stated mers itself gets no marching orders from note owners. Members merely pay money to another corporation (mol mers’ parent) to act in the shell corporation’s name with zero (unless it’s changed) governance as to what they do.

    I’m still bristling that the sole ramification prescribed in the mmsp agreement with merscorp for getting caught (and how would that be with no governance?) foreclosing in mers’ name without poss of the note (as if that justified it in the first place) was a 10,000 dollar fine to the member. So, with little or no risk of all of a slap on the hand, members could act in mers’ name and take someone’s home whether they should or not.
    No mandate to undo it, no mandate to make it right as a matter of law or conscience, just pay a fine to merscorp. How can any man, woman, or beast not take offense at this?

    If one were going to have a legitimate nominee in one’s stead, it might be a sound idea to have that nominee be bullet proof. It’s all the rest of it that’s messed, including the effort to make it look as if that nominee were something it wasn’t and would do things it wouldn’t, nor would they exercise diligence as to the execution of acts designed to be done by others in its name.
    The assignments currently being done are to the trustee of secn trusts (“boa as trustee of xyz 2007 trust”), not the trusts. I find that peculiar.

  32. I made a huge error in judgment by assuming the court would see the issues I was attempting to raise and, in the interest of justice, give me a little slack by recognizing I was lacking the procedural know-how needed to move my argument along to trial. If I failed to object at the proper times, does it still mean an appeals panel of judges will ignore the injustice that was allowed by the judge? Or would those appeal judges raise the objections in their own review?

    Can appeals judges remand a case where they find the trial judge allowed objectionable testimony by the plaintiffs attorney?

    Can the appeals judges ask how a lower court allowed 2 notes to escape deeper discovery and trial? Even though the pro se defendant failed to properly object and argue his own case ..can they remand in the interest of justice?

  33. Trespass… My Answer to the complaint articulated all of the issues, the answer denied that a legal, valid contract was ever completed. It denied that Well Fargo was a real party in interest. When WF motioned to dismiss my defenses, I requested oral arguments , and at that hearing when I began to address the issues I was interrupted and stopped by the judge, he simply cut it short and said he was granting them the relief requested ..but he wanted this case to procceed to trial where I would be allowed to challenge whether they had standing, i.e. the 2 notes, washington mutual out of business, stamp first appears on the note in 2011 after plaintiff always certified the other note that was missing the stamp, etc. … But I was still upset that he was dismissing my defenses which pertained to the fraudulent MERS assignment, TILA violations, RESPA, etc, .. I said “I object” ..and he chuckled and said “you can’t object”..

    Maybe that gave me the impression to never object again , but I should have done more objecting at the MSJ hearing no doubt, agree.

    Maybe I’ve been under the false impression that an appeals court would review all of my written arguments and submitted exhibits to see if I had been denied justice and due process.

    The exhibits submitted in my papers include copies of the 2 notes, the fraudulent forged MERS assignment and a different assignment found on the internet showing the notarys real signature, the QWR reply from WF mailed to me in June 2015 showing un-stamped note that they claim is the note they have.., a certification and affidavit from the WF employee who reviewed the file in 2011 and swore to the un-stamped note shown in her affidavit , the discrepency of the Law Firms note which shows the mysterious stamp in blank added and first submitted in 2011 .. at summary judgment hearing I asserted that these were issues of material fact and the court should deny summary judgment. The judge rhetorically asked me if I don’t believe its the real note … I replied that I do not believe its a valid note …but I forgot to explain why, but in my written papers I go into great detail explaining , I even raise issue over the actual stamped signature and include cases from other jurisdictions where those courts found credibility issues with WF in regards to notes and stamps being added.. Those courts dismissed the complaints. I thought the fact that Wahington Mutual being the last known HIDC real party in interest going out of businessin 2008 would be a huge reason to go to trial, in light of the note discrepencies and the fraudulent MERS assignment ..it raises enough issues of material fact.
    But will the appeals court think so ???

    I see the paralegal guy next week ..I want to know what his game plan is, now that I havent heard from him in a month.

    Motion for re-hearing?

    Complaint filed against the judge?

  34. DwightNJ,
    As soon as they showed up with different notes and were doing misrepresentation of facts, whether it was Wells Fargo (not living, not breathing, not speaking) or the lawyers for the firm hired to take your home, (have names of every one who signed docs and who presented information not under oath but by hearsay), and I didn’t hear ‘objection’, which I though pro se’s say all the time so they can have a solid appeal, but I would have had a public complaint on record with some state and or federal agency.

    Did you make any of this public, or are all of this activity private communications between two parties disputing how their contract was written and the terms within.

    See if there is no contract and one is forced upon you, then a agency needs to step it to stop them from compelling you to perform obligations you didn’t agree to perform.

    If you negotiate those obligations over and over with the referee judge who doesn’t want to hear arguments from a retired judge’s docket, and if there are no objections, no public complaint of unfair and deceptive business practices, etc, there is nothing to appeal, right?

    Isn’t that why most appeal cases go unheard or does not reverse the prior court decision?

    Trespass Unwanted, Creator, Corporeal (you can see me, you can hear me, if you touch me I am real with a real body), Life, Free, Independent, In Jure Proprio, Jure Divino

  35. The article about negotiable instruments seems to have good content, but it misses things like fraudulent inducement and unconscionability that void a contract. The note is a contract that merely stipulates a payment scheme and attaches a security instrument, but implicitly it must conform to the normal requirements of a contract.

    Such defenses as the article listed, plus others, constitute a basis for counter claims and cross claims against those who injured the borrower.

    I consider those the most valuable assets a borrower can possibly have because with those, the borrower can win compensatory and punitive damages.

  36. My argument about why I am allowed to challenge the fraudulent MERS assignment that constitutes a void is that the mortgage contract grants me the right to defend in the Borrowers Covenants clause.

    The Borrower has the right to defend ….. See borrowers covenants.

  37. So regarding the notes and my affirmative defense challenging the standing of Wells Fargo …

    1) 2004 – Refinanced with Commerce Bank ..MERS as nominee

    Prior to closing the stamp was already on the note …

    “Pay to the order of Washington Mutual Bank”

    Upon closing the VP for Commerce signed/endorsed the note

    **So now my note became a specially endorsed note?

    2) 2007 – Wells Fargo became servicer

    3) 2007 July 1, 2007 Rescission letter mailed

    4) Sept 25, 2007 Foreclosure filed ..no note attached, no assignment

    5) Oct 8, 2008 MERS Assignment of Mortgage recorded in town

    6) The MERS assignment is back-dated to Oct 8, 2007 , has a forged signature for the notary , includes 3 known robo-signers w/ LPS

    7) Oct 2008 .. Washington Mutual goes under , my loan was not one of those purchased by Chase ..I was being told Fannie Mae owned it

    8) 2010 .. Oct .. I file motion to dismiss due to lack of standing and fraud.

    9) Wells Fargo opposes by submitting copy of note which has no stamp in blank from Washington Mutual ..it is a copy of the original note that was specially endorsed from Commerce to WaMu. ..
    *** I objected to the note and said that Wells Fargo would need it endorsed to them by Washington Mutual, but they went out of business 2 years ago ***

    10) Wells Fargo asked for a continuance, 3 months later came back to court with a different note w/ stamp in blank from WaMu, Jan. 2011

    11) I object and question how this stamp was added by WaMu in 2011when they went out of business in 2008 … Wells Fargo contends they found the correct note after looking for it … I argue that they had already certified the other note as the true authentic note .. The old judge who just retired ordered a plenary hearing to bring in witneses from WF to testify about the note and other issues of standing. The MERS forged assignment constituted a void was my argument.

    12) WF kept adjourning for a year , finally in Nov. 2011 they asked for the complaint to be dismissed.

    Remember the same old judge was on the bench when they came back again in this new complaint …he wanted this to go to trial on the standing issue as he stated at the Feb. 20 hearing .. But he retired in Mar. 2015 .. On March 20 the new judge granted summary judgment for Wells Fargo ..despite the evidence of 2 notes again, and the same forged MERS assignment which is a nullity. In reply to my QWR, the servicer Wells Fargo sent me a copy of the true authentic note in their possession, it did not have the stamp in blank from Wamu.

    In my exhibits I included the note from the QWR dated June 2015 , which WF says is the true note.

    The law firm shows a different note with the stamp in blank.

    Isnt this an issue of material fact which should have prevented the judge from granting the MSJ in favor of plaintiff ?

  38. JG:

    Well, you will certainly cry when you read the Freddie Mac uniform security instrument (Deed of Trust) for California, which contains this operative language:

    “For this purpose [to secure repayment], Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the… property… Borrower is seised of the estate and has the right to grant and convey the property.”

    The DOT starts like this:

    **************************************** TRANSFER OF RIGHTS IN THE PROPERTY

    This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property located in the [jurisdiction] which currently has the address [address]

    TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the “Property.”

    BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record.

    *******************************************************

    See, JG? I wouldn’t pull the wool over your eyes. See the single family security instruments here: http://www.freddiemac.com/uniform/unifsecurity.html

  39. Rod:

    “One may acquire the right to enforce a note in one of two ways:1) Via negotiation; or, 2) Via transfer.”

    I disagree. One may acquire enforcement right also through an agency agreement or power of attorney. You have written about the obtaining the right to receive payments, not the right to enforce. A person with right to receive payments may enforce personally or hire someone like the servicer to enforce. Here, READ the Florida PETE law, specifically item (2) and the final comment:

    673.3011 Person entitled to enforce instrument.—The term “person entitled to enforce” an instrument means: (1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; or (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s.673.3091 or s.673.4181 (4).

    A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

  40. rciferri said: “While a person may be negotiated a note and become its holder through possession alone, that may only be effected IF the note is payable to bearer [see UCC 3-201; UCC 1-201(b)(21)]. However, the note was not payable to bearer – it was payable to Residential. Consequently, Aurora could not have become a person entitled to enforce the note via negotiation of the note to it.

    If not a negotiation, the only other way Aurora could be a person entitled to enforce the note is if Residential transferred both the note and the right to enforce it to it [see UCC 3-203(b)]. ”

    This was the finding in Boyko.
    Claimants show up with notes mostly endorsed in blank. But for some reason(s), while generally claiming to rely on art 3, they yet want the notes assigned (transferred) to the trusts and the way they’re doing that is to show it being transferred in the instrument which assigns / transfers the ben interest in the collateral instrument (by ‘mers’ to boot). Without looking, this may qualify as movement pursuant to article 9 (yet they cite 3; is this likely because of all the times they relied on it in the past and or may want to in the future?)

  41. “Overview of the Holder-in-Due-Course Concept
    Importance of the Holder-in-Due-Course Concept

    A holder is a person in possession of an instrument payable to bearer or to the identified person possessing it. But a holder’s rights are ordinary as we noted briefly in Chapter 13 “Nature and Form of Commercial Paper”. If a person to whom an instrument is negotiated becomes nothing more than a holder, the law of commercial paper would not be very significant, nor would a negotiable instrument be a particularly useful commercial device. A mere holder is simply an assignee, who acquires the assignor’s rights but also his liabilities; an ordinary holder must defend against claims and overcome defenses just as his assignor would. The holder in due course is really the crux of the concept of commercial paper and the key to its success and importance. What the holder in due course gets is an instrument free of claims or defenses by previous possessors. A holder with such a preferred position can then treat the instrument almost as money, free from the worry that someone might show up and prove it defective.”

    “Requirements for Being a Holder in Due Course

    Under Section 3-302 of the Uniform Commercial Code (UCC), to be a holder in due course (HDC), a transferee must fulfill the following:

    1. Be a holder of a negotiable instrument;

    2. Have taken it:

    a) for value,

    b) in good faith,

    c) without notice

    (1) that it is overdue or

    (2) has been dishonored (not paid), or

    (3) is subject to a valid claim or defense by any party, or

    (4) that there is an uncured default with respect to payment of another instrument issued as part of the same series, or

    jg: ?? not relevant here?

    (5) that it contains an unauthorized signature or has been altered, and

    3. Have no reason to question its authenticity on account of apparent evidence of forgery, alteration, irregularity or incompleteness.

    Without Notice of a Defense or Claim

    A purchaser of an instrument cannot be an HDC if he has notice that there are any defenses or claims against it. A defense is a reason why the would-be obligor will not pay; a claim is an assertion of ownership in the instrument. If a person is fraudulently induced to issue or make an instrument, he has a claim to its ownership and a defense against paying.”

    jg: So because rescission, say, under tila is only a possible claim or defense against the note, barring all else, one who takes that note during the extended right of rescission (including the not factual impossibility of the “should’ve known”), one subject to that rescission may yet acquire hdc status? And what about common law claims relevant to mortgage loans? He’d also be subject to those, right?

    The limited defenses to a holder in due course (from UCC art 3):

    “The real defenses good against any holder, including HDCs, are as follows:

    Unauthorized signature (forgery) (UCC, Section 3-401(a))
    Bankruptcy (UCC, Section 3-305(a))
    Infancy (UCC, Section 3-305(a))
    Fraudulent alteration (UCC, Section 3-407(b) and (c))
    Duress, mental incapacity, or illegality that renders the obligation void (UCC, Section 3-305(a))
    Fraud in the execution (UCC, Section 3-305(a))
    Discharge of which the holder has notice when he takes the instrument (UCC, Section 3-601)”

    jg; these don’t seem to speak to tila rescission or any other claims or defenses created in/by tila nor to common law defenses.

    This article about neg instruments is informative and easy to read:
    (what is value? what is good faith?)

    http://2012books.lardbucket.org/books/the-legal-environment-and-advanced-business-law/s18-holder-in-due-course-and-defen.html

  42. rciferri: “I forgot to also state that Aurora could not have become a person entitled to enforce the note by acquiring the note from a holder [“shelter rule”; UCC 3-203(b)] because Aurora presented no evidence Residential was a holder or a person otherwise entitled to enforce the note [UCC 1-201(b)(21).”

    kudos. Not that I’m someone who should’ve or could’ve caught that, but at any rate, I didn’t. But btw, could save me and others a lot of work, then could that be true of a former bearer note now with a special end to the claimant? Note is to abc who endorsed to efg who made blank end to current claimant, say? Where transfer of possession is a requisite, why would it be any different?

  43. re: weidner’s case and directed verdict:

    http://law.onecle.com/california/civil-procedure/630.html

    Weidner says his m.o. in the case wasn’t for the faint of heart. I’d like to speak to that. He had to object numerous times and repetitively, imo
    knowing he could earn (but not literally ‘earn’) disfavor from the court by what might be described as his tenacity (altho he did miss a cue from the court to be quiet – HE can ‘dodge’ this and carry on. That’s not true for many of us.) His objections were based on the rules of evidence. Aurora / Nationstar’s witness was trying to rely on business records exceptions and Weidner successfully shut it down. It isn’t really amazing that A/N had no standing to enforce a note with a special endorsement to someone else (since reliance is on art 3 – tho bob h has some questions / input, apparently, which I believe he thinks might change that, certainly not by their arguments or at least coupled with the objections based on the rules of evidence). But the transcript posted (linked here by bhurt) is worth reading for it’s repeated recitation of those rules. And weidner preserved them for the record just in case. Because he knew it was possible he’d have to rely on that transcript one day, he also made it a point to make sure everything a recorder doesn’t pick up was properly identified.

    I almost wrote the other day that when a court addresses you as ‘sir’ or
    ‘ma’am’, you’z in trouble. This case bears that out. But rather than
    get hot when it happens, best to take it as your cue to take a breath and
    try to re-group or even ask for a minute or two so you can take stock.

  44. Bobhunt: “As you can see in item (2), the Aurora attorney needed only to supply proof that Aurora had the rights of the holder.”

    jg: I see you directed the discussion toward rciferri. But I’d like to discuss how (disregarding my position on the express language in the note crafted to preclude such enforcement) this provision of art III (to the extent art III applies to these notes) gels with frcp 17’s real party in interest mandate, a subject which seems to have been left behind unresolved.

    bh : “A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.”

    jg: by that definition, a thief, for instance, could enforce. But one in mere possession is not the rpii because it isn’t the party who will suffer as a result of the note’s non-payment. And courts may only hear cases of real controversy: IS there controversy when one party has no skin in the game?

    “Under the Federal Rules of Civil Procedure (FRCP), FRCP 17(a) provides that “every action shall be prosecuted in the name of the real party in interest”, so that the named plaintiff must have, under the governing substantive law, the right sought to be enforced. The real party in interest is not necessarily the person who ultimately will benefit from the successful prosecution of the action.

    The following is an example of a state statute involving real parties interest:

    (a) “Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts.

    **(b) A plaintiff may sue in his own name without joining as plaintiff or use-plaintiff any person beneficially interested when such plaintiff

    is acting in a fiduciary or representative capacity which capacity is disclosed in the caption and in the plaintiff’s initial pleading; or
    is a person with whom or in whose name a contract has been made for the benefit of another.**

    jg: 1) Why shouldn’t the fiduciary or representative capacity be demonstrated, at least by preponderance if not stricter standard (remembering this is real estate to which the statute of frauds applies, i.e., requires a writing)
    2) “which capacity is disclosed in the caption and in the plaintiff’s initial pleading”: this would require disclosure of the name of the party for whom one purports to act, would it not? “ABC as agent for XYZ Corporation”? Is this why they try the disingenuous “Original Lender, its successors and or assigns” in their pleadings, which, think it was, in Vargas (CA) got them nailed for attempting to get relief for an unidentified party?

    (c) Clause (a) of this rule shall not apply to actions where a statute or ordinance provides otherwise.”

    jg: is this the reason for reliance on the UCC, specifically article III? And here I hasten to point out that MERS (or was it as MERSCorp?)
    averred that these notes aren’t regulated by article III in the first place.
    But, it may all be academic, given the “mers” assignments of both the note and dot if accepted without argument (and not just about it being late).
    .

  45. @bobhurt

    I forgot to also state that Aurora could not have become a person entitled to enforce the note by acquiring the note from a holder [“shelter rule”; UCC 3-203(b)] because Aurora presented no evidence Residential was a holder or a person otherwise entitled to enforce the note [UCC 1-201(b)(21).

  46. Bobhurt: “TILA rescission really hurts the lender who gives up all interest, cost of making the loan, legal fees, and business opportunity, employee wages, commissions paid out, and so on. That becomes a FAR CRY from fairness for the simple fault of failing to disclose TILA rights to the borrower.”

    jg: hurting is the intent of tila, whether we agree with the position or not.
    Puhlease try to remember that tila was promulgated to force lenders
    to police themselves by not falsely advertizing to undermine competitors and or to suck in business it wouldn’t otherwise get, making proper disclosures, giving the borrower what they should, and so on. As I’ve said, it’s not a high bar: don’t lie, do a few things right. Frankly, I’d say the majority of violations are a result of lenders hiring unqualified workers, a bad business decision. Any managers up could predict the outcome.

  47. ok, Bob. Except for some of what you said (no chain for note, for instance), I mostly, and this is more due to lack of study than anything,
    agree with you. But pretty much for the same reason you take exception to TU’s position, I think you oughtn’t say this

    “and that they have seisin of the estate and transferred it to the lender for the purpose of security when they sign the security instrument”

    because it isn’t factual, at least as to dots. The borrower doesn’t transfer her home to the lender; (one form of) the title is transferred into the trust created in and by the deed of trust with the lender being the ben of that trust. You may have been referring to ‘mortgages’, though, where that might be the case. (i claim next to zip auth about mtgs, but even so, I can state that when I learned they transfer title to “MERS”, I was incredulous and horrified, actually).

  48. @bobhurt

    One may acquire the right to enforce a note in one of two ways:

    1) Via negotiation; or,
    2) Via transfer.

    Because Residential did not endorse the note that was specially indorsed to it, Aurora’s mere possession of the note cannot be as a result of a negotiation because the note at issue contained a special indorsement – it was payable to a particular person – Residential (see UCC 3-205).

    While a person may be negotiated a note and become its holder through possession alone, that may only be effected IF the note is payable to bearer [see UCC 3-201; UCC 1-201(b)(21)]. However, the note was not payable to bearer – it was payable to Residential. Consequently, Aurora could not have become a person entitled to enforce the note via negotiation of the note to it.

    If not a negotiation, the only other way Aurora could be a person entitled to enforce the note is if Residential transferred both the note and the right to enforce it to it [see UCC 3-203(b)].

    However, to show that Aurora would have had to give evidence of the transfer.

    Specifically, it must show that it received delivery of the note AND received it for the purposes of enforcement of the note [see UCC 3-203(a)] and that it paid value for the note [see UCC 3-203(c)]. Yet, from the transcript, it appears Aurora only gave evidence that it was in possession of the note, rather than evidence of the transfer of the note to it by Residential.

    The court based its decision due to the fact that Aurora gave no evidence of such a transfer. To that extent, I believe the court was correct.

  49. TILA.up misrepresentations under common law.

  50. MS. LENDER: ATTORNEY FOR WELLS FARGO (Transcripts)

    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.

  51. BINGO

  52. More proof attacking the contract is the ONLY methodology that works to compensate homeowners:

    Alena Hammer secured a jury verdict against Residential Credit Solutions, Inc. (RCS), a national mortgage loan servicer headquartered in Fort Worth, Texas, for its breach of contract, violations of the Real Estate Settlement Procedures Act (RESPA), and violations of the unfairness and deception provisions of the Illinois Consumer Fraud and Deceptive Business Practices Act. All of Hammer’s claims dealt with RCS’s misconduct in handling and servicing the mortgage loan on Hammer’s home in DuPage County, Illinois, where Hammer has resided for the last 27 years.

    Alena Hammer was awarded $500,000 in compensatory damages and $1,500,000 in punitive damages.

    All dupes keep listening to the scammer/nitwits, Garfield, Gault, rciferri, et al and lose your home.

    All others attack the mortgage transaction (contract) as Christine, shadowcat, Bob, and I have suggested since day one, it works virtually everytime.

    Anyone interested can contact anyone of us privately and we can tell you how.

  53. JG,

    Something bit you suddenly? I will tell you what I call losers: those who follow bad advice and attack anyone warning them of the foreseeable results. Those who then blame everyone and accuse everyone of corruption and never take responsibility for their actions. Funny that you’d go after me when I haven’t addressed you for quite some time…

  54. @rciferri
    Rod Ciferri:

    I’d like to discuss Matt Weidner’s transcript here:
    http://mattweidnerlaw.com/foreclosure-defense-trial-secrets-exposed-a-transcript-of-a-foreclosure-trial-that-shows-how-a-homeowner-wins-foreclosure/

    He stated that Aurora couldn’t enforce the note because the special indorsement prohibited it. You seconded his opinion.

    In looking at Florida’w UCC, chapter 673, I notice that the enforcement provision 673.3011 has absolutely nothing to do with special indorsement 673.2051 (an indorser named the person entitled to receive payments).

    ———
    673.3011 Person entitled to enforce instrument.—The term “person entitled to enforce” an instrument means:
    (1) The holder of the instrument;
    (2) A nonholder in possession of the instrument who has the rights of a holder; or
    (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).
    A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

    ========

    As you can see in item (2), the Aurora attorney needed only to supply proof that Aurora had the rights of the holder.

    Greg (would that be Greg Bryl) pointed that out. I agree with him. I’d like to know why you agreed with Weidner, if you don’t mind explaining.

    You can contact me through mortgage attack dot com if you want to answer off line.

  55. christine, because you get your kicks at LL calling those who’ve lost homes ‘losers’, i’m gonna tell you I’m not nice enough to pray for your redemption. But I’m po’d enough to fervently wish for something else.
    Why don’t you follow your own advice and GET A STINKING LIFE.
    I mean, seriously, spending day in and day out with losers? Your life must really suck. Wanna borrow my ladder so you can see over the curb?

  56. Fwiw, I personally get involved with this stuff mostly because it was the lenders mandate not to let people get in over their heads and the consequence for not following this mandate is that people lose their homes. Plus MERS HAS TO GO. If anyone got a loan on spec mol, you shouldn’t have, but lenders are charged with sophistication AND it’s unlawful to make predatory loans. THEY are supposed to stop you from your own folly. What kind of !*#! wants a couple thousand dollars so badly, he’ll do something HE knows will cause someone to lose his HOME? I’m talking about your loan officer and your underwriter and their bosses.
    I don’t much like being called a scammer etc. Even if an opinion of mine is errant, it hardly qualifies me as a scammer. Those guys get paid, right, Rocko?

  57. BH: “The day will come when all mortgages will happen electronically, and then copies won’t matter because all parties will receive them instantly.”
    probably. But in the meantime, parties must each have copies of the loan docs (including a copy of the note) and lenders would be wise to
    assure that they do, even if it would only become an issue when there’s a dispute. As I said, it’s poss the note wouldn’t be enforceable (even without ‘another’ dispute) if the borrower didn’t get a copy, but like I also said, I really don’t know the ‘so what’ of not getting copies. As to the note, a lender would likely argue receipt and ben of money and also payment made or some such, but I don’t know that that would help them or even if laches would.

  58. BH: “The lender would have to waste $400 filing fee plus the lawyer’s hourly rates and an administrator’s time, then show up in court to argue that the borrower signed the acknowledgment of receipt of the disclosures, and see the court rule in my favor.”

    Sorry, Bobbert, Ho’ber, bright with glory, Mr. Hunt. That’s the way that particular cookie crumbles. I don’t know why lenders have the cheek to think they should never be on the hot seat, as it were.
    Let me explain something for some perspective, if I may. Long ago,
    a lender’s sole remedy for a default on a mortgage loan* was judicial foreclosure which entails not only a court action $$, but a lengthy right of redemption.
    Lenders, of course, weren’t keen on this, got tired of it, so they sought ways to get around a cumbersome and expensive procedure. They then campaigned for non-j with the legislature. The legislature granted them the unusual Privilege (as a remedy) of the use of deeds of trust (with their supposed-to-be neutral, v. lender-advocate, mini-judge-like trustees**) and non-j foreclosure. It’s the borrower, then, who must do the thing being complained of about tila with non-j foreclosure and the borrower with a dot likely must do it within a time certain. Lenders are spoiled by this privileged remedy; the Deed of Trust Act allowed them to be – and many states adapted it. So, you see, they were given a big ‘un in millions of contracts: they could take remedy for breach without court oversight, without the attendant expense, and it 86’d the right of redemption. Name another contract dispute where that’s the case. If you don’t like my widgets, you have to sue me. In that people aren’t forced to make loans subject to tila, it reminds me of a Dylan song, something like this, if the boys bother you, “My advice is to not let the boys in”. So I don’t know where they get off when, percentage-wise, a few cases are the other way around, as is the case with rescission.

    *loans with dots aren’t really mortgage loans, though that’s their common name. Don’t ask me to defend that. Obviously I believe I can, but I don’t wanna do the work.
    ** anyone around deeds of trust for any amt of time knows that the dot trustees were, if not are, primarily originally title companies (with solid, knowledgeable attorneys or at least that used to be true). Now they’re anyone with a pulse and often owned by the lender or its law firm. Makes me see red because it’s an abominable erosion, as do states which allow agents of the lenders (v trustees) to usurp the intent of neutrality when granting the Privilege. Some states have gone so far as to pass law which says a dot trustee owes the borrower no fiduciary. I believe while a dot trustee is to be a neutral party, he yet owes dual-fiduciary to both the lender and the borrower (the borrower, after all, has given him legal title to his prize possession) with his biggest obligation being to the facts, which is imo consistant with the spirit if not the letter of the Deed of Trust Act.

    One last comment about your statement: at least the lender has the means to do so, which isn’t necessarily a justification for the 20 days, but it is a fact.

  59. JG “under contracts 101. Each party MUST have a copy of the contract.”

    I said it doesn’t matter because normally there is no dispute between borrower and lender who do what they should, so they never need to resort to analyzing the contract and suing.

    Remember the old days before Xerox and before Ozalid? People used carbon paper for contracts or simply signed two sets of papers, one for each party. That doesn’t happen with notes, for the obvious reason that the note IS the debt instrument, not a mere contract, so you don’t want two of those originals floating around.

    Nevertheless borrowers can insist on a carbon copy of everything if they wish, and they can insist on having a xerox copy in hand BEFORE they leave the closing table, and they can refuse to close by mail.

    The day will come when all mortgages will happen electronically, and then copies won’t matter because all parties will receive them instantly.

  60. “The intent is to protect the borrower and to return both parties back to their starting positions …the borrower had the house before he ever did business with the criminal banker …so your misguided view of the borrower ending up with a free house is just sour grapes on your part. If the criminal banks cant do the time and suffer the consequences they shouldnt do the crime. Criminal bankers get the free house in foreclosure courts everyday.”

    I believe you misunderstand my points, Dwight. The intent of the law is to protect all parties. The bank loaned money and has a right to get paid back with interest, or without, in the event of rescission for fraud or a TILA violation. The borrower has a right to get out of the loan, but NOT to keep the bank’s money AND the house. The borrower must give up one or the other. The bank has every right to challenge the borrower’s assertions in court, and bank’s lawyers do that every court day across the land while borrowers make outrageously irrelevant assertions like those I mentioned in response to @Tresspass.

    Many borrowers contemplating TILA rescission have not thought through their options and the consequences, and, as demonstrated on this thread, they do not understand the process. Most, including many attorneys, have heeded myth mongers and koolaid drinkers to make matters worse for them and their clients.

    The judges and banks well know that most mortgage borrowers who would rescind, particularly those who SLEPT ON THEIR RIGHTS, have put themselves in a position where they cannot rescind because they cannot tender because they have an underwater loan. I see little excuse for waiting three years before mailing a notice of rescission, and even more time before suing.

    I have no sour grapes thoughts about TILA rescission. Most borrowers wish they had a goose that lays golden eggs, and they want a free house, and some probably see TILA rescission as a way of getting to keep the house they already had AND the money they borrowed. Many realize the horror of an adjustable rate loan after the rate and the monthly payment goes up, and they want out of it any way possible. But they can’t sell the house for enough to make a rescission tender, and haven’t the cash to make the tender, even after selling the house.

    And as you pointed out, Congress set up the TILA rescission to help the borrower stay in the house, BUT NOT WITHOUT PAYING BACK THE LENDER.

    TILA rescission really hurts the lender who gives up all interest, cost of making the loan, legal fees, and business opportunity, employee wages, commissions paid out, and so on. That becomes a FAR CRY from fairness for the simple fault of failing to disclose TILA rights to the borrower.

    Certainly, may lenders have cheated borrowers by underwriting miscreant acts by their associates in the lending process. I heartily encourage borrowers to hire a competent professional other than Garfield’s ilk to examine the mortgage for causes of action against those malfeasors. But I consider TILA violations just a tiny part of the real injuries borrowers suffer. And they have a hard time finding a lawyer who will fight for their compensation for such injuries.

    And we see why in the discussion on this thread. Most of you seem to think the bank is all wrong for bucking against the rescission. I don’t agree with you. I believe the bank has good reason to protect its interest against borrowers who put their family home at risk by agreeing to an adjustable rate mortgage and want to back out of the deal when the interest goes up. I believe the bank should resist TILA rescission even if its officers know the bank erred. Why? Because quite possibly the borrower erred too, and only a court can sort that out. This thread proves how contentious people become about the issues, the meaning and application of the law, and the “right” thing to do.

    I do not stand against borrowers in this matter. I merely think borrowers owe it to themselves to stand in the shoes of the bank before taking a hard stand on an issue, and to look long and hard at the costs of a contest.

    That should explain to you why I recommend a mortgage examination to all borrowers to come to me with problems. It constitutes the only reliable way to amass an array of “silver bullets” to shoot at the werewolf lenders. You have seen the difficulty of winning a TILA rescission.

  61. BH: “True, many times the lenders did not ensure that borrowers received their closing documents. It doesn’t matter unless the borrower wants to get out of the loan, does it?”

    jg: well, yes, actually it does. I believe it falls under contracts 101. Each party MUST have a copy of the contract. I admit I believe that from first of all contract law years ago. I was later taught the same thing in a business where it mattered. I could only speculate about the ‘so what’ if one party has no copy of the contract, but it may run to unenforceable.

  62. bobhunt, i see your point, but without reading a context, can’t see if that particular context imposes a time in which one ‘shall’. One of the biggest pains in the tail has been states choice of the word ‘may’ or
    ‘shall’ when it comes to recordation of assignments. I call it a pain, anyway, because of the problems the choice of ‘may’ has caused. imo.
    Well, actually, ‘shall’ hasn’t done much good post-mers since lenders argue that no assgts need be done when mers is the ben. To the extent mers is thee ben, that’s more true than not, as it turns out. imo. But if mers is not the ben, those assgts should’ve been done if unrecorded until enforcement or to protect the assignee’s senior position.

    You said you’d like something to make sense. I got it. Imo, tila makes no sense if it doesn’t impose 20 days on the lender to act one way or another after the receipt of a notice of rescission. Were it not for the 20 days, a notice of rescission would merely create a defense (of any kind) to the contract and that’s just not its intent. Why’d they say 20 days, and not 10 or 30 or 40? Because 20 days is generally the time to respond to a lawsuit. In essence “you’ve been served” and you’ve got a choice: rescind or squawk. If a lender timely squawks, he may be relieved of his obligation. He could go to court and say hey I don’t wanna do this for any number of reasons: I don’t see the violation, I want some assurance I’m gonna get tender if I first return, I’ll lose my senior position for no reason if this is a load, and so on.

  63. JG … The rebuttable presumption in the context of rescission is when the lender says or submits documents that they say you received. Nobody knows for sure if you were really given your copies or not, so its a rebuttable presumption that it happened like they are claiming.

    Testimony or affidavit denying it happened creates an issue that cannot be used or overlookd in granting a summary judgment ..even if they poduced the signed docs, it still doesnt prove they properly gave you your two filled out copies at the correct times. TILA says such a scenario is only a rebuttable presumption and isnt strong enough without further rules of evidence being applied to find the truth. So again, the law leans in favor of the borrower

  64. ” If the lender thinks the borrower has no grounds for rescission, he may file with a court w/in 20 days ”

    The lender would have to waste $400 filing fee plus the lawyer’s hourly rates and an administrator’s time, then show up in court to argue that the borrower signed the acknowledgment of receipt of the disclosures, and see the court rule in my favor.

    If I served as CEO of the bank, I would fire the manager who ordered that. Let the borrower spend HIS money on that frivolous action. Let the borrower challenge my bank’s disclosure process, and get spanked by the judge, and have to pay my company’s fees and costs for having to attend to the frivolous action.

    Take heed of the “rebuttable presumption” that the borrowers received their TILA disclosures.

    True, many times the lenders did not ensure that borrowers received their closing documents. It doesn’t matter unless the borrower wants to get out of the loan, does it?

  65. BobHurt … The intent is to protect the borrower and to return both parties back to their starting positions …the borrower had the house before he ever did business with the criminal banker …so your misguided view of the borrower ending up with a free house is just sour grapes on your part.

    If the criminal banks cant do the time and suffer the consequences they shouldnt do the crime.

    Criminal bankers get the free house in foreclosure courts everyday.

    Here the lawmakers were bitch-slapping the bankers around, for good cause, the corrupt untrustworthy bankers had brought this upon themselves, they made their own TILA bed and the rescission rule was the hammer to make them lay down in their bed.

    The borrower can tender by going to a new lender ..why do you refuse to acknowledge this fact? They refinance and tender back the owed balance, its all very simple if the bankers would comply in the 20 days mandated for their compliance.

    The jails are full of people who failed to comply , nobody cries tears for them …why are you emotionally wrecked over a bank who pays a price for their non-compliance?

    You seem to harbor a lot of bad will towards families losing their homes …you treat their TILA rights with scorn and defiance.

  66. dwight: “I do remember telling the judge that her statement saying they had signed docs showing we had received our RoR notices .. was a rebuttable presumption”
    jg; the att telling the judge you had signed anything or any material
    recitation of alleged events is what’s whacked. Your alleged ack of receipt (incl its date) of the notice of ROR needed to have been submitted to and accepted by the court pursuant to the rules of evidence – in the pleadings, not by a mouthpiece at the hearing who shouldn’t be testifying in the first place and wouldn’t know what you signed or didn’t and when. But to the extent any docs were submitted and accepted which purport to show your autograph, yes, it appears it only stands as a rebuttable presumption. So to the extent anything was submitted and accepted, I take it you denied, which is why you would state it’s only a rebuttable presumption and your denial is rebuttal?
    The rebuttable presumption is nice for the borrower, but like anything else then, one must somehow establish it’s not one’s signature. ( that is, If they got it in pursuant to the rules of evid.) But I’ll talk to you about that later.
    Too bad you didn’t move to strike what would imo be testimony (and hearsay) if there is nothing in the court file. But it may not matter that you didn’t.
    You can give me your email, I’ll email, you can send and I’ll look at what I can. fwiw.

  67. Regarding the word shall…

    Shall, as a requirement to do something, refers to any point of time in the future unless otherwise delineated. Within any delineated time frame, AND at any undelineated time in the future, one MAY do the act. That explains why SHALL means MAY, particularly when the law specifies no particular time.

    Shall NOT refers to NO time in the future, without further delineation.

    Lawmakers should never use the word shall without stipulating a time frame. If they do, they thereby make that law merely advisory and not obligatory.

  68. @Tresspass:

    I feel reluctant to engage you in any discussion because while you might mean well and you might desire that someone patiently explain to you how things work, I have run a bit short of patience lately, and I might not stop at calling you a Kool-Aid Drinker.

    Many goofballs, possibly well meaning, after listening to some patriot myth monger, have espoused assertions like the vapor money theory, the note funded the loan, there is no money, they counterfeited and forged my loan documents, robosigning makes the note unenforceable, securitization makes the note unenforceable, bifurcation of the note from the security instrument makes the mortgage unenforceable, the involvement of MERS makes the note unenforceable, broken chain of ownership of the note makes it unenforceable, and so on. Regardless of anomalous endorsements of such nonsense by a few courts, the vast majority of courts across the land have denounced those arguments as bogus, frivolous, gimmickery, etc.

    So I encourage you to ask how things work instead of making pronouncements in order to provoke discussion.

    Mortgage or DOT Borrowers all agree that they have received a loan, when they sign the note, and that they have seisin of the estate and transferred it to the lender for the purpose of security when they sign the security instrument. By their admission, they received money in exchange for their promise to repay it with interest and they put up the house as collateral. That kills your vapor money theory.

    It also kills the arguments above because a judge need only query the borrower as to whether the borrower did or did not take out a loan and put up the house as collateral. Any borrower who lies about that to the judge will set himself up for serious trouble, as you can imagine.

    That, plus the bogus nature of those arguments, explains why they just don’t work to defeat foreclosure.

  69. Bobhunt: “Let’s say the borrower received the proper disclosures, but claimed he didn’t, and mailed a notice of rescission. Must the lender tender in spite of knowing that the borrower made a false claim?”
    I’d like to see some common sense here.”

    jg: that makes two of us. If the lender thinks the borrower has no grounds for rescission, he may file with a court w/in 20 days and have the court decree (“by order”) that the lender has no obligation to rescind. It’s possible the borrower in such a case could be found liable for att fees (?). That could depend on other things, like his level of sophistication and good faith in noticing his rescission (again = ?)
    It’s particularly interesting to me since you actually pointed out that it’s only a rebuttable presumption that the borrower, by his (alleged) signature / acknowledgment (subject to the rules of evidence), received the required notifications. I’m tempted to think this is because borrowers often sign docs unwisely without reading them. I suppose that’s because some loan closers didn’t and or couldn’t explain them as in my opinion they should (not necessarily as a matter of law, but just because a borrower should know). Some borrowers were not even given copies of their closing docs at all. Nor would all borrowers necessarily know that they’re to be given copies or what should be in their closing docs to get copies of.

  70. JG. … I do remember telling the judge that her statement saying they had signed docs showing we had received our RoR notices .. was a rebuttable presumption ..he didnt seem to be fazed by my legal point, but I said it for the Appellate Division judges who would read the transcripts later. It does raise another valid poblem with his decision.

    Maybe friday i can find time to post the pleadings, etc ..or you can email me and i can email you back the attachments to review .. When Wells Fargo motioned to strike my affirmative defenses and counterclaim regarding rescission, i believe they only asserted that the 3 years had run and i was now time barred , they never disputed or denied receiving the rescission or disputed the violations. I need to double check that.

    And when I motioned more recently to dismiss due to rescission, they again in their opposition papers argued that i was time barred , and that this issue was already dismissed with prejudice when the court had initially struck the rescission defense prior to the Jesinowski ruling

    Battery prob …cont later

  71. “Rock…everything that you just posted supports the fact that the lender MUST ACT WITHIN 20 DAYS … thank you for conceding that point.”

    I disagree more emphatically every time someone raises this point.

    The borrower can send a notice of rescission utterly without justification. Only an idiot lender will act on it within 20 days, other than to tell the borrower that no fact justifies rescission. I don’t know of any idiot lenders.

    The 20 day period merely prevents the borrower from suing before 20 days have passed. It does not require any action by the lender, for one simple reason: Borrowers lie all the time in an effort to jimmy the system and get a free house, and EVERYBODY knows that.

    When the lender considers the borrower’s N.O.R. unjustified for any reason, the borrower can enforce the rescission ONLY by suing. Then the court will determine whether justification for rescission exists, and then it will determine whether the borrower can tender, and ONLY if the borrower can tender will the court then order the rescission.

    The court might devise a creative way to effect the rescission, and the court might not order a rescission at all. And all of that lies within the scope of the law.

    I consider it a grave mistake to rely upon some un-common-sensical thinking about the meaning of the law in issues like this. The court absolutely will not give a borrower a free house without robust justification. And the court will NOT order the lender to tender to a borrower who has no ability to tender in return.

    Only a ding-dong (oh, okay, or a Kool-Aid-Drinker) will expect the court to force a rescission in the absence of good cause, or of the parties’ mutual ability to tender.

  72. bobhunt: “Here’s your option for the lender to agree or disagree with the borrower:

    15 USC 1635 (c) Rebuttable presumption of delivery of required disclosures

    Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom information, forms, and a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.”

    jg: dwight and bobhunt: (dwight so maybe you’ll see this)

    Well, okay, sort of. It says that if ABC has a written ack of receipt of notices, etc. (at closing) from Dwight, that written ack merely creates a rebuttable presumption that he received them. It’s more in dwight’s favor – that he may rebut the presumption created (and that it’s only a presumption) that he received them (subj to the rules of evid in re: the lender getting the alleged signed ack in) if a lender comes up with his signed ack of receipt. I didn’t know that and am actually surprised. I’m glad to hear that a borrower may rebut the presumption since I believe
    a “lender” today might come up with one he didn’t in fact sign. Or when.
    In dwight’s case, he didn’t see his notice of ror, app, until the date of disbursement (at least 3 business days after closing), if then. That’s not good enough. Nor is the fact that he signed (if he did) that he didn’t want to rescind after his initial ‘for any reason or no reason’ 3 days.
    But imo, the claimant’s attorney tried to make the court believe otherwise (transcript of cross-mtns sj), i.e., that he had (also) been given the notice of ror at closing. If the court determines that’s what she did, if this is brought to its attn, you know she is or should be staring down the barrel of rule 11 sanctions. if not a complaint to the bar. But I’m still reeling from the courts “well they say” and the testimony of that attorney. Even if an att testifying at hearing were proper, everything out of her mouth was hearsay. Yep. still reeling. I haven’t seen the pleadings, but it sure looked like that was the court’s reliance from the transcript.

  73. dwight: “But take notice of what the law does state about how a borrower can decide what the tender will be .. where it talks about tendering the money or the property … In regards to the “latter”, the property, its says “unless its UNFAIR … UNLESS TENDERING THE PROPERTY IS UNFAIR ???? Well lets stop right here and talk about that intent o the lawmakers for a minute. … They obviously did not think I should lose my home if it was considered UNFAIR … so we need to speculate about what unfair means to them.”

    I believe where the statute says that the borrower shall tender what was given to him, ‘money or property’ – mainly means money, some attorneys (blogs) say ‘property’ may mean the house – unless the tender is unfair. I’ve already addressed this a couple weeks ago.

    I always contend that a deed from A to anyone requires acceptance. Anyone wants to find out really fast how true that is, rescind and execute a deed to your bankster. Not a dil, just a plain old deed and request the amts back which you gave them (make an estimate with a breakdown and ack it’s an estimate). Or don’t rescind and send them a deed and say adios. Esp in states which don’t allow deficiency judgments.
    If you record that deed (which I don’t recommend) and then send it, just because it’s recorded, does that mean it’s accepted? Acceptance of the deed by the lender, under the “doctrine of merger” would 86 the
    collateral instrument.

    Tendering the amt borrowed even after being given back whatever one gave the lender can be unfair when the property is (now) worth less and it’s impossible for the borrower to tender the amt given.
    The lender’s violation occasioned the borrower’s need to tender anything and as such, the lender should bear the consequence. imo.
    If it’s impossible to tender the otherwise required amt,in order to exercise one’s rights under tila, one might have to be prepared to lose his home. I don’t believe that’s what the legislatin had in mind.

    None of this bull going on right now recognizes one of the main
    reasons for tila: to keep banks et al from false advertizing. If they no longer fear each other’s false advertizing in this day of anything goes, it doesn’t change the law nor why all it was created and implemented. If I may, keep this reason, and who was all to benefit (that includes banks) in mind when looking at future decisions regarding tila and you’ll see it’s as if the bank-benefit was never an (or thee) impetus. But the real reason tila was written with teeth is about false – advertizing. The benefit to the borrower, whatever it is, is more a perk of the attempt at getting banks to not advertize falsely and wrongfully undermine their competitors. imo.

  74. I’d sent the nor with a certificate of mailing (of course keeping
    original of cert of mailing and copies of all).

    I certify that on this ____ day of ___________, _______, I
    deposited the above notice of rescission dated concurrently
    herewith in the U.S. Mail (or however it’s being sent – sic), postage fully paid and addressed to the parties as shown in the Notice.

    _______________________
    John Q. Igottricked.

    If you also want a return receipt, then send it in a manner which will
    get you one.

  75. JG, did you ever stop to think that it might be more like, No borrower shall pass through the unencumbered house portal!”

  76. “I guess you know that “shall” means “may” because it implies an indeterminate point of time in the future UNLESS the law specifies that point.”

    “I never thought of “shall” the way you have outlined it, but I agree with your opinion in that regard. All the creditor’s obligations under Section 1635(b) are prefaced with “Within 20 days…”, so they must be completed within that time.”

    Of the numerous (tila-unrelated) cases I’ve read which discuss the word “shall”, because,yes, it is a topic of discussion, it’s taken to mean “must”. Laws written as “may” are taken that there’s an option.

    Maybe it stems from “Thou shalt not bear false witness against thy neighbor” or “Thou shalt not kill” or even “Thou shalt not have false gods before me”.

  77. @Rock

    You said:

    “BTW, I’ve been training attorneys for over 35 yrs”

    In that case, I imagine they have learned to hurl insults and personal attacks almost as well as you have.

    It definitely seems you have at least 35 years of experience doing that.

  78. I have rescinded my signature twice within three days for transactions I initiated and they were in effect at the time or rescission because the agreement was not consummated. There was something to be done that was not done when the signature was rescinded.

    I have rescinded my signature on transactions I did not initiate also, I won’t elaborate on those types of transactions.

    Rescission is not just TILA, it’s basic contract law.
    The closer you get to an answer, the more answers thrown at you to not show the actual answer but to force a multiple choice situation.
    There can only be one right answer, you either can or you can’t rescind the signature, after that, we can discuss who has to give back first. If a purported creditor did not put anything into the transaction (Which is difficult for the unlearned, and basic knowledge for some, and the job of others to detract from that fact), if the purported lender did not put anything into the transaction, they have to tender back what they received from the transaction.
    20 days, is enough time in a banker’s world because much happens within 3 days and they’ll steal a home within 21 days, between moon phases. They have the staff to handle all legal issues. We do not have to teach them contract law.

    Assuming the real creditor has not been revealed, and that’s a solid assumption/presumption, the loan has not been consummated, three days, three years, clock has not started, you are making payments to someone who is not the creditor and you have no idea if they are passing payments to the creditor.

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

  79. rciferri, you’re a real piece of work. All of us that know the law are confused, but you someone grunting for a law firm is the only one that’s right.

    Once again its clear you don’t understand what you read.

    This is your BS statement: “the entire act of rescission is initiated and completed upon lender’s receipt.”

    This is the law: “The emphasized statutory and regulatory texts convey that the security interest becomes void ONLY when rescission actually takes place, meaning when the rescission is completed, WHICH DOES NOT OCCUR IMMEDIATELY UPON THE SENDING OF A RESCISSION NOTICE. A rescission notice is invalid, and thus CANNOT POSSIBLY EFFECTUATE A COMPLETE RESCISSION, UNLESS IT IS TIMELY AND UNLESS THE CREDITOR DID SOMETHING THAT ACTUALLY GIVES THE BORROWER A RIGHT TO RESCIND.” Iroanyah v. Bank of Am., N.A., 851 F. Supp. 2d 1115 (N.D. Ill., 2012).

    Also, because you don’t understand how common law rescission works, you don’t understand the holding in Jesinoski. Moreover, the ONLY question before the Supremes, does a borrower also have to file suit within the 3 yr. SOL as well. Moreover, “All of Plaintiffs’ claims stem from Defendants’ alleged violation of TILA—namely, that Plaintiffs did not receive the required number of disclosures at the closing. … Because Plaintiffs cannot demonstrate that Defendants violated TILA, Plaintiffs’ state-law claims likewise fail.”

    n. 3 “Plaintiffs’ assertion that they did not receive the required number of disclosures is undermined by documents submitted by Defendants demonstrating that Plaintiffs signed the disclosure documents acknowledging receipt by each Plaintiff of sufficient copies.” JESINOSKI v. Countrywide Home Loans, Inc., Dist. Court, Minnesota 2012.

    This is why the Supremes remanded it back for a retrial to determine if in fact there really was a TILA violation.

    Everyone in the country knows this except scammers like you and their dupes!

    BTW, I’ve been training attorneys for over 35 yrs. and the only ones I have ever heard say the courts are wrong or tyrannical, in someone’s pocket, ad nauseum, were the attorneys that didn’t win cases. Just like I hear all of you scammers who have never won a case keep saying the same thing.

    I don’t mean this a joke; are you on medication for mental problems?

  80. @Rock

    You point out the last sentence of subsection 1635(b):

    “The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.”

    But if the court’s jurisdiction is not invoked within the 20 days for the lender’s compliance, the court has no jurisdiction to modify the time period in which the lender may comply. The time period defaults to the period Congress wrote into the statute – 20 days.

    In such an instance, “the procedures by this subsection shall apply” – which means the lender failed to comply with the requirements of the statute, because it did not file suit in time to ask the court to “otherwise” order a different period of time.

  81. @Rock

    “QUITE CLEAR THAT THE BORROWER’S NOTICE OF INTENT TO RESCIND, BY ITSELF, IMPOSES NO DUTIES TO RESCIND ON THE LENDER UNDER § 1635(B).”

    The part about lender obligations got cut off. Here it is:

    Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.

  82. @Rock

    You said:

    “QUITE CLEAR THAT THE BORROWER’S NOTICE OF INTENT TO RESCIND, BY ITSELF, IMPOSES NO DUTIES TO RESCIND ON THE LENDER UNDER § 1635(B).”

    But TILA says:

    “When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission.”

    And Justice Scalia says:

    “The clear import of § 1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind.”

    I think I’d be a nitwit to disregard TILA and Scalia in favor of what you have to say about it – no matter how loud you shout!

  83. @Rock

    I think you are confused about the two scenarios in which TILA rescission is effected.

    1. Borrower sues lender and seeks the remedy of rescission due to TILA violations. In such an instance, the court has equitable jurisdiction to do all the things you say it can; or,

    2. Borrower sends a rescission notice to lender. In such an instance, the entire act of rescission is initiated and completed upon lender’s receipt. Also, in such an instance, the lender’s obligations are triggered by operation of law. A court cannot purport to act within 20 days of the lender’s receipt, unless the lender immediately filed suit. In such an instance, practical difficulties preclude a court from changing the 20 day period. That period was set by Congress and unless the court can act within that 20 day period, there is nothing it can do to give the lender more time, if the 20 days have passed.

    Also, Yammamoto was a case that concerned the first category of rescission above. The court speaks of its equitable jurisdiction often in that case. Yammamoto allowed that to happen, because, despite contending it notice rescinded the loan, it conceded the court had equitable jurisdiction to determine not only how a rescission could occur, but also, whether it should happen at all, by “seeking rescission” due to an inaccurate disclosure of appraisal fees.

    Contrast that with Jesinoski, in which the borrower did not rely upon the court to order rescission, but rather, contended the rescission was completed by his notice, and sought only a declaration from the court that such notice rescinded the loan. In such an instance, SCOTUS correctly stated TILA did not codify rescission in equity. Therefore, none of the equitable powers available to the Yammamoto court are available to the court in Jesinoski.

  84. @bobhurt

    You said:

    “I’d like to see some common sense here”

    It appears that common sense has become: courts may destroy a right given by Congress by following a regulation, supposedly promulgated UNDER the statute that created the right. That’s what’s going on. Under black letter law, that cannot happen.

    But, I understand what you’re saying, Bob – it does happen.

    @Rock

    The FRB can say whatever they want. When it conflicts with a statute it is void. Period.

    We shall see if the courts follow the law on this one. In the past, they have taken every opportunity not to. I think SCOTUS has signaled an end to regulatory amendment of a statute, by following the statute as written. You think they will continue to gut TILA and make it a meaningless shell that does nothing to protect the borrower.

    I admit, the courts have shown more propensity to drink the kool-aid rather than enforce the law as written. Until Jesinoski, that is.

    So, we shall see.

  85. Dwight has the scammers Kool-Aid made you so drunk that you can’t understand what’s written in plain english.

    “When the statutorily prescribed rescission process is traced from beginning to end, it becomes QUITE CLEAR THAT THE BORROWER’S NOTICE OF INTENT TO RESCIND, BY ITSELF, IMPOSES NO DUTIES TO RESCIND ON THE LENDER UNDER § 1635(B). This statutory process begins by requiring a borrower who intends to rescind a secured transaction to deliver notice to the lender of his INTENT to rescind. Then, under § 1635(b), the lender has twenty days TO DECIDE WHETHER IT WILL (I) RECOGNIZE THE EXISTENCE OF A RESCISSION RIGHT and privately arrange rescission with the borrower and any other interested parties, or instead (ii) DISPUTE THE EXISTENCE OF A RESCISSION RIGHT AND AWAIT THE BORROWER’S INITIATION OF SUIT.
    Significantly, under § 1635(b) receipt of a notice to rescind, without more, does not obligate a lender to void the security interest and return the proceeds to the borrower; instead, delivery of the borrower’s notice of intent to rescind merely “advance[s] a claim seeking rescission.” Am. Mortg. Network, Inc. v. Shelton, 486 F.3d 815, 821 (4th Cir. 2007) (citation omitted). Then, IN THE EVENT THAT THE LENDER DOES NOT VOLUNTARILY EFFECT RESCISSION, the borrower, AFTER TWENTY DAYS HAVE PASSED since the delivery of notice of intent to rescind, may FILE AN ACTION seeking judicially enforced rescission under § 1635(b). Thereafter, pursuant to § 1635(b)’s grant of authority to order rescission, a court determines whether to order rescission and, if rescission is ordered, the manner in which rescission will be effected (e.g., what amount the TILA claimant must tender, when tender must take place, whether the tender will precede the voiding of the security interest, etc.). Finally, a court determines what additional relief may be awarded pursuant to §§ 1635(g) and 1640(a). Thus, ONLY AFTER A COURT RECOGNIZES THAT THE BORROWER IS ENTITLED TO RESCISSION DOES § 1635(B) IMPOSE ANY AFFIRMATIVE OBLIGATION ON A LENDER. It follows that a cause of action in damages for a lender’s failure to effect rescission does not accrue where, as here, a borrower has sent the lender a notice of intent to rescind, BUT NO COURT HAS YET RULED THAT HE IS ENTITLED TO RESCISSION.”

    Are you really that drunk?

  86. @bobhurt

    You said:

    “I guess you know that “shall” means “may” because it implies an indeterminate point of time in the future UNLESS the law specifies that point.”

    I never thought of “shall” the way you have outlined it, but I agree with your opinion in that regard. All the creditor’s obligations under Section 1635(b) are prefaced with “Within 20 days…”, so they must be completed within that time.

    “And the law makes that very point by its discussion of rebuttable presumption.”

    Well, first of all the rebuttable presumption you are talking about states “no more than” a rebuttable presumption. I think a court may treat a borrower’s signed acknowledgment of receipt as a rebuttable presumption if the borrower sues for TILA rescission, which Jesinoski now made clear is not needed. The rebuttable presumption doesn’t apply if the borrower doesn’t ask the court for TILA rescission, but instead effects it himself through notice.

    “Thus in order to make the behavior happen at some specific point, one must sue for declaratory judgment and enforcement.”

    I think it’s clear that the creditor must discharge its obligations within the 20 day time frame or relinquish the remedy which follows. On the other hand, and only if the creditor has discharged those obligations, there is no time period specified for the borrower’s tender. Yet, once the borrower tenders, the lender must take the property within 20 days, or be barred from doing so.

    I also don’t think one needs to force the creditor to tender and file a satisfaction of mortgage. In other words, I don’t think it is necessary to sue to force the lender to comply with TILA.

    I think you can sue for cancellation of instruments or seek declaratory judgment and file that judgment with the real property registry, instead of trying to force the lender to file a satisfaction.

  87. Rock…everything that you just posted supports the fact that the lender MUST ACT WITHIN 20 DAYS … thank you for conceding that point.

  88. Bob HuRt, what you posted makes sense in that you attack instead of defend. You also admit that many attorneys cannot defeat a foreclosure even with your 7 years of study.

    I’m interested in what happens ‘after the Supreme Court ruling’.
    Seems all eyes are going to be on the judge, and I doubt all answers to the questions posed are ‘no’, and I ponder if the lender has any proof other than what can be fabricated for a fee.

    With 7 years of study, you are aware that if a lender needs to provide a particular document, they have unlimited credit/digits to create a purchase order to pay some company for the service of fabricating that paper, and can later zero out the account that paid the bill when the transaction is complete.

    From Federal Reserve Notes to securitization certificates, the bank is never spending any of their own money for any service.
    In 7 years of study do you comprehend how money is created? If I create the funds and you are able to benefit from that creation and then you ask me to pay again the funds I created and I do not complete that obligation, how is it not unjust enrichment that you have the initial funds created (whether it was cashed in at Fed or Treas window I don’t know) plus the funds received from investors in the securitization certificates, plus the fiat I paid by some activity with my life energy to receive them as trade, plus the property that I used life energy to upkeep?

    It’s nice to know some things but you have to know the entire picture and that’s why there is no loan from the one claiming to be the creditor and claiming the injury, and why your statement of attacking the loan is a viable solution but you still have a man/woman in a gown that will make determinations not according to law, but according to his/her will.

    Trespass Unwanted

  89. Poor, poor, Dwight. Since you drank the Kool-Aid your brain is now mush. Remember, you’re a dupe, but now you talk like a scammer by posting scammer answers like Gault and ciferri.

    Read the statute again, ““The procedures prescribed by this subsection shall apply EXCEPT when otherwise ORDERED BY A COURT. In other words this is how rescission works, unless a court ORDERS something different.

    “Section 1635(b) states that “[w]hen an obligor exercises his right to rescind … any security interest … becomes void upon such a rescission.” 15 U.S.C. § 1635(b) (emphasis added). Similarly, Regulation Z says that “[w]hen a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void.” 12 C.F.R. § 226.23(d)(1) (emphasis added). The emphasized statutory and regulatory texts convey that the security interest becomes void ONLY when rescission actually takes place, meaning when the rescission is completed, which does not occur immediately upon the sending of a rescission notice. A rescission notice is invalid, and thus cannot possibly effectuate a complete rescission, unless it is timely and unless the creditor did something that actually gives the borrower a right to rescind. “[T]he security interest ‘becomes void’ only when the consumer ‘rescinds’ the transaction. In a contested case, this happens when the right to rescind is determined in the borrower’s favor,” not upon the mere sending of a rescission notice. Yamamoto, 329 F.3d 1167;see also Large, 292 F.3d at 55 (“If a lender disputes a borrower’s purported right to rescind, the designated decision maker … must decide whether the conditions for rescission have been met. Until such decision is made, the [borrowers] have only advanced a claim seeking rescission.”).”

    “It is true that § 1635(b) says that “[w]ithin 20 days after receipt of a notice of rescission, the creditor shall … take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.” 15 U.S.C. § 1635(b). The fact that the creditor quickly must take action to reflect the security interest’s termination does not, however, mean that the security interest is terminated upon the sending of the notice. Instead, it means that the rescission process must commence quickly, which in turn means that the rescission itself does not occur immediately. This is made clear by the Federal Reserve Board’s Official Commentary, which binds the court unless found to be “demonstrably irrational.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980). The relevant portion of the Official Commentary says: “The 20–day period for the creditor’s action refers to the time within which the creditor must BEGIN the process. It does not require all necessary steps to have been completed within that time, but the creditor is responsible for seeing the process through to completion.” 12 C.F.R. pt. 226, Supp. I, ¶ 23(d)(2). That is the only sensible interpretation of the statute given that it allows a court to modify the default rescission procedures. See15 U.S.C. § 1635(b) (“The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.”). There would be no time for the court to modify those procedures if rescission is completed immediately upon the sending of a rescission notice. As one court explained:

    Because § 1635(b) merely prescribes ‘procedural requirements’ that a district court may adapt at its discretion, it is clear that mere notice of intent to rescind does not trigger a lender’s obligation to effect rescission immediately given that a lender cannot know with certainty ex ante whether a court will deny rescission or modify the procedure for effecting rescission. In other words, § 1635(b) cannot, at once, be a set of default procedures a court may equitably alter after a borrower’s notice of intent to rescind and, at the same time, require a lender to effect rescission immediately upon receiving such notice” Iroanyah v. Bank of Am., N.A., 851 F. Supp. 2d 1115 (N.D. Ill., 2012).

    Is that clear enough for you. You need to thank Garfield, rciferri, Gault, and the other scammers for helping you lose your home.

    You also need to thank Christine, shadowcat, Bob and the others literate in the law for trying to save it.

    Like I said those criminals belong in jail!

  90. “The procedures shall apply …” …..

    The lawmakers never mandated that a court order was needed.

    The original language set what would happen by operation of law.

    They would have mandated that a lawsuit was needed if that was their intent, but they did not include a lawsuit as a step of procedure.

    They did set a clear “20 days” for lenders to comply.

    What normally happens when you don’t comply with a law?

    Non-compliance usually brings with it a heavy price to be paid.

    When a lender willfully decides that they don’t want to comply with the mandated steps of procedure , they suffer consequences for their failure to comply. The language of “unless a court orders otherwise” was meant for the purpose that in the event of. – …

    1) the lender files inside the 20 days seeking to challenge the rescission . The court might use the added language to alter the tender procedure only because it was properly brought inside the 20 day window. The 20 day window must be acknowledged as having force and effect, otherwise it is meaningless. The 20 days has meaning, and it has effect.

    2) Another reason a court might be involved would be if the lender failed to comply and instead filed a foreclosure action inside 20 days. That court could then be in proper position to decide the best resolution because everything was timely and done within the 20 days. This court might avail itself of altering the tender procedure because it was brought inside the 20 day window.

    3) The other reason the parties might end up in court would be if the borrower files a lawsuit within 1 year of their rescission seeking to enforce their right to recover statutory damages allowed by TILA , the damages that a lender might have to pay for the violations they are found guilty of committing by adjudication. But this scenario would not have anything to do with a court altering the tender procedure.

  91. rciferri, once again you’ve come up with a scammer answer. This is the quote you posted:

    “Section 1635(a) explains in unequivocal terms how the right to rescind is to be exercised: It provides that a borrower “shall have the right to rescind … by notifying the creditor, in accordance with regulations of the Board, of his intention to do so” (emphasis added). The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind.”

    Because you don’t understand the law and cases you read you keep coming up with stupid answers and misguiding anyone stupid enough to listen.

    The quote says: “borrower shall have the RIGHT to rescind… by notifying the creditor, in accordance with regulations of the Board, of his INTENTION to do so” The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his INTENTION to rescind.”

    Do you see “notifying the creditor” means sending the rescission letter, is an INTENTION to rescind, not that there is actual rescission.

    There can be no rescission unless there is an actual TILA violation, AND the borrower has an ability to tender. The very last sentence of 1635(b) makes it clear: “The procedures prescribed by this subsection shall apply EXCEPT when otherwise ORDERED BY A COURT.

    Everyone in the world knows this except the scammers and their dupes in Garfieldtown.

    You, Garfield, JGault and the other scammers that post on this blog are nothing but common criminals. You mislead poor dupes like Dwight, who will now lose his home and possibly his family because he listened to your constant false legal advice, lies and misinformation. You all belong in jail.

  92. Common sense dictates that TILA and rescission rights were born out of a desire to protect consumers from untrustworthy lenders. Mr. Bob Hurt is struggling to comprehend why the law was written to lean so heavily in favor of borrowers, that it leaves him befuddled and calling the procedures stupid. Its only stupid if you’re on the side of the lenders and can’t handle the fact that congress wrote a law to protect the little common citizen.

  93. Here’s your option for the lender to agree or disagree with the borrower:

    15 USC 1635 (c) Rebuttable presumption of delivery of required disclosures

    Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom information, forms, and a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.

  94. I guess you know that “shall” means “may” because it implies an indeterminate point of time in the future UNLESS the law specifies that point. Thus in order to make the behavior happen at some specific point, one must sue for declaratory judgment and enforcement. And the law makes that very point by its discussion of rebuttable presumption.

    Let’s say the borrower received the proper disclosures, but claimed he didn’t, and mailed a notice of rescission. Must the lender tender in spite of knowing that the borrower made a false claim?

    I’d like to see some common sense here.

  95. The post about “Yamamoto” and the FRB adding language that allows courts to alter steps 2 & 3 of tendering, is a copy & paste from a website foreclosure defense resource center attorney steve vondran. Those were his comments and misguided views about the cour having discretion over step1 , etc. , he probably had posted it before the Jesinoski case and has neverupdated his nots and comments.

    But take notice of what the law does state about how a borrower can decide what the tender will be .. where it talks about tendering the money or the property … In regards to the “latter”, the property, its says “unless its UNFAIR … UNLESS TENDERING THE PROPERTY IS UNFAIR ???? Well lets stop right here and talk about that intent o the lawmakers for a minute. … They obviously did not think I should lose my home if it was considered UNFAIR … so we need to speculate about what unfair means to them.

    I propose that the word unfair can cover several possible scenarios in the lawmakers eyes … 1) Equity & Value. – my home is worth more than the tender amount … lender was supposed to have returned my 50k in payments , or if deducted from the 230,000 it leaves 180,000 that I would need to tender back .. but my home is worth 280,000

    So is it considered UNFAIR that they get house worth 100k more than the tender amount they are owed?

    The Act seems to imply that this scenario should not happen.

    Why would the lawmakers put language in that allows a borrower the authority to decide if giving his property as tender would be fair or unfair?

    There is no way on God’s green earth that the judge foreclosing my home and giving it to the servicer can justify that this is fair and that it conforms to the intent of TILA and tendering .. This is thuggery and criminality from the bench. ..its not even close to resembling a judge trying work out a fair tender exchange … I had nothng returned to me. The bank servicer ends up with a 280k house, and was due 180k.

    The judge was all worried about the tender , he denied my rescission over tender issues. …he cites Yamamoto as authority …because the FRB added language that allows courts to alter tender steps … But what the hell happened to my tender? What happened to the makers language that says I dont have to relinquish the house if UNFAIR?

    Read it for yourselves, its written right in the act … “unless its unfair”

  96. My name is Bob HuRt, FYI. I frame my comments in a civil way because I imagine everyone on this thread has a good motive AND has suffered frustration over the terrible financial crisis and its havoc among mortgagors. Although I am not a practitioner, and I consider myself a student of law, I fall somewhat short of being a koolaid drinker.

    Most of all I know that regardless of all the complaints people have about the foreclosure process, the money system, securitization, and uncooperative servicers, none of it has aught to do with whether the borrower breached the loan contract and must therefore forfeit the house or renegotiate the deal.

    There simply is no reliable way for one who breached the valid note to avert loss of the house.

    I know this because I have studied the issues and court opinions for the past 7 years, and I have spoken with upwards of a thousand foreclosure victims in the process because I write articles and people call me for help. I know what it takes to beat the bank, and it is not foreclosure defense.

    I feel frustrated too, principally over attorneys and other practitioners cheating their clients by leading them to believe that they can save the house from foreclosure without hornswaggling them into a short sale or loan mod.

    I concluded years ago that one must attack the validity of the loan in order to win damages or get the house free and clear or get a huge loan balance reduction. And to do that, one needs to apply the expertise of a wide array of professional practice and litigation in order to discover the causes of action that make such an attack possible. Most people haven’t the skill for such a discovery, and most lawyers don’t have it either. And such a discovery consumes time and therefore costs a lot of money, so most borrowers in trouble won’t pay the requisite cost.

    I find myself in a continual learning process. I have learned that judges generally do a good job, and as Jesinosky proved, even good judges have a hard time knowing the law.

    This TILA rescission debate has interested me because even though I wrote a while back about the minuscule percentage of mortgagors whom it would affect, I still had lingering questions which I have posed her.

    I guess you know I made the point that the TILA rescission limit of 3 years for notice and God knows how long for lawsuit seems utterly stupid because only a damned fool or crook would wait that long. I read the conjecture that the person gets to live in the house without making payments till the lender tenders. But that seems stupid too because breaching the note has become an excellent way to lose the house.

    I guess the bottom line here is that I believe the courts will never allow a borrower to reap some kind of windfall through TILA rescission, period. Jesinosky’s case will go back to trial, and the judge will determine if a TILA violation occurred, and then whether Jesinosky sent proper notice of rescission, and then whether Jesinosky has the ability to tender. If he finds a no answer to any of those, he will deny the rescission.

    I predict Jesinosky will not get the rescission. I doubt that he can tender. I write that without knowing his actual financial ability.

    I believe mortgage victims can best use TILA violations as part of an array of demonstrations of injury by the lender team, and that such injuries can include appraisal fraud, loan application or other mortgage broker fraud, excessive interest or origination fees, bait and switch tactics. Those could constitute a pattern of behavior that can justify setoffs from the debt even if the statute of limitations has expired on TILA violations etc. A good attorney could use those injuries to orchestrate a nice benefit for the mortgagor.

    Otherwise, TILA violation benefits to mortgagors have about the same scarcity as chicken teeth.

    And this pretty much explains my disdain for Garfield’s pretense defense services for mortgage victims. They don’t need his useless audits. They need a comprehensive mortgage examination to find where the lender, appraiser, mortgage broker, title company, or other party injured the client, and then need a lawyer with the knowledge, skill, and testicular force to attack the lender. Garfield and his law firm cannot provide such a service. They do not need his rescission package, as I have explained. And I do not believe Garfield has ever won anything, so he does not rise to my ideal of the lawyer needed to win a serious contest against the lender team for injuring the borrower. And neither do any of his lawyer minions who “get it,” because none of them get it.

    This discussion of TILA rescission constitutes a case in point. Neil thinks the rescission letter ought to have the power of a court ruling. Maybe it does in Alice’s wonderland, but it doesn’t in present day USA.

    Neil Garfield seems like a really nice man, and he has always treated me with love and respect, if he has treated me at all. He seems never to tire of commenting about interesting items on his blog. And that provides a nice forum for discussions like this. But he does not win foreclosure disputes. So he isn’t the guru many people think him to be.

    I don’t win the disputes either, by the way. I am not a practitioner. I am just a student and consumer advocate.

  97. DwightNJ your comment:
    https://livinglies.wordpress.com/2015/04/17/rescission-summary-as-i-see-it/#comment-400339

    Court has nothing to do with number 1. No jurisdiction whatsoever, notice jurisdiction is handed over in (d)(2) and (d)(3).
    Could it be the banks will never meet the 20 days and having not met the 20 days (d)(3) is in effect until they meet (d)(2) but once twenty days pass, its gone; forever – unless an act of Superman or something in CERN manipulates time and turns it back for a second chance to do an act in 20 days.

    Would not the pretend creditor seek a court action to release them from the obligation of (d)(2) that keeps (d)(3) from being accomplished.

    We are not speaking English. This is legalese. I dont speak legalese, and it takes too much time digging into their code for the definitions they disclose for the meaning of creditor and other terms and more time in Black’s Law to determine which words have definition and whether the word ‘may” and ‘include’ or any number of legalese words they are using have to be defined to get the scope of the intent.

    Trespass Unwanted

  98. rocko, do stop misquoting me. It’s nettlesome.
    Get invited for tea yet? No? Such a pity. You work so hard.

  99. Key Word..”IF”

    IF the creditor doesn’t take possession of the tender or the property…

    Shadowcat asks you…
    What did you offer the creditor? Tender or House?
    Or did you not offer either one?

    Creditor can’t take possession of something you didn’t give..now can they?

  100. Below is the roots of where rescission got screwed up, I believe this Yamamoto case and the FBR added language will have to be dealt with in order to return the Act back to its original simple intention as a protection for consumers. The FRB is obviously a very evil entity who will go to any extent to undermine the consumers. Jesinoski spoke to this to some extent, but can the Supreme Court over-rule the FRB, who is the authority who over-sees TILA? Can the Supreme Court ever rule that the added language by the FRB makes the Act useless and meaningless to most consumers?

    The FRB had a bad knee-jerk reaction to Yamamoto , which in turn has caused the TILA rescission clear process to become an evil, twisted, perverted, abused act turned side-ways and used against the very consumers who it was written for as a protection.

    This is a classic case of how government gets involved and really fucks something up that they should have just left alone.

    Following the 2003 Yamamoto decision (discussed below) the FRB added language to the commentary, (Section 226.23 of Regulation Z implements § 1635(b)). Which stated:

    1.When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.

    2.Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.

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

    4.The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order.

    Note: This suggests section (1) above is NOT altered, and so when a consumer rescinds, “the security interest becomes void.” Unless the Court alters the procedure, the Courts have the discretion.

    Where the TILA statute is clear it must be followed. Courts only have the power to alter whether the lender has to tender first, or the borrower has to tender first. See Yamamotov. Bank of New York, 329 F.3d 1167 (9th Cir. 2003), but see Semar v. Platte Valley Federal Savings & Loan Association, 791 F.2d 699, 705-06 (9th Cir.1986) (which stands for the proposition that the Court can alter the “procedure” of TILA but not the “substance” of TILA). The substance of TILA, as described above, is that the security interest becomes void upon the exercise of rescission, (although the Court can alter this procedure by requiring the borrower to tender first).

    In Yamamoto, the Court held:

    “There is no reason why a court that may alter the sequence of procedures after deciding that rescission is warranted, may not do so before deciding that rescission is warranted when it finds that, assuming grounds for rescission exist, rescission still could not be enforced because the borrower cannot comply with the borrower’s rescission obligations no matter what. Such a decision lies within the court’s equitable discretion, taking into consideration all the circumstances including the nature of the violations and the borrower’s ability to repay the proceeds. If … it is clear from the evidence that the borrower lacks capacity to pay back what she has received (less interest, finance charges, etc.), the court does not lack discretion to do before trial what it could do after. Determinations regarding rescission procedures shall be made on a “case-by-case basis, in light of the record adduced.”

    This case illustrates that the Courts hold the ultimate power to exercise their discretion in any TILA rescission case, and does not NECESSARILY require that the borrower prove its ability to tender as a pre-condition to exercising rescission rights.

    In fact, a California Court, in Pelayo v. Home Capital Funding, Slip Copy, 2009 WL 1459419, S.D.Cal.,2009,recently denied a lenders motion to dismiss a TILA rescission claim where the Defendant argued that the borrower was required to tender before rescission could be allowed (the Defendant essentially arguing that the security instrument was not automatically void), and where the Defendant argued the Court could not hear the case until the lender made its decision within 20 days (essentially arguing the TILA claim was not ripe for review). The Court held that the case could be heard and denied Defendant’s motion to dismiss.This ruling suggests that although the Court is permitted to modify the rescission procedure and require proof of tender by the Borrower first, it was also free NOT to modify the procedure and essentially treat the security instrument as being void (as the TILA statute requires), thus making the rescission case ripe for review.

    There is also legal precedent which suggests that a Court could exercise its “equitable discretion” under TILA and allow the borrower to make payments over time as part of meeting the borrower’s tender requirement (essentially reducing the monthly payment over time). See. In re Stuart, 367 B.R. 541, 552 (Bankr.E.D.Pa.2007); Shepeard v. Quality Sliding & Window Factory, Inc., 730 F.Supp. 1295 (D.Del.1990) (allowing borrower to satisfy tender obligation by making monthly payments); Mayfield v. Vanguard Sav. & Loan Ass’n, 710 F.Supp. 143, 149 (E.D.Pa.1989) (allowing borrower to satisfy tender obligation by making monthly payment).

    Also note, SOMETIMES (THIS IS PULLED OFF ONE LOAN) the Notice of Right to Cancel Form given to the borrower states:

    “If you cancel the transaction, the mortgage/lien/security interest is also canceled. Within 20 CALENDAR DAYS after we receive your notice, we must take the steps necessary to reflect the fact that the mortgage/lien/security interest on your home has been cancelled, and we must return to you any money or property you have given us or to anyone else in connection with this transaction.

    You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned to the address below. If we do not take possession of the money or property within 20 CALENDAR DAYS of your offer, you may keep it without further obligation.”

    This SEEMS TO BE a legal assertion, in the form of an admission, that the security interest is automatically void upon the consumer’s exercise of rescission. Upon the consumers act of “cancelling the transaction” the “mortgage/lien/security interest is also cancelled.” A creditor should not be permitted to renege on this assertion (estoppels applies) and the lender is bound by law to honor it.

  101. EFFECTS OF RESCISSION UNDER TILA (IN GENERAL):

    I. STEP ONE:

    When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.

    THIS MEANS THE SECURITY INTEREST BECOMES VOID BY OPERATION OF LAW.

    >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

    II. STEP TWO

    Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.

    Note: THE LENDER /SERVICER HAS NEVER FELT THE NEED TO DO THIS BECAUSE THE COURTS WOULD PROTECT THEM. In cases in the past the courts have bent over backwards to deny that the borrower had rescinded, they would rule .. a) the borrower did not file a lawsuit … b) the borrower did not tender at the time he mailed the notice … c) the borrower does not have hundreds of thousands of dollars in a bank account in order to tender the money back … d) the borrower had no right to rescind because the bank lawyer told the judge that the borrowers did receive their disclosures.

    >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

    III. STEP THREE

    If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the consumer shall tender the money or property to the creditor or, where the latter would be impracticable or inequitable, tender its reasonable value. At the consumer’s option, tender of property may be made at the location of the property or at the consumer’s residence. Tender of money must be made at the creditor’s designated place of business. If the creditor does not take possession of the money or property within 20 calendar days after the consumer’s tender, the consumer may keep it without further obligation.

    ** What were the lawmakers thinking when they wrote that last sentence?

    Were they looking ahead at the possibility that some lenders in the future might just ignore the consumer?

    Punish the consumer by refusing to acknowledge his rescission?

    Why would the lawmakers include language that clearly allows for the consumer to end up with a “free house” ??

    YET these same lawmakers included NO LANGUAGE that gives the lender the house “Free” in the way they have been getting it “free” from the judges in the foreclosure courts ..

    So in my case I did tender back in 2007 .. Wells Fargo ignored my tender offer , the same way they ignored my rescission letter.

    Now the question is .. since they failed to accept my tender offer within the 20 day window afforded them .. the law says I keep the property.

  102. No where under TILA does it talk about Misrepresentations and Inducement. Therefore I have no interest in TILA rescission. Its a rabbit hole.

    Now if we attack the contract we have the decision to Void It or Enforce It.

    Its always been to my understanding that enforcing it more cost effective than fighting it. Jon them. Anything else would cause me harm.
    Oh… Make sure you clean up the title you defended from their slander.
    It could bite you in the butt later…or your family if you should die 1st.

  103. rciferri. .
    Common sense dictates … If the borrower doesn’t have a valid recission claim the lender can deny it. If the lender was wrong and the borrower had a valid recission they get a slap on the hand and the borrower still must tender under TILA.

  104. @Shadowcat

    You said:

    “I would prefer to talk about common law recission ….
    Misrepresentations
    Inducement
    OR
    …. Contract Law
    Breech of Contract
    Options”

    Then, why are you concerned with TILA’s 20 day rule?

  105. “In Jesinoski, the Supreme Court determined ‘that rescission is EFFECTED when the borrower notifies the creditor of his INTENTION to rescind.”

    I’m glad you quoted “EFFECTED.”

    While you have NO idea what it means in the context of Jesinoski, I can assure you Justice Scalia, a very smart man, does.

    Here’s the definition:

    ef·fect
    əˈfekt/
    verb
    past tense: effected; past participle: effected

    cause (something) to happen; bring about.
    “nature always effected a cure”
    synonyms: achieve, accomplish, carry out, realize, manage, bring off, execute, conduct, engineer, perform, do, perpetrate, discharge, complete, consummate; More
    cause, bring about, create, produce, make;
    provoke, occasion, generate, engender, actuate, initiate;
    formaleffectuate
    “they effected many changes”

    See that past tense part?

    SCOTUS stated that the borrower’s rescission was “effected” by his notice of rescission. If you still don’t get it, that means the rescission commenced and was over upon receipt by the creditor of the notice of rescission.

    If you still don’t get it, read this part of Jesinoski again:

    “Section 1635(a) explains in unequivocal terms how the right to rescind is to be exercised: It provides that a borrower “shall have the right to rescind … by notifying the creditor, in accordance with regulations of the Board, of his intention to do so” (emphasis added). The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind.”

    “Unequivocal”, as used above means there are no implied conditions and no party need consent to the rescission.

    “The language leaves no doubt”, as used above means that ALL of the borrower’s rescission process is “effected”, or caused to happen, by his notice – not after any condition implied in the statute or after the lender’s agreement to it.

    Way to dig yourself in deeper, Rock.

  106. I would prefer to talk about common law recission ….
    Misrepresentations
    Inducement
    OR
    …. Contract Law
    Breech of Contract
    Options

  107. @Shadowcat

    “I agree Rock, if they don’t agree to the recission its up to a court to decide.”

    Please quote the language from TILA that contemplates giving a lender the option to “agree” or “disagree” with a borrower’s rescission.

  108. @Rock

    Check Jesinoski again:

    “But the negation of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity.”

    SCOTIS is saying:

    1) rescission at law (the possibility of borrower and lender agreeing to rescind) has been NEGATED by 15 USC 1635; and,

    2) rescission in equity (a lawsuit seeking the remedy of rescission) is not implied in TILA.

    Rescission in equity is not EXPRESSLY codified in TILA either.

    How can it be? Rescission in equity gives the court discretion to fashion a remedy as it sees fit.

    Section 1635 uses mandatory language, i.e., “shall,” which does not permit a court to just make up the process.

  109. I agree Rock, if they don’t agree to the recission its up to a court to decide. Then the 20 day rule no longer applies.
    I must confess who files suit first in a standoff and how long they have is a good issue to discuss.

  110. rciferri… Lets say you are right

    ….so they wait and nail them on taxes?

  111. You see Shadowcat, he gives us a quote from Jesinoski regarding common law rescission, and once again has no clue what it means because he doesn’t know how common law rescission works. And he can’t find out the answer, either because he doesn’t know where to look, or anyone he knows is as clueless as he is.

    BTW, here’s a quote from another case citing Jesinosk: “In Jesinoski, the Supreme Court determined ‘that rescission is EFFECTED when the borrower notifies the creditor of his INTENTION to rescind.” BANK OF NEW YORK MELLON v. KEIRAN, Minn: Court of Appeals 2015.

    Again, another court knows there’s no rescission just because somebody sent a letter, there’s only rescission if both parties and/or a court determines there’s one. That’s straight up 1635(b).

    That’s why Dwight lost his case. Mater of fact, the Jesinoski case and Dwight’s case are factually the same.

    “Plaintiffs’ assertion that they did not receive the required number of disclosures is undermined by documents submitted by Defendants demonstrating that Plaintiffs signed the disclosure documents acknowledging receipt by each Plaintiff of sufficient copies.” JESINOSKI v. Countrywide Home Loans, Inc., Dist. Court, Minnesota 2012.

    This is why the Supremes remanded it back for a retrial to determine if in fact there really was a TILA violation. Like I said before, if there is no violation, Jesinoskis lose their home, if there is a TILA violation and they can’t tender, Jesinoskis lose their home.

    Everyone in the country except scammer/nitwits and their dupes knows this!

  112. @Rock

    “Come on little guy, how does common law rescission work, let’s end the day with a good laugh.”

    Again, Rock, who cares?

    I mean, it’s YOUR baby, not mine!

    It’s just another of your loser arguments that I promise I will destroy when I come across it in court.

    Or, I will destroy it here, if you prefer.

    But, to do that, you are going to have to lay it all out for me yourself.

    I’m not welfare for bank lawyers over here crafting your arguments for free! Lol!

  113. @Shadowcat

    “Interesting thing is no one has mentioned that under TILA it also says the borrower must tender within in 20 days of their recission to the Creditor ( or is that lender?) at the location they do business.”

    That’s not true. The borrower must tender within 20 days of the lender doing its part within 20 days of its receipt of the borrower’s rescission notice. So, if the lender does not give the borrower its money back AND file a satisfaction of mortgage, both within 20 days, NO obligation on the part of the borrower is triggered.

    Please read 15 USC 1635(b) again and you’ll see.

  114. @ Shadowcat

    You said:

    “You didn’t answer Rocks question.”

    Yes I did (as far as declining to do so).

    See my post from 3:25 p.m.

    As far as debates, I don’t like to get into them if they are off topic.

    This blog is about TILA rescission litigation in the wake of a SCOTUS opinion that should have obliterated the idea that common law rescission has anything to do with it.

    Remember this from SCOTUS in Jesinoski:

    “But the negation of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity.”

    In any event, if Rock thinks he understands common law rescission so much, he can just lay out here.

    I’d rather not discuss extraneous things. If Rock wants to do that, that’s his choice. Clearly, I’m not going to be bullied into his losing game.

  115. Under TILA rescission common sense says the pretender needs to supply the borrower with a payoff less any credits owed under rescission so that the borrower can get certified funds to tender.
    Am I not right?
    At the time the borrower tenders the pretender has to issue a release of lien to borrower to be filed.

    Now.. Back to common law rescission ….
    rciferri…your turn now.

  116. You’re right rciferri, I’m wrong, the attorney for the United States who argued in support of Jesinoski, and Jesinoki’s appellate counsel, we’re all wrong and a little sociopath grunting for a law firm, who couldn’t spell law if spotted the “L” & “W” is right.

    Come on little guy, how does common law rescission work, let’s end the day with a good laugh.

  117. Interesting thing is no one has mentioned that under TILA it also says the borrower must tender within in 20 days of their recission to the Creditor ( or is that lender?) at the location they do business.

  118. rciferri….. You didn’t answer Rocks question.

    Are you going to explain common law rescission to us or not?

    Both TILA recission a d Common Law rescission work in some cases but have very different outcomes.

    I LOVE A GOOD DEBATE!

  119. @ Rock

    You posted regarding the effect of a borrower’s rescission the following excerpt purportedly from the Jesinoski oral argument:

    “Elaine J. Goldenberg: “That’s right, Your Honor. It has no — it puts no requirement on the lender to do anything and you can see that from the language of Section 1635(b).”

    So, the requirements that the lender must give back the borrower’s money AND file a satisfaction of mortgage within 20 days of receipt if the lender wants to avail itself of its TILA remedy to get the property from the borrower, apparently are really not requirements at all under 15 USC 1635(b) – so sayeth your 2 percenter attorneys.

    Really, Rock?

    Here’s 15 USC 1635(b) (in pertinent part):

    “Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor…”

    The subsection above is what Ms. Goldenberg stated imposes NO obligations on a lender in the face of a borrower’s rescission.

    Maybe Ms. Goldenberg has figured out what every lawyer has failed to do since the dawn of the law – that the word “shall” really means “you don’t really have to do anything.”

    I suppose she didn’t technically lie though — if the lender just wants to give up the property to the borrower.

    If I’m drinking the kool-aid, Rock, you are certainly drowning in it.

  120. @Rock

    “or are you going to tell us how common law rescission works”

    You know what Rock, I’ll just wait for you or the other 2 percenter attorneys to tell me that in their responses to my clients’ TILA rescission suits to have their liens declared void.

    I fully expect the 2 percenter lawyers to try to fit a square peg into a round hole, which is what they have consistently been doing since their mortgage securitization/foreclosure scam started.

    We shall see if this time they succeed. However, I got to say Rock, that there’s got to be a better argument out there than that one. I mean, really…

  121. @Rock

    By the way Rock, did you see how the case that was relied upon as mandatory authority in the 8th Circuit for that court to decide Jesinoski the way it did, Keiran v. Home Capital, Inc. – a case that was decided over two years ago – has now had SCOTUS grant certiori and reverse it in accordance with Jesinoski?

    Here’s the entire SCOTUS opinion in Keiran v. Home Capital, Inc, for your convenience:

    LAN KEIRAN, ET AL.,
    v.
    HOME CAPITAL, INC., ET AL.
    No. 13-705.

    Supreme Court of the United States.
    January 20, 2015.

    The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Jesinoski v. Countrywide Home Loans, 574 U. S. ___ (2015).

  122. rciferri, another scammer answer. The court clearly pointed out you scammers are wrong about bank’s defenses being waived. The quote speaks for itself

    You, nor JGault, or Garfield have yet to back up anything you’ve posted. I’ve posted several cases, argument of Jesinoski’s counsel, but we’re all wrong, and you nitwits are right. You’re the only people on the planet who don’t understand Jesinoski.

    Come on, now you only have us giggling, are you going to keep wetting the bed, or are you going to tell us how common law rescission works; because you clearly don’t know how TILLA rescission works. Its getting late in the day, educate us with more of your insanity.

  123. @Rock

    Since you have not taken the opportunity to provide a case which is on point with Jesinoski that hasn’t resulted in the borrower’s rescission being recognized by the court, I’ll give you one:

    Bank of America v. Peterson, which has now been remanded to the US District Court for further proceedings. The court that is doing the remanding is the court that was reversed by SCOTUS in Jesinoski – the 8th Circuit.

    Hey Rock, do you think the US District Court is going to do anything but recognize Peterson’s rescission?

    Do you think the 8th Circuit would have remanded back to the US District Court if Jesinoski somehow is not DIRECTLY implicated in the Peterson case?

  124. @Rock

    Obviously Jesinoski wasn’t factually on point with the Residential Capital case (there had been a modification agreement that may have effected the borrower’s rescission).

    Of course, when I dealt with your citation of that case, I pointed this out.

    Of course, also, in true pretender lender fashion, you didn’t point out the factual differences in the two cases, preferring instead to pretend the borrower lost under exactly the same circumstances upon which Jesinoski was decided.

    Of course, I called your bluff.

    Finally, you clearly weren’t going to point out the circumstances that lead to Residential being decided the way it did until I called your bluff.

    Not good for your credibility, Rock.

    By the way, do you have ANY cases which are on point with Jesinoski that haven’t resulted in the borrower’s rescission being recognized by the court?

  125. “According to Rozier, the United States Supreme Court’s decision in Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015), clarifies that “all a homeowner is required to do in order to rescind a loan within the three-year period is to write a letter.” (Id. at 8 (emphasis omitted).)”

    “Rozier reiterates her argument that WMC WAIVED ITS RIGHT to demand tender after receiving Rozier’s notice of rescission and failing to respond within 20 days (id. ¶ 5), and she argues that TILA “specifically prohibits waiver of rescission rights unless there is an emergency or hardship,” neither of which apply to her (see id. ¶¶ 4, 6). Jesinoski is relevant, Rozier asserts, because it “clarified what it takes to rescind a note.” (Id. ¶ 7.) She contends that the reasoning of Jesinoski supports her argument that her note “became a nullity” after she sent WMC a notice of rescission and it failed to respond within 20 days. (Id.)”

    “While Jesisnoski is undoubtedly relevant to the issue whether Rozier exercised her right to rescind the loan originated by WMC, it does not address whether such rescission can SUBSEQUENTLY be waived by entering into a modification of a note and deed of trust and signing a general release—the issue decided in the Opinion. (See Opinion at 24-25 (holding that the Trust established that Rozier waived her right to rescind her loan by entering into a modification of note, modification of deed of trust, and release).)” IN RE RESIDENTIAL CAPITAL, LLC, Bankr. Court, SD New York 2015.

    Exactly the same argument you Garfield and JGault make, here is another court who says you’re full of it.

    Hmm, looks and sounds like to me Rozier made argument using Jesinoski and lost.

    That’s right, I almost forgot, these tyrannical courts and judges are in the bank’s pocket.

    Come on dupes, don’t listen to the courts, listen to rciferri, Garfield and JGault., who obviously don’t even remotely understand what they read.

  126. @Rock

    You said:

    “In the judicial foreclosure States, the next thing that’s likely to happen is that the bank would go to State court and file a foreclosure action”

    If the bank forecloses after receiving a TILA rescission notice and not doing what the statute requires it to do to receive its remedy, the foreclosure should be dismissed because it has waived its right to have the borrower tender the property after the borrower’s completed rescission.

    Again, as Justice Scalia said, “the clear import of § 1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind.”

  127. @Rock

    You said:

    “Rich asked a simple question: “I am not aware of the legal authority that requires the “lender” to respond in court in 20 days, creating a default where all affirmative defenses are thereby waived by the bank. Does anybody have legal authority that the bank must respond with some sort of legal judicial filing?” Scammer/nitwit again retorts with another stupid answer: “The legal authority you are seeking is the plain wording of the Truth In Lending Act and Regulation Z.”

    Problem is nowhere within the statute or reg does it say “all affirmative defenses are thereby waived by the bank.”

    Rock, the plain wording of TILA includes the lender’s remedy if rescission is in any way improper. We all know the lender is unlikely to avail itself of such remedy. That remedy starts thus: file a satisfaction of mortgage to cancel the effects it has in the chain of title and give the borrower all his money back. Those requirements must occur within 20 days of their receipt of the rescission notice. If they do not do those things, how can they expect the borrower to tender the property?

    Also, in light of Jesinoski stating that TILA rescission is an example of a statute abrogating the common law, how do you think it is proper to look outside the statute for the remedy, when one is clearly included in TILA?

    When a lender does not do what it is supposed to do to avail itself of the TILA remedy, is that not a knowing relinquishment of its right to a remedy?

  128. @Rock

    You said:

    “I posted: “a few cases homeowners lost arguing Jesinoski:” However, somehow according to scammer/nitwit rciferri, after analyzing said cases, miraculously these homeowners in fact didn’t lose arguing Jesinoski, and scammer/niwit JGault thanked him for his analysis.”

    Rock, none of the litigants from the cases you cited lost due to the court rejecting Jesinoski’s authority with regard to the principles I previously posted.

    By contrast, ALL the litigants in the cases you cited lost due to other reasons.

  129. @Rock

    You said:

    “Honestly, who would you dupe/nitwits and innocents believe knows TILA rescission more, two top lawyers, who argue before the Sup. Ct. or scammer nitwits, Garfield, rciferri, or JGault?”

    If you are trying to contend I’m wrong, this contention is false. Specifically, it is what is known as a fallacy in classical logic – argument from authority or, also known as appeal to authority.

    Under the rules of logic, it must be rejected outright.

  130. @Rock

    You said:

    “There’s an old Chinese proverb. Truth: Still the truth. even if no one believes it.”

    That proverb describes Jesinoski and your reaction to it.

    You also said:

    “A lie is still a lie, if everyone believes it.”

    That proverb describes your 2 percenter attorneys, still clinging to meritless legal arguments invalidated by Jesinoski.

  131. @Rock

    You said:

    “Honestly, who would you dupe/nitwits and innocents believe knows TILA rescission more, two top lawyers, who argue before the Sup. Ct. or scammer nitwits, Garfield, rciferri, or JGault?”

    For the answer, see the post preceding this one.

  132. @Rock

    You said:

    “scammer-person who fools others.
    nitwit-stupid person.
    dupe-person who is fooled.
    Roget’s 21st Century Thesaurus, Third Edition.”

    You mean like the majority of the US Circuit Courts of Appeal that actually bought the BS your 2 percenter scam artist attorneys were peddling about needing to sue for a TILA rescission to be effective?

    Yes, I agree, “nitwit” tends to describe them well.

  133. @johngault

    johngault wrote:

    “from the Macklin court: “Section 1641(g) applies to “a mortgage loan . . .sold or otherwise transferred or assigned to a third party.” Section 1641 (g) was added by an Act of Congress dated May
    from the Macklin court: “Section 1641(g) applies to “a mortgage loan . . .sold or otherwise transferred or assigned to a third party.”
    Section 1641 (g) was added by an Act of Congress dated May 20, 2009, and therefore may not apply to the mortgage loan transaction at issue here “. stop.
    Okay, without looking it up, which I may, since this could mean there was no successor liability prior to may 20, 2009, or at least that tila didn’t speak to it specifically prior to then?
    “the transfer of the promissory note into the Trust, not the
    assignment of the deed of trust or the substitution of trustee.” stop.
    get real or huh? Are they trying to delineate between a dot and a note and that only one of these, the dot is what’s meant by a “mortgage loan”?
    rciferri, would you mind putting your head to this and tell me what you think this court is purporting by this?”

    I can’t find this language anywhere in the latest Macklin decision. I understand he’s had many reported decisions.

    Do you have a citation to the decision from which the above language is quoted?

    In any event, Section 1641(g) appears to me to be a procedure for the borrower to be given notice of who owns the loan after it is sold. It does not apply to TILA rescission. Section 1641 seems to be only directed at a TILA action for damages, not a borrower doing a TILA rescission. In fact Section 1641(c) confirms this view, stating: “Any consumer who has the right to rescind a transaction under section 1635 of this title may rescind the transaction as against any assignee of the obligation”, probably to prevent a pretender lender from using anything in Section 1641 to hinder a borrower’s right of rescission under Section 1635.

    At least with respect to the definition of “mortgage loan”, it does not mean just the dot, at least with respect to the application of that term within Section 1641, because “mortgage loan” has its own definition for purposes of its use in Section 1641: “As used in this subsection, the term “mortgage loan” means any consumer credit transaction that is secured by the principal dwelling of a consumer.”

    However, “mortgage loan” in the broader context is almost always defined on page 2, paragraph H of the form deed of trust or mortgage as “the debt evidenced by the Note.”

  134. ARGUMENT OF ELAINE J. GOLDENBERG FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONERS JESINOSKI

    Justice Anthony Kennedy: “Suppose the bank — suppose the bank thinks that the notice of rescission is just completely baseless. Does it still have to respond within 20 days?”

    Elaine J. Goldenberg: –“NO!”

    Justice Anthony Kennedy: “It can — it can just sit there and wait and be sued.”

    Elaine J. Goldenberg: “That’s right, Your Honor. It has no — it puts no requirement on the lender to do anything and you can see that from the language of Section 1635(b).”

    Honestly, who would you dupe/nitwits and innocents believe knows TILA rescission more, two top lawyers, who argue before the Sup. Ct. or scammer nitwits, Garfield, rciferri, or JGault?

    Problem is the scammer’s Kool-Aid is far worse than what the victim/dupes at Jamestown drank. They died almost instantly.

    The scammers Kool-Aid is addictive. The dupe/nitwits are told what they want to hear egging them on with their stupid arguments.

    I don’t tell people what they want to hear, because that’s what got dupe/nitwit, Dwight in trouble. I tell them what they need to hear the truth.

    There’s an old Chinese proverb. Truth: Still the truth. even if no one believes it.

    A lie is still a lie, if everyone believes it.

  135. The real purpose of the presence of some here is to garner arguments
    for the benefit of banksters out of “nitwits”, “bedwetters” and so on.
    While prescribing those characteristics to some of us (to undermine credibility), they must yet engage us to suck out anticipated arguments out of our side of this ugly debacle which they created. It presents a catch-22. One doesn’t want to give them what they want, and yet because of their purposeful aSSassinations, we feel compelled to defend our positions, thus giving them what they really want. Many attorneys who defend homeowners mostly won’t play. They keep their arguments to themselves, unfortunately to our detriment. So these yeahoos come here to get what they can’t get elsewhere and to undermine, as well. If they had any interest in homeowners, they wouldn’t assault people here, including that really rancid attack on dwight, going so far as to say his wife will probably divorce him. If that doesn’t tell the reader who they are, nothing will.
    E. tolle is right – they can’t handle jesinoski and as we’ve always known, there isn’t anything they won’t say or do to get what they want. Bob Hunt, with whom I’m sure I’ve personally disagreed historically, at least had the class and or grace to frame his stuff civilly.

  136. Right on, Trespass. People who have nothing better to do than insult and berate others trying to save their homes is right down there in the mud of low vibration. It pulls in more bad and low vibration and does not enhance their lives either. Silly really. The justice system has no justice, because it has been infiltrated with those of low vibration who are predatory. They are actually parasites as they do not contribute positives to the entire system. You are what you project. In any event, if you cannot win, just do not pay your mortgage, save the money for your new life.

  137. You have the dupe/nitwits: Dwight. Too dumb to realize he’s been scammed. Anyone with two brain cells to rub together would never listen to some hack who has never won a case, and the courts find his arguments utter nonsense. Nor would they listen to any of his parrots that believe as he does that all anyone has to do is send in a rescission letter and if the bank doesn’t respond to their frivolous letter in 20 days they’ve “waived” any defenses and gets a free house.”

    rock, are you so full of it, even your eyes are brown? Show us where one person has asserted the lender’s failure to rescind leads to a free house.

    “javagold opened the comments with some very simple questions. However, scammer/nitwit rciferri answered his simple question with a ridiculous retort: “Each of your questions invoke a contention by the pretender lender that the borrow had no right to rescind. However, the pretender lender has waived any such contentions if it does not sue within 20 days of the rescission.” Parroting head scammer/nitwit Garfield’s; “Lenders MUST file a lawsuit challenging the rescission within 20 days or their defenses are waived.”

    You have not proved that defenses to rescission aren’t waived by
    the lending doing nada. No one said it leads to a free home; merely
    that rescission has occurred. You’re the one around here with the majority of unsupported conclusory allegations and app can’t ASSimilate what he’s reading.

    “Rich asked a simple question: “I am not aware of the legal authority that requires the “lender” to respond in court in 20 days, creating a default where all affirmative defenses are thereby waived by the bank. Does anybody have legal authority that the bank must respond with some sort of legal judicial filing?” Scammer/nitwit again retorts with another stupid answer: “The legal authority you are seeking is the plain wording of the Truth In Lending Act and Regulation Z.”

    And your very own thoughtful and supported answer to his very simple question which you took the time to write was?

    ” Problem is nowhere within the statute or reg does it say “all affirmative defenses are thereby waived by the bank.”

    That is the inference, like it or not. Courts may interpret it differently, but all we get out of you, all you’ve got, is your conclusory disagreement.

    ” I posted: “a few cases homeowners lost arguing Jesinoski:” However, somehow according to scammer/nitwit rciferri, after analyzing said cases, miraculously these homeowners in fact didn’t lose arguing Jesinoski, and scammer/niwit JGault thanked him for his analysis.”

    Nothing miraculous about it. They weren’t on point. No surprise. And I do thank him again. Saved me the lousy trouble.

    ” Which brings me to scammer/nitwit JGault making his ridiculous argument there’s a difference between an absolute defense and a affirmative defense. After he wet the bed and couldn’t prove there was a difference, I thought I’d put him out of his misery when I posted a case where the court held that a “absolute defense” was an “affirmative defense” as I had told him repeatedly: “The law provides a complete defense commonly referred to as an affirmative defense…” US v. MINTMIRE, 507 F.3d 1273, 1293 (11th Cir. 2007). But I see where he’s still trying to get the dupe/nitwits to believe his nonsense.”

    I’d like to put YOU out of the misery you seek to visit on ng readers.
    You post ‘a’ case in support of your proposition. wow. You clearly don’t want anyone to think that a prior rescission is something which shuts down a foreclosure since there’s nothing to foreclose on. No one around here said it relieves the borrower of any obligation to tender.
    But when the rescinded lender comes to court seeking tender, he has some pretty dirty hands where he failed to follow the Act and has probably created an affirmative defense to tender, or at least the amt.
    There’s no mistaking tila’s intent and language: the lender must rescind or seek relief from a court.

    ” Now back to scammer/nitwit rciferri, who has been wetting the bed now for a couple of days without showing he knows how a common law rescission works, because without knowing how it works that’s why he doesn’t understand the last two paragraphs of Jesinowski. His problem is he’s already embarrassed himself quite a few times already, and knows he’s the laughing stock in our office is afraid I’ll spank him again.”

    I rather doubt it. Do you live to be contentious? Is that how you get your jollies? My guess is the people whose dirty work you do don’t invite you to their cocktail parties…or anything else. Do they even take you to lunch? Aren’t you just a hired hack, the help?

    ” BTW, I was there lat November for oral argument in Jesinoski I heard the questions asked and I heard the answers. ”

    wow! Reeeeaally? Now there’s a basis for credibility. Hey, I’ve seen the statute of liberty and part of the Oregon trail!

    “Moreover, I can read and understand statutes, regs and court cases, and trust me everything the scammers have told everyone on this blog is utter absolute nonsense.”

    Well, I understand your need to try to convince anyone, esp since
    nothing ou come up with stands the light of day.

    “Matter of fact Jesinoski’s own appellate counsel stated: “we’ve not found a single case in the 45-year history of this Act where the borrower has gotten any kind of windfall.”

    And? (who says otherwise?)

    “Moreover, he went on to say:

    “The borrow — lender has several recourses.

    First, it notifies the lend — the borrower that it doesn’t agree with its position about the rescission.

    And then it depends really on whether we’re in a judicial foreclosure State or a nonjudicial foreclosure State.

    In the judicial foreclosure States, the next thing that’s likely to happen is that the bank would go to State court and file a foreclosure action,”

    Aren’t we missing something here? A NOR triggers a right to foreclosure?

    “at which point the validity of the rescission notice would be the first issue that would be decided by the court in determining whether or not the foreclosure was proper to begin with.

    But if we’re in a nonjudicial disclosure State, and we’re roughly 50/50 among the States in terms of which are which, then we have the problem that I was identifying with Justice Sotomayor, where the buyer is going to have to take the initiative to go to court to get a declaratory judgment that it had — he or she had properly rescinded the loan.”

    This last paragraph is the closest thing to the truth out of you. Oh, wait. It wasn’t out of you exactly. But i can see this. A request for a declaratory judgment (if not in conjunction with a claim for failure to follow the Act) seems the proper vehicle for a borrower who has rescinded who wants to get the show on the road. Dec relief is probably the vehicle for the homeowner wanting resolution at some point. But, I don’t believe it’s mandatory to effect rescission, that the borrower must take the initiative since the rescission has occurred by non-performance of the lender. I’m staying a the rescission occurred when the lender failed to perform by one of the two actions prescribed in the Act – rescind or go argue within 20 days. My impression is tila frames rescission as a suit or circumstance to which a lender must respond within a time certain, and when he doesn’t, he has in fact waived his defenses to the rescission. He is, in essence, in default. No one says that necessarily waives his right to tender. it may end up a consequence, but I wouldn’t, haven’t, and don’t assert it as a fact that tender is waived. But by ‘defaulting’, the lender has imo waived his defense to the rescission and the amt of money he must tender himself to the borrower. In fact, he could be found liable for statutory interest on those monies, attorney fees, and so on, as Ameriquest and Deutsche learned (at least as to att fees).

  138. ….parroting SCOTUS…..

  139. scammer-person who fools others.
    nitwit-stupid person.
    dupe-person who is fooled.
    Roget’s 21st Century Thesaurus, Third Edition.

    This blog is inundated with nitwits. You have the scammer/nitwits: Garfield, JGault, rciferri. Who have no clue what they’re talking about, and do not understand what they’re reading.

    You have the dupe/nitwits: Dwight. Too dumb to realize he’s been scammed. Anyone with two brain cells to rub together would never listen to some hack who has never won a case, and the courts find his arguments utter nonsense. Nor would they listen to any of his parrots that believe as he does that all anyone has to do is send in a rescission letter and if the bank doesn’t respond to their frivolous letter in 20 days they’ve “waived” any defenses and gets a free house.

    Then you have the wasting their time nitwits: Bob, Christine, Shadowcat, et al, and myself included. We’re too dumb to realize you can’t educate imbeciles, but continue to waste our time trying to do so.

    Then you have a few innocents: Rich Medina, javagold who ask simple questions, but get ridiculous answers from the scammers.

    javagold opened the comments with some very simple questions. However, scammer/nitwit rciferri answered his simple question with a ridiculous retort: “Each of your questions invoke a contention by the pretender lender that the borrow had no right to rescind. However, the pretender lender has waived any such contentions if it does not sue within 20 days of the rescission.” Parroting head scammer/nitwit Garfield’s; “Lenders MUST file a lawsuit challenging the rescission within 20 days or their defenses are waived.”

    Rich asked a simple question: “I am not aware of the legal authority that requires the “lender” to respond in court in 20 days, creating a default where all affirmative defenses are thereby waived by the bank. Does anybody have legal authority that the bank must respond with some sort of legal judicial filing?” Scammer/nitwit again retorts with another stupid answer: “The legal authority you are seeking is the plain wording of the Truth In Lending Act and Regulation Z.”

    Problem is nowhere within the statute or reg does it say “all affirmative defenses are thereby waived by the bank.”

    I posted: “a few cases homeowners lost arguing Jesinoski:” However, somehow according to scammer/nitwit rciferri, after analyzing said cases, miraculously these homeowners in fact didn’t lose arguing Jesinoski, and scammer/niwit JGault thanked him for his analysis.

    Which brings me to scammer/nitwit JGault making his ridiculous argument there’s a difference between an absolute defense and a affirmative defense. After he wet the bed and couldn’t prove there was a difference, I thought I’d put him out of his misery when I posted a case where the court held that a “absolute defense” was an “affirmative defense” as I had told him repeatedly: “The law provides a complete defense commonly referred to as an affirmative defense…” US v. MINTMIRE, 507 F.3d 1273, 1293 (11th Cir. 2007). But I see where he’s still trying to get the dupe/nitwits to believe his nonsense.

    Now back to scammer/nitwit rciferri, who has been wetting the bed now for a couple of days without showing he knows how a common law rescission works, because without knowing how it works that’s why he doesn’t understand the last two paragraphs of Jesinowski. His problem is he’s already embarrassed himself quite a few times already, and knows he’s the laughing stock in our office is afraid I’ll spank him again.

    BTW, I was there lat November for oral argument in Jesinoski I heard the questions asked and I heard the answers. Moreover, I can read and understand statutes, regs and court cases, and trust me everything the scammers have told everyone on this blog is utter absolute nonsense. Matter of fact Jesinoski’s own appellate counsel stated: “we’ve not found a single case in the 45-year history of this Act where the borrower has gotten any kind of windfall.” Moreover, he went on to say:

    “The borrow — lender has several recourses.

    First, it notifies the lend — the borrower that it doesn’t agree with its position about the rescission.

    And then it depends really on whether we’re in a judicial foreclosure State or a nonjudicial foreclosure State.

    In the judicial foreclosure States, the next thing that’s likely to happen is that the bank would go to State court and file a foreclosure action, at which point the validity of the rescission notice would be the first issue that would be decided by the court in determining whether or not the foreclosure was proper to begin with.

    But if we’re in a nonjudicial disclosure State, and we’re roughly 50/50 among the States in terms of which are which, then we have the problem that I was identifying with Justice Sotomayor, where the buyer is going to have to take the initiative to go to court to get a declaratory judgment that it had — he or she had properly rescinded the loan.”

    So much so, for the nonsense from the scammers. Jesinoski’s own counsel understands the law, but the scammers obviously do not.

  140. DAVIS v. KROGER TEXAS LP, 429 Fed.Appx. 376 (5th Cir. 2011)
    United States Court of Appeals, Fifth Circuit.
    June 20, 2011.

    Similarly, the only evidence of Kroger’s “defamation” is that
    it told Davis’s fellow employees that he was fired for refusing
    to work his May 20 shift. Because truth is an ABSOLUTE DEFENSE
    to defamation, see COC Servs. Ltd. v. CompUSA Inc.,
    150 S.W.3d 654, 681 (Tex.Ct.App. 2004), the district court
    properly granted summary judgment on this claim.

  141. bhunt: what possible “good” reason could a borrower have for serving notice of TILA rescission 2.99 years after getting the loan, and then waiting 6 more years to litigate it when the lender refuses to tender payment?
    jg; well now, bobert (not meant to be creepy – gang’s pet name for a bob of long ago. just liked writing it), mr. hunt, it’s like this. Oh, alright. I see it like this: if joe rescinds his loan, he’s most likely not making any more payments, is that not true? If the former lender isn’t squawking, i guess joe is good with that. it’s true the issue usually comes up when the ‘lender’ gets around to foreclosing. I guess i see no reason a borrower should make an oh but I insist to the lender before then.
    as to why tila was written that way, well, the lender has 20 days, as i’ve said just like a response to a lawsuit, to do one thing or another. the lender who does nothing imo does so at his own peril and I believe that’s part and parcel of the act.

    “What possible “good” reason could a lender have for ignoring the notice of TILA rescission mailed within 3 years after giving the loan?”

    willful ignorance? hopefulness? must we care? i don’t think so.

    “How could Congress POSSIBLY have made such a stupid law as TILA rescision, allowing the borrower 3 years to decide he didn’t receive proper TILA disclosures and the God knows how many more years before the borrower finally files suit for the rescission?”

    you be asking the wrong folks, and that’s not to say I agree it’s stupid.
    I’ll give that some more thought, tho, fwiw.

    “The judges didn’t go for it because it’s just plain stupid. Now the Supreme Court will have to deal with the backlash from Jesinoski. That backlash boils down to judges ignoring it in practice wherever they can.”

    it’s unfortunate that bench law often prevails, at least for those without the savvy and or moolah to see that it doesn’t.

    “For example, HOW much time does the borrower have before filing lawsuit for TILA rescission, given that he served notice timely? 1 year? 5? 7? 10? 20? 30? Infinity? Doesn’t some statute of limitations kick in? Which statute?”

    well, a borrower wouldn’t actually in my opinion be suing for resc, or he he would, but he’d also be suing for failure to. Otherwise, I can’t answer that myself off-hand.

    “And, why shouldn’t the court hold the borrower accountable for NOT MITIGATING his injury and loss when the borrower dawdled 2.99 years?”

    that sort of assumes a fact not in evidence, namely that the borrower
    has any injury or loss to mitigate as a result of a creditor’s failure to adhere to tila after rescission. Tila doesn’t require injury, per se for rescission. I guess it’s strict compliance mandate either precludes or assumes it and rescission is the consequence of violation. But please, banksters NEVER mitigate, though they sign forms routinely in bk swearing they have (for instance). Also, remember – tila was promulgated to MAKE lenders self-govern, no false advertizing, proper disclosures of (certain) credit terms, times certain to do this and that. Look at most actions by banksters where they didn’t have their ducks in a row: vol dismissal, ‘regroup’, come back. It’s more than tolerated. How’s that make sense? But the “stupid” rules allow it.

  142. dwight – go back to your transcript and see where your judge said you didn’t give him anything. if you don’t know what he meant, tell me. if you do, look to see if it’s true.

  143. DwightNJ

    This is a good audio about evidence, objections, rules
    Determine the admissibility of evidence, whether it should come in or stay out. If you don’t object you can’t complain.
    He explains appeal how it works and does not work.
    I am only referring due to the content of the information provided in the audio. I don’t own any legal products nor do I endorse any.

    [audio src="http://mp3.logosradionetwork.com/JUR/16k/Jurisdictionary_2009-06-08_16k.mp3" /]

    Trespass Unwanted

  144. dwight – nothing to transfer to anyone if loan rescinded prior to alleged transfer.

  145. I have a theory about the problem with TILA rescission. It really makes little sense in practice, and that’s what causes such confusion for the judges.

    What possible “good” reason could a borrower have for serving notice of TILA rescission 2.99 years after getting the loan, and then waiting 6 more years to litigate it when the lender refuses to tender payment?

    What possible “good” reason could a lender have for ignoring the notice of TILA rescission mailed within 3 years after giving the loan?

    How could Congress POSSIBLY have made such a stupid law as TILA rescision, allowing the borrower 3 years to decide he didn’t receive proper TILA disclosures and the God knows how many more years before the borrower finally files suit for the rescission?

    The judges didn’t go for it because it’s just plain stupid. Now the Supreme Court will have to deal with the backlash from Jesinoski. That backlash boils down to judges ignoring it in practice wherever they can.

    For example, HOW much time does the borrower have before filing lawsuit for TILA rescission, given that he served notice timely? 1 year? 5? 7? 10? 20? 30? Infinity? Doesn’t some statute of limitations kick in? Which statute?

    And, why shouldn’t the court hold the borrower accountable for NOT MITIGATING his injury and loss when the borrower dawdled 2.99 years to serve notice of TILA rescission, and then more years before suing, and meanwhile his house went into disrepair, the value plummeted because of market conditions, and now he can’t sell it to get the money to rescind?

    I have concluded that only a tiny percentage of refi borrowers ever timely sent a proper notice of rescission, and of those, many didn’t deserve it, and of those who did, most have waited too long to sue, and the courts will rule just that.

    If YOU had the judge’s job, would you order a rescission after the borrower dawdled for years before suing? Honestly?

  146. I’d like to be there if only to break the Champagne bottle…..not across NG’s ship bow, but across Rock’s bloated ego.

    Oh dear! He’ll probably threaten to sue me what with his office full of suits.

    Bring it on niwitt [sic].

    Anyone threatening other people on a blog like this, especially attempting to denigrate a pro se’s day in court, deserves a very special room in hell filled with lying thieving bankster minions, as well as a bottle of Dom Perignon slammed right across the kisser. And I’m just the man to deliver the slam-kisser part of that deal. Maybe it’ll finally knock the meaning of Jesinoski into that thick, Rocky head.

    Naw. I doubt it.

  147. dwight: I interjected comments relevant to your tila discussion in the transcript and my computer ate it. Can’t do it again! Lay opinions:

    the court agreed a letter, not a suit, is necessary and that’s all it agrees with and takes from jesinoski . But it calls your
    letter (at best) an intent to rescind, not a notice of rescission. wrong to me. my op is resc is effective upon mailing of the notice. (see tila to check)I don’t believe you ever attacked smj, but i also think that you may still allege lack of it (to hear a f/c) based on your rescission because it may not be waived or admitted when it doesn’t exist.

    the ocurt wouldn’t take any exhibits at the hearing and prob properly so or not properly so if not taking them required an objection by the opp party. Judge acted like he was allthesame willing to take your evid of non-receipt (was it0 which is hard to prove oneself – proving a negative). The att hoodwinked the court, but with court approval. She, as I said, may be due for a rule 11 mtion if she made a material misstatement of fact or said something which made the court believe an untruth. in some venues, requires 21 day notice to counsel before filing. But she will likely wiggle out of her bad, inappropriate test. by saying she said it on info and belief. Btw, she wasn’t confused. she knows the score. Way I get it: you went to get yoru cash out, signed a ror notification at don’t want to rescind. doesn’t get it. the notice of ror MUST BE provided (2 x 2) at time of loan closing, not after the 3 day right of resc, the one which requires no reason for rescission. You signed you don’t want to rescind in/for the three days only, but it doesn’t matter: not provided AT CLOSING about which imo she willfully mislead the court.
    I haven’t read guillame. Decide what was actually decided in jesinoski.
    compare to guillame. If guillame (even tho nj sc) is inconsistant with
    jes or tila, need to argue the why and overcome G. Guillame will be the law of the land in nj until it’s successfully argued it isn’t consistant with tila, jes, or both. It was app decided in march (mandelman’s website hits it a tad).
    That date may have an impact on your case (wasn’t the law of the NJ land when your court ruled?).
    The ‘inequity’ of a lender finding it’s lost its priority position is not a borrower’s problem and is an affirmative defense where necessary: assumption of risk in buying (violative) loan. Similarly not a borrower’s problem that a lender who made the loan gave the borrower the grounds for rescission. The teeth of tila. And the lender may sue ultimately for the approp amt of tender, that is, if it’s done what it must. Aff defenses deny a party sj, and don’t end the litigation between the parties. An absolute defense ends the litigation (and prior rescission imo is such an absolute defense against a f/c action). Lack of smj, for instance, operates as an absolute defense even if it may be called an aff defense. lack of smj may not be waived. IF you demonstrated you rescinded and mailed the notice, the court prob didn’t have juris to hear a f/c action, x under perhaps guillame (until it’s overcome as inconsistant with tila and or jes).

    The judge said about tila and resc ‘that’s what they’re trying to do”, with foreclosure, as if there’s any similarity. There is none and it was so errant to be mind-numbing. Sorry, judge. You were right about your arguments, even as you tried to ‘net-out ‘ your obligation by subtracting your payments from the amount borrowed. Regardless of anything else, you got that right and the court didn’t get it or ????? You would not owe the 232k. If you can find my email at LL or get it from someone else, I will tell you who may help you. Or post your’s here. I won’t post mine again.

  148. Dwight.. you said you were having a hard time finding an attorney to represent you with your arguments. .

    Could it be that you have the wrong argument ?

  149. rciferri – when you’re so disposed, will you look at my 2:03 a.m. querry and see if you know what is being said there? thanks

  150. DwightNJ,
    I loved that previous post. I’m glad you got some help with the paperwork.

    I know you, rciferri & John G will have a great time on “Unanimous Decision”

    Trespass Unwanted

  151. When the complain is in CFPB you make public you don’t consent to their silence.

    They must answer CFPB of what they did with the complaint, and they have to answer you.

    Even if I know something I know nothing.
    I do not give legal advice because I don’t know legal things.

    Trespass Unwanted.

  152. rciferri & John G … Thank you to both of you for your analysis of the transcripts and for pointing out some of the areas I need to focus on.

    Although I have never been able to find an attorney who was willing and able to represent me on the arguments of my case .. I do now have an office full of foreclosure defense paralegal specialists who I have hired to help prepare my papers procedurally correctly going forward.
    The guy who owns the service is pretty sharp on all NJ legal procedures in relationship to fighting foreclosures. Now I will present the issues and points you have raised and see what his highly skilled group of girls can come up with.

    Im going to have to go back and review the posts and write notes
    If you would like the paralegals to research certain points or rules you may leave me those points in a seperate post to consolidate. Otherwise I will do my best to get my research team looking to see if there are rules that were abused or broken during the hearing, and to see what my threshold is for the items I submitted. I like the idea of the extra affidavit clearly stating certain ffacs, etc. Feel free to add any ideas
    … Once we win this case, I would like all those who supported me in this effort to beat the evil bank , to join me on a trip to florida where we will visit neil garfield and lay in the sunshine drinking koolaid cocktails poolside …the itinerary will include a day in court to watch NG win a rescission case from reserved front row seating .. A fabulous dinner cruise on NG’s yacht “Unanimous Decision” .. where the only tender that you’ll be asked about is how tender you like your steak …

    For entertainment :
    Rock will be in his sinking little dingy .. Paddling with one oar in the water while his wife screams for him to paddle faster from her perch upon the bank presidents sinking ship “The Titanic”.

  153. The hard r o _ k
    is here to breed discontent.
    I cannot stoop that low in vibration, so I don’t.
    Do not feed the animals. Ever seen the predators jump to alert when they perceive a downed or injured prey?

    Anyway, as for the new trial, it is available, a do over, it is available.
    Would they, those that control the purported system of just ice, want it widely know? No, and that’s exactly why it is not widely known.
    Wikipedia mentions it because it exists, but wikipedia doesn’t tell you everything, it is propogandized/bastardized info.

    I learned a lot ‘after’ I went through what I went through.
    I don’t discuss where I am in anything unless and until I feel like being attacked by energy vampires. My joy is they cannot get my life force. I choose who I give it to, and I give it to lift up many, not tear down any.

    I know that’s their job. To bite and chew and claw and attack. I don’t have any judgment for the work they do.

    Energy vampires have to focus their attention where they’d get the most energetic response to keep them alive.

    I am not food for energy vampires.
    In my world people lift each other up, not tear each other down, but I like having them in the light for who they are and what they do.

    I sometimes wish they were AI or bots, because the soul implications are deep, but then again, we all choose our path. Knowing how money is created (by signature), I’d rather have my home stolen by a stranger where I can keep it unsettled and unsettle them by what I do, than give up my soul to spend my days posting on a blog berating people daily for a paycheck.

    Believe me.
    They cannot leave, and they is not many, they is just many names.
    Same fool.

    In a new world, we’d definitely lock the gate and leave them on the other side, and hope they like the side of the gate they are on.

    As for Trial De Novo, I heard of it second from a James Hardin when he did a u tube video about winning in traffic court, but my first time hearing it was on rule of law radio when Steve Skidmore. He did a show where he and a client were going to do a trial de novo with a foreclosure case.

    You could potentially get an e-mail address for someone who can tell you what it entails, but it seems the request has to be done right after the trial and within the time frame of filing an appeal.

    I have always stated I don’t know legal things, so the _ _ c k knows you have not listened to me regarding your home.

    We are all strangers here, some are just more civilized and polite than others. Home training, spiritual fat, and parental guidance in our youth, goes a long way.

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

  154. @johngault

    Your welcome with regards to divulging what those cases really said.

    Yeah, the lawyers for the pretender lenders are real cocky because they just keep misrepresenting cases and making stuff up and the courts adopt it, and, in the process, are making themselves look like fools. They are so far off of any reasonable jurisprudence its embarrassing.

    I mean, the majority of the US Courts of Appeal cannot read? I’ve never met a stupid federal appeals court judge. So, the terrible opinions they made leading up to Jesinoski are definitely due to them working a personal bias. You’re right to be angry, that’s just BS. And, you’re right, it’s not just with TILA recission. I mean the case that the pretender lender lawyers use to keep anyone from prevailing using commercial law (UCC) is just scandalous in its reasoning. See, I.E. Associates v. Safeco. And that’s not the only ones I’ve seen.

    There’s a consistent pattern – if the court doesn’t like a particular unambiguous law, it just re-writes it without following the judicial construction rules – says the law as re-written is what the legislature really intended.

    On the other hand, if the court doesn’t like a particular law that is arguably ambiguous, then it trots out all the rules of statutory construction and its opinion resembles what the law really requires for a court to take such an action.

    Whenever you see a court engaging in judicial construction without first finding the statute ambiguous, you can be sure they just don’t like the statute, want to re-write it but can’t go through the statutory construction rules because they can’t even engage in step one (determining whether statute is ambiguous) because they will then be exposed as biased.

    Stating that TILA rescission can’t be completed with just a letter, when the TILA statute, regs and the opinion of the regulatory body in charge of TILA all say you can is more than reasonable judges differing. It is corruption at work. When a statute says “black” a judge can’t properly say the legislature implied that they meant “white.” A judge can’t just re-write it because that’s the role of the legislature. A judge can only do that in limited circumstances (ambiguity) and in a limited manner.

    Re-writing unambiguous statutes unmasked them for what they are, the enablers of tyrants and thieves.

    Thankfully, in Jesinoski, NONE of the SCOTUS Justices wanted to go down that road themselves.

  155. rciferri – thanks once again. this time for doing the leg work on those cases. It’s abhorrent that banksters cite case law for propositions which aren’t actually supported by the decisions – and they know it.

  156. That free house was our former home. We bought this house before we went to sell the other one. When we went to sell…all hell broke loose. We had 2 choices afterwinning SJ … Rent it or sell it on contract for 30 years. Well I didn’t want to be a landlord.

    Inversor
    Homeowner
    Taxpayer
    Getting screwed by all three ends of the stick.

    I can Not rescind a loan I am not a borrower on now can I.?
    But I sure can have the mortgage I signed voided for misrepresentation… If I wanted to or I could just enforce it.

    I like Simple
    Taking A Bite out of Crime

    Many Blessings to All

    p.s. LL does not need another spell checker

  157. Shadowcat says:

    “Common Law recission is a remedy for misrepresentations/ fraud that make the contract voidable.”

    Is that the answer you were looking for Rock?

    If so, how does that change the wording of TILA which makes the mortgage/deed of trust VOID when the lender receives the borrower’s notice of rescission?

    How does that change a unanimous SCOTUS ruling that confirmed that fact?

  158. @Dwight

    “TILA does not specify or mandate that a rescission notice must be mailed certified, return receipt, etc .. it simply says “mailed, etc””

    Yes, but things like a return receipt could bolster your contention that you actually mailed and mailed correctly (not to mention it being evidence of their receipt).

    To be sure, you may want to make sure you stated you addressed the letter to ______ at _________, the amount of postage you used, that you put the mail into the USPS mailbox, etc.

    Those are the facts a court is looking for. Just saying you mailed might not cut it. A court could find that is a conclusion unsupported by facts.

    If you convince the court you did mail the notice of rescission and that you mailed it to the right party, he may presume the party it was addressed to received it (check the rules of evidence applicable to the court you were in on this because some jurisdictions give a rebuttable presumption in such circumstances).

    Also, you may want to reconsider doing a motion to reconsider. I thought you argued the substantive law pretty well (in regards to TILA rescission, which is all I’ve been considering). But, the judge seems to think he got you from an evidentiary perspective.

    You may want to read through all rules of evidence that govern the particular court you were in. Then, re-read the court’s decision as you review the evidence you submitted, its form, any objections to it, etc. Because, when it comes to summary judgment (like trial), it’s all about the evidence. Contentions mean nothing unless backed up by facts.

  159. Common Law recission is a remedy for misrepresentations/ fraud that make the contract voidable.

  160. @ Rock

    “just sending a rescission letter does not annul the contract.”

    If by the term “contract” you mean the security instrument, i.e., mortgage or deed of trust, you are wrong.

    You are also wrong about the cases citing Jesinoski.

    The borrowers in those cases lost for reasons other than what you want people to think (see below).

    NONE of the cases you cited show a borrower loss in which the borrower made a timely and properly prepared TILA rescission (and didn’t sign an agreement invalidating it later).

    LAGRANT – “Plaintiff alleges that his lender made none of the required disclosures at settlement. Thus, the alleged TILA disclosure violations occurred on December 14, 2006, but Plaintiff did not file suit until November 7, 2014.” – UNTIMELY.

    TAYLOR – “Plaintiff alleges in his Complaint that the “closing date” for his mortgage transaction was December 18, 2006. Compl. ¶ 25. Accordingly, pursuant to § 1635(f), Plaintiff was required to exercise his right to rescind by December 18, 2009. Although Plaintiff acknowledges in his Complaint that “[t]he Truth in Lending Act . . . extends Plaintiff’s right to rescind a loan to three years from the date of closing if the borrower received false or incomplete disclosure of either the loan[‘]s terms or Borrower’s right to rescind,” Compl. ¶ 126 (emphasis added), Plaintiff does not allege any facts remotely suggesting that he provided notice of rescission to his borrower before the three-year period elapsed. Instead, Plaintiff appears to be seeking rescission for the first time with the filing of the Complaint presently before the Court.” – UNTIMELY

    MACKLIN – Letter that Macklin wanted the court to determine was a rescission notice under TILA didn’t even use the words “rescission” or “Truth In Lending Act.” – INADEQUATE NOTICE.

    GALYEAN – While acknowledging plaintiff didn’t need to tender, the court dismissed for a reason unrelated to TILA – plaintiff did not plead facts that the defendant was a proper party. – DISMISSED FOR REASONS UNRELATED TO TILA RESCISSION.

    In Re Thomas E. Jones – This case concerns a rescission of a reaffirmation agreement, not a loan. Jones filed a notice of rescission of a reaffirmation agreement with the court. Court treated it as a motion and denied it as “unnecessary and procedurally improper.” MOTION DENIED FOR REASONS UNRELATED TO TILA RESCISSION.

    IN RE HAFFEY – Haffey sought to rescind his note on the grounds that it was forged. Court wasn’t buying it for lack of factual allegations to sustain his complaint. CASE HAS NOTHING TO DO WITH TILA RESCISSION.

    RESIDENTIAL CAPITAL, LLC – ANY TILA RESCISSION WAIVED BY MODIFICATION AGREEMENT

    Nice try, but these cases don’t deal with the instance of a borrower who timely made and adequate TILA rescission.

    The only case citing Jesinosky since Jesinosky was decided that does deal with a borrower who timely and properly served a TILA rescission notice is PETERSON and Peterson is on its way back to US District Court where he will likely walk away with a WIN!

  161. rock, stepping it up, are we? you can’t point to anything I just said about dwight’s case which isn’t so. Or, lay it on us. Just your usual propaganda. There’s one little, two little, three little indians instead of one.
    The mission is clear: undermine jasinoski whatever it takes. Well, carry on as apparently you must.

    The way I got it from the transcript is that the judge relied on hearsay (“they’re saying” and attorney ‘testimony’) that dwight and wife had signed a notice of right of rescission on the day of the loan closing. Tell us, please, how that is not error. To the extent the attorney ‘testitified’ (inappropriately) that d and wife signed one on the date of closing or said anything to make the court believe that was a truthful statement if not a truthful stmt, it begs a mtn under rule 11 at a minimum.

    Dwight, good thing you’ve got thick skin. The vicious attack on you personally shows how desperate they are. I do want to say this before i forget. The judge mentioned the fact that when a first is 86’d, the
    holder of the second moves into first. That’s not a problem or concern of the rescinded lender’s except to the extent that that lender may have to move for whatever it can for a ;money judgment re: no tender after it performs. Should’ve thought of that before violating tila. Also, whether or not I like it, and it’s not, courts are moving toward a mol automatic subrogation back into first for good faith lenders (key words) who find themselves in second or any junior position.

  162. @Rock

    Justice Scalia was clear that TILA rescission abrogated the common law.

    Just because you used this argument in the past with success doesn’t mean you don’t have to give up the ghost on it now.

    Jesinoski obliterated your little common law/TILA hybrid monster.

    Now deal with it.

  163. Dwight, I don’t think you understand the case cites I gave you, if you did you would not have made this comment to Bob: “I assert and maintain that I have always had the ability to tender .. due to the fact that I have the property which is worth more than the tender amount.”

    BTW, as I explained before, you can’t tender the house.

  164. rciferri, your answer was not an answer,therein lies the problem. The reason you don’t understand how TILA rescission works is because you don’t know how common law rescission works. Once you do, you’ll understand why your understanding of TILA rescission is absurd.

    Its better to hear it from me, than as Dwight found out, and the others citing Jesinowski found out in their cases, just sending a rescission letter does not annul the contract.

  165. BobHurt … I assert and maintain that I have always had the ability to tender .. due to the fact that I have the property which is worth more than the tender amount.

    TILA clearly leaves open the possibilities that a borrower may decide to keep his home .. the lawmakers intent when mentioning this as being a borrowers choice, were supporting and further explaining why step #1 of the process needs to be complied with by the lender … so that the borrower can make a decision about how they will tender ..

    a) keep the house by refinancing with a new lender, tender back the amount owed to the old lender.

    b) put the house up for sale .. sell and tender back, keep the equity profit and walk away with the extra money.

    c) work out a deal where you tender the property back to the lender, but the numbers need to be worked out and agreed to in regards to the true value of the home, any extra equity above and beyond the tender amount owed, etc. … this is why the lawmakers allowed for a judge to be invited in by the parties in order to help adjudicate a resolution that is fair and equitable to both parties , he can alter the way in which tender is exchanged when it ends up in this scenario (20 days).

    In my case .. refinanced for 230,000

    paid around 50,000 in payments

    tender owed to lender = 180,000

    Decision = Home valued at 300,000

    If they had complied in the 20 days , we would have had the choice of refinancing a 300,000 dollar home for 180,000 to tender back.

    or

    We could have sold the house for 300,000 and tendered 180,000

    or

    we could have worked a deal that maybe the lender takes the home and tenders us a greater amount.

  166. To be clear .. I do not take any of the discussions here as “legal advice” .. I look at this as an open, public, anonymous discussion board where members posts may, or may not be true.

    We’re all just exchanging ideas and theories , there is no relationship between us in a legal or professional way. This is clear the moment we join and exchange ideas on this message board.

    I appreciate being able to openly discuss the issues, we do not need to get personal and confrontational over each others opinions.

    Many here are celebrating the recent Supreme Court decision because its the first time since 2007 homeowners / borrowers have had a bone thrown to them .. we have endured criminal conduct employed thru Wall Street, lenders, banks, Fannie Mae, etc, etc .. we were the victims of the schemes .

    When the 50 state attorney gen. were about to prosecute .. our Fed Gov’t jumped in and said “NO .. NO .. DON’T PROSECUTE”

    We have endured the courts showing an extreme bias in foreclosure courts .. they have been enabling the scheme and are partners with the criminal bankers.

    So when Jesinoski was handed down , it exposed the truth , that the courts have been wrong all along about rescission .. and that’s just the tip of the iceberg .. the travesty of justice runs deep in foreclosures.

    This is why it needs to be discussed .. we need a complete overhaul of the justice system in regards to how the issues of foreclosure are properly and fairly litigated.

    We’re in a game where the deck is loaded .. they move the goal posts.. the rules are changed as we play … this is why we’re constantly discussing these issues .. because there has not been any justice in foreclosure courts.

    Nobody here should be considered an attorney, we’re all just a bunch of strangers talking and sharing ideas and opinions.

  167. @Rock

    “Come on rciferri, stop wetting the bed. You haven’t provided us any good laughs yet today.”

    That’s probably because you need to lighten up!

    “Prove up, or shut up. What’s the difference between the two rescissions? Doesn’t that law firm you’re grunted for have any law books?”

    There’s a huge difference, not the least of which is that common law rescission can be granted in the court’s discretion. It’s an equitable remedy that a party may seek through the courts.

    TILA rescission is effective immediately upon receipt of the borrower’s rescission notice. That means void; no courts needed.

    But, again, why talk about common law rescission? I’m sure you saw that Neil’s article which spawned this blog is about TILA rescission.

  168. The difference between common law and TILA rescission? In practice, NOTHING. In both cases, an institutional lender always has the money to repay the borrower, and the borrower usually does not have the money to repay the lender. Therefore, regardless of who SHOULD tender first, the borrower usually cannot tender, and so the court will not order a perfect rescission. Maybe if the arithmetic would leave the borrower owing only a little money, the court might order the rescission, with a proviso that the borrower make payments.

    In either case, the borrower would typically have to sell the house in order to get the money to for his tender.

    Very wealthy borrowers would have the ability to tender immediately, but those comprise a very small percentage of those who wish to rescind, if any at all would. And, very wealthy people typically have legal counsel helping them with their loans to ensure they have no reason to seek rescission.

    How does it feel to live in a house FREE, Rock? How long since you made any house payments, and how did you get your rescission? Did you have to sue to get it, or did the bank immediately hand over the tender to you? Did the court grant you the rescission right away, or did it opine that you couldn’t rescind because you waited too long to sue? Did that Supreme Court Jesinoski opinion affect the outcome for you? Will you ever have to make any more payments for that house, or did you really get the mortgage and debt wiped out? When the dust settles from the ordeal, will you still have the house?

  169. rciferri … When I filed my Opposition to MSJ and my Cross Motions I included an affidavit which stated that I had mailed the rescission notice on July 1, 2007.

    When I went to the courthouse to have the notary stamp the affidavit she objected and said that the paragraph was missing at the end in which it states that this is an affidavit duly sworn before me.. yada yada yada

    I said to her that the document begins by stating that this is a sworn statement .. and that I thought she had the stamp for the end of it stating that I had sworn this before her .. she said no, she has no stamp for affidavits .. so what she ended up doing was stamping it with her normal notary stamp which stated that she witnessed Dwight sign this in her presence .. stamped and notarized by her.

    This statement was marked as an Exhibit with my motion papers. Nobody questioned it during the hearing and it was never brought up by either the judge or plaintiff. Most people looking at it would most likely assume it was a good affidavit .. unless they are that good.

    During the hearing I also raised the fact that Wells Fargo replied to my written rescission of July 1, 2007 … when they mailed me back a correspondence dated August 2007 in which they state “a problem” has come up and they are responding to try and work with me to “resolve it” .. (they never mention rescission, but the rescission is what they are responding to) this is why I mentioned their response and the judge wanted copies of that August 2007 correspondence from Wells Fargo , and my statement from June 2007 showing I was current on my payments, supporting my assertion that I rescinded while still current , I was paid up thru June 2007 , I rescinded July 1, 2007 … and Wells Fargo mailed me their response August 2007 .. they filed for foreclosure on Sept 25, 2007.

    TILA does not specify or mandate that a rescission notice must be mailed certified, return receipt, etc .. it simply says “mailed, etc”

    And yes , the attorney for Wells Fargo states on the record that “the defendants had no right to rescission” .. she mistakenly believes that once the 3 days had passed it was all over … I don’t think she really understood the 3 year extended window (APR, failure to include notices to borrowers, etc) She must have thought that since she has a statement after 3 days saying we had not rescinded, it was a done deal. But TILA requires that the borrower be given 2 copies each of a filled out right to cancel notices .. those notices would not be signed by us , they are only signed by us if we are using them to rescind. She probably has some other document that states we had not rescinded after the 3 day window .. this is not the TILA required notice.

    All of this points out how utterly unprofessional the entire closing procedure really is … the biggest purchase of your life and you as a consumer has to rely on some incompetent mobile notary to give you your proper docs? What is there to prevent them from saying they gave you the docs? There needs to be a better system with safeguards, where both parties are given a list of required docs that must be signed next to each item on the list stating you received your copy .. and on your copy there should be a designated place where both parties sign stating that the borrower is now in possession of 2 copies each of said item. I’ve had better documentation standards when buying a mattress.

    The reason I need to file motions for reconsideration before a final judgment is entered, would be to try and bolster up my case where there are weaknesses .. but that’s the problem, getting the motion to be accepted by the judge where he agrees to hold a hearing and take another look at something .. but it can’t be the exact argument, we would need to frame it in a way where we’re asking him to take a look at “an error he made”? or .. an important piece of evidence or law that needs to be discussed further , like Justice Scalia’s clarity on tender?

  170. Come on rciferri, stop wetting the bed. You haven’t provided us any good laughs yet today.

    Prove up, or shut up. What’s the difference between the two rescissions? Doesn’t that law firm you’re grunted for have any law books?

  171. Dwight, maybe this will help clear up why you lost.

    The purpose of summary judgement is to pierce the pleadings and to assess the proof to determine whether there is a genuine need for trial. MATSUSHITA ELEC. INDUS. CO. v. ZENITH RADIO CORP. 475 U.S. 574, 587 (1986). Summary-judgement procedure is designed to isolate and dispose of factually UNSUPPORTED claims or defenses. CELOTEX CORP. v. CATRETT, 477 U.S. 317, 323-24 (1986).

    You’re problem was you only had: conclusory allegations, speculation, unsubstantiated assertions, and legalistic argumentation, which are no substitute for specific facts showing a genuine dispute of material fact. TIG INS. v. SEDGWICK JAMES, 276 F.3d 754, 759 (5th Cir. 2002).

    THERE’S NO SUBSTITUTE FOR KNOWING THE LAW!

    Its clear to anyone, reviewing this blog, you lost because you listened to the crackpots giving you false legal advice–PERIOD!!!

    Again, always hire COMPETENT (2%) legal counsel when it comes to your life, liberty or property.

  172. @Rock

    “shadowcat, we train attorneys for a living.”

    Who is this “we”, Cisco?

    Then again, that might explain why Jesinoski had to correct most of the circuit courts due to some courts actually buying what you were dishing out in your bad training!

  173. @Rock

    “I’m still waiting for him to prove he knows the difference between a TILA rescission and a common law rescission.”

    Hey, Rock, who cares? All that matters is TILA rescission, as you should have learned from Jesinoski.

  174. “rciferri, I don’t make threats, only promises.”

    Promises, promises.

    You want to meet up and take care of it in a non-anonymous non-cowardly way? Because I would be fine with that.

    “BTW, you newly provided disclaimer doesn’t exonerate you for the false legal advice you’ve already provided.”

    Good luck with your Quixotic quest on behalf of no-one, Judge Rock!

  175. @Shadowcat

    “I took the liberty of having a friend check you out…..
    Your claim of being licensed to practice in New York is Hearsay!
    Your claim of trying to get licensed by the California bar is Hearsay!”

    Ok, Shadowcat. You are entitled to your opinion.

    “We would lime Proof of your Claim PLease!!!!”

    Uh, no thanks.

    “Show us your Wins otherwise its Hearsay!!!!”

    I’ll show you mine, if you show me yours!

    “If you were my attorney I would drop you in a New York Minute!”

    How do you know I would even agree to represent you in the first instance?

    “Everyone knows people like you clean up your messes in California!!!”

    Well, if everyone knows that, then…well, then, what?

    “If you want to keep your home….
    ATTACK THE MORTGAGE CONTRACT!!”

    Finally, something that makes sense! I agree, Shadowcat.

    And any “mortgage contract”, “loan”, etc. is void in the face of a borrower’s proper TILA rescission. See 15 U.S.C. 1635(b) (“When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission.”); Jesinoski v. Countrywide, 135 S.Ct. 790, 793 (2015) (“The clear import of § 1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind. To the extent § 1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.”).

    “Might I suggest your family retain their own legal council”

    I agree with you again, Shadowcat. Even though I thought you did a pretty good job in your hearing, there is no substitute for an attorney who can practice in your jurisdiction who understands the issues being discussed here, and, perhaps more importantly, who knows how your local courts and judges operate. A good one can give you instant credibility. Unfortunately, except for some rare judges, they all are biased against people that represent themselves.

  176. shadowcat, we train attorneys for a living. The first thing we tell them is that “98% of all attorneys are incompetent, do you want to be in the 2%, stay, if not leave.

    Its pretty clear from rciferri’s postings he has no clue what he’s talking about, knows just enough like the 98% to be dangerous.

    I’m still waiting for him to prove he knows the difference between a TILA rescission and a common law rescission.

  177. rciferri, I don’t make threats, only promises.

    BTW, you newly provided disclaimer doesn’t exonerate you for the false legal advice you’ve already provided.

  178. Take it from someone who WON a FREE HOUSE ATTACKING THE MORTGAGE CONTRACT!!!

  179. rciferri…
    I took the liberty of having a friend check you out…..
    Your claim of being licensed to practice in New York is Hearsay!
    Your claim of trying to get licensed by the California bar is Hearsay!
    We would lime Proof of your Claim PLease!!!!
    Show us your Wins otherwise its Hearsay!!!!

    If you were my attorney I would drop you in a New York Minute!
    Everyone knows people like you clean up your messes in California!!!

    If you want to keep your home….
    ATTACK THE MORTGAGE CONTRACT!!

    And Dwight… Might I suggest your family retain their own legal council before they are homeless because you are taking advice from nitwits.

    Recession is just another Rabbit Hole meant to redirect you from money grubbers!!!

  180. @Rock

    “Don’t worry Dwight, we’ll make sure all those that have given you false legal advice will wish they hadn’t.”

    Hey, Rock, does it make you feel like a tough guy making anonymous threats?

  181. @Rock and Everyone else:

    Rock said:

    “Dwight, your buddy rciferri has again dispensed false legal advice.”

    I’m not dispensing legal advice. Although I’m sure neither Dwight, nor anyone else here, believes anyone is dispensing legal advice in this forum; if that isn’t clear:

    Nothing I’ve said constitutes my legal advice to you. We have no attorney client relationship.

    Anything I say here is purely academic and is intended to be educational only. Any questions, as presented, may leave out significant and important facts which, if known, could significantly change the response, make the response useless, or worse, render the response incorrect as applied to the actual facts of the matter. It is recommended that you consult with an attorney licensed to practice in your jurisdiction if you want legal advice upon which you should rely. By using this forum, you understand and agree that there is neither an attorney-client relationship nor an expectation of confidentiality between you and me. The law changes frequently and varies greatly from jurisdiction to jurisdiction. The information and materials provided are general in nature and may not apply to a particular factual or legal circumstance, regardless of what is described in the question.

    That said, I’m sure Dwight knows (and everyone else here, except perhaps you, Rock) the foregoing is the nature of my participation here.

    There Rock – now you don’t have to be confused anymore.

  182. @Rock

    “An adoptive admission is nothing more than a hearsay exception.”

    Wow, you actually know something!

    Now for the rest of the story.

    The statement you are trying to get into evidence is their admission that they received your TILA rescission notice.

    As Rock points out, that may not barred by the hearsay rule.

  183. @Rock

    I’m sure whatever I’ve said will help Dwight a lot more than your comments have helped him:

    “Someone as dumb as you, deserves to lose their home…”

    Passive aggressive much?

  184. Dwight, your buddy rciferri has again dispensed false legal advice.

    An adoptive admission is nothing more than a hearsay exception. Moreover, whether the party’s conduct actually constitutes an adoptive admission becomes a question for the trier of fact to decide, which your judge obviously decided there wasn’t one.

    Don’t worry Dwight, we’ll make sure all those that have given you false legal advice will wish they hadn’t.

  185. rciferri, everyone knows, under TILA, the homeowner doesn’t have to tender first, but he still has to be able to return the money lent (tender)!

  186. Dwight, the only cases won by homeowners where they received money or free title have been where they attacked the contract.

  187. Please tell me, @NJDwight:

    1. Others keep remarking about the requirement of the creditor to tender to you. Do you have the money to tender to the creditor all that the lender gave you? If you subtract what you gave the creditor from what the creditor gave you, what number do you come up with? Do you have the money to tender that amount to the creditor?

    2. Obviously the creditor considers your rescission claim as a “rebuttable presumption,” and has undertaken to rebut it. The judge seems to have yearned for proof that you sent the rescission letter at all, whether timely or not, and you seem NOT to have submitted that proof. Did you or didn’t you have proof that you sent the letter? Did you or didn’t you have proof that the lender failed to comply with TILA, thereby triggering your right to rescind? Why didn’t you rescind early in the loan? Why wait till now?

    3. Furthermore, I cannot imagine how you can go through a proceeding without demanding the right to present evidence formally. Don’t you have an attorney to help you?

    4. Have you defaulted on the loan? If so, do you face foreclosure?

  188. @Dwight

    You may also want to say in an affidavit that you have received no objection from the lender as to the timing, form or substance of your rescission notice.

    That way, you are set up to argue the lender waived any objection like no tender, not timely, not clear it was a notice of rescission under TILA, etc.

  189. At some point the court mentions it “frankly” did not think your notice qualified as a notice of rescission under TILA. However, he also states you filed a notice entitled “Truth In Lending Act Rescission Notice.” That should have been sufficient evidence of a proper TILA rescission.

    See:

    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.

    However, the judge stated there was no evidence the lender received your notice.

    Without that evidence, he can just make pretend you never gave the lender notice of rescission. If you lose, that will be the real reason why, rather than some failure to tender.

    You actually mentioned at some point in the hearing that you mailed the notice. The pretender lender might contend that is not evidence, because it is not the sworn testimony of a witness. To have been sure you got the evidence in, you should have filed an affidavit stating you mailed the notice. That would have been evidence. Or, you should have asked the court to swear you in at the hearing and made the same statement under oath.

    You may be able to use the following to contend the lender admitted receiving your notice of rescission:

    “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.”

    Search for “adoptive admission” in whatever rules of evidence govern the court you are in. In a nutshell, where a party (or their representative) has remained silent in the face of an assertion, the assertion may be taken as true if the average person would have denied it. Here, you already stated in the hearing that you mailed the rescission notice to the lender. Yet, the lender never denies that assertion, even as counsel re-iterates your belief that you sent it. However, a reasonable person probably would have denied ever receiving the note if that person did not, in fact, receive it. Therefore, the lender’s silence on the issue of whether or not it received the notice tends to prove it really did receive it. Consequently, you may want to argue that they admitted receipt of your notice.

    I don’t know too many facts about your case and I am not authorized to practice law in New Jersey (nor am I otherwise familiar with New Jersey law). So, I cannot speak with confidence my opinion about what would be best for you to do in this instance.

    However, I can generally say, that appeals of summary judgment orders are reviewed de novo (as I think Trespass stated). What that means is that the appeals court is supposed to review the motion just like the trial court did (like it is being looked at for the first time). That does not always mean you can bring in new evidence on appeal. That is usually not allowed, as it is unfair to opposing counsel and the trial court.

    You may want to consider submitting evidence as soon as possible on the issue of rescission, even though the hearing has passed. I was thinking you may want to submit an affidavit asserting that you mailed your notice of rescission on whatever date with correct postage pre-paid affixed to the envelope containing the letter by depositing in a USPS mailbox (if this is how you actually did it) and it was addressed to whoever the lender initially noted in your mortgage was, that your search of the real property records (on some date well after the presumed receipt of your notice by the lender) did not reveal the lender filed a satisfaction of mortgage and, finally, that the lender did not return all money paid by you in connection with the loan.

    Of course the lender will object to this late evidence, but the court may consider it anyway due to your pro se (or pro per) status. You could always say that they had an opportunity to deny receiving your letter at the hearing, but that they did not do so. You could also say you would not object to them submitting more evidence on the rescission issue so that the lender is not prejudiced by the late submission.

  190. @Rock

    “another new nitwit (rciferri) who doesn’t even know what a common law rescission is, let alone how a TILA rescission works.”

    I know a borrower doesn’t have to first tender to rescind under TILA:

    “The clear import of § 1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind. To the extent § 1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.” Jesinoski at 793.

    Still confused Rock? I’m not. More importantly, neither is ANY Justice on SCOTUS (unanimous opinion!

  191. Rock … If you attack the mortgage contract for breach, etc. .. I just can’t magine these judges showing any more integrity or understanding to the borrower on those arguments … They will continue to say that you are in default regardless of attacking the mortgage theories … They can’t even handle the truth about TILA rescission and Jesinoski.

  192. JG .. The attorney for WF seemed to be confused about the 3 yr extended window for rescissionn, the judge attempted to explain it for her. But i think what she was trying to say is that we may have signed a document when we met with the mobile notary who had us sign the closing docs ..if we did sign them, we never received any copies. The attorney probably doesn’t know the law which states that 2 copies are to be given to each borrower and must be filled out by lender. The attorney seemed to misunderstand, she said that since we had not rescinded in the 3 days, how can we say we rescinded 3 yrs later? She seemed to be confused.

    If they do have our sigs on a doc saying we received the notices, what the heck doc could that be? A seperate doc saying you received all your notices? That doesnt sound correct.

    My guess is ..that since we were receiving extra money we had to wait a period of time to make sure we didnt change our minds before they paid out the extra cash …if they had us sign a document which stated we are not rescinding and 3 days has gone by ..we are now closing…well i’m not sure that passes the TILA requirement, because a borrower is supposed to walk away with 2 copies each of the filled out notices … and not only for the 3 day right, but also for APR mistakes that ma be discovered later after the 3 days expires…the point is that the BORROWERS need the notices, Not the lenders.

  193. JG …. Yes, apparently the Judge already had his decision written out in advance of the hearing. He immediately read the lengthy decision the instant testimony concluded. Citing caselaw to deny rescission, etc.

    This was a pre-trial motion hearing ..trial was scheduled for May 1st as per the old retiring Judge B , who assured me that this would go to trial on all of the issues regarding whether they held legal standing to fc. He told me that on the record at an earlier hearing when he dismissed most of my defenses after Wells Fargo motioned for their dismissal. The TILA rescission was part of those dismissals, but Jesinoski had not yet come out when he dismissed back then. He was the same judge from the first foreclosure attempt where he ordered WF to a plenary hearing and wanted them to provide witnesses under oath to testify about the 2 notes, how and when Washington Mutual transfered to them, etc, etc

    On Feb 20, 2015 the old judge again promised me that we were headed to trial … When he dismissed my motion on the SOL time barring WF according to the NJ Federal Bankruptcy case decided recently where that judge gave the free house , see NGs blog for case info

    Now he retired on March 1, 2015 …

    The new judge granted WF their MSJ on March 20, 2015

    Nothing changed, so how does the new judge grantMSJ ?

    The hearing that day was for …..

    1) WF motion for Summary Judgment
    2) Dwights motion for reconsideration Dismissing my Defenses which included TILA Rescission and Counterclaim TILA Damages.
    3) Dwights motion reconsideratio. of the SOL motion denied.
    4) Dwights motion to Dismiss due to timely rescission and in light of the recent Supreme Court ruling.
    5) Dwights motion to compel Discovery …WF never provided me with any origination docs, they objected and claimed they had nothing from the origination..only the note and mortgage because they are a servicer who did not originate the loan.

    The judge had his entire decision pre-written prior to hearing the oral arguments on all of these issues. I watched him read his decision the second the hearing arguments ended, it had to be pre-written.

  194. Tresspass…. I mde a mistake by never submitting my evidence before the motion hearing ..

    1) my closing docs showing TILA violations , I assumed I could show them at a properly noticed evidentiary hearing if one was ordered. I never thought the judge would rule on evidence at a simple motion hearing where I had already submitted proof of the written notice of rescission that I had mailed within the 3 year window. So during the hearing when WF attorney said she has docs we signed, thats when I again stated that I had my own docs that show the violations.

    2) The other items that the clerk did make copies of were the letter that WF mailed me back after receiving my rescission letter, they ignore the rescission and simply state they will be looking into “the problem”…they follow up a month after that by filing foreclosure.
    The other item was from the QWR reply showing they list as the owner of the loan as “Fannie Mae” which the attorney had denied earlier, saying they dont know anything about Fannie Mae…the tird doc the clerk copied for the judge was my june mortgage statement which showed I was current with payments right before I rescinded July 1st.

    When I attempted to hand the clerk my closing docs showing proof of the missing notices, the clerk rejected them, saying “thats too much”.
    On the record I had stated several times that I had the closing docs which showed they lacked the notices and that I wanted them submitted into the record…later the judge objected saying its not fair for me to submit .

    Also, I never got to submit the reply from WF to my Discovery , where they claim they have no closing docs from the origination.

    I did submit Wells Fargo’s reply to my QWR, and nowhere in their docs does it show the missing notice of Right to Cancel.

  195. Dwight, instead of attacking your mortgage transaction (contract) and listening to Christine, Bob, Shadowcat et al trying to help you, you listened, to one nitwit (Garfield) who’s never won a case, another nitwit (trespass) telling you to get a trial de novo, another nitwit (JGault) who doesn’t even know what an affirmative defense is, another new nitwit (rciferri) who doesn’t even know what a common law rescission is, let alone how a TILA rescission works. And the last two nitwits now analyzing your transcripts, complaining how the court got it wrong. That BTW, is the fall back position of every scammer, “the court got it wrong, the judges are in the bank’s pocket.”

    And now, are you really that stupid to ask these scammers for more advice? Your arguments were so nonsensical, if this was a criminal case, the court would have ordered a psychiatric exam to see if you were competent to represent yourself.

    Someone as dumb as you, deserves to lose their home; but your unsuspecting family doesn’t. Now your family will have to suffer through the embarrassment of being removed from their home. I pity you, because If your wife ever finds out the reason you lost the family home is because you listened to a bunch of wackos on a blog, your home may not be the only thing you will have lost.

  196. dwight, is your contention that on the date of closing you received no notice of right to rescind and or that you did receive and sign it on the date of disbursement, about 6 – 7 days later when you went in to get your cash out? One must be given that notice when docs are signed, not later. The attorney “testified” (I object) that you signed the notice of right to resc at “i don’t want to rescind”, it that correct?

  197. dwight: please put the first page of your transcript here. I can’t tell what it’s a transcript of just yet – a ‘trial’ or a hearing on pre-trial motions.

  198. D: ” We should not even be holding a trial on the validity of the rescission, I wasn’t even noticed that a trial would be conducted on the rescission itself.”‘ You mean in the future, right? Is there a trial order with dates to do this and that?

  199. dwight, ask an attorney but imo, generally in order to get docs in in a mtn for sj, a person for the moving party who has personal knowledge, etc. (fre’s or state rules of evid.), must authenticate the docs and attach them to her declaration which is ref’d in and att’d to the mtn. That would be true for you, too. in my lay opinion.

  200. this is gonna be piece-meal, dwight. sorry.
    “One thing that does worry me is how Wells Fargo’s attorney stated on the record that “she has signed docs showing that we received the Right to Cancel Notices in our closing docs” … yet she never showed them or submitted them to the court. Is an attorney allowed to make claims about evidence and not submit the said evidence into the record?”
    No, no, and no. This was not an evidentiary hearing, and even if it were, an attorney cannot authenticate documents, esp ones allegedly signed by you. (An attorney also may not be the one trying to rely on someone else’s business records by making stmts re: those records nor trying to introduce them, fyi). When she said that, imo, an objection was due – check with lawyer. “I object, your honor. This isn’t an evid hearing and even if it were, the attorney is testifying herself (about a material issue) and attempting as a non-party to introduce evidence and or influence the court by allegation of such evidence”. Attorneys do not testify. When an obj is overruled, I believe one should or might say he preserves the objection. Ask lawyer – have to say that because I do, plus while this may be rote for some, I can’t swear. Imo, what the attorney said was entirely inappropriate procedurally and by the rules of evidence. And what the judge said is out of Kafka or the funny papers? (‘they said they have it” – !!)

    You said “I attempted to submit my closing docs as proof showing that the required notices were not included, the judge denied me the right to submit them. But in his decision he stated “he saw no proof of any violations .. and the plaintiff said they had signed docs” …”

    Again, ask a lawyer. my lay opinion is that since the matter was called on cross mtns for sj, no ‘evidence’ could be taken. The court had to rely on what was in the mtns plus argument at the hearing. I think. I’m stunned and not in a good way that the judge said the plaintiff said they had the docs. (well, alright then. as long as they said so. i just think that’s plain fowl and foul) If they had had the docs, and wanted them relied on, imo, they might have been authenticated and attached to their mtn for sj. If i got that right, that they didn’t, they either didn’t have them or just failed to attach to mtn for sj, but either way, all that attorney – testimony (and hearsay) was bs. imo. As you can see, procedure is a big deal. Pro se’s so often learn after the fact. So do some attorneys.

    “The other judge had dismissed the rescission but allowed the case to go to trial on the standing issues I had raised.”

    jg: I’m sorry to say this, but I think that’s a well-worn trick, to dismiss everything else, but allow trial on the standing issue. As long as there is reliance on a bearer note and a ‘mers’ assignment (disregarding tila rescission for the moment), a homeowner doesn’t have a prayer. Only when skin in the game becomes a requirement may we prevail. Actually, someone could imo be in poss of the note and have a ‘mers’ assgt and that still wouldn’t make them the rpii because they aren’t going to be the ones who suffer as a result of the note’s non-payment.
    But the ‘mers’ assgt alleges consideration. In other words, it looks like they have the skin in the game.

    “Tresspass advised me to flle “De Novo”? or something, asking for a new trial ? Anyone else want to give suggestions feel free. I am currently awaiting all of my scanned files of the entire case to be sent to me via email, and then I can share once they arrive.”

    I don’t know what she meant. Appeal courts look at some stuff
    de novo (for the first time, anew, as if it hadn’t been decided, like that) and others for abuse of discretion. I forget which and would have to look. If your court is on pacer, get an account and get the docs you need to review sooner than later. If not on pacer, you should have access to your full case / docket or another program, but I forget the name. On that one, you may only be able to get your own pleadings free. And it may be that if you’re a litigant, you can get what you want out of there at no cost. call the court clerk and ask.

  201. Dwight: “Judge B. wanted a trial based on many of the material issues still in dispute.”
    jg: Did the retiring judge ever cite to the material issues still in dispute? Or do you otherwise know them (the ones he meant)?

    “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”

    jg: how do you know this? I’m not savvy enough to know if this is appropriate or not,but i do find it odd, given that the matter was set for hearing and thus argument.
    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.

    jg: i put this part about the two notes and it morphing into fnma as a reminder to myself in case it’s not addressed in the hearing, which I’m about to try to get thru.

  202. from the Macklin court: “Section 1641(g) applies to “a mortgage loan . . .sold or otherwise transferred or assigned to a third party.”

    Section 1641 (g) was added by an Act of Congress dated May 20, 2009, and therefore may not apply to the mortgage loan transaction at issue here “. stop.

    Okay, without looking it up, which I may, since this could mean there was no successor liability prior to may 20, 2009, or at least that tila didn’t speak to it specifically prior to then?

    “the transfer of the promissory note into the Trust, not the
    assignment of the deed of trust or the substitution of trustee.” stop.

    get real or huh? Are they trying to delineate between a dot and a note and that only one of these, the dot is what’s meant by a “mortgage loan”?

    rciferri, would you mind putting your head to this and tell me what you think this court is purporting by this?

  203. If the power to bar grievebor file a judicial complaint is not used/its like nwver filing the lawsuit.
    If you use the system to be heard and they do not hear you, you have the right to complain and a right to a new trial, trial de novo.

    You can make the request and this time be ready to say objection to their hearsay and lack of supporting evidence and maybe even submit all your exhibits beforehand.

    wikipedia . org/wiki/Trial_de_novo

    In law, the expression trial de novo means a “new trial” by a different tribunal (de novo is a Latin expression meaning “afresh”, “anew”, “beginning again”, hence the literal meaning “new trial”). A trial de novo is usually ordered by an appellate court when the original trial failed to make a determination in a manner dictated by law.

    I don’t know legal things but I have witness a court not accept new evidence if the other side has not been able to review it before trial, and even when it’s included as part of an answer to a suit, the judge still has to give the clerk permission to call it exhibits on their record and the clerk labels it as such.

    I don’t know legal things that’s why I don’t care for attorney’s who’s client is not harmed to use courts to steal property because we do not speak their language.

    It ain’t Miriam Webster words they speak.
    If they have to define the word they use, (and they have their own dictionary); you know you don’t speak their language.

    Trespass Unwanted, Creator, Corporeal

  204. rciferri … Thank you for your opinion. This judge had just spent his 10 or 15 prior years in criminal court and was new to Chancery division , so I was trying to show him some respect by engaging him on his questions about tender, violations, etc. , I didn’t want to simply refuse to answer any of his questions because I was also trying to create a record for appeal, so with that in mind I did my best to promote the true intent of the TILA rescission as a protection for borrowers, meaning the lawmakers were obviously not worried about the lenders who had violated the law , as much as the lawmakers were concerned for the borrowers being protected. Hopefully the Appellate Division will see it the correct way.

    One thing that does worry me is how Wells Fargo’s attorney stated on the record that “she has signed docs showing that we received the Right to Cancel Notices in our closing docs” … yet she never showed them or submitted them to the court. Is an attorney allowed to make claims about evidence and not submit the said evidence into the record?

    I attempted to submit my closing docs as proof showing that the required notices were not included, the judge denied me the right to submit them. But in his decision he stated “he saw no proof of any violations .. and the plaintiff said they had signed docs” …

    Is that going to be a sticking point? We should not even be holding a trial on the validity of the rescission, I wasn’t even noticed that a trial would be conducted on the rescission itself. All that mattered is that my rescission was timely and effective. It voided the note and mortgage. They were voided before the foreclosure was filed. There never was a default because TILA tells me to stop paying them.
    And now the judge forecloses on a rescinded home that is worth 300,000 dollars and he says I should have tendered 180,000 after credit for my payments … So the bank gets an extra 120,000 in equity plus my house ..and I didn’t even get my payments returned?

    I didn’t know he was conducting a trial on the issue , I thought we were there to argue why the TILA rescission should have not been dismissed by the earlier judge. If this was a full blown trial to adjudicate the rescission I would have submitted their answers to my interogs and discovery demands for documents where they objected and denied having access to any of the originating documents because they were just a servicer 3rd in a line who ended up with this refinance, My QWR letters to Wells Fargo were returned with everything they said they had, and the required TILA Right to Cancel Notices are not in their reply papers.

    Can the Appellate Division now claim that the violations were not found, and the lower court adjudicated the rescission based on the violations but found in favor of the lender?
    That would truly suck. They showed no proof and he rejected my offer of proof.

    Also he never addressed the fact fact that I also raised APR violations.

    Do you think I should motion for reconsideration, or clarification?

    What about filing and asking how I lose a 300,000 house when he said I should have tendered back only 180,000 after credit for payments…

    This is exactly why the tender issue was meant to be worked out in favor of the borrower …so the borrower could receive his canceled note and mortgage and decide what was in his best interest, to either sell and make a profit off equity, or refinance and remain in the home.

    The judge in my case took it all away from me, including my equity.

    This is why tender was never to be required first from a borrower, the lawmakers intent was to protect consumers and keep them in their homes.

    The courts have been dishing out a terrible injustice to borrowers for a very long time. And they apparently want to keep doing it.

  205. Here it is clear the judge does not understand TILA and the effect of Jesinoski:

    “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?”

    From the above excerpt it appears the judge does not understand that the only tender procedure that matters is the one contained within TILA, not some hybrid creature he is trying to fashion (because he’s seen other courts do that).

    Justice Scalia no doubt heard all about “unfairness” in the pretender lender’s brief in Jesinosky. Clearly, such purported unfairness took a back seat to Congress’ stated intention of protecting the borrower, at least as far as a UNANIMOUS SCOTUS was concerned.

    Scalia simply pointed out that TILA abrogated those equitable notions of how tender should be done that were contained in the common law.

    IMO, the pretender lender waived any objection to your tender or lack thereof, any defects in the notice you sent, or even any objection that you could properly do a TILA rescission in the first instance, by not engaging in the 20 day procedures outlined in TILA. The pretender lender knew the plain wording of the statute created an “unwinding process” that was different than the common law. The pretender lender knew the plain wording of the statute indicated the rescission of your loan was complete upon their receipt of your rescission notice. Finally, the pretender lender knew it had a remedy within TILA itself that it could have chosen to use, but did not. IMO, that is a knowing relinquishment of a right – the right to get the property back from you.

    The pretender lender should not now be given an opportunity to get the property through some other avenue (i.e., eviction). Its remedy was in TILA. It has now waived that remedy, IMO.

    IMO, ONLY TILA contains the remedy for the pretender lenders in the context of TILA rescission. If they choose to not avail themselves of such a remedy within 20 days of receiving the rescission notice, they do so at their peril.

    Perilous indeed, after Jesinoski (finally, I realize I’ve been spelling it wrong).

  206. @Dwight

    I’m actually quite impressed by the judge you had, Dwight. He actually seemed to consider everything. That’s rare to see on the bench these days. He just didn’t get that, if you timely served a proper TILA rescission notice, the security interest (mortgage) ceased to exist at the moment it was received (due to Jesinosky resolving the circuit split on that issue).

    But, it’s good to see a judge actually deal with the issues before him. I know from experience that usually is not what happens.

  207. @Dwight.

    Your arguments seemed fine.

    The Judge is looking at a reversal, citing all those cases that rely on equity.

    Justice Scalia specifically determined TILA abrogated common law equitable rescission. That was in response to pretender lender arguments that Jesinosky’s rescission was ineffective because he didn’t tender.

    And, no, Rock, that is NOT dicta, because it was a determination essential to SCOTUS’ opinion and dealt with the pretender lender’s spurious arguments in that regard. SCOTUS would not have been able to reverse the 8th Circuit if the pretender lender were right about tender.

    Sounds like you got a typical judge, Dwight. I’m really sorry about that. Hopefully the appeals judge won’t be as dense about the sweeping effect Jesinoski had on the cases your trial judge relied upon.

    IMO, it’s good your judge cited those cases on the record. A smarter judge would not have done so and would have been more general if he really wanted to screw you. Now an appeals court can look at it and say: “it’s as if he didn’t even read Jesinosky.”

    IMO, ALL of those cases were abrogated by Jesinoski, to the extent that they stood for the proposition that a court could insert itself as some kind of equitable referee whose approval is needed before a TILA rescission becomes effective.

  208. I apologize in advance for re-posting the transcripts from my recent case below on March 20, 2015, where I argued in part for the court to reconsider granting Wells Fargo’s earlier Motion to Strike my Affirmative Defenses and Counterclaim based on my Rescission due to TILA violations. When the court had dismissed those defenses the U.S. Supreme Court decision had not yet come out. Now I was presenting the Jan. 13, 2015 Jesinoski ruling and asking for reconsideration of my dismissed Rescission. The other judge had dismissed the rescission but allowed the case to go to trial on the standing issues I had raised. As a Pro Se I admit I struggled to clearly state my points and was losing my train of thought, I had no notes in front of me and was arguing the points off the top of my head , thinking there was no way the court could go against the Supreme Court. My mistake. As you’ll see .. the courts still continue to cling to “Yamamota” and the long held rule that “the borrower must first tender”. The judge here openly dismissed Justice Scalia’s ruling as only addressing whether a borrower needs to file a complaint. Tresspass advised me to flle “De Novo”? or something, asking for a new trial ? Anyone else want to give suggestions feel free. I am currently awaiting all of my scanned files of the entire case to be sent to me via email, and then I can share once they arrive. John G. – Not sure if you ever read this argument I had with the judge about TILA – Rescission. rciferri – I would like your opinion also, is there enough here for an appeals court to reverse this judge in my case? Or do I need to file more motions in order to build it? Thank you 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. BORROWER: 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. **(DwightNJ- The point I was struggling to make was that my home was worth between 300,000-330,000 when I rescinded, I would have only had to tender 180,000 if they did not tender back my payments. The refinance was 230,000 .. my payments made were 50,000 .. the point being that I had equity in my house that was mine, not theirs.) 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 — **(the judge was referring to NJ Supreme Court caselaw) 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. Borrower: 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 of 2011. 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 th
  209. @ Rock:

    “The rest was dicta by your own definition.”

    Haahaaa! Good one, Rock! You just can’t stand losing, can you?

    Good pretender lender move – quote only the part you can twist into a pretzel to support your bias. How’s that working for you with regard to your assertion that one still has to sue to rescind under TILA, despite SCOTUS’ opinion in Jesinoski?

    Now, Rock, you know I can’t let you get away with just cherry picking the part of the definition of dictum that suits you. So, let me remind you about this part:

    Dictum is that which is “not necessarily involved in the case or essential to its determination.”

    All of the following determinations made by SCOTUS in Jesinosky were ESSENTIAL to their holding and were necessarily involved in the case, because they are direct refutations of the bogus arguments for the affirmance of the circuit court ruling that were brought by the pretender lenders (they clearly screwed themselves by doing that, because the following determinations by the highest court in the land ARE NOT DICTUM, and SCOTUS would not have had to consider and reject them they weren’t first argued by the pretender lenders!):

    1. A letter is sufficient to rescind. It was essential to SCOTUS’ opinion to state that Jesinoski’s letter was sufficient to rescind to dispose of the argument by Countrywide that a lawsuit was required. Thus, it is not dicta.

    2. A borrower does not have to tender before his rescission is effective. Again, it was essential to the court’s holding to get through the pretender lender’s thick skulls that TILA abrogated the common law to create its own procedures, otherwise, SCOTUS couldn’t have reversed the way it did (stating Jesinoski’s letter was sufficient).

    3. The pretender lender’s refusal to “accept” the rescission in no way invalidated the rescission. Again, this analysis was essential to SCOTUS’ opinion, because, otherwise, they wouldn’t have been able to reverse and hold that the lower court erred in dismissing the complaint in the face of Jesinoski’s rescission

  210. @Rock:

    “rciferri, according, to you wannabes, the courts are wrong”

    Yes, that is according to me. It’s also according to Garfield. It’s also according to other courts, you know, like the frickin’ United States Supreme Court! Ever heard of them?

    Lol!

    How’s that argument that you have to sue to rescind a loan under TILA working for you now, Rock?

    Haahaaa!

  211. Thanks for posting rciferri, “Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determinations of the judge himself.”

    There was one question before the court: Does a borrower have to a file a lawsuit within the 3yr. SOL as well as the rescission letter. And the holding was he did not–PERIOD. The rest was dicta by your own definition.

    You’re killing us rciferri, and least you ended the day with another good laugh.

  212. @johngault:

    Thank you!

    Just trying to show how patently specious the bank arguments are, so that any earnest people don’t get seduced by their kool-aid and give up prematurely.

    No matter what Rock says, they are really spooked by Jesinosky.

    Yes, I have come out of hiding (long time lurker here).

  213. rciferri, i don’t know where the hey you came from (by way of the speech and debate team), but damn glad to see you. Hope you’ll keep up the good work.

  214. For those who disagree with my lay opinions clearly stated as such,
    thank you for showing some restraint and not calling me worse names. Putz I can live with. But I wouldn’t be fooled by gentility, even as I appreciate it.
    What I can’t live with or at least don’t think much of is referring to those here who’ve lost their homes as losers. The rest of you see what’s going on here? It started with our very own Christine, whom imo is either not right in the head or has motive. If a rational person thought this site stinks or all of us stink, pretty sure such a person would find something else to do with his or her time. Thou doth protest too much. There is, imo, a concerted effort, a psychological ploy to undermine efforts by those of us who give a rusty. It’s the imposition of a class or state of being, and it’s name is “Loser”. “More on this, live at 5”. As one in the ‘loser class’, you should bow down and ask permission of the great ones to inhabit the earth. And don’t even think about having an opinion because you’re not entitled to one.
    I can only believe there’s a goal and because of that goal, that it’s done with malice or a form of mens rea. Until NG says differently (he may like the commercial value of conflict, the buzz, succinctly, or he is busy), these people are allowed to comment here, including the paltry and telling resort to name calling. But no one here is a loser, even if you tried and lost your home. MERS is part of the largest scam ever perpetrated and its continued existence is what makes no sense and is an insult to the intelligence and everything else relevant to a real class, American homeowners. That whole mess caught us all short, and that includes otherwise thoughtful members of the judiciary (I remember one case which was going the homeowner’s way by a particular judge and it was reassigned to another who lined up with the pretender. My conclusions may not have been accurate, but sure looked bad to me)
    Just don’t let anyone throw you out of what you own, your head and your heart. No one’s a loser for believing this or that or because you couldn’t meet the challenges presented by behemoth conglomerates who will say and do anything to get what they want. But speaking of losers, a cheating A$$ cheater is a loser where I come from and those guys cheat, day after day. Those guys, of course, don’t see it that way, because great ones are entitled and they’ve got a bad, bad case of entitlement. Tell you the truth fwiw, though I claim zero acumen (speaking of which), I suspect the great ones don’t like taxation or sharing because they’re inherently greedy and because they don’t like supporting welfare, or at least it’s one of their excuses for their entitlement. But the (real) class they hurt and are hurting is the working class. Well, I guess we’re just casualties.
    I could be wrong about the impact of hearing “loser” day in and day out, and while I’m all for legitimate debate, just in case I’m not wrong, be careful what you let in. And you guys calling people losers here ought to knock it off. If you have anything of value to say here or want any credibility, that’s not the way to get it. If you’re doing what I think you’re doing, go tell your mom she wants you (or how bout you were so ugly when you were born, the doctor slapped your mother – couldn’t resist).
    lay opinions – see “lay” and “opinion”

  215. @Rock

    How’s Black’s Law Dictionary work for you, Rock? Read and learn. In a moment I will demonstrate how you are wrong about what you call dicta in Jesinoski. But, first, a trip back to law school for you, sonny boy:

    What is DICTUM?

    In general. A statement, remark, or observation. Oralis dictum; a gratuitous or voluntary representation; one which a party is not bound to make. 2 Kent,Comm. 480. Simplex dictum; a mere assertion ; an assertion without proof. Bract, fol. 320.The word is generally used as an abbreviated form of obiter dictum, “a remark by the way;” that is, an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a Question suggested by the case at bar, but not necessarily involved in the case or essential to its determination; any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion. See Railroad Co. v. Schutte,103U. S. 118, 143, 26 L. Ed. 327; In re Woodruff (D. C.) 96 Fed. 317; Hart v. Stribling. 25Fla. 433, 6 South. 455; Buchner v. Railroad Co., 60 Wis. 264, 19 N. W. 56; Rush v.French, 1 Ariz. 99, 25 Pac. 816; State v. Clarke, 3 Nev. 572.Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determinations of the judge himself. Obiter dicta are such opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects, ltohrbach v. Insurance Co.,62 N. Y. 47, 58, 20 Am. Rep. 451.In old English law. Dictum meant an arbitrament, or the award of arbitrators.In French law. The report of a judgment made by one of the judges who has given it Poth. Proc. Civil, pt 1, c. 5, art. 2.

    Law Dictionary: What is DICTUM? definition of DICTUM (Black’s Law Dictionary)

    Non gratuitous analysis of SCOTUS in Jesinosky:

    1. A letter is sufficient to rescind. It was essential to SCOTUS’ opinion to state that Jesinoski’s letter was sufficient to rescind to dispose of the argument by Countrywide that a lawsuit was required. Thus, it is not dicta.

    2. A borrower does not have to tender before his rescission is effective. Again, it was essential to the court’s holding to get through the pretender lender’s thick skulls that TILA abrogated the common law to create its own procedures, otherwise, SCOTUS couldn’t have reversed the way it did (stating Jesinoski’s letter was sufficient).

    3. The pretender lender’s refusal to “accept” the rescission in no way invalidated the rescission. Again, this analysis was essential to SCOTUS’ opinion, because, otherwise, they wouldn’t have been able to reverse and hold that the lower court erred in dismissing the complaint in the face of Jesinoski’s rescission.

    Sorry, Rock, but you’re wrong on the dicta thing…

  216. @Rock

    Also, it’s good to see you have plenty of time to roll around the ground laughing.

    Must be because you don’t have to do any real legal analysis, you just have to pick a case out of a hat and just say it stands for whatever proposition you wish. At least that’s what every pretender lender brief I’ve looked at does.

    Haaahaaa!

  217. Admit it Rock…
    You only come here for the Entertainment.

    A Good Laugh is Healthy! 💝

    😅

  218. @Rock

    “I don’t know why I’m telling you this”

    My guess is you are doing it because you don’t have anything good to say about the complete and utter loss the pretender lenders have suffered at the hands of SCOTUS. So, you are resorting to ad hominum abusive attacks to make yourself feel better.

    Sorry, Rock. Can’t win ’em all.

    But, don’t feel so bad. I’m sure your cronies have plenty of other ponzi schemes cooked up even as we speak. And, if the pain of Jesinoski gets too great for them, they can always go to daddy government to get a nice reassuring trillion or so bailout.

  219. rciferri, according, to you wannabes, the courts are wrong, the lawyers are wrong, but a bozo like you and the other Kool-Aid drinkers are right.

    Do yourself a favor and learn how to read and understand statutes and court cases before you embarrass yourself anymore.

    Also, it would be helpful to understand the difference between a holding and dicta.

    I don’t know why I’m telling you this because you have everyone in the office on the floor laughing. You wackos are better than the three stooges.

  220. @Rock

    I bet if I checked Greenberg Taurig’s track record on this issue, I’d find them insisting you have to file a lawsuit to do a TILA rescission. Gee, guess the issue was just too simple for them. How you like that seven page Jesinoski opinion now?!

    Haahaaa!

  221. @Rock

    “Jesinoski was remanded back to see if it fact there is a TILA violation.”

    Wrong. It was remanded for further proceedings consistent with Jesinoski.

    “If there isn’t, the Jesinoski’s lose their home;”

    Not so fast cowboy. First, Jesinoski’s loan is currently VOID. Upon remand it is incumbent on the pretender lender to show it made a loan or was assigned the right to enforce a loan made by someone else. Trotting out a pdf copy of a note won’t help; nor will a copy of the mortgage or deed of trust. They are now NULLIFIED. The court should order the pretender lender to show its interest in the loan (some other way besides making pretend it holds the note); failing that, the Court should enter judgment in favor of Jesinoski.

    If the pretender lender can show it has an interest in the loan (i.e., it paid value for it) then the court can inquire if the pretender lender gave back all the money paid by the borrower and filed a satisfaction of mortgage or deed of trust within 20 days of receipt of Jesinoski’s TILA rescission notice.

    If the pretender lender didn’t do what it was supposed to do within those 20 days, the pretender lender has waived any arguments that it complied with TILA. Jesinosky makes it clear that TILA abrogated the common law. The pretender lender’s remedy, therefore, is solely contained in TILA. And, yes, that part of Jesinosky is NOT dicta. It was essential to SCOTUS’ analysis rejecting the argument of the pretender lender that the legislature intended to graft equitable principles into TILA.

    By the way, Rock, here are some other nasty nuggets of law you and your pretender lender friends won’t like that are likewise NOT dicta:

    1. Rescission is complete upon the initial lender receiving a TILA rescission notice;

    2. Borrower does not have to first tender for rescission to be effective;

    3. Pretender lender’s “refusing to acknowledge the validity of the rescission” did not invalidate the rescission which was effective upon receipt; and,

    4. A lawsuit is not needed to effect the rescission; only a borrower’s TILA letter.

  222. To all of the Garfield’s dupes:

    Jesinoski was remanded back to see if it fact there is a TILA violation. If there isn’t, the Jesinoski’s lose their home; if there is the unwinding process begins with the bank tendering first, then the Jesinoski’s returning the money lent. Straight up 15 U.S. Code § 1635(b).

    Anyone with a modicum of legal acumen knows the holding of the court was very narrow, only that the borrower did not have to file a law suit within the 3 yr. statutory period! The rest was just dicta, which are “opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion, which are the individual views of the author of the opinion and NOT BINDING in subsequent cases AS LEGAL PRECEDENT.” West’s Encyclopedia of American Law, edition 2. 2008.

    It appears everyone in the world besides the brainless followers of Garfield, who obviously don’t comprehend the court cases they read, understand how rescission works.

    Greenberg Traurig, LLP one of the largest law firms in the country:

    No. 3 for total number of U.S. lawyers, Law360, 400 largest first list, 2015

    No. 1 in domestic presence (29 U.S. locations) among the Top 10 law firms, The National Law Journal, NLJ 250, 2012-2013

    Ranked among Top 20 law firms, based on number of attorneys, in the Atlanta, Chicago, Denver, Fort Lauderdale, Houston, Los Angeles, Miami, Northern New Jersey, Orange County (CA) and Phoenix markets, National Law Journal, NLJ 350 Regional Report, 2013

    No. 1 for the number of U.S. attorneys ranked in Chambers USA Guide 2012 among Am Law 200 firms°

    Most overall first-tier rankings, most first-tier metropolitan rankings and most practice areas with first-tier rankings for the United States in the U.S. News Media Group and Best Lawyers® “Best Law Firms” rankings, 2011-present

    Most attorneys listed, The Best Lawyers in America, 2008-present

    had this to say about the Jesinoski holding:

    “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.”

  223. @Rock

    For the first time in my life, I see SCOTUS granting certiori for every case that may possibly be affected by Jesinosky and reversing the cases.

    Do you know how rare it is for SCOTUS to grant certiori, Rock?

    Do you see now that SCOTUS means business?

    Do you see now that SCOTUS is not going to take the lower courts acceptance of the banks’ fantasy made up law anymore?

  224. @Rock: NONE of the cases you cited show a borrower loss in which the borrower made a timely and properly prepared TILA rescission (and didn’t sign an agreement invalidating it later).

    LAGRANT – “Plaintiff alleges that his lender made none of the required disclosures at settlement. Thus, the alleged TILA disclosure violations occurred on December 14, 2006, but Plaintiff did not file suit until November 7, 2014.” – UNTIMELY.

    TAYLOR – “Plaintiff alleges in his Complaint that the “closing date” for his mortgage transaction was December 18, 2006. Compl. ¶ 25. Accordingly, pursuant to § 1635(f), Plaintiff was required to exercise his right to rescind by December 18, 2009. Although Plaintiff acknowledges in his Complaint that “[t]he Truth in Lending Act . . . extends Plaintiff’s right to rescind a loan to three years from the date of closing if the borrower received false or incomplete disclosure of either the loan[‘]s terms or Borrower’s right to rescind,” Compl. ¶ 126 (emphasis added), Plaintiff does not allege any facts remotely suggesting that he provided notice of rescission to his borrower before the three-year period elapsed. Instead, Plaintiff appears to be seeking rescission for the first time with the filing of the Complaint presently before the Court.” – UNTIMELY

    MACKLIN – Letter that Macklin wanted the court to determine was a rescission notice under TILA didn’t even use the words “rescission” or “Truth In Lending Act.” – INADEQUATE NOTICE.

    GALYEAN – While acknowledging plaintiff didn’t need to tender, the court dismissed for a reason unrelated to TILA – plaintiff did not plead facts that the defendant was a proper party. – DISMISSED FOR REASONS UNRELATED TO TILA RESCISSION.

    In Re Thomas E. Jones – This case concerns a rescission of a reaffirmation agreement, not a loan. Jones filed a notice of rescission of a reaffirmation agreement with the court. Court treated it as a motion and denied it as “unnecessary and procedurally improper.” MOTION DENIED FOR REASONS UNRELATED TO TILA RESCISSION.

    IN RE HAFFEY – Haffey sought to rescind his note on the grounds that it was forged. Court wasn’t buying it for lack of factual allegations to sustain his complaint. CASE HAS NOTHING TO DO WITH TILA RESCISSION.

    RESIDENTIAL CAPITAL, LLC – ANY TILA RESCISSION WAIVED BY MODIFICATION AGREEMENT

    Nice try, but these cases don’t deal with the instance of a borrower who timely made an adequate TILA rescission.

    The only case citing Jesinosky since Jesinosky was decided that does deal with a borrower who timely and properly served a TILA rescission notice is PETERSON and Peterson is on its way back to US District Court where he will likely walk away with a WIN!

    I’ll be looking for you posting news of Peterson’s win when it comes, Rock!

  225. @bobhurt: Read Jesinosky again. Then read it again.

    And read it again as many times as you have to until you understand that, regardless of what some courts have said prior to being overruled, NO BORROWER TENDER IS REQUIRED TO EFFECT A TILA RESCISSION – ONLY A LETTER.

    SCOTUS has RULED thus:

    “It is also true that the Act disclaims the common-law condition precedent to rescission at law that the borrower tender the proceeds received under the transaction. 15 U.S.C. § 1635(b). But the negation of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity. Nothing in our jurisprudence, and no tool of statutory interpretation, requires that a congressional Act must be construed as implementing its closest common-law analogue. The clear import of § 1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind.”
    Jesinosky v. Countrywise, 135 S.Ct. 790, 793 (2015).

  226. @bobhurt.

    “Can anyone show me how Rock’s assessment of the TILA rescission issue fails to align with prevailing the appellate court opinions?”

    Sure. Actually its very simple.

    Myself, Neil Garfield, several circuit courts of appeal and all other non-biased persons with average reading comprehension skills had no problem reading the plain wording of the TILA statutory language and understanding what it said.

    Rock and several circuit courts of appeal also had no problem reading the TILA statute and understanding what it said, because they seem to me to be reasonably intelligent persons.

    However, their problem was overcoming their BIAS toward the banks and against homeowners.

    Rock thinks: how can a borrower just rescind his loan with a letter, when that is clearly a less than optimal outcome for a bank? The problem for Rock and the other circuit courts is this: justice is blind; the law is the law as written by the legislature and the courts must respect that.

    That is what Jesinosky is really about – respecting the law as written by Congress.

    Rock just can’t bring himself to admit that he was wrong (and so were several circuit courts of appeal and other biased persons) in their failed attempts to graft upon TILA rescission certain common law rescission requirements.

    I could show you how Rock was wrong by just telling you to read TILA. However, Rock seems to think a circuit split on the issue means he’s right – even AFTER SCOTUS set him straight when it resolved the split by deciding Jesinosky the way it did.

    A borrower’s lack of tender or even lack of the ability to tender does not change the legal effect of the borrower’s TILA rescission because Jesinosky said so. And, no, that was not dicta, because it was essential to the Court’s decision in rejecting the bank’s assertion that Jesinosky’s TILA rescission was not effective.

    As for “prevailing” appellate court opinions, Rock just can’t get over the fact that those opinions are no longer prevailing, because they were simply wrongfully decided – OVERRULED to the extent they conflict with Jesinosky, because SCOTUS is the supreme law in such regard, not some circuit court of appeals courts that have been getting it wrong for years.

    No lawsuit or common law tender is required for the borrower’s tender to be effective because SCOTUS said so.

    Again, that is not dicta – that is MANDATORY AUTHORITY!

    Tender under TILA, on the other hand, happens AFTER the loan became VOID.

    Also, it is instructive to note, that the tender procedures with regard to TILA rescission used to have ten day time limit. That was changed to 20 days, according to legislative history, so that the “lender” could investigate whether or not the borrower had the right to rescind in the first instance. See, S. REP. NO. 96-368 at 29 (1980), as reprinted in 1980 U.S.C.C.A.N. 236, 264. In my opinion, a “lender’s” failure to make such an investigation within the 20 days is its unequivocal and knowing relinquishment of any right to “reject” or challenge what it views as an improper rescission by the borrower.

    Another point to ponder: how can a “lender” show it has an interest in the loan when their security interest has been voided and, even if they once had the right to enforce the note, they can no longer do so? I don’t believe there is a way they can.

    In such an instance, how can a court require a borrower to tender the value of the loan to a party that can’t even show it has an interest in the loan? I don’t believe there is way it can. For that matter, how could a court permit itself to even hear a “lender’s” contentions that the borrower’s TILA rescission is somehow defective? I don’t believe a court can. That issue is waived by the “lender” unless it returned all money paid by the borrower, filed a satisfaction of mortgage or deed of trust in the land registry AND sued to set aside the borrower’s TILA rescission within 20 days of its receipt of the same.

    Sure, the district courts and circuit courts of appeal can get cheeky in the face of SCOTUS and continue their wholly biased opinions depriving a homeowner of their right of rescission. How do you think each and every member of SCOTUS will like that (Jesinoski was a UNANIMOUS opinion)?

    SCOTUS put all the other courts who have been deciding cases with a lender’s bias that they WILL be reversed – at least with regard to pretending any security interest or right to recover under a note is not void in the face of a borrower’s TILA rescission.

    So, Rock’s analysis fails to align with the prevailing appellate court opinions because he’s pretending Jesinosky never happened (when it comes to a plain statement by the Court that Jesinosky’s letter rescinded his loan – and, no, that is NOT dicta – it was a determination that was essential to the Court’s holding).

    In short, Rock’s “analysis” fails to align with the prevailing appellate court opinions because Jesinosky is THE prevailing appellate court opinion.

  227. Here you go louise, a few cases homeowners lost arguing Jesinoski:

    RONALD L. LAGRANT v. U.S. BANK NATIONAL ASSOCIATION Civil Action No. 3:14-cv-809-HEH. United States District Court, E.D. Virginia, Richmond Division.

    HAROLD J. TAYLOR v. WELLS FARGO BANK, N.A. Civil Action No. 14-617 (CKK). United States District Court, District of Columbia.

    In re JAMES L. MACKLIN v. DEUTSCHE BANK NATIONAL TRUST CO. Case No. 10-44610-5-7, Adv. Proc. No. 11-2024, Docket Control No. JLM-1. United States Bankruptcy Court, E.D. California.

    GALYEAN v. ONE WEST FSB, Dist. Court, WD Washington 2015 Case No. C10-827 MJP.

    In Re Thomas E. Jones,Case No. 14-33566. United States Bankruptcy Court, N.D. Ohio, Western Division.

    IN RE HAFFEY, Bankr. Court, ED Kentucky 2015 Case No. 14-50824, Adv. No. 14-5044.

    In re: RESIDENTIAL CAPITAL, LLC, et al., Case No. 12-12020 (MG) Jointly Administered. United States Bankruptcy Court, S.D. New York.

    And regrettably, Dwight already lost his argument in court, so he can be added to the list.

  228. Let’s keep to the questions at hand and theories at hand. Calling people names is not helpful nor necessary. We need some case law with regard to the rescission question. Just sayin…

  229. ROCK ARE STILL IN JAIL?

  230. NEIL GARFIELD RULES

  231. Neil Garfield Rules.

    After 20 calendar days and no lawsuit by pretender lender. The games over.

    ACCORDING TO JUSTICE SCALIA.

    NEVER AGAIN

  232. bobhart, said,

    So, here I provide the most important issue to readers:
    The court will not exonerate the borrower from all or part of the debt the debt UNLESS the borrower can prove that one of these parties injured the borrower at the inception of the loan or during its term:
    1. lender,
    2. appraiser,
    3. mortgage broker,
    4 title company,
    5. realtor,
    6. seller,
    7. lawyer,
    8. servicer, or
    9. some other party.

    1/ what is a lender?? on what a court will say is a true lender?? could a originator also be a lender???

    2/ could a corporation be a lender???

    3/ you know all appraisals were inflated by 50 to 100 percent over the values of peoples homes. thats been proven by gov/attorney generals/suits.

    4/ i did rescind as of 4 march 2015, on loan that was done on
    8 nov 2005, as i have found out in 2013 that the true lender of money was someone else , other then gmac mortgage cororation,as originator and lender. how i found out was that i ask for a complete copy of my closing file from closing attorney, he still had it. he said it was suppost to be destroyed in 2012, but they move to new location and just didnt get to it. GOOD FOR ME. this is were after he gave me a full complete copy, i found the WIRE ADVICE OF CREDIT, TO CLOSING ATTORNEYS ACCOUNT NUMBER, THE BANK WAS DESCHURE BANK AND TRUST AMERICAS.

    GMAC MORTGAGE CORPORATION , DIDNT LEND ONE CENT TO MY FATHER INLAW. AM BEEN FIGHTING THIS FOR HIM FOR 5 YRS NOW.

    i call the secretary of states office , many times. and they give me the same answers. a CORPORATION CAN NOT BE A LENDER..

    SO HOW CAN HIS MORTGAGE NOTE STATE GMAC MORTGAGE CORPORATION AS LENDER. AND MORTGAGE AS THE SAME.??

    SO IT STILL BEGS THE QUESTION. WHAT IS A LENDER??

    OH BY THE WAY, THERE WAS A COPY OF THE MORTGAGE NOTE ALSO IN FILE, THE MORTGAGE NOTE WAS SIGN AND DATED THE SAME DAY AS CLOSING, 8 NOV 2005, SIGN AND DATED WITH SIGNATURE, AND WITHOUT RECOURSE TO DESCHURE BANK AND TRUST AMERICAS, FROM GMAC MORTGAGE CORPORATION.

    SO AGAIN , HOW COULD GMAC MORTGAGE CORORATION , PUT THIS MORTGAGE ON REGISTRY OF DEEDS, ON 15 NOV 2015??? THEY DIDNT OWN ANYTHING AFTER THEY SIGN IT OVER TO DESCHURE BANK ON 8 NOV 2005???RIGHT.

  233. Christine, Bob, you’re wasting your time. Instead of believing the truth, I guess everyone should believe a blowhard that has no clue what he’s reading, and proved it when he read something in a case, didn’t understand what he read obviously, and then posted there was a difference between an absolute defense and an affirmative defense. But, wants to analyze cases for everyone, explaining how the court was wrong–what a putz!

    Warning, every litigant that has used the very narrow holding in Jesinowski (borrower doesn’t have to sue within SOL) have lost, with a couple where the court, as Bob pointed out, will revisit the facts, just to add to the case law that a timely rescission notice only initiates the rescission process. Matter of fact, about to be added to the list of losers who have argued Jesinoski is poor Dwight, unless he wakes up quickly, but it’s probably too late anyway, based on what he’s posted.

    And the putz, claims there are bank shills here. Why would anyone affiliated with a bank come here, it appears the majority of those here have already lost their homes, or are in the process.

    Moreover, homeowners that would listen to functional morons who don’t understand what they’re reading, or someone like Garfield who has NEVER won a case are already losers; thus no need for a member of a bank to come here. Just more useless rhetoric from nitwits who couldn’t spell law if you spotted him the “L” and “W.”

    SEEK COMPETENT LEGAL ADVICE!!!!!

  234. PART 5 … WRONGFUL FORECLOSURE & DAMAGES

    *(The servicer of the loan who foreclosed bears liability)

    1.ASSIGNEE LIABILTY FOR RESICSSION

    While assignees are only liable for TILA “statutory damages” that are “apparent on the face of the loan documents” assignees are subject to the rescission right to the same extent as the original creditor. 15 U.S.C. §1641(c) states: “Any consumer who has the right to rescind a transaction under section 1635 of this title may rescind the transaction as against any assignee of the obligation. See also the case of Ocwen Fed. Bank v. Russell, 53 P.3d 312 (Haw Ct. App. 2002) which rejected the assignees holder in due course argument as being no defense to rescission. As other courts have held: “without such protection for the consumer the right of rescission would provide little or no effective remedy.” See Stone v. Mehlberg, 728 F. Supp. 1341, 1348, (W.D. Mich 1989). A loan servicer is deemed an assignee if it “is or was the holder of the obligation.”

    WRONGFUL FORECLOSURE ANALYSIS: As discussed above, the original lender, failed to fill in the dates on the XXXXX notices of right to cancel (See Exhibit “A” which is a true and correct copy of the notice of right to cancel the borrowers received at the close of the loan which is incorporated herein by reference). The loan was consummated on August 25, 2006 (See a true and correct copy of the relevant Deed of Trust which is attached as Exhibit “B” which is incorporated herein by reference) and the TILA rescission letter was timely sent within the three-year period on June 24, 2009. (See a true and correct copy of the XXXXX notice of exercise of rescission rights letter which is attached as Exhibit “C” which is incorporated herein by reference – although the letter provided was not signed, the copy sent to XXXXXX was and was received as evidenced by Exhibit “F” discussed below).

    The TILA loan rescission letter was sent to both XXXX and XXXXX (who was either owner, or acting as agent of the lender/owner of the loan), and this letter made clear they wanted to rescind their loan given the material loan violations and which was explicit in requesting “please mail me confirmation the mortgage has been voided.”

    On or around the date the rescission letter was sent, the value of the XXXX property was estimated to be approximately $750,000 (See attached Exhibit “D” which is a true and correct copy of an objective estimate of the value of the property at the time the loan was rescinded by Zillow.com). The loan balance was originally $750,000. See attached Exhibit “E” which is a true and correct copy of a XXXXX statement indicating the original loan amount, and also indicating monthly mortgage payments the XXX’ had made on the loan (totaling $115,000), which payments are required to be returned to the borrower following a rescission under TILA:

    “As the United States Supreme Court made clear: “after receiving notice of rescission, the lender must “return to the [borrower] any money or property given as earnest money, down payment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.” (emphasis added). See Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998).”

    Taking the $750,000 loan and subtracting $115,000 in loan payments, which were due to, be returned to the borrower following TILA rescission, this means the XXXXX tender obligation to the lender was $$635,000. The value of the property was approximately $722,000. By not allowing XXXXX to exercise federal rescission rights, $87,000 in equity (that XXXXX was rightfully entitled to), had been literally flushed down the drain. This means, that the XXXX’ were ready, willing, and able to tender the balance of the loan to the lender as required under TILA, and despite their attempts to rescind, XXXXX stripped them of their equity causing serious and devastating financial injury.

    As evidenced by Exhibit “F”, XXXXX was well aware of the XXXXX attempt to rescind their loan, and they had received and reviewed the rescission letter (See Exhibit “F” which is a true and correct copy of XXXXX response to the XXXX rescission letter which FALSELY indicated that “please be assured that your request for a rescission of the subject loan has been forwarded to the appropriate department. You will receive a response under separate cover.”)

    THERE WAS NO RESPONSE BY XXXXXXX IN REGARDS TO THE RESCISSION LETTER, ONLY A FORECLOSURE WHILE THE MORTGAGE WAS VOID BY OPERATION OF LAW.

    The plan in sending the rescission letter was to rescind the loan and to sell the property so that Borrowers tender could be effectuated, and the mutual tender obligations could be satisfied as discussed above. The XXXXXX’ were prepared to tender the $635,000 by selling their house. However, they never got a chance to realize their federal rights to rescind due to a wrongful foreclosure undertaken by XXXXX.

    IT MUST BE NOTED THAT The sale of real properTY TO EFFECTUATE THE MUTUAL TENDER OBLIGATION UNDER TILA RESCISSION has LEGAL precedent. See Kakogui v. American Brokers Conduit, Slip Copy, 2010 WL 1265201 (N.D.Cal. 2010), wherein the United States District Court stated: “For example, a TILA plaintiff might be able to allege that while he lacks the liquidity to tender the loan proceeds at the time he files the rescission claim, he has sufficient equity in the home and a willingness to sell that would render it likely that he could tender the loan proceeds if given a reasonable period of time”.

    Nevertheless, despite the valid rescission letter (which VOIDED the deed of trust), which letter was both received and acknowledged (and a promised response that never came), and given the borrower’s ability to tender the balance of the loan, the bank violated XXXXX rights and foreclosed as if there were no such thing as a TILA rescission right. At the end of the day, the federal extended loan rescission rights were virtually scoffed at. YOU CANNOT GET A MORE BLATANT WRONGFUL FORECLOSURE THAN THIS! As a result of this wrongful foreclosure, my Client has been financially injured in a manner that has never been compensated or recognized to any degree.

    DAMAGES: Specifically, my clients were financially damaged and injured by the wrongful foreclosure in the following respects:

    (1) Loss of Equity – At the time they rescinded their loan it is estimated that the value of the XXXXX property was $722,000 dollars (See unbiased Zillow.com printout evidencing the approximate value as Exhibit “D”). Had their rescission been honored, the bank would have received what they were owed under the loan (Approximately $635,000following the mutual “tender” obligation) and the borrower would have retained the balance of approximately $87,000. This is a devastating loss and serious financial injury attributable to the wrongful foreclosure.

    (2) Loss of improvements made to the home: The XXXXX’ made substantial improvements to the home that can be estimated at $30,000. When the home was wrongfully foreclosed, these improvements, and the costs thereof, were lost forever.

    (3) Relocation costs and expenses: As a result of the wrongful foreclosure, the XXXXX’ were forced to relocate at great time and expense to them. The estimated value of this loss is $7,500.

    Given the above-referenced blatant disrespect for my client’s Federal TILA loan rescission rights, and given their SUBSANTIAL FINANCIAL LOSS (in totaling the above approximately $119,500 in financial injury was suffered) attributable to the objectively verifiable WRONGFUL FORECLOSURE, we respectfully request that you immediately review the XXXXXX case file in critical detail, and determine that a wrongful foreclosure has occurred, which has not been compensated at all, and to immediately compensate my client for their unfortunate loss which could have been avoided by XXXXXXX respecting my clients’ rights. While we hope to resolve this amicably, if there is a failure to fairly compensate my client for this blatant and callous wrongful foreclosure, we reserve the right to take legal action to vindicate the loss of equity. We truly hope you will take care of the matter and provide closure.

    You may address all future correspondence regarding this matter to my San Francisco office as listed on this letterhead. Should you have any questions, or require additional documentation, please feel free to contact me directly at XXXXXXX. Thank you for your time and attention to this matter.

    Very truly yours,
    Angry Homeowner.

    Cc: Client

    Exhibits: A-F

  235. PART 4 … TILA RESCISSION 101

    *(Keep in mind this info was posted prior to the Supreme Court ruling in Jesinowski) but this is still a good learning tool.

    EFFECTS OF RESCISSION UNDER TILA (IN GENERAL):

    I. STEP ONE:

    When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.

    THIS MEANS THE SECURITY INTEREST BECOMES VOID BY OPERATION OF LAW.

    Following the 2003 Yamamoto decision (discussed below) the FRB added language to the commentary, (Section 226.23 of Regulation Z implements § 1635(b)). Which stated:
    1.When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.
    2.Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.
    3.If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the consumer shall tender the money or property to the creditor….
    4.The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order.

    Note: This suggests section (1) above is NOT altered, and so when a consumer rescinds, “the security interest becomes void.” Unless the Court alters the procedure, the Courts have the discretion.

    Where the TILA statute is clear it must be followed. Courts only have the power to alter whether the lender has to tender first, or the borrower has to tender first. See Yamamotov. Bank of New York, 329 F.3d 1167 (9th Cir. 2003), but see Semar v. Platte Valley Federal Savings & Loan Association, 791 F.2d 699, 705-06 (9th Cir.1986) (which stands for the proposition that the Court can alter the “procedure” of TILA but not the “substance” of TILA). The substance of TILA, as described above, is that the security interest becomes void upon the exercise of rescission, (although the Court can alter this procedure by requiring the borrower to tender first).

    In Yamamoto, the Court held:

    “There is no reason why a court that may alter the sequence of procedures after deciding that rescission is warranted, may not do so before deciding that rescission is warranted when it finds that, assuming grounds for rescission exist, rescission still could not be enforced because the borrower cannot comply with the borrower’s rescission obligations no matter what. Such a decision lies within the court’s equitable discretion, taking into consideration all the circumstances including the nature of the violations and the borrower’s ability to repay the proceeds. If … it is clear from the evidence that the borrower lacks capacity to pay back what she has received (less interest, finance charges, etc.), the court does not lack discretion to do before trial what it could do after. Determinations regarding rescission procedures shall be made on a “case-by-case basis, in light of the record adduced.”

    This case illustrates that the Courts hold the ultimate power to exercise their discretion in any TILA rescission case, and does not NECESSARILY require that the borrower prove its ability to tender as a pre-condition to exercising rescission rights.

    In fact, a California Court, in Pelayo v. Home Capital Funding, Slip Copy, 2009 WL 1459419, S.D.Cal.,2009,recently denied a lenders motion to dismiss a TILA rescission claim where the Defendant argued that the borrower was required to tender before rescission could be allowed (the Defendant essentially arguing that the security instrument was not automatically void), and where the Defendant argued the Court could not hear the case until the lender made its decision within 20 days (essentially arguing the TILA claim was not ripe for review). The Court held that the case could be heard and denied Defendant’s motion to dismiss.This ruling suggests that although the Court is permitted to modify the rescission procedure and require proof of tender by the Borrower first, it was also free NOT to modify the procedure and essentially treat the security instrument as being void (as the TILA statute requires), thus making the rescission case ripe for review.

    There is also legal precedent which suggests that a Court could exercise its “equitable discretion” under TILA and allow the borrower to make payments over time as part of meeting the borrower’s tender requirement (essentially reducing the monthly payment over time). See. In re Stuart, 367 B.R. 541, 552 (Bankr.E.D.Pa.2007); Shepeard v. Quality Sliding & Window Factory, Inc., 730 F.Supp. 1295 (D.Del.1990) (allowing borrower to satisfy tender obligation by making monthly payments); Mayfield v. Vanguard Sav. & Loan Ass’n, 710 F.Supp. 143, 149 (E.D.Pa.1989) (allowing borrower to satisfy tender obligation by making monthly payment).

    Also note, SOMETIMES (THIS IS PULLED OFF ONE LOAN) the Notice of Right to Cancel Form given to the borrower states:

    “If you cancel the transaction, the mortgage/lien/security interest is also canceled. Within 20 CALENDAR DAYS after we receive your notice, we must take the steps necessary to reflect the fact that the mortgage/lien/security interest on your home has been cancelled, and we must return to you any money or property you have given us or to anyone else in connection with this transaction.

    You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned to the address below. If we do not take possession of the money or property within 20 CALENDAR DAYS of your offer, you may keep it without further obligation.”

    This SEEMS TO BE a legal assertion, in the form of an admission, that the security interest is automatically void upon the consumer’s exercise of rescission. Upon the consumers act of “cancelling the transaction” the “mortgage/lien/security interest is also cancelled.” A creditor should not be permitted to renege on this assertion (estoppels applies) and the lender is bound by law to honor it.

    II. STEP TWO

    Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.

    Note: THE LENDER /SERVICER WILL NOT WANT TO DO THIS SO DON’T COUNT IT. In most cases, they would rather face a judge and see if you can prove your ability to tender.

    III. STEP THREE

    If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the consumer shall tender the money or property to the creditor or, where the latter would be impracticable or inequitable, tender its reasonable value. At the consumer’s option, tender of property may be made at the location of the property or at the consumer’s residence. Tender of money must be made at the creditor’s designated place of business. If the creditor does not take possession of the money or property within 20 calendar days after the consumer’s tender, the consumer may keep it without further obligation.

    Again, the Court may alter only steps two and step three per the Federal Reserve Board’s commentary set forth above. Such FRB opinion should be seen as persuasive legal authority.

    THE OTHER NICE THING ABOUT A TRUTH IN LENDING RESCISSION CLAIM IS THAT IT IS APPLICABLE AGAINST ANY AND ALL LOAN ASSIGNEES WITHOUT FEAR OF A HOLDER IN DUE COURSE ARGUMENT.

    ASSIGNEE LIABILTY FOR RESCSSION

    While assignees are only liable for TILA “statutory damages” that are “apparent on the face of the loan documents” assignees are subject to the rescission right to the same extent as the original creditor.

    15 U.S.C. §1641(c) states:

    Right of rescission by consumer unaffected

    Any consumer who has the right to rescind a transaction under section 1635 of this title may rescind the transaction as against any assignee of the obligation.

    See also the case of Ocwen Fed. Bank v. Russell, 53 P.3d 312 (Haw Ct. App. 2002) which rejected the assignees holder in due course argument as being no defense to rescission. As other courts have held: “without such protection for the consumer the right of rescission would provide little or no effective remedy.” See Stone v. Mehlberg, 728 F. Supp. 1341, 1348, (W.D. Mich 1989). A loan servicer is deemed an assignee if it “is or was the holder of the obligation.” See 15 U.S.C. §1641(f)(1). Please see our request to identify the holder of the loan obligation or master loan servicer below.

    As a final note, in regard to reviewing whether any additional damages may be levied against an assignee of a loan, in the Meyer case cited above the Court held:

    “TILA Section 1641 addresses the circumstances under which an assignee may be liable for violations committed by the prior holder. For loans-such as this one-which are secured by real estate, the statute provides as follows:

    Liability of assignee for consumer credit transactions secured by real property

    Except as otherwise specifically provided in this subchapter, any civil action against a creditor for a violation of this subchapter, and any proceeding under section 1607 of this title against a creditor, with respect to a consumer credit transaction secured by real property may be maintained against any assignee of such creditor only if –

    (A) the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement provided in connection with such transaction pursuant to this subchapter; andthe assignment to the assignee was voluntary.

    For the purpose of this section, a violation is apparent on the face of the disclosure statement if the disclosure can be determined to be incomplete or inaccurate by a comparison among the disclosure statement, any itemization of the amount financed, the note, or any other disclosure of disbursement….”

    We hereby reserve our rights and will seek to hold any assignees liable for any other violations uncovered following discovery.

    Also note there is case law that dictates an injunction against foreclosure is also permitted even in the absence of a tender ability at the outset of the litigation. “Rescission premised upon tender is not mandatory but an option within the equitable powers of the court.” Avila v. Stearns Lending, 2008 WL 1378231 (C.D. Cal April 7, 2008).

    Also note, the Courts have recognized the right to seek an injunction against foreclosure where this right (rescission) is ignored by the lender or assignee. See Horton v. California Credit Corp., 2009 WL 700223 (S.D.Cal.) 2009. Note, that the 9th Circuit Court did not require an initial “tender” obligation from the borrower in granting the injunction where missing dates on the TILA notice of right to cancel were found.

    CONCLUSION

    If you have a refinance loan within the last three years (meaning it has not been more than three years since your last refinance, you may want to look at your previous loan file and determine whether or not you have a right to rescind the loan. In some cases, you will need to perform a mortgage loan audit to detect under-disclosure of APR and finance charges and other material disclosure violations. In other cases, look at your notice of right to cancel documents and see if you got two completed copies of the notice of right to cancel document (for each borrower or person with ownership interest in the property) and see if the rescission dates are filled in and otherwise accurate. If not, you may have an extended three year right to rescind your loan, and if so, you need to send in a rescission letter to protect your rights. If the lender refuses to acknowledge your legal rights under Truth in Lending Law (TILA) you may have grounds to file for an injunction to halt any slated foreclosures. In many cases, you will need to show some ability to tender back to the lender, the amounts which you would owe them (your loan balance) minus the amounts they owe you pursuant to their TILA tender obligation.
    **(Note from Dwight .. This tender issue needs to be challenged now, they have been abusing their discretion and misapplying the alter rule that allows them to alter the tender issue , they have perverted it into a way to deny borrowers of their rightful rescission, this is not what the alter rule was added for. The Supreme Court clearly states that no judge can rule that a rescission is not in effect due to tender. Justice Scalia was clear about that. It was rescinded regardless of tender. The alter rule that allows a judge discretion is for the purpose of working a settlement by altering the normal steps, not to deny the homeowner their rescission and allow the bank to steal the home.

    This area of the law can be tricky, so you may want to meet with an Attorney to discuss your case.

  236. TILA RESCISSION 101 … PART 3

    (* Keep in mind this info was posted prior to Jesinowski)

    ** When the lender claims that they do have signed copies of the Notices of Rights to Cancel .. just because they say it, doesn’t mean its true, and it doesn’t mean that you received your copies. This is why the law allows for borrowers to raise rebuttable presumptions, and open a reason for deeper discovery to be allowed.

    REBUTTABLE PRESUMPTIONS UNDER TILA

    Even assuming for the sake of argument that there are two signed, dated, and accurately completed notice of right to cancel documents in the lender’s possession (or the consumer’s acknowledgment of receipt of two completed copies), this merely raises a rebuttable presumption that the lender delivered two copies to the borrower. See 15 U.S.C. § 1635(c), and Johnson v, New Century Mortgage Corp., 320 F. Supp. 2D 606, 611 (E.D. Mich. 2004). Courts permit competent testimony to rebut this assertion of the lender.

    The critical factor is not whether the creditor has two signed and completed copies of the notice, but whether the borrower has possession of two signed, dated, and completed copies of the notice of right to cancel. Whether borrowers were delivered a blank notice of right to cancel is a question of fact that will not be decided on a motion to dismiss. See Clay v. Johnson, 77 F.Supp. 2D 879 (N.D. Ill. 1999). The debtor’s denial of receipt of the notices and disclosures creates a question of fact that will not be decided on summary judgment even where the borrower signed acknowledgement of having received two copies of the notice. See Moore v. Mortgagestar, Inc. 2002 U.S. Dist. LEXIS 27457, (W.D. W. Va. Dec. 18, 2002). Once the borrower rebuts the presumption of delivery (through competent testimony, affidavits, etc.) the burden shifts to the creditor to prove the delivery of the documents. See Bell v. Parkway Mortgage, Inc., 309 B.R. 139, 157 (Bankr. E.D. Pa 204).

    In addition, where the debtors testify that they did not receive the disclosures (even if not “totally convincing”), the debtor’s should prevail if the credit cannot produce from its own records any copy of the disclosures. See In re Pinder, 83 B.R. 905, 913.

    In most cases, especially where the borrower has credibility and kept track of all their loan documents (and where a mobile notary was used to sign the loan docs) the borrower can normally make a fair argument to rebut any assertion that the lender complied with the clear and conspicuous notice requirements and can counter any such assertion with competent testimonial evidence.

    THE FOLLOWING IS SOME GENERAL INFORMATION ON EXERCISING RESCISSION RIGHTS:

    THREE YEAR EXTENDED RIGHT TO RESCIND

    (a) Consumer’s right to rescind. (1) “In a credit transaction in which a security interest is or will be retained or acquired in a consumer’s principal dwelling, each consumer whose ownership interest is or will be subject to the security interest shall have the right to rescind the transaction….”

    (b) Exercising the right of Rescission:
    1.226.23(3) –“The consumer may exercise the right to rescind until midnight of the third business day following consummation, delivery of the notice required by paragraph (b) of this section, or delivery of all material disclosures, whichever occurs last.If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation, upon transfer of all of the consumer’s interest in the property, or upon sale of the property, whichever occurs first. In the case of certain administrative proceedings, the rescission period shall be extended in accordance with section 125(f) of the Act.” There is also legal precedence for “tolling” the statute beyond three years where fraudulent concealment is shown. See Bank of New York v. Waldon, 751 N.Y.S.2d 341 (Sup. Ct. 2002).
    2.226.23(2): (2) “To exercise the right to rescind, the consumer shall notify the creditor of the rescission by mail, telegram or other means of written communication. Notice is considered given when mailed, when filed for telegraphic transmission or, if sent by other means, whendelivered to the creditor’s designated place of business.” There is also legal precedence for the proposition that filing a lawsuit demanding to exercise rescission rights is also sufficient notice. See Garedakis v. Indymac Bank, 2004 WL 2254676 (N.D. Cal. Oct. 4, 2004) and Jones v. Saxon Mortgage, Inc. 161 F.2d 2 (table), 1988 WL 614150 (4th Cir. Sept. 9, 1998).

  237. TILA RESCISSION 101 …. PART 2

    NOTICE OF RIGHT TO CANCEL – DISCLOSURE REQUIREMENTS
    (* Keep in mind that this was written prior to Jesinowski)

    A common violation we find (and you can check your loan documents to see if you have such a violation) is that in a refinance transaction each borrower or person with ownership interest in the property did not receive two copies each of the federally required notice of right to cancel. If this is true, and your loan was originated within the statutory three year period (note that arguments for equitable tolling may exist) then this violation, although appearing technical in nature, can trigger an extended three year right to cancel your loan.

    Under Federal Truth in Lending Law, each Borrower, or person with ownership interest in the property, (in a non-purchase loan or other exempt transaction) in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any property which is used as the principal dwelling, shall be provided with TWO (2) COMPLETED copies EACH of a notice of right to rescind (cancel). It is the lender’s obligation to complete these forms and deliver TWO copies to each Borrower or person with Ownership interest in the Property. 15 U.S.C. § 1635(a), Reg. Z §§ 226.5(b), 226.23(b). If each borrower or person with ownership interest is not provided two adequate copies of this Notice, an extended three year right to rescind is permitted under the Federal Truth in Lending Law.

    The notice shall identify the transaction or occurrence and clearly and conspicuously disclose the following:
    1.The retention or acquisition of a security interest in the consumer’s principal dwelling.
    2.The consumer’s right to rescind, as described in paragraph (a)(1) of this section.
    3.How to exercise the right to rescind, with a form for that purpose, designating the address of the creditor’s place of business.
    4.The effects of rescission, as described in paragraph (d) of this section.
    5.The date the rescission period expires. (See Reg. Z §§ 226.15(b)(5) and 226.23(b)(5))

    See Meyer v. Argent Mortgage Co., (In re Meyer), 379 B.R. 529 (Bankr. E.D. Pa. 2007).If the notice is subject to more than one sensible reading, and different results ensue depending upon which of the readings is adopted, the creditor has not met the “clear and conspicuous standard.” SeeHandy v. Anchor Mortgage Corp., 464 F.32 760, 764 (7th Cir. 2006).

    TWO KEY POINTS WE WILL ARGUE (when the two copies each are received but the rescission dates are not filled in – a common TILA violation)

    (1) The Lender must fill in the form and dates (not the borrower) – If the creditor uses the proper model form, properly completed………and fulfills all other requirements, the borrower has no rescission right. This position is supported by the actual text of the law – See 15 U.S.C. §1635(h) – which states:

    Limitation on rescission:

    “An obligor shall have no rescission rights arising solely from the form of written notice used by the creditor to inform the obligor of the rights of the obligor under this section, if the creditor provided the obligor the appropriate form of written notice published and adopted by the Board, or a comparable written notice of the rights of the obligor, that was properly completed by the creditor, and otherwise complied with all other requirements of this section regarding notice.”

    The plain-meaning implication of this statutory provision SEEMS TO BE clear (and therefore is controlling),the lender has the obligation to complete these forms, it is not the borrowers duty to determine what dates to insert into the forms, much less at the direction of a mobile notary. In fact, the escrow instructions and lender’s instruction sheet for the notice of right to cancel form usually set forth the requirement that the dates be inserted before the borrower is asked to sign all copies. We will present credible testimony on this point as well. For now, please see attached Exhibit “A” which sets forth the evidence currently in our possession, of which we will rely on, and will build our discovery foundation upon.

    This reading of the law (that it is the lender’s obligation to insert the dates, and not the borrowers) is also consistent with the requirement #5 (set forth above) that “the lender shall clearly and conspicuously identify the date the rescission period expires.” In fact, at least two courts have held in the First and Second circuit: “the complexity of business transactions under TILA means that the average consumer cannot figure out when TILA rights expire…..” See Bonney v. Wash. Mutual Bank, No. 08-30087 (D. Mass. July 30, 2008). Placing this burden on the borrower strips the “truth” from the transaction.

    Finally, adding yet more support that the lender, not the borrower, must fill in the dates of the TILA right to rescind notice is a holding from another court which held: “Under both TILA and Regulation Z, the test for disclosure of the rescission right is whether the form of notice that the lender provided constitutes a clear notice of that right. See Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066, 1076 (3d Cir.1992) (“the law does not require an ideal notice of rescission rights, just a clear, accurate and conspicuous one.”)………the right to rescind can be clearly disclosed only ifthose two dates are filled in.” See Meyer v. Argent Mortgage Co., (In re Meyer), 379 B.R. 529 (Bankr. E.D. Pa. 2007).

    (2) The Lender is required to provide TWO copies of the notice of right to cancel to EACH borrower along with a copy of all of the material TILA disclosures. Failure to meet these requirements also provides an extended three year right to rescind the loan transaction. See 15 U.S.C. § 1635(a); Reg. Z §§ 226.15(b), 226.23(b) and Webster v. Centex Home Equity Corp. (In re Webster), 300 B.R. 787 (Bankr. W.D. Okla. 2003).

    HERE IS ANOTHER WAY TO GET THE EXTENDED THREE YEAR RESCISSION RIGHT (USUALLY A LOAN AUDIT IS REQUIRED) The material disclosures required in a closed-end transaction, (APR, including the existence of a variable rate feature, Finance Charge, Amount Financed, Total of Payments, and Payment schedule) the failure of which to disclose results in an extended three year right to rescind. See Gaono v. Town & Country Credit, 324 F.3d 1050, 1053, (8th Cir. 2003).

    Where only one copy of the notice of right to cancel is received, or where each borrower does not receive two signed and completed copies of the required right to cancel an extended three year right to rescind will apply.

    Note: the lender will argue “the borrower signed an acknowledgement that they received two copies each, and therefore there is no TILA violation, sorry case closed.” It seems these lenders and loan servicers forget to read the following section of the law which we will frequently have to raise.

    *** Keep in mind , these are REBUTTABLE PRESUMPTIONS that can be challenged by the borrower/homeowners .. see next post ****

  238. TILA RESCISSION 101

    This is a good basic explanation for understanding the intent.

    Although this info was posted prior to the Supreme Court ruling, its good for all of us to understand that the lawmakers intent was in favor of the homeowner/borrowers .. and the law should be construed liberally in the favor of the borrowers who are the victims.

    From: Foreclosure Defense Resource Center

    FEDERAL TRUTH IN LENDING LAW

    The Truth in Lending Act (TILA) is THE cornerstone of consumer credit legislation. The Statute is Congress’s effort to guarantee the accurate and meaningful disclosure of the costs of consumer credit and thereby to enable consumers to make informed choices in the marketplace. See 15 U.S.C. § 1601(a). The Act is designed to protect borrowers who are not on an equal footing with creditors either in bargaining power or with respect to the knowledge of credit terms. In other words, TILA was passed to aid the unsophisticated consumer. See Thomka v. A.Z. Chevrolet, Inc. 619 F.2d 246 (3d Cir. 1980).

    The Act is also remedial and must be liberally construed in favor of borrowers. See King v. California, 784 F.2d 910 (9th Cir. 1986).

    Except where Congress has relieved lenders of liability for noncompliance, it is a strict liability statute.

    Courts should continue to assure that consumers are accorded the full remedies available under the Act for violations found, even if they might seem technical. See Rodash v. AIB Mortgage Co., 16 F.3d 1142, 1145, 1149 (11th Cir. 1994).

    Although Congress permitted the Federal Reserve Board to issue regulations implementing TILA (Reg Z), and to issue interpretations and official staff commentary that the Courts consider to be persuasive authority, the FRB’s authority is not without limits, and a regulation that conflicts with TILA cannot stand. See Fabricant v. Sears, Roebuck, Clearinghouse No. 54,563 (S.D. Fla. Mar. 5, 2002).

  239. Judicial complaint if the judge ignored SC ruling and created his own interpretation.
    If his interpretation is not included an any case law or ruling; and is opinion he should get a complaint.

    The power of complaint – why do you think they have a judicial committee and a complaint form? It isn’t because they didn’t need it?

    Judicial committee does not and cannot make a judge change his ruling but the complaint is of record on that judge andd his future endeavors will always include review of the complaints against him.

    His immunity stops when he’s ruling by his opinions outside of law.

    We have the power to change so much.

    Trespass Unwanted

  240. Apologies to anyone waiting to hear back from me, I had some unexpected personal business that required my absense from this foreclosure/rescission travesty. Now that I’m back I’d like to work quickly on getting in touch with those who had offered to take a look at my case, which appears to be the best recent case on the front lines of everything being discussed here. My case is front and center of all of these issues being debated here, and is in the best positioned to see if the higher courts will adhere to the Supreme Courts commentary on the issues still in question.

    It’s important to point out that Justice Scalia could’ve and should’ve been even more clear than he was regarding the issues of tender and the lowers courts authority in altering steps 2 and 3 (who tenders first) which was added to the law later for courts to have discretion. This was a poorly explained provision that allowed judges the ability to alter the mutual tender steps. The judges took advantage of this loophole and have abused their discretion in using it all these years. They have perverted it and twisted it’s true intent. The judges would use it to kill the borrowers rescission, ultimately ruling that the rescission was not effective upon mailing of the notice because the judge determined that the borrower didn’t have the tender money laying around. They would deny the rescissions based on their abuse of this loophole. The true intent of the loophole (stating that a judge may alter steps 2 & 3) was most likely inserted into the law for the purpose of working out the different ways that could best place both parties back to their starting positions, meaning a judge could say “ok, the borrower wants to keep their home and they don’t have enough actual hard money to tender the full amount due back after receiving the lenders part of payments, so lets figure out the off-sets and balances and the current equity of the home and lets “ALTER” the normal procedures to best help this reach a reasonable resolution in order to get both parties a fair resolution. Since the borrower wants to keep their home and refinance with a new lender, lets alter by saying the lender can keep the payments that would normally be returned to the borrower , which will be credited towards the amount borrower needs to tender back, now they will owe less, they will owe 50k less .. meaning they will go refinance for a lower amount.

    Do you see the hypothetical above? That is what the alter loophole was meant for, so a judge could help facilitate a compromise where one was needed..he could alter the normal steps 2 & 3 of tendering if needed.

    But ..the judges perverted this loophole and twisted its meaning, they used it to deny the rescission ..they unfairly distorted its true intent and began asking borrowers “do you have 300,000 cash to tender?” ..

    It’s a travesty of justice, the judges have knowingly abused the “alter” discretion language to deny citizens of their rightful rescission.

    This is what Justice Scalia was alluding to , and he should have been more clear in his point because the judges still don’t get it, that the actual rescission cannot be denied by a judge who is claiming that he is uutilizing his discretion to “alter” the tendering steps of parties.

    The judges cannot deny that a rescission took place.

    The judges might, at some point, be able to look at evidence of whether there were valid TILA violations, but thats a different conversation.

    TILA never says that a rescission is based on a borrowers tender or ability to tender. TILA and Reg Z leave open the door for borowers to do a combination of things to remain in their homes, because afterall that is the home they owned before the lender who violated TILA came into their lives and disrupted their peace and comfort.

    TILA was not written for lenders to be able to steal victims homhomes.

    The case that caused this abuse is “Yamamota” ..it is a 2003 case that allows judges to deny your rescission based on whether you have hundreds of thousands of dollars laying around in your account..

    This “Yamamato” case is the pit of hell that these judges flock to.

    Scalia was handcuffed from speaking on an entire rescission process from A to Z .. but he did make it clear that the evil lower court judges are NOT ALLOWED TO DENY THAT A RESCISSION HAS BEEN IN EFFECT AND CONTINUES TO BE IN EFFECT REGARDLESS OF ANY TENDER ISSUES OR THE ALTERING OF STEPS TO HELP THE TENDER PROCESS WORK TO MAKE BOTH SIDES SATISFIED.

    The travesty hss been that the judges have been denying borowers their rightful rescissions based on the judges own distorted abuse of the disretion rule that allows him to alter how tenders can take place between parties ..like a settlement where a judge can help the two sides settle ..but instead the judges have abused this and stolen the homes of countless TILA victims over the years.

    Look up the Yamamato case and it will all make sense, how they use this caselaw to deny rescission and steal homes. This caselaw is bad, it needs to be ruled on again and be deemed as bad caselaw in light of the recent Supreme Court ruling. In my recent case, my judge used this Yamamato case for him denying my rescission defense in my fc.

  241. I said re: mcklin: “There’s really no prejudice to deutsche since deutsche’s loan is rescinded as a matter of law (imo).

    Not only is the loan rescinded, but it’s Deutsche’s and or own or its predecessor’s failure to comply with the Act and deutsche’s lack of diligence which caused the delay in tender.
    I think in that Ameriquest / Deutsche case I posted last week or so,
    the court found Deutsche liable but when fees, etc. were awarded to the homeowner, the court cut Deutsche some slack because it claimed it hadn’t known of the rescission which had supposedly occurred prior to the transfer to Deutsche. I don’t agree with that because imo, Deutsche either knew or should’ve known (not to mention all that business with the trust having an article 9 security interest already by way of the purchase and sale agreement way back when to the extent it paid but didn’t receive. imo) But at any rate, TILA establishes successor liability, so deutsche has no argument against the rescission.
    Banksters are going to argue (maybe anew) that tila impedes commerce since no one may take a note free of the successor liability.
    But, especially today when it’s known, it’s a fact,jack, that loans are going to be sold, tila would be absolutely, positively, entirely toothless without successor liability. Further, the purchaser may have a cause of action against the guy who violated tila. There are state laws which require a lender to repurchase certain loans if this or that were done. Under tila, there’s no loan to repurchase after rescission, but a cause of other action surely exists for the purchaser who gets nailed for successor liability, at least to the extent that any warranties were made.

  242. Precedent may be turned on its head, so one may argue the precedent and overcomes the previous ruling and make new precedent. But what one may not do is ignore precedent and hope to prevail. That’s not to say Macklin ignored precedent; it’s just said in case any bankster relies on macklin for any proposition or three.
    I didn’t go find Macklin’s recission letter, so I don’t know exactly what it said. But the court seemed to not like it as a rescission letter because it made demands for the return or 86’ing the note and for his home to be free and clear of all liens. Well, that’s exactly what should happen. So how does this detract from his notice of rescission? It doesn’t. If his letter said I’m rescinding, nothing else he added detracts from the rescission imo, even if he said I also want your Mach 1 428 cobra jet engine.
    Macklin filed his action (in a bk adversary proceeding) as one to enforce his rescission. Unfortunately, because he apparently also alleged a lot of other stuff, it may not have been postured correctly. Like I said, knowing what he knows now, he’d probably kill to do it over and maybe he can under frbp 9024 if not others). There is almost always, if not always, a way to be relieved of a many judgments which don’t adhere to the law or which is patently inequitable, doesn’t serve the law or justice. A bk trustee receives 10% of whatever she garners or recovers for a bk estate. If Macklin’s bk trustee cut a deal with him for the first 150k, perhaps he’d like to earn it.
    If macklin isn’t out of time, I’d ask for recon to amend his complaint (don’t need leave for 1st amendment, but do after that or stip) to
    one to enforce his rescission based on jesinoski unless there were precedent in the 9th(?). Courts are not to deny amendment without good reason and that’s one to be appealed (when denied wrongfully).
    i think it would be an interlocutory appeal (not sure). Now here i fall short. I don’t know if an appeal stays the judgment or if one must plead for that stay pending appeal. There’s really no prejudice to deutsche since deutsche’s loan is rescinded as a matter of law imo. Deutsche doesn’t like it all for one big reason because M is in bk and it’s possible any obligation to tender could be bk’d. (the rest of us better hurry – you know who will be trying to get long-held rules changed and since money talks and bs no longer walks but often rules the day……)
    The fact, even, that M had four attorneys at diff times in the act shouldn’t bar amendment. In fact, that bk trustee should file an AP and assert the rescission as an absolute defense, attach or whatever the
    Ameriquest / Deutsche case wherein Deutsche was found liable for rescission of a loan it (allegedly) transferred to it and that deutsche knows it’s subject to rescission as a successor to at least try to avoid the argument. The court may try to impose privity between bk trustee and m as a result of their deal, and if so, have to overcome it if 9024 et al doesn’t handle it. I can’t even try to speak to his other claims, except that I’d study recoupment. That or appeal.
    strictly lay opinions

  243. I don’t speak, I don’t want to.
    I don’t commit trespass.
    But someone has posted limitations to the effect of TILA and made it appear people have no options within it and if we blast back to Neil’s blog before anyone knew how effective it is to Tell the Truth in Lending; lying about fees which all of them did will put you within the boundariesnof rescission, $35 error and you can back out.
    They do his ndreds of millions of mortgage transactions and over charge more than $35 hundreds of millions of times year after year, transaction after transaction and courts act like the banks need to be protected from us.
    We are not predatory!
    Just look over what Neil disclosed back tlin 2008 before this mess began and we are 7 years in this tribulation and act like we need to teach a judge how to provide justice Ina case. Really?

    https://livinglies.wordpress.com/2008/05/23/the-federal-truth-in-lending-act-what-you-don%e2%80%99t-know-can-hurt-you/

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

  244. Bobhurt, I honestly don’t understand how you can interpret the following the way you do:

    “Justice Scalia noted that while it was “true that rescission traditionally required either that the rescinding party return what he received before a rescission could be effected (rescission at law), or else that a court affirmatively decree rescission (rescission in equity),” [TILA] “disclaims the common-law condition precedent to rescission at law that the borrower tender the proceeds received under the transaction. 15 U. S. C. §1635(b).” Justice Scalia also reasoned that “to the extent §1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.””

    Banksters everywhere have their left hand to their forehead while their right hand clutches their pearls in dismay. “Whatever will we do? It’s not right! This isn’t fair! Forever, all we’ve had to do is ignore these letters!”

  245. @johngault
    Thanks for providing the BONY Mellon v Kieran info. Clearly, the bank and borrower can have cases raging simultaneously in state and federal court. The bank knows that would deplete the resources of the typical borrower. And now the remand will require litigation of the TILA rescission issue, specifically does the borrower have the tender? If not, no rescission will happen, but that might undo the foreclosure. The Kieran’s attorney might have the savvy to get significant setoffs for Kieran, resulting in a low balance or the house free and clear. The fireworks might get interesting.

    I would advise Kierans to find other causes of action against BONY Mellon, and its confederates and antecedents in the deal. Then Kierans might win some punitive damages.

  246. They have 20 calendar days to respond with a lawsuit. If they dont which they IN MOST CASES cant they do not have a valid claim.

    End of conversation.

    NEIL GARFIELD RULES

  247. This Jesinoski opinion dealt only with the right to effect the rescission subsequent to 3 years after the borrower provided notice of TILA rescission within 3 years after receiving the loan. We should all remember that in a rescission, both parties must return one another’s money.

    No one should doubt the bank’s ability to tender. But everyone has reason to doubt the typical borrower’s ability to tender. Any lender who believes the borrower will not tender has good reason to balk at returning the borrower’s money, especially in the case of an underwater loan or failure to make timely mortgage payments.

    Thus, mutual “TENDER” controls every rescission. Lender can tender, but not hand off the money to the borrower till borrower tenders. Once both have tendered, they hand off. But borrowers seldom have that ability to tender. This borrower failure explains why lenders do nothing till the borrower sues or offers rescission as an affirmative defense in a foreclosure action.

    I have made the point that the court has a duty to get to the bottom of the issue and do what’s right, whether creditor forecloses or borrower sues for TILA rescission. The court will NOT order rescission unless:

    1. The borrower proves creditor violations justify TILA rescission within the scope of the law.

    2. The borrower can tender what the court’s arithmetic shows necessary to settle the debt.

    TILA rescision applies to only a minuscule percentage of borrowers because:

    1. They did not timely serve notice,
    2. They borrowed to purchase rather than to refinance,
    3. They cannot prove the lender violated TILA,
    4. They cannot tender payment according to court arithmetic.

    So, here I provide the most important issue to readers:

    The court will not exonerate the borrower from all or part of the debt the debt UNLESS the borrower can prove that one of these parties injured the borrower at the inception of the loan or during its term:

    1. lender,
    2. appraiser,
    3. mortgage broker,
    4 title company,
    5. realtor,
    6. seller,
    7. lawyer,
    8. servicer, or
    9. some other party.

    Once the reader comes to grips with the above realities, the reader becomes qualified to ignore the ravings of Garfield and his minions, and focus on attacking the loan and its perpetrators for injuries at the inception.

    Why?

    Because YOU CANNOT DEFEAT FORECLOSURE OF A VALID NOTE THE BORROWER BREACHED. Nearly every dismissal for lack of standing results in refiling, appeal, and win for the creditor, nationwide. Courts do NOT like to give borrowers a free house because that would simply amount to government-assisted thievery.

    The incessant effort of Garfield to focus on everything but the above list of injuries explains why his law firm and all of his club of lawyers who “get it” merely bilk their clients for the privilege of losing their realty to foreclosure, short sale, deed-in-lieu, or an onerous loan mod (which mostly end in foreclosure), and why they don’t win damages for their foreclosure victim clients.

    Google MortgageAttack to see proof of what works.

  248. Hard to get “transparent discovery” IN THE COURT! Books and records are not always aligned with what really has happened to the “original” notes….SC. I made no mention of discovery outside the court, FYI.

    I sent rescission way back, to no avail and having little experience in IT, I got a letter saying oopsy, sorry, can’t be done! Left it alone then….may revisit? Depends, following the story line here, to see if anything makes sense.

    Only drink kool-aid sometimes, depending on the heat! Always verify and validate any info given.

  249. @Bob Hurt,

    Thank you.

    You’re flying very high by assuming that they’ll understand the mechanics of rescission. I’m still working on debunking the “I sent a rescission letter, therefore I’m entitled to rescission because Scalia said I don’t need to sue.”

    Garfield, the Officer of the Court, did a mighty job on them.

  250. You know, I never really believed that any commentors here were bankster shills. til now. But the facts are that a few people here are just not going to quit their spiels and stop denying the validity and reality of case law put right in their faces. Beware what you read – you’re on the indoctrination course. We could (and do) put 5 cases here saying it’s blue and they would still posit it’s purple. Oh, and we’re the ones drinking too much kool aid. Nah, I prefer me some Jack.

  251. If anyone’s been reading my comments around here lately, you’ve seen some discussion of frcp 60 and mtns for reconsideration. When homeowners seek relief under 60, they get the book thrown at them.
    You should see what garbage Chase came up with in Nguyen (basically blamed its counsel’s oversight and this, according to Chase,
    constitutes the “extraordinary circumstances” contemplated by rule 60.
    If anyone wants to read it, it’s at scribd as “Nguyen Chase Motions Rule 60 and Rule 55 re: Default Judgment” (aka the fine art of legal bullsh$t). I also posted Nguyen’s complaint (re: rescission, etc).

  252. Can anyone show me how Rock’s assessment of the TILA rescission issue fails to align with prevailing the appellate court opinions?

    I believe it important for people to THINK CAREFULLY about how to implement a TILA rescission. The idea: to make lender and borrower as whole as prior to the loan.

    Let’s run through a hypothetical situation.

    Both borrower and wife both signed an acknowledgment of receipt of their respective disclosures. Borrower finds only one TILA disclosure in loan packet for himself and wife. So, borrower sends timely notice of rescission to lender.

    Lender balks at returning borrower’s money because lender sees signed acknowledgments in lender’s folder for that borrower.

    Furthermore, borrower stopped paying after 2.5 years, and has begged for a loan mod, complaining that he lost his job and cannot make such high payments after interest rate went up.

    Additionally, house values (including borrower’s) have plummeted since closing, driving the loan 20% under water.

    Lender knows borrower cannot tender a return of all money he gave to lender.

    All of this terrible reality proves one thing. The lender would have to become stupid in order to return borrower’s money because the borrower could not return lender’s money, not even after selling the house to raise as much money as possible.

    The foregoing constitutes a typical scenario among the rare rescission efforts. Read what the law has to say in 15 USC 1635(c) about rebuttable presumption of delivery of required disclosures:

    “Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom information, forms, and a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.”

    The lender can imagine that the borrower will soon default on payments, whereupon the lender will initiate foreclosure in the normal manner.

    So you see, the borrower must sue the lender or raise rescission as an affirmative defense in the foreclosure lawsuit.

    The court will never order a rescission when the borrower has no ability to tender full payment after the court does the arithmetic, particularly not when the borrower claims to be broke.

    The court will subtract the amount the borrower paid from the amount the lender paid AND factor in accrued interest and escrow plus lender’s legal fees.

    Rock correctly pointed out the applicable law in his form letter:

    “This rescission is based on the provisions of TILA, including but not limited to 15 U.S.C. 1635(a) and 12 C.F.R. 226.23(b)(5).”

    TILA (15 USC 1635) only takes up 3 browser pages.

    TILA Regulation Z (12 CFR 226) – subpart C deals with disclosures and rescission and takes up quite a few pages guaranteed to cure insomnia.

    I encourage everyone to read it with the intent to see how it applies typically, and to see the common sense underlying it.

    For example, why do you suppose Congress let TILA rescission apply to refinance mortgage loans, and not to purchase money loans?

    Give up? Because lawmakers wanted to minimize the risk to family homes resulting from the existing home owners taking on a huge debt. They wanted borrowers to go into such loans with eyes wide open and with full awareness that they could get out of it if the lender misbehaved.

    Get more at Mortgage Attack

    NO. I don’t sell anything. So put away your wallet. And your Kool-Aid.

  253. “Conspicuously missing from Macklin’s Motion is any discussion of the
    controlling law of when a final judgment may be vacated based upon a
    post-final judgment change in controlling law stated by an appellate court.”

    I take this to mean that even tho (if) the court recognizes the implication to M (et al) of the jes case, the court is saying he had to also argue the law which says a judgment may be vacated as a result of new precedent, mol. I think it was cheesy or something to add that burden when obviously M’s reliance was on the jesinoski case. And btw, there’s not really a change in controlling law. There’s been the proper application of existing law by our highest court.

  254. PS keiran did not post the bond and bony’s sj was granted. it was determined that failure to post the bond was not grounds for sj as there was no requisite finding that material issues of dispute no longer existed.

  255. THE BANK OF NEW YORK MELLON v. KEIRAN, A14-0304 (Minn.App. 4-6-2015)
    The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for The Certificateholders of CWABS Inc., Asset-backed Certificates, Series 2007-6, Respondent, v. Alan G. Keiran, et al., Appellants, Provincial Bank, et al., Defendants.
    Nos. A14-0304, A14-0620.
    Minnesota Court of Appeals.
    Filed April 6, 2015. (TILA Rescission case)

    “In this mortgage foreclosure case, appellants argue that summary judgment cannot withstand de novo review. We reverse and remand for further proceedings consistent with this opinion……

    …,Home Capital assigned the promissory note to Countrywide Home Loans Inc., (jg: if you say so) and the note was subsequently assigned to respondent Bank of New York Mellon (BNY Mellon) (jg: again if you say so). BAC remained the servicing agent. On August 4, 2011, Mortgage Electronic Registration Systems Inc., (aka servicer’s employee) as Home Capital’s nominee, assigned the mortgage to BNY Mellon…..

    Meanwhile, Keirans ceased making payments on the mortgage loan and, on October 8, 2009, sent Home Capital and BAC letters, purporting to rescind the mortgage loan on the bases that they were not provided “[s]ufficient correct copies of a Truth in Lending Disclosure Statement … in a manner
    [they] could retain” and that “[they] did not receive the correct Truth in
    Lending Disclosure Statements.” Keirans alleged that “failure to provide
    effective notice of these mandatory disclosures effectively extend[ed their] rescission rights.” On January 7, 2010, BAC sent Keirans a letter, enclosing copies of various documents and informing Keirans that their “request to rescind the mortgage loan transaction [wa]s denied.”…..

    In October 2010, Keirans sued Home Capital, BAC, and BNY Mellon in federal district court, alleging violations of the Truth in Lending Act and seeking a declaration that their rescission is valid, termination of any security
    interest in the property, an injunction against non-judicial foreclosure
    proceedings, and monetary damages. The defendants moved for summary judgment, and on November 30, 2011, the federal district court granted the defendants’ motion on the basis that Keirans failed to commence their lawsuit prior to the end of the three-year period of repose under 15 U.S.C. § 1635(f). Keirans appealed the summary judgment to the United States Court of Appeals for the Eighth Circuit..

    While Keirans’ appeal in the Eighth Circuit was pending, BNY Mellon
    commenced a foreclosure by action against Keirans in state district court, seeking a monetary judgment, a decree of foreclosure, and a deficiency judgment. Keirans answered, moved for a stay of proceedings pending their appeal to the Eighth Circuit, and asserted as affirmative defenses their rescission of the mortgage loan, res judicata, and collateral estoppel. BNY Mellon moved for summary judgment, and Keirans responded to the motion, arguing that they had successfully rescinded the mortgage loan. Keirans requested that the state district court either deny BNY Mellon’s motion or stay the proceedings and order Keirans “to post a reasonable bond consistent with the fair market rental value of the property, or some other reasonable monthly mortgage-like payment in an amount to be determined by the Court.”
    On December 13, 2012, the court denied BNY Mellon’s motion for summary judgment,……..

    On July 12, 2013, the Eighth Circuit affirmed the federal district court’s
    grant of summary judgment; subsequently, BNY Mellon again moved for summary judgment in state district court. At a hearing on October 14, Keirans requested a continuance, advising the court that they intended to petition for certiorari review by the United States Supreme Court and had obtained an extension to file their petition. The court granted a continuance and scheduled a status hearing for January 3, 2014………….

    jg: I’ve included this part for Minnesotans. It’s nuts to me. BONY had cases going in both state and federal court. Keiran argued the propriety of that:

    Keirans’ argument fails because it rests on an incorrect premise. In
    Minnesota, “an action to foreclose is not an action in rem.” Whalley v.
    Eldridge, 24 Minn. 358, 361 (1877). On the contrary, the supreme court has
    held that “an action to foreclose is one in personam,” although “in a sense it is in the nature of a proceeding in rem, because it has for its object the enforcement of the lien of the mortgage on specific property.” Winne v. Lahart, 155 Minn. 307, 310, 193 N.W. 587, 589 (1923); see also JPMorgan Chase Bank, N.A. v. Erlandson, 821 N.W.2d 600, 606 (Minn. App. 2012) (“A mortgage foreclosure by action requires a judicial decree and approval of sale and is an in personam proceeding, although it is in the nature of a proceeding in rem since its purpose is to enforce a lien on the mortgaged property.” (quotation omitted)). Because BNY Mellon’s foreclosure action in state district court is in personam under Minnesota law, the doctrine of prior exclusive jurisdiction is inapplicable. The district court therefore did not err by exercising jurisdiction…..

    On January 20, 2015, the United States Supreme Court granted certiorari review of the Eighth Circuit’s opinion affirming summary judgment, vacated judgment, and remanded to “the Eighth Circuit for further consideration in light of Jesinoski v. Countrywide Home Loans, 574 U.S. ___, 135 S.Ct. 790, 190 L.E.2d 650 (2015).” Keiran v. Home Capital, Inc., 135 S.Ct. 1152, 1152 (Jan. 20, 2015).

    In Jesinoski, the Supreme Court determined “that rescission
    is effected when the borrower notifies the creditor of his intention to
    rescind. It follows that, so long as the borrower notifies within three
    years after the transaction is consummated, his rescission is timely. The
    statute does not also require him to sue within three years.” 135 S.Ct. 790, 792……”

    Kudos to Keiran and to attorney Jeramie Richard Steinert, Steinert, P.A., Minneapolis, Minnesota (for appellants).

  256. @ All ,

    Perhaps I wasn’t clear … what I meant to say was that for the “lender” , who must unwind the deal first before we get to “tendering back” stage ,, and that in order for us to “tender back” the only path is for the “lender” to be open with discovery. I did not mean to infer (and I didn’t think that I was unclear??) that rescission is somehow worthless because we will not get discovery , I meant exactly the opposite… or perhaps the detractors of NG are correct that the banks will refuse to comply with the implied opening of the books… in a normal world (pre 1998) that would be in their interests and the only way for them to recover monies lent… Discovery means finding the truth… and in my case if Bank of America refuses to open the kimono , they are deciding to force the courts into a situation where they default in the negotiations ,, we get the truth in their silence , they lose a small amount and they can blather on with some drivel that will appeal to Rock that they have not lost “on the merits” or some such nonsense.

    Anyone that is looking for more will be disappointed.

  257. Shadowfat, you have an attorney because you can’t tie your shoes.

    Although the judge probably would go easy on you what with all the drool.

  258. “from this point forward…” typo. Just for the catty crowd posting here.

  259. ExTolled…. That why I have an attorney.
    You didn’t … You drank Kool-aid and lost!!

  260. Neidermeyer,

    “Before you can tender back you must know what the amount to tender is, and to whom to tender back. That means DISCOVERY.
    I’ll make it simple for you .. WE ALL WANT DISCOVERY …”

    Well…

    Then Garfield is wrong: rescission MUST be the object of a lawsuit if one expects to successfully enforce it. No discovery without a lawsuit, right? Just sending a letter does not automatically guarantee it. And Scalia never said litigation was not required: litigation is always required in front of bad faith. So… all the morons reading Scalia as a free pass to instant rescission on the basis of one letter are in for a rude awakening. And Garfield presenting rescission as a done-deal by simply sending a letter is… misrepresenting the law to a level seldom reached. Bad move on the part of an attorney. Funny: Garfield caused the same misunderstanding years ago with his QWR: he forgot (omitted) to tell people that sending one wasn’t enough: one HAD to act upon it (right Carrie?)

    Of course you all want discovery. Has anyone wondered why so many here never got to that level? Might it be… such a poor understanding of the system that crying, whining, complaining, filing ludicrous and irrelevant pleadings, going to court with a bitchy attitude and showing contempt for the system?

    How many LL cult followers, for this point, forward will ever get to discovery on rescission?

    Interesting question, given the average IQ displayed here, day in, day out…

  261. Bingo Neidmeyer.
    I have been trying to get a payoff and the name of the original creditor since the spring of 2010 outside of court.
    You can’t get discovery outside of court.

    Can you say obstruction is the same as having dirty hands?

  262. Bingo, neidermeyer….Discovery, Ha, Ha, Ha, try and get it!

    E…..you are silly and funny>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

    Macklin, last I knew was charging people to write Motions, Pleadings, etc…I hope no harm has come to them, other than losing money they cannot afford to lose!

  263. @ Shadowcat ,

    Tender or lose? OK , I’ll buy that but you must look at what tendering infers … it’s simple enough for a caveman (Rock?) to understand.

    Before you can tender back you must know what the amount to tender is, and to whom to tender back. That means DISCOVERY.

    I’ll make it simple for you .. WE ALL WANT DISCOVERY … In discovery we discover that the money came from an undisclosed party with no security interest , that insurance products have paid off the note in full , that after being paid off the extinguished debt was fraudulently sold and possibly resold multiple times to parties calling themselves servicers.

    For me , assuming the property was insured only once , and at the appraised value and not the loan amount … That means it is free and clear to me plus I am owed at least $350k … I’ll take that.

  264. Shadowcat still thinks you have to tender in rescission, due to the fact that she can’t comprehend legal docu…um….pretty much anything, but she heard it from Rock so it’s gotta’ be so. The only reason she scowls at folks here is because she idolizes Christine and will do anything to get on her good side. But alas….Christine has no good side, not even a fair top or bottom, just an old piss and vinegar soaked body attached to a wrinkled head….all mussed up from all the worrying she does about how Garfield is leading folks astray, even though those same folks are old enough to chart their own courses and make up their own minds.

    But Christine sees it as her life’s quest, butting into someone else’s blog to tell everyone why they’re wrong and she’s right. Tough gig that. So much time spent berating folks simply for comparing notes and analyzing cases….there’s a chapter in the DSM V on that pitiful condition, for sure. Probably even a picture of her. Poor thing. I think I’ll do a kick-starter and see if I can get her some help. She can thank me later.

  265. And they to shall tender or lose the house ……..
    Recession 101
    The A man has been Scratched

    Cat Scratch Fever
    Symptoms…. Delusions

  266. Shadowpussycat whats up? who reads the posts for you? I know you cant read

  267. ShadowCat is so low she does’nt even have 9 lives.
    She has low life

  268. Shadow cat is so low she can’t even …………..

  269. Christine and Rock Suleiman are making out like a bandits trashing somebodies blog

    Gutter Low life’s who have no clue.

  270. You know, it might just be another reason these notes aren’t negotiable instruments: because one in poss of a bearer note is NOT entitled to
    an assgt of the collateral instrument and if he attempts to collect on the note by its lonesome, he may well have caused the true note owner to lose its security (“security first rule”). Or even how bout this? ABC’s got the note and it’s a bearer. Under the UCC (but not the note imo), ABC is entitled to enforce. But Ameriquest, the note’s true owner, is the lender / creditor and beneficiary of the dot and it would like to recover what it’s owed since its servicer has informed them that the note’s in default. How is the issue resolved? I’d say by first and foremost looking at the contract between Ameriquest and the borrower, where a court would find that ABC does not have a right to payments: judgment for Ameriquest (and an order for ABC to fork over Ameriquest’s note). Ameriquest could try a lost note affidavit, but then it at least has to explain how ABC got its note. But for the sake of resolution to the question, these parties are after the borrower at the same time.

    It’s just crazy for some states, like AZ I think, to say that a ben may foreclose without reference to the note, since it’s the note’s default which triggers the right to sell in the dot. Together, the note and its collateral agreement comprise the entire agreement between the parties. How a court may allow someone to rely on only a part of an
    entire contract is beyond me. The note and the dot reference each other even, so what the heck? AZ relies on a statute about what a ben may do. Surely that statute contemplated that a ben is also the lender.
    If not, it needs to go. It’s crack.

  271. I said: DB is the ‘holder of a note post f/c? That’s a good trick. I would have to, tho, go back and see the status of a note when a f/c has happened. It may well be about the amt of any credit bid or the amt received at trustee’s sale.

    It’s been a while, but I think the note is extinguished to the extent of the purchase price at the trustee’s sale. If 300k is owed on the note, and either a third party or the lender with an alleged credit bid bids 300k, the note is toast. The deed of trust is just plain extinguished as I recall (only) by a trustee’s sale. But if M actually rescinded, the creditor had no credit to bid*. I don’t know who was the high bidder at trustee’s sale. Deutsche is apparently claiming the violations weren’t its, so it has no liability and wouldn’t be subject to the rescission (if M’s notification to whomever were actually a rescission) I can tell you Deutsche knows better as evidenced in a case I posted recently (also involving Ameriquest). But a question, least for me, is what is the effect of Deutsche knowing better? Would judicial notice of the other case estop Deutsche from saying otherwise and denying its successor liabiity? I would think so.

    * and imo, one in mere possession of a bearer note, even where reliance is on the UCC for enforcement rights, has no claim to a credit bid (nor a right to assignment of the note’s collateral instrument).

  272. Neil… Might I suggest an eye exam?… You see things fuzzy.

    The rest of you folks.. Might I suggest a Title and Mortgage Exam?

    Rents?

    Irrevocably Yours,
    May you live a long and prosperase Life.

    Live Laugh Love Learn

    My Cookie Jars

  273. Hell as no fury like a woman scorn.

    You steal and gamble with my assets …….your ass is grass.

    Christine…. Keep Up the Tough Love!

    Many Blessings to All!

  274. Let’s compare…

    Garfield makes out like a bandit charging people for useless crap reports no court looks at. He doesn’t try cases and no one can claim having won anything thanks to his nebulous theories.

    And then…

    There are really good, serious attorneys, who actually argue in court, win cases and still manage to write off their legal bills in order to help homeowners save their house. Thing is… Those guys with proven results don’t come here for inspiration. As simple as that. So, the martyr act played here by suckers willing to listen and participate to the blaming game from anyone and everyone is the biggest joke in foreclosure defense.

    By the way… Mark Stopa, also gives back. And he wins cases. Coincidence?

    http://www.troydoucet.com/law-firm-writing-off-928000-in-client-bills/

  275. NG: “9. If any court were to allow “defense” in a rescission enforcement action AFTER the 20 day window the goal of allowing the borrower to get another loan to pay off the old lender(s) would be impossible”

    well, yeah it’s late, but I wonder: if the borrower wants to take advantage of tila’s “equitable” re: the amt of tender, must he do so by filing suit to argue the amt within 20 days? Or may he wait if and since
    the lender didn’t do what it must?
    There’s a contractual defense called “impossibility of performance”. You agreed to get your corn to sam’s by a date certain, but a tornado hit your silo, so you simply cannot. Your performance is impossible.
    In the same way, it may be impossible to get a new loan sufficient to pay the tender because of diminished value of your home. I don’t know that this contractual defense may be used in reference to a law v a contract, but one could argue it, anyway and find out. It just isn’t equitable for the fault of another which has put one in harm’s way (by violating tila) to put one in a position of “impossible” and thus to lose one’s home. There’s no way that’s a goal or even imo a contemplation of tila. As a matter of equity imo blessed by tila by its express language, and apparently then within a court’s authority, one should only have to pay what one qualifies (what a concept) to borrow based on the current value of one’s home (together with the amt returned maybe) or the value on the date of rescission, which ever is lower.

  276. Maybe I’ll get to the rest of this decision. It’s very, very long and I keep losing my place since I had to turn it into text and can’t print it. I think Macklin is a hero for his efforts, whether he won or lost and I don’t mean to embarrass anyone by posting this case. Unless 9th C precedent were the same as the jesinowski case, he didn’t have much to go on – and procedure is a killer. Some of us will benefit from the discussions in this case, at least to the extent they’re legit and we have him to thank for that. Even where I or anyone disagree with the court, the court’s take is still a head’s up on the potential challenges. I can’t say that I’ve ever seen a court mis-cite a case it uses for reliance, but I know the banksters do it all the time, so it’s a worthwhile expenditure of one’s time to see if a case actually says what a bankster contends.

  277. Part V:

    FEDERAL RULE OF CIVIL PROCEDURE 60(b) RELIEF

    Rule 60(b), as made applicable by Bankruptcy Rule 9024, governs the
    vacating of a judgment or order. Grounds for relief from a final judgment,
    order, or other proceeding are limited to:

    (1) mistake, inadvertence, surprise, or excusable neglect;

    (2) newly discovered evidence that, with reasonable diligence,
    could not have been discovered in time to move for a new trial under
    Rule 59(b);

    (3) fraud (whether previously called intrinsic or extrinsic),
    misrepresentation, or misconduct by an opposing party;

    (4) the judgment is void;

    (5) the judgment has been satisfied, released, or discharged; it
    is based on an earlier judgment that has been reversed or vacated;
    or applying it prospectively is no longer equitable; or

    (6) any other reason that justifies relief.

    Red. R. Civ. P. 60(b). A Rule 60(b) motion may not be used as a substitute for a timely appeal. Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199 (5th Cir. La. 1993). The court uses equitable principals when applying Rule 60(b). See 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2857 (3rd ed. 1998).

    The so-called catch-all provision, Rule 60(b)(6), is “a
    grand reservoir of equitable power to do justice in a particular case.”
    Compton v. Alton S.S. Co., 608 F.2d 96, 106 (4th Cir. 1979) (citations
    omitted). The other enumerated provisions of Rule 60(b) and Rule 60(b) (6) are mutually exclusive, Liljeberg v. Health Servs. Corp., 486 U.S. 847, 863 (1988), and relief under Rule 60(b)(6) may be granted in extraordinary circumstances. Id. at 863 n.11.

    A condition of granting relief under Rule 60 (b) from the entry of a
    default judgment is that the requesting party show that there is a
    meritorious claim or defense. This does not require a showing that the
    moving party will or is likely to prevail in the underlying action. Rather,
    the party seeking the relief must allege enough facts, which if taken as
    true, allows the court to determine if it appears that such defense or claim could be meritorious. 12 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶¶
    60.24[1]-[2] (3d ed. 2010); Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984) (“Second, judgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits.”)

    The Ninth Circuit in Falk further addressed the proper application of
    Rule 60(b) in even the default judgment context, stating,

    We note, however, that these concerns are not intended to allow
    challenges to the correctness of the judgment itself. See Inryco,
    Inc. v. Metropolitan Engineering Co. Inc., 708 F.2d 1225, 1230. (7th
    Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 347, 78 L.Ed.2d 313
    (1983). A Rule 60(b) motion to vacate should not be treated as a
    substitute for an appeal. De Filippis v. United States,
    567 F.2d 341, 342 (7th Cir. 1977).
    Id.
    The judgment in this Adversary Proceeding was not granted as a default judgment, but based on the evidence Macklin and DBNTC chose to present on cross summary judgment requests. As stated by the court, the evidence was not in dispute. Even considering the standard for vacating default judgments, in which the defendant is not afforded the opportunity to conduct discovery and present evidence, Macklin has not shown (1) he has meritorious claims; (2) that DBNTC will not be prejudiced by continued delay

    jg: dammit. this isn’t to my knowledge macklin’s burden. What he wanted was to amend his complaint and isn’t it the other guy’s burden to show prejudice if this is allowed?

    and further
    multiple court litigation over the same issues with respect to its interests
    in the note and Property; and that (3) that Macklin and his multiple
    attorneys are not culpable in connection with the entry of the final
    judgment in this case in light of how they chose to draft the complaints,
    prosecute the case, not seek to amend the complaint, conduct discovery, requesting summary judgment, and present evidence to the court. See discussion in Falk of the three basic considerations of vacating a. default judgment. Id.

    jg: well, its true that a mtn for reconsideration is likened to asking to vacate a default judgment. But, even so, rule 60 has its own tenets.

    THE POST-JUDGMENT RULINGS IN JESINOSKI AND MERRITT DO NOT WARRANT VACATING THE JUDGMENT AND ORDERS IN THIS ADVERSARY PROCEEDING PURSUANT TO RULE 60(b)(6)

    Conspicuously missing from Macklin’s Motion is any discussion of the
    controlling law of when a final judgment may be vacated based upon a
    post-final judgment change in controlling law stated by an appellate court. Macklin merely asserts that it is fair, right, equitable, and necessary to prevent Macklin from being further prejudiced.

    jg: there’s some truth to this one, but he was prob exhausted.

    The court begins its consideration of the application of Rule 60(b) (6)
    based on the 2015 decision in Jesinoski and the 2014 decision in Merritt by
    reviewing the Supreme Court ruling in Ackermann v. United States,
    340 U.S. 193 (1950). When presented with a request for relief under Rule 60(b)(6), the Supreme Court held that the requisite “extraordinary
    circumstances” warranting such relief did not exist where a party, who was otherwise able to, failed or elected not to prosecute an appeal of the judgment. Id. at 201.

    jg: we must learn to appeal (just what we all wanna do in our spare time, right? We wouldn’t have to if we got presumptions 86’d and got meaningful discovery.

    More recently, the Supreme Court addressed the Rule 60(b) (6) standards in Gonzalez v. Crosby, 545 U.S. 524 (2005), stating:

    Second, our cases have required a movant seeking relief under Rule
    60(b) (6) to show “extraordinary circumstances” justifying the
    reopening of a final judgment. Ackermann v. United States,
    340 U.S. 193, 199, 95 L. Ed. 207, 71 S.Ct. 209 (1950); accord, id.,
    at 202, 95 L. Ed. 207, 71 S.Ct. 209; Liljeberg, 486 U.S., at 864,
    100 L.Ed.2d 855, 108 S.Ct. 2194; id., at 873, 100 L.Ed.2d 855,
    108 S.Ct. 2194 (Rehnquist, C.J., dissenting) (“This very strict
    interpretation of Rule 60 (b) is essential if the finality of
    judgments is to be preserved”).

    Petitioner’s only ground for reopening the judgment denying his
    first federal habeas petition is that our decision in Artuz showed
    the error of the District
    Court’s statute-of-limitations ruling. We assume for present
    purposes that the District Court’s ruling was incorrect. As we noted
    above, however, relief under Rule 60(b)(6) — the only subsection
    petitioner invokes — requires a showing of “extraordinary
    circumstances.” Petitioner contends that Artuz’ s change in the
    interpretation of the AEDPA statute of limitations meets this
    description. We do not agree. The District Court’s interpretation
    was by all appearances correct under the Eleventh Circuit’s
    then-prevailing interpretation of 28 U.S.C. § 2244 (d)(2). It is
    hardly extraordinary that subsequently, after petitioner’s case was
    no longer pending, this Court arrived at a different interpretation.

    The change in the law worked by Artuz is all the less
    extraordinary in petitioner’s case, because of his lack of diligence
    in pursuing review of the statuteof-limitations issue. At the time
    Artuz was decided, petitioner had abandoned any attempt to seek
    review of the District Court’s decision on this
    statute-of-limitations issue.

    This lack of diligence confirms that Artuz is not an extraordinary
    circumstance justifying relief from the judgment in petitioner’s
    case. Indeed, in one of the cases in which we explained Rule 60(b)
    (6)’s extraordinary-circumstances requirement, the movant had failed
    to appeal an adverse ruling by the District Court, whereas another
    party to the same judgment had appealed and won reversal. Ackermann,
    340 U.S., at 195, 95 L. Ed. 201, 11 S.Ct. 209. Some years later, the
    petitioner sought Rule 60(b) relief, which the District Court
    denied. We affirmed the denial of Rule 60(b) relief, noting that the
    movant’s decision not to appeal had been free and voluntary,
    although the favorable ruling in the companion case made it appear
    mistaken in hindsight. See id., at 198, 95 L. Ed. 201, 11 S.Ct. 209.

    Id. at 535-538.

    In 2009, the Ninth Circuit visited the “extraordinary circumstances”
    requirement for Rule 60(b)(6) in Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009). As with Gonzales, the Ninth Circuit was considering whether an order relating to a habeas corpus petition (involving the liberty interests of an incarcerated person) should be vacated. The vast majority of the appellate cases addressing this issue relate to such writs, as opposed to basic civil litigation.[fn12]

    In applying the “extraordinary circumstances” requirements for Rule
    60(b)(6) relief required under the Supreme Court decisions in connection with habeas corpus petitions, the Ninth Circuit considered factors used by the Eleventh Circuit in Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987) and the Supreme Court in Gonzales. The factors considered (and expressly stated not to be a “rigid or exhaustive checklist”) in Phelps were:

    A. Did the change in law overrule what was otherwise settled legal
    precedent and was the trial court ruling correct under the prior
    law? Gonzales, 545 U.S. at 536. “It is hardly extraordinary that
    subsequently, after petitioner’s case was no longer pending, this
    Court arrived at a different interpretation [of the law].” Id.

    B. Had the party seeking the Rule 60(b) (6) been diligent in
    pursuing review of the issue for which the relief is now sought? Id.
    The lack of diligent pursuing an appeal “[c]onfirms that [a
    subsequent change in the law by the Supreme Court] is not an
    extraordinary circumstance justifying relief from the judgment. . .
    .” Id.[fn13]

    C. Would reconsidering the final judgment undo the past, executed
    effects of the judgment. Ritter v. Smith, 811 F.2d at 1402.

    D. The delay between the finality of the judgment and the Rule
    60(b)(6) motion. Id. at 1403.

    E. The close relationship between the original judgment and the
    subsequent decision changing the law. Id. at 1402.[fn14]

    F. When considering a petition for habeas corpus, there is a
    serious issue of comity between the state and federal judiciaries.
    Id. at 1404.

    In Phelps, the Ninth Circuit concluded that the movant hit all six of the
    non-exclusive, non-mechanical application factors:

    In this case, the lack of clarity in the law at the time of the
    district court’s original decision, the diligence Phelps has
    exhibited in seeking review of his original claim, the lack of
    reliance by either party on the finality of the original judgment,
    the short amount of time between the original judgment becoming
    final and the initial motion to reconsider, the close relationship
    between the underlying decision and the now controlling precedent
    that resolved the preexisting conflict in the law, and the fact that
    Phelps does not challenge a judgment on the merits of his habeas
    petition but rather a judgment that has prevented review of those
    merits all weigh strongly in favor of granting .Rule 60(b) (6)
    relief.

    Phelps, 569 F.3d at 1140.[fn15]

    Macklin Fails to Provide Grounds For Relief Pursuant to Rule 60(b)(6)
    Macklin requests the court vacate the judgment and order dismissing Causes of Action 1-8 based on the pronouncement of law in Jesinoski and Merritt.
    However, the Motion does not have any discussion of the proper application of Rule 60(b)(6) based on a change of law for cases in which there is a final judgment. Rather, it contains only a general discussion of Rule 60(b) itself and the conclusion, “[t]he catch-all provision, Rule 60(b) (6), has been invoked to relive a party of a final judgment in ‘extraordinary circumstances.’ This case warrants extraordinary circumstance.” Motion, p. 10:16-17.

    As addressed above, Rule 60(b) (6) is not a “catch-all,” “judge make up whatever rule you want” grant of power (jg: how novel – said only in reaction to judges with obvious bents). It is a very carefully circumscribed power which is to be executed only in limited “extraordinary circumstances.” It cannot overlap with or be used to circumvent the requirements of other provisions of Rule 60.

    In Jesinoski, the Supreme Court was presented with a very narrow issue to address — whether a borrower was required to commence suit to enforce a
    rescission under 15 U.S.C. § 1635 within three years of the transaction, or provide notice of the election to rescind within the three-year period. The Supreme Court decided,

    The language leaves no doubt that rescission is effected when the
    borrower notifies the creditor of his intention to rescind. It
    follows that, so long as the borrower notifies within three years
    after the transaction is consummated, his rescission is timely. The
    statute does not also require him to sue within three years.

    Jesinoski v. Countrywide Home Loans, 135 S.Ct. at 792.

    The first question for the court is whether any portion of the prior
    ruling on the motion to dismiss or the summary judgment is based on the grounds that suit had to be commenced within three years, not merely a notice of rescission provided by Macklin.

    jg: which you don’t really answer…..

    With respect to the Supreme Court determining that the suit for rescission need not be filed within the three-year period, Macklin does not direct the court to any portion of the ruling on the motion to dismiss or ruling on the summary judgment motion in which the
    decision was made on that ground. The court’s own review of both rulings, as discussed supra, does not uncover any such grounds being relied upon by the court.

    jg; Was it before the court? kind of reminds me of a Few Good Men when Kaffey (?) asks the soldier for the instructions to get to the mess hall. For some reason, tho it’s diff, it’s what popped into my head. Btw, this isn’t to say that a suit must be filed within the three years; I think, without the ben of more review, it’s more that it isn’t anything new that one needn’t file anything in three years and so can’t be now raised in a rule 60 (as if Jesinowski is just now determining this). So what i would do about this is go look at precedent in the 9th before Jes to see if it were consonant with J (which is what i suggested to Dwight in his area before trying to rely on the Jes case).
    But beware, banksters will say this says something it doesn’t.

    The Ninth Circuit decision in Merritt is equally narrow, addressing only
    whether the tender, or the ability to tender, by borrower as a condition of
    rescission must be pleaded. The Merritt court held:

    For all these reasons, we hold that plaintiffs can state a claim
    for rescission under TILA without pleading that they have tendered,
    or that they have the ability to tender, the value of their loan.
    Only at the summary judgment stage may a court order the statutory
    sequence altered and require tender before rescission — and then
    only on a “case-by-case basis,” Yamamoto, 329 F.3d at 1173, once the creditor has established a potentially viable defense.

    jg: “once the creditor has established a potentially viable defense” That’s a dispositive mouthful, which i’m going to take to mean if the creditor timely went to court to argue the rescission ( before reading yamamoto and merritt and then maybe after even).

  278. Bk trustees have mandates. One of them is to themselves make sure a claimant has a legit claim. They sort of don’t unless it looks like a slam-dunker that the estate (and thus the trustee) will benefit. My source: presentation to a bk trustee conference a few years ago.

  279. Christine, glad to see you have an opinion. But, I don’t personally care if macklin is an expert, an eejit, or related to the man in the moon. His case is of interest to me, win, lose, or draw. So far, i’m thinking maybe both he and the court have made some errors. In his defense, he, like a lot of us, didn’t wake up knowing what he knows today. He’d probably kill to do it over. But I certainly applaud him making a deal with his bk trustee, although the court, unfairly imo, managed to turn it into a negative. Truth of the matter is, I don’t think it’s any of the judges darn business. I don’t have a real feel for this case yet, and maybe I won’t even try to get one. It’s hard to say without real study. But I do thank the court, even as I don’t like the manner, for pointing out that M made a deal with his trustee, which I have in the past suggested and advocated.

  280. fror part 4

    “A. “First and foremost, the Plaintiff brings this Motion for Leave
    to Amend on the close of discovery in the Adversary Proceeding.” The
    court concluded that after more than two years and discovery
    closing, Macklin had ample opportunity to amend his complaint and
    raise additional claims. The court determined that granting such
    leave at the close of discovery, and in light of the prosecution of
    the Adversary Proceeding by the various attorneys of Macklin’s
    choosing, allowing such further amendment “[i]s prejudicial to the
    Defendant and frustrating to the court.” Addendum A, p. 5 at A.”

    Surely they jest. Or surely I misunderstand because it’s exactly after discovery that one would want to amend to address what one now knows (if there were ever any meaningful discovery, and here I note, his mtn to compel was denied. shock) I’d bet a dime to a donut the opp to his mtn wasn’t by the book. I forget, but anyone getting into discovery better go look. It matters a LOT who is objecting to discovery and one other thing. One must be done by the attorney and the other must be done by the party. But really, how dare the court say amendment after the close of discovery is prejudicial to Deutsche?
    Rotten if the court decided this on its own and rotten if deutsche failed to evidence any such prejudice.

  281. JG,

    An expert is someone who:

    1) Made mistakes, got poor results and has the integrity to come out and tell people: “Here’s what I did and it doesn’t work. Since then, here’s what I’ve done differently and why it works.”
    2) Didn’t make mistakes but relied on the appropriate help to get results, understands why and how and has the humility to admit that he wouldn’t have gotten there alone.
    3) Did neither but still managed to get good results… not just once but in several instances.

    An expert is not some guy Garfield endorses, even though he screwed up in every jurisdiction he approached over 6 years, to subsequently lose his house, waste a lot of money on useless litigation, go through 5 attorneys and have absolutely nothing to show for any of it.

    Are losing cases worth looking at? Nope. For one thing, they’re a dime a dozen (mainly manufactured by the Garfields of this world who make out very, very well). And not ONE loser has ever taken responsibility for any of it, whether here or on any of the so-called “foreclosure defense” sites. It’s always the judges or the attorneys fault. Never the homeowner’s.

    Is Macklin an expert? Hell no! He’s someone who allows Garfield to make yet more money from his cult followers. Funny serious attorneys with proven record won’t give him the time of day. Any idea why?

  282. Part IV – these may be messed up (not in order) since my printer isn’t working and I need to copy and not overlap or omit:

    Although Macklin alleges that he received less than what he paid for
    because defendant extracted fees, he does not assert that he suffered an actual injury.

    Id. at 31:10-13.

    Here, there is a valid loan agreement (express contract) between
    Macklin and Defendant.85

    Id. at 31:18-19, FN. 85. [Footnote 85, from which there cannot then be a
    claim for quasi-contract or implied-in-fact contract, citing Lance Camper
    Mfb. Corp. v. Republic Indem. Co., 44 Cal.App. 4th 194, 203 (1996). ]

    VI. Sixth Cause of Action — Civil Racketeer Influenced and Corrupt
    Organizations Act (RICO)

    The RICO claim does not attribute specific conduct to individual
    defendants. The claim also does not specify either the time or the
    place of the alleged wrongful conduct, except to state that “[a]t
    all relevant times, Defendants have engaged in a conspiracy, common enterprise, and common course of conduct, the purpose of which is to engage in the violations of law alleged in the complaint.” This is insufficient.

    jg: well, yeah, I may have to agree on this one.

    Id. at 34:9-15.

    VII. Seventh Cause of Action — Unfair Business Practices, Cal. Bus. &
    Professional §§ 17200 et seq.

    In this case, the seventh claim for relief is dismissed because it
    does not state a claim under any of the three prongs of the UCL. As
    to the “unlawful” prong, the Complaint does not allege the violation
    of any other law that would serve as an underlying violation for the
    UCL. As to the “unfair” prong, the Complaint does not allege any
    legislatively-declared policy to which allegedly wrongful conduct
    may be tethered.

    Id. at 36:21-22, 37:1-5.

    VIII. Eighth Cause of Action — Breach of Trust Instrument

    The Notice of Default [attached as Exhibit 2 First Amended
    Complaint, Dckt. 129], however, clearly states that Macklin could
    bring his account into good standing by paying the past-due amounts
    no later than five days before the foreclosure sale. The Deed of
    Trust contained an acceleration clause, and the Notice of Default
    was therefore allowed to contain a notice of acceleration.

    Because the text of the Notice of Default contradicts Macklin’s
    claim that Defendant did not to inform him of the possibility of
    acceleration and his right to cure, the Motion is granted and the
    Eighth Cause of Action is dismissed, without leave to amend.

    Id. at 39:2-12.

    Summary Judgment For Ninth and Tenth Causes of Action

    For the remaining two causes of action, the parties completed
    discovery.
    The court’s discovery, dispositve motion, and pre-trial conference
    order was filed on June 4, 2012 (after approximately 18 months of
    motions to dismiss, amended complaint, and an answer being filed).
    Dckt. 250.
    All discovery closed on January 31, 2013. Dispositive motions were
    to be heard by March 22, 2013.

    After discovery was completed, on February 21, 2013, Macklin
    filed his motion for summary judgment. Dckt. 307. DBNTC filed its
    opposition and requested summary judgment in its favor [citing
    Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311-12 (9th Cir. 1982);
    see also Rule 56(f) (1)]. After hearing and considering the evidence
    and determining material facts for which there was no genuine
    dispute (Rule 56(a), Bankruptcy Rule 7056), the court granted
    summary judgment for DBNTC and against Macklin on all remaining
    claims.

    The court issued a Memorandum Opinion and Decision stating the
    ruling on the motion for summary judgment. Dckt. 325. A summary
    of the specific grounds upon which summary judgment was granted
    by the court for the Ninth Cause of Action (Wrongful Foreclosure)
    and Tenth Cause of Action (QuietTitle) is:

    At this juncture the court notes that many of the
    “undisputed facts” asserted by Plaintiff [Macklin] are actually
    his own personal conclusions of law based upon his review of
    the undisputed evidence presented by the Parties. Plaintiff’s
    reading of the Assignment of the Deed of Trust and Substitution
    of Trustee, results in his legal determination that Defendant
    [DBNTC] had no interest in the Note. Plaintiff shows no basis for
    having any personal knowledge of what Defendant did or did not do
    with respect to the Note, Allonge, Assignment of Deed of Trust, and
    Substitution of Trustee, but only draws conclusions in his
    declaration from the undisputed documents.

    jg: well, when courts deny meaningful discovery, including
    electronic discovery, this can happen (if true). the lack of
    electronic discovery in these cases is abysmal. Lawyers who
    want to catch up, go to Krohlontrack. We don’t even talk about
    it, but it’s been rote for many suits for many years now.

    Dckt. 325; Memorandum Opinion and Decision, p. 16:13-22.

    The court has before it requests for summary judgment
    asserted by both the Plaintiff and Defendant. Neither provides
    conflicting evidence with respect to a material fact. Rather, both
    sides argue what conclusions of law should be made from this
    undisputed universe of evidence presented to the court.

    jg; I’m hard pressed to believe anything is undisputed or that
    any evidence is a ‘universe of evidence’. That would be highly
    unusual. But, I don’t know since I haven’t seen it.
    Id. at p. 18:16-21.

    Therefore, the court concludes that [Cal. Civ.] § 2932.5 only
    applies to mortgages and not to deeds of trust.

    Id. at p. 29:11-12.

    However, the undisputed evidence presented to the court is that
    Defendant holds the Note, with the Allonge transferring the Note to
    the Defendant. Defendant recorded the Assignment of Deed of Trust
    and Substitution of Trustee in advance of the substitute trustee
    conducting the non-judicial foreclosure sale. No evidence has been
    presented that the Defendant did not have the Note or the right to
    enforce the Note when the substitute trustee conducted the
    non-judicial foreclosure sale.

    Id. at p. 29:18-26.

    The Plaintiff has come before this court seeking a determination
    that the Trustee’s Deed held by Defendant is invalid. In attacking
    that deed, the Plaintiff bears the burden of proof that such deed is
    ineffective or may be avoided. The Trustee’s Deed contains the
    recitals that the requirements of law for mailing, posting, and
    publication of the notice of sale have been complied with for the
    December 14, 2009 non-judicial foreclosure sale. Trustee’s Deed, PI.
    Ex. D, Dckt. 129 at 15. This constitutes prima facie evidence that
    all such notices were given in compliance with the statute. Cal.
    Civ. Code § 2924(c).

    Id. at p. 30:20-28, 31:1.

    The undisputed evidence presented to the court is that Defendant
    holds the Note, with the Allonge transferring the Note to Defendant.

    Id. at p. 31:10-12.

    At best, after two years of discovery Plaintiff presents this
    court with only his speculation and argument that the transfer must
    be defective.

    Id. at p. 31:15-17.

    Based on the uncontroverted evidence presented, the Plaintiff has
    not provided the court with any basis for concluding that the Note
    was not transferred to Defendant, that Defendant did not have the
    right to substitute the trustee, or that Defendant did not have the
    right to enforce the deed of trust at the time of the December 2009
    non-judicial foreclosure sale.

    Id. at p. 32:19-24.

    The absence of any discovery obtained during the two years of this
    litigation by Plaintiff on the point is deafening in its absence.
    The Plaintiff offers no evidence to counter the Trustee’s Deed.
    There is no evidence of any material dispute to Defendant asserting
    ownership of the Property pursuant to the Trustee’s Deed.

    Id. at p. 33:3-8.

    The court having determined that § 2932.5 does not apply to deeds
    of trust and that there is no evidence contrary to Defendant having
    been transferred the Note and being entitled to enforce the Deed of
    Trust, no basis exists to quiet title to the Property in favor of
    the Plaintiff exists.

    Id. at p. 33:17-21.

    Plaintiff was afforded an opportunity and has opposed Defendant’s
    request for entry of summary judgment based on Plaintiff’s Motion.
    Plaintiff has not provided the court with any evidence disputing the
    ownership of the Note and right to enforce the Deed of
    Trust as of the 2009 substitution of trustee and foreclosure.

    Id. at p. 34:15-20.

    The Plaintiff put his best evidence forward, which are copies of
    the Substitution of Trustee, Assignment of Deed of Trust, the two
    undated allonges, and the Trustee’s Deed. Defendant adds the Note
    and Deed of Trust, Allonge, additional substitutions of attorneys by
    prior holders of the Note, the Notice of Default, and the Notice of
    Sale. It is from this undisputed universe of documents that the
    Parties assert their competing interests.

    Id. at p. 35:7-13.

    Based on the uncontroverted evidence presented to the court, the
    court finds that Defendant has title to the Property pursuant to the
    Trustee’s Deed.

    Id. at p.35:20-22.

    Order Denying October 4, 2012 Motion To File Second Amended Complaint

    While not addressing the specifics of the court’s ruling on the Motion to
    Dismiss and the Motion for Summary Judgment, Macklin does point to the
    court’s ruling on Macklin’s Motion to File a Second Amended Complaint, which
    was filed on October 4, 2012. Dckt. 304.

    Macklin provides what appears to be a block guote from this court’s
    ruling on the Motion to Amend in his Rule 60(b) Motion. The guote as
    stated by Macklin makes it appear that the only reason for denying
    the Motion to Amend is that the one-year and three-year statutes of
    limitation has expired. Such is not a “fair representation” of
    the ruling, which is set forth in the Civil Minutes for that hearing
    and states the grounds for the ruling. Dckt. 304.

    The court attaches as Addendum A to this ruling the Civil Minutes
    from the November 8, 2012 hearing on the Motion for File a
    Second Amended Complaint. The grounds are summarized, and
    cross-referenced to Addendum A, as follows:

    A. “First and foremost, the Plaintiff brings this Motion for Leave
    to Amend on the close of discovery in the Adversary Proceeding.” The
    court concluded that after more than two years and discovery
    closing, Macklin had ample opportunity to amend his complaint and
    raise additional claims. The court determined that granting such
    leave at the close of discovery, and in light of the prosecution of
    the Adversary Proceeding by the various attorneys of Macklin’s
    choosing, allowing such further amendment “[i]s prejudicial to the
    Defendant and frustrating to the court.” Addendum A, p. 5 at A.

    B. Allan Frumkin, counsel for Macklin, represented to the court in
    October 2011 that the First Amended needed to be amended to address
    the deficiencies which resulted in the court having dismissed Causes
    of Action 1 through 8. Mr. Frumkin testified that he had advised
    Macklin of such necessary amendments at that time. Addendum A,
    at B.

    C. Though Macklin and his counsel knew they need to amend the
    complaint and Macklin was aware of such possible amendments and
    claims as early as October 2011, when represented by Alan R.
    Frumkin, Macklin and Mr. Frumkin did not seek leave to amend the
    First Amended Complaint. Addendum A, p. 6 at C.

    D. At the September 27, 2012 hearing on the Motion to Substitute
    Daniel Hanecak, Esq. as new counsel in the place of Holly Burgess,
    Esq. (Macklin terminating her a second time in this Adversary
    Proceeding), Mr. Hanecak assured the court he was aware of the
    discovery and pre-trial conference deadlines in this Adversary
    Proceeding. Addendum A, pg. 6 at D.

    E. After 22 months of prosecution of the Adversary Proceeding and
    the close of discovery, the attempted amendment occurred too late.
    Macklin’s counsel clearly was aware of (and so testified previously)
    that possible amendments were desired by Macklin. Macklin and his
    attorneys did not timely seek leave to amend the First Amended
    Complaint. Addendum A, p. 6 at E.

    F. In denying the Motion, the court concluded,

    To allow for Mr. Macklin and his latest counsel to reset all of
    the litigation at the close of discovery for claims which Mr.
    Macklin and Mr. Frumkin testified that they were well aware of more
    than 20 months earlier is an abuse of the judicial process. As is
    clear from this courts decision on the motion to dismiss the FAC,
    leave was not given to file a second amended complaint due to the
    abusive and unclear pleading practices of Mr. Macklin and his
    counsel. The requirement for filing a motion for leave to amended,
    with a copy of any proposed second amended complaint, afforded the
    court with a minimally intrusive opportunity to insure that the
    pleading practices and deficiencies from the original Complaint and
    [First Amended Complaint] would not be repeated wasting judicial
    resources and putting the Defendant to unreasonable and repeated
    duplicate pleadings. Mr. Macklin and his counsel chose not to take
    up the court on the opportunity to timely and reasonably seek leave
    to file a second amended complaint.

    Addendum A, p. 6 at F.

    Macklin’s reference to this denial fails to address these grounds
    for denying the Motion to File a Second Amended Complaint. Rather,
    the Motion merely strings together several sentences in another
    portion of the ruling where the court considered the possible
    amendments and see whether they represented some grossly extraordinary circumstances by which a close of discovery amendment would be warranted.
    With respect to this review of the proposed Second Amended Complaint, which merely attempted to rehash the First Amended Complaint, the court’s comments include the following:

    G. Macklin failed to show any basis for a failure to verify income
    as the basis of a TILA violation. Addendum A, p. 7 at G.

    H. Macklin failed to show or plead any basis for an assignee of a
    note assuming personal liability for TILA violations of the lender.
    Addendum A, p. 7 at H.

    I. The court applied then controlling Ninth Circuit law
    in determining whether a claim for rescission was stated, concluding
    it was not. Addendum A, p. 8 at I.[fn8]

    J. The court also still concluded that what Macklin pleads as a
    Notice of Rescission was not a notice of rescission. Addendum A, p.
    8 at J.[fn9]

    K. Macklin did not plead a claim for a “table-funded loan” and any
    basis of liability for DBNTC for such a loan. Addendum A, p. 8 at K.

    L. Macklin did not plead an unfair business practices claim under
    California Business and Professionals Code §§ 17200 et seq.
    Additionally, Macklin failed to plead a basis for DBNTC being liable
    for the acts of others asserted to be such violations. Addendum A,
    p. 9 at L.

    M. Macklin failed to plead a claim for failure to form a contract,
    by which the loan money could only be funded from a bank account of AHL. Addendum A, p. 9 at M.

    N. Macklin failed to plead grounds by which Mortgage Electronic
    Registration Systems, Inc. could not serve as a nominee of the
    lender. Additionally, why the current holder of the note could not
    enforce the note and deed of trust. Addendum A, p. 10 at N.

    jg: I have or might have some reasons!

    O. Macklin failed to plead grounds for which the holder of the
    note obtaining insurance in the event the borrower defaults absolves
    Macklin of paying the obligation on the note.

    jg: hmmm….I think that may need to be addressed (but not in this case since I think it’s n/a).

    Plaintiff failed to plead grounds for how DBNTC, as the asserted holder of the note, was liable for the alleged misconduct of others. Addendum A,

    jg: what? No successor liability?

    p. 11 at 0. P. Macklin failed to address several other legal
    issues which were identified by the court if Macklin sought leave to
    amend after the order dismissing the Causes of Action 1 through 8 of
    the First Amended Complaint. Addendum A, pp. 11-12 at P.

    The Conclusion to the Memorandum Opinion and Decision ties
    together the grounds for denying the Motion to File a Second Amended
    Complaint — which would not be altered by the subseguent decisions in
    Jesinoski or Merritt.

    The court summarizes above the review of the prior Memorandum
    Opinion and Decision not as an invitation for Macklin’s current
    counsel to “re-chew the cud,” but to demonstrate that: (1) the
    issues presented to the court by Macklin’s counsel at the time
    concerning dismissal of the case were not as “simple” as phrased
    by Macklin in the current Motion and (2) the court went
    to extraordinary lengths to review the proposed Second Amended
    Complaint to see if there was anything presented which would
    warrant an eleventh and one-half hour, eve of trial amendment.
    [fn10]

    jg: if you say so. Btw, what’s the prejudice?

    SUBJECT MATTER JURISDICTION EXISTS FOR THIS ADVERSARY PROCEEDING

    Macklin, in his Reply, makes the argument that the court does
    not have subject matter jurisdiction over the instant Adversary
    Proceeding in light of the Jesinoski and Merritt decision. This
    argument is similar to the standing argument Macklin makes,
    contending DBNTC cannot have standing to defend itself since
    Macklin has determined that DBNTC cannot have any rights.

    Subject matter jurisdiction is the cornerstone of federal judicial
    proceedings. Parties may not “consent” to create federal court
    jurisdiction, and even if not raised by the parties, a federal
    judge may, and must, raise the issue if he or she believes that
    subject matter jurisdiction does not exist. The United States
    Constitution provides that,

    The [federal] judicial Power shall extend to all Cases, in Law
    and
    Equity, arising under this Constitution, the Laws of the United
    States, and Treaties made, or which shall be made, under their
    Authority; — to all Cases affecting Ambassadors, other public
    Ministers and Consuls; — to all Cases of admiralty and maritime
    Jurisdiction; — to Controversies to which the United States shall be
    a Party; — to Controversies between two or more States; — between a
    State and Citizens of another State; — between Citizens of different
    States, — between Citizens of the same State claiming Lands under
    Grants of different States, and between a State, or the Citizens
    thereof, and foreign States, Citizens or Subjects.

    U.S. Const. Art. Ill, Sec. 2. The federal judicial power is vested in
    the Supreme Court and such other inferior court’s as Congress establishes.
    U.S. Const. Art. Ill, Sec. 1; Art. I, Sec.8, CI 9. The Constitution also
    vests in Congress the responsibility, and authority, to establish, as a
    matter of federal law, “uniform Laws on the subject of Bankruptcies
    throughout the United States.” U.S. Const. Art. 1, Sec.8, CI 4.

    Congress has generally provided for the United States District Courts
    to exercise federal court jurisdiction when,

    § 1331. Federal question

    The district courts shall have original jurisdiction of all civil
    actions arising under the Constitution, laws, or treaties of the
    United States.

    28 U.S.C. § 1331.

    Congress has enacted various uniform bankruptcy laws over
    time. The current Bankruptcy Code (11 U.S.C. § 101, et seq.) provides
    a comprehensive legal and jurisdictional scheme for the determination
    of matters arising under the Bankruptcy Code, arising in a bankruptcy
    case, and state and federal non-Bankruptcy Code matters to a bankruptcy
    case. A much broader grant of federal judicial power, for which the
    federal courts (district and bankruptcy judges) has been enacted by
    Congress in 28 U.S.C. §§ 1334 and 157. In addition to providing that
    district courts and bankruptcy courts have jurisdiction for all matter
    arising under the Bankruptcy Code, in a bankruptcy case, and related
    to the bankruptcy case, the federal courts have exclusive jurisdiction
    over property of the bankruptcy estate. 28 U.S.C. § 1334(e).

    First, most of the claims asserted by Macklin arise under federal
    statutes. Second, the claims were property of the bankruptcy estate and the bankruptcy estate retained the right to the first $150,000.00
    recovered, if any, in this litigation. Third, the claims are related
    to the bankruptcy case, both as an asset of the estate and as litigation
    initially commenced by Macklin as the Chapter 13 debtor (exercising the powers of a bankruptcy trustee with respect to the management of
    property of the estate), the Chapter 7 Trustee after conversion, and
    then Macklin in continuing to litigate the claims for the benefit of
    the bankruptcy estate and himself pursuant to the agreement with the
    Trustee.

    jg: oh, good. He did do that. This rattling on about a court’s juris is all
    hyperbole. No one need be told courts have juris in general. The argument is there’s no smj because of a prior rescission. The court would have juris for some of the claims imo.

    This federal court has subject matter jurisdiction for the claims
    asserted by Macklin, and the defenses, rights, and interests raised
    by DBNTC to the First Amended Complaint.

    DBNTC HAS STANDING TO ASSERT AND DEFEND ITS RIGHTS, AND LITIGATE TO JUDGMENT THE ACTION COMMENCED BY MACKLIN

    Standing is a fundamental requirement for the exercise of federal
    judicial power. Article III of the Constitution confines federal
    courts to decisions of “Cases” or “Controversies.”

    Article III of the Constitution confines federal courts to
    decisions of “Cases” or “Controversies.” Standing to sue or defend
    is an aspect of the case-or-controversy requirement. (Citations
    omitted.) To qualify as a party with standing to litigate, a person
    must show, first and foremost, “an invasion of a legally protected
    interest” that is “concrete and particularized” and “actual or
    imminent.’ (Citations omitted.). . . Standing to defend on appeal in
    the place of an original defendant, no less than standing to sue,
    demands that the litigant possess x a direct state in the outcome.’
    (Citations omitted.)

    Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct.
    1055 (1997).

    As the court understands Macklin’s standing argument, since Macklin
    asserts that the loan transaction has been rescinded, the note and deed of trust are void. Therefore, DBNTC cannot have any rights therein and cannot attempt to assert such rights that Macklin alleges do not exist. Further, DBNTC cannot contest or defend itself and any interest it asserts in the note, deed of trust, or in any rescission asserted by Macklin to have been or to be completed.

    Macklin overstates the effect of the asserted rescission-turning himself
    into the judge, jury, and executioner.

    jg: I think not, but even so, why not? All the other players do. I don’t believe he overstates the effect of his rescission, if it were a rescission way back when. To the best of my knowledge, tila doesn’t demand that a h.o. do more than notice her rescission. It’s damages as a result of violations which are subject to a one – year claim. I think it’s like this:
    If you rescind on May 1, 2011 (and that falls within the three years), it’s a done deal. You then have one year from that date to bring an action for damages caused by the violations (not to press rescission).

    DBNTC asserts that it obtained the note and deed of trust from AHL. DBNTC disputes that the loan transaction was rescinded and asserts that it, as the owner of whatever interests
    there are in the note and deed of trust, and the owner of the property
    pursuant to a non-judicial foreclosure sale, can defend such interests
    and rights.
    I profess to know nothing about post-foreclosure claims, including tila, x to again point out that rescission has survived a refinance!

    The court also understands DBNTC to assert that it, as the
    transferee of the note and deed of trust, is the real party in interest
    to receive any monies which Macklin would have to pay for his part of
    the rescission.[fn11]
    jg: well, I suppose so if all sales and assignments are hoyle. But I’m with Macklin – there was nothing to transfer if his letter were a NOR.

    While Macklin asserts that he has rescinded the loan transaction, DBNTC contends it is the holder of the note which is the subject of the asserted rescinded transaction, and that it is the owner of the Property, having acquired it through a non-judicial foreclosure sale.

    jg: DB is the ‘holder of a note post f/c? That’s a good trick. I would have to, tho, go back and see the status of a note when a f/c has happened.
    It may well be about the amt of any credit bid or the amt received at trustee’s sale.

    BNTC has standing to:
    (1) defend the interests in the note and deed of trust from the asserted
    rescission; (2) defend the asserted rights and interests in the Property
    obtained through the non-judicial foreclosure sale; and (3) if the
    rescission has been properly made, to receive payment of all of the monies due from Macklin as part of the rescission.

  283. So since you’re here Christina and Rock(Maher Suleiman) by Christine’s definition you be a

    LOSER LOSER LOSER

  284. Yes, christine. There is often a lot to learn from an unsuccessful suit. (It’s generally more useful, however, when courts deign to better explain their rulings.)

  285. Part III
    Motion to Vacate, Dckt. 380.

    Most of Macklin’s extensive arguments relate to why Macklin should
    have won, why DBNTC should not have been allowed to defend itself
    against the claims asserted by Macklin, and that it is “unfair” for
    Macklin to be bound by the orders and judgment in this litigation he
    commenced, prosecuted, and sought summary judgment against DBNTC,
    and from which he failed to prosecute an appeal.

    Macklin Asserts Lack of Subject Matter Jurisdiction

    In this Adversary Proceeding, Macklin sought to obtain a monetary judgment against DBNTC under several stated theories:

    (1) Violation of the TILA federal law claim which was property of the bankruptcy estate;

    (2) Violation of RESPA federal law claim which was property of the bankruptcy estate;

    (3)
    Violation of the Fair Credit Reporting Act federal law claim which was
    property of the bankruptcy estate;
    (4) Fraud state law claim which was property of the bankruptcy estate;

    (5) Unjust Enrichment state law claim which was property of the bankruptcy estate;

    (6) Violation of RICO federal law claim which was property of the bankruptcy estate;

    (7) Violation of state Unfair Competition (Business Practices) law which was property of the bankruptcy estate;

    (8) Breach of Trust Instrument state law claim which was
    property of the bankruptcy estate;

    (9) Wrongful Foreclosure under state law claim which was property of the bankruptcy estate; and

    (10) Quiet Title state and federal law claims, for which the Property and claim were property of the bankruptcy estate.

    jg: I haven’t had time to digest this case, but if the claims were property of the bk estate, which would 86 the claims by Macklin (unless he made a deal with the bk trustee), why is he just now (april 15) hearing about it (AP filed in 2011)? And I wonder if Deutsche made this LATE argument or if the court came up with sort of sua sponte.

    First Amended Complaint, Dckt. 120.

    Discussing themeffect of the post-judgment decisions in Jesinoski, Macklin contends that DBNTC “never had constitutional or prudential standing and this court lacked subject matter jurisdiction over DBNTC, ab initio.” Motion, p.2:14-16; Dckt. 380.

    It appears that Macklin contends since he alleges DBNTC does not have a valid interest or rights, and further that the bankruptcy estate and Macklin have multiple federal and state claims against DBNTC, this bankruptcy court could not have “subject matter jurisdiction” over DBNTC. However, it appears from the Motion that Macklin admits that the federal courts (district and this bankruptcy court) had
    both in personam and subject matter jurisdiction over Macklin, the claims, and the Property, and had ability to adjudicate the rights asserted by Macklin against DBNTC.

    jg: I haven’t seen the mtn, not sure one need’s to, but if the court has no smj, imo macklin can’t have waived it or “admitted” it.

    After receiving DBNTCs opposition to the Motion, Macklin expanded his subject matter jurisdiction argument in his Response. Dckt. 400. Macklin states that he objects to the federal court’s subject matter jurisdiction “for the reason that Defendant DBNTC has never had standing in this court, or any court, as an operation of law under Truth in Lending Act § 1635 et. seg. [asserting that Macklin had rescinded the loan and therefore DBNTC could not have, and cannot assert, any rights, or defend itself against the various claims asserted by Macklin].” Response, p. 2:1-12, Dckt. 400.
    Though the fallacy of Macklin’s logic is evident, the court will specifically
    address the issue of subject matter jurisdiction infra.[fn7]

    REVIEW OF PRIOR ORDERS

    In order to consider whether proper grounds exist to vacate an order or
    judgment under Rule 60, the court must first review the actual grounds upon which the orders and judgment of this court were based. Below is the court’s analysis of the prior orders and judgments, specifically highlighting the grounds upon which the court based the rulings.

    First Amended Complaint Prosecuted By Macklin

    On June 17, 2011, Macklin filed his First Amended Complaint. Dckt. 120.
    The First Amended Complaint names DBNTC as the only defendant (again take note, in general).
    Macklin alleges that there are other unnamed defendants at the time of filing the First Amended Complaint. The prayer for the First Amended Complaint requests the following relief:

    A. An order compelling “Defendants” to transfer or release legal
    title and any encumbrance to, and possession of, the Property.

    B. For a declaration and determination that Macklin is the
    rightful holder of title to the Property, and “Defendants” have no
    interest in the Property.

    C. For a judgment forever enjoining “Defendants” from claiming any
    interest in the Property.

    D. For a declaration that the foreclosure which was instituted be
    deemed illegal and void, and further foreclosure proceedings be
    declared void.

    The prayer does not request that the court enter judgment for the
    rescission of the loan transaction, but only seeks to have a declaration
    that Macklin has all rights and interests in the Property and “Defendants” have none, without Macklin having any corresponding obligations arising from a rescission.

    Dismissal Of Causes Of Action From First Amended Complaint

    The court’s findings and conclusions in dismissing the causes of action
    one through eight of the First Amended Complaint, include the following
    statements by the court in the Memorandum Opinion an Decision, Dckt. 221:

    I. First Cause of Action — Truth in Lending
    Here, however, Macklin admits that DBNTC was not the creditor in the original transaction that allegedly triggered the statutory disclosure requirements (jg: and?). According to Macklin’s FAC, the creditor was either Accredited Home Lenders, Inc. or Centennial Bank
    of Colorado. Therefore, the court finds that Macklin has not stated
    a claim against DBNTC, who was not an original party to the originalunderlying loan transaction.

    jg: dang, court. You forgot to tell us why that matters. Imo it doesn’t.

    Id. at 18:6-12.

    In Macklin’s letter to the loan servicer, however, he demanded to
    be repaid all of his payments on the loan ($125,713.46), have the
    promissory note returned by him, and retain the Property free and
    clear of any liens. This not a rescission, but a demand by Macklin
    to be paid money, have his note returned to him, and be given
    property free and clear of the deed of trust.

    jg: well, we don’t know about this since we haven’t seen his letter, which he posits, I think, was a NOR.

    Id. at 18:21-24, 19:1-3.

    Section 1641(g) applies to “a mortgage loan . . . sold or
    otherwise transferred or assigned to a third party.” Section 1641
    (g) was added by an Act of Congress dated May 20, 2009, and
    therefore may not apply to the mortgage loan transaction at issue
    here — the transfer of the promissory note into the Trust, not the
    assignment of the deed of trust or the substitution of trustee.

    jg: well now that’s a new one.

    Id., 20:7-12.

    Though this Notice of Rescission is undated, it had to predate the
    March 31, 2009 response and demonstrates that as early as March 2009, Macklin was aware of potential TILA and other claims arising out of the loan. Therefore, the motion to dismiss the TILA claim (First
    Cause of Action) as untimely due to the Statute of Limitations is
    also granted, without leave to amend.

    jg; can we have some discussion? maybe later there’s some.

    Id. at p. 21:12-17.

    II. Second Cause of Action — Real Estate Settlement Procedures Act
    (“RESPA”)

    An action alleging violation of 12 U.S.C. § 2605 must be brought
    within three years of such violation, and an action alleging
    violation of 12 U.S.C. § 2607 must be brought within one year of
    such a violation. The loan transaction at issue here closed in April
    2006. Macklin did not file this action until
    January 13, 2011, almost five years later. Accordingly, the court
    finds that the cause of action under RESPA is time-barred.

    jg: but are respa claims (if not otherwise timely made) available in recoupment, your honor?

    Id. at 22:3-10.

    “Section 2605 of RESPA requires a loan servicer to provide
    disclosure relating to the assignment, sale, or transfer of loan
    servicing to a potential or actual borrower: (1) at the time of the
    loan application, and (2) at the time of transfer.” Likewise, “[t]he
    loan servicer also has a duty to respond to a borrowers’s inquiry or
    ‘qualified written request.,”67 Defendant DBNTC alleges without
    dispute that it is not a loan servicer. Macklin does not allege that
    DBNTC is a “servicer,” instead he makes general, nonspecific
    allegations that “Defendant and/or its agents” were a servicer. The
    [First Amended Complaint] goes further to allege that Qualified
    Written Responses and inquiries were made of others, and attempts to
    bring in the current Defendant, DBNTC, based upon Macklin’s
    interaction with others or predecessor owners of the Note.
    Accordingly, Macklin fails to state a claim upon which relief can be
    granted.

    jg: insipid milk-sop

    Id. at 22:13-20, 23:1-7.

    III. Third Cause of Action — Fair Credit Reporting Act (“FCRA”)

    While not clear from the FAC, the court understands the argument
    to be that servicer was obligated on a contract, to which Macklin is
    not a party, that if Macklin (or obligors on other notes) defaulted
    in his payments, the servicer would advance monies to the then
    current note holders while the default under the note was enforced .
    . . Thus Macklin argues that even though he has defaulted on his
    obligation and there have been defaults, the “servicer” making
    advances on an unrelated contract constitutes a payment for the
    benefit of Macklin and reduces his obligation on the Note. Though
    argued, Macklin does not allege the legal or contractual basis for
    his being the beneficiary of any third-party contract.

    jg: seriously? How would 3rd party payment on his note require him to be a beneficiary of the agreement to make those payments? It wouldn”t, not if the payments referenced are made on his note. A payment is a payment, no matter who makes it.

    Id. at 25:8-23.

    What Macklin also fails to allege is that DBNTC knew or had
    reasonable cause to believe that Macklin’s defaults under the Note
    were false.

    jg: doesn’t this logically follow if he says someone is making the payments? If dbntc is the trustee and payments are made, i guess it knows they’re being made and there’s no default. I find this offensive, actually.

    Just as Macklin alleges, the payments were in default.
    Merely because there is a disagreement as to an amount due, that
    does not automatically create a FCRA violation. The FCRA establishes a clear process by which disputes concerning furnished information are addressed. There is no indication that the process has been employed with respect to this matter.

    jg: so the process is exclusive?

    Id. at 25:24-28, 26:1-3.

    Macklin admits that he first received a notice of default in
    December 2008, and did not commence the instant adversary proceeding until January 13, 2011, a month after the statute of limitations expired.

    jg: sol on what exactly? and what about recoupment? Oh, if he’s the plaintiff POST-f/c, maybe defenses and claims in recoupment aren’t available.

    No sufficient basis for tolling the statue of limitations
    as to a claim arising under the FCRA has been alleged or argued.
    Merely because Macklin chose to ignore information furnished by
    DBNTC to a consumer reporting agency until he decided to file a
    lawsuit alleging various claims is not sufficient.

    Id. at 26:13-21.

    IV. Fourth Cause of Action — Fraud

    With respect to the alleged misrepresentations, Macklin does not
    allege that he did not receive what was represented to him at the
    time of the loan transaction. He sought, and obtained, monies on the
    terms he negotiated. All of the alleged misrepresentations occurred
    after he obtained the monies and given the note and deed of trust.

    Id. at 29:17-22.

    There are no allegations of any reasonable reliance on the alleged
    misrepresentations to Macklin’s detriment.

    Id. at 29:22, 30:1.

    At least two of the necessary elements of fraud are missing —
    justifiable reliance on the alleged misrepresentation and damages
    arising from reliance on the alleged misrepresentation.

    Id. at 30:5-8.

    V. Fifth Cause of Action — Unjust Enrichment

    What Macklin does not allege or explain is what xfees’ are charged
    as a loan transaction which are applied to pay the loan (principal
    and interest). By their very nature, fees are owed in addition to
    the principal and interesFrom the 11-page Motion, the court identifies the following grounds:

    I. Macklin seeks to vacate all, unspecified, orders which are in conflict
    with the U.S. Supreme Court’s 2015 decision in Jesinoski v. Countrywide Home Loans, U.S., 135 S.Ct. 790, 190 L.Ed.2d 650 (2015), and the Ninth Circuit 2014 decisions in Merritt v. Countrywide Financial Corporation, 759 F.3d 1023 (9th Cir. 2014).

    II. The grounds are stated to be:

    A. There was no mortgage or deed of trust encumbering the Property at the time the bankruptcy case was filed by Macklin.

    jg: macklin app says he already rescinded, pre-bk. I just read a couple cases where rescission was found to be available after refinancing!
    (don’t know how they got the refi exactly)

    B. Under the terms of the Truth in Lending Act (“TILA”), an
    unidentified “lender” failed to return Macklin’s money or file a
    declaratory action defending the rescission of the loan transaction.

    C. The loan transaction was nullified and the debt became void as
    of the March 3, 2009 rescission.

    D. Macklin is entitled to recovery of all payment made to the
    (unidentified) “original lender.” E. Because Macklin assets that the
    loan transaction was rescinded, DBNTC does not have standing to
    assert any rights with respect to the note or the asserted
    rescission of the loan transaction.

    F. All orders, judgments and decisions issued by the court are
    void by operation of law based upon the 2015 Supreme Court decision in Jesinoski.

    jg: maybe they are if they fall under anything actually decided in Jesinoski.

    G. Macklin asserts he is entitled to relief pursuant to Rule
    60(b)(1), (4), (5) and (6), and (d).

    H. Since DBNTC could not have had any interest in note because
    Macklin asserts that it was rescinded, DBNTC is not prejudiced by
    vacating all orders, judgments, and decisions of the court in this
    Adversary Proceeding.

    I. Macklin is prejudiced, as he lost possession of his home.

    J. Macklin executed a note and two deeds of trust with Accredited
    Home Loans, Inc. (“AHL”) totaling $632,000.00.

    K. Macklin was not provided with the required disclosures at the
    time of the transaction with AHL and unidentified persons used false
    information to qualify Macklin for the $632,000.00 loan.

    L. On May 3, 2009, Macklin perfected a rescission of the AHL loan
    transaction under TILA 1635(a). An unidentified “lender” received a
    rescission notice from Macklin and failed to respond with the 21-day
    period.

    M. On March 3, 2009, counsel for the unidentified lender provided
    an untimely response disputing the notice of rescission.

    N. On November 30, 2009, AHL executed what Macklin asserts was a false or forged assignment of the deed of trust to a trust, for
    which DBNTC is the trustee.

    O. As of the November 30, 2009, assignment AHL had no rights or
    interest to assign in the note and deed of trust because of the
    rescission by Macklin.

    P. On February 16, 2012, the court dismissed all causes
    of action in Macklin’s First Amended Complaint except that the Ninth
    Cause of Action for Wrongful Foreclosure, and the Tenth Cause of
    Action for Quiet Title. The dismissal included the cause of action
    under TILA.

    Q. On October 4, 2012, Macklin sought to amend his complaint to
    assert TILA claim for rescission. The court denied the amendment
    based on Ninth Circuit controlling law that Macklin failed to file
    an action within one-year of the rejection of the notice of
    rescission.

    jg: isn’t that one year for damages? I believe that’s how tila is written.

    R. The court granted DBNTC summary judgment on July 2, 2013, on the causes of action for wrongful foreclosure and to quiet title.

    S. In Merritt v. Countrywide, the Ninth Circuit determined that
    pleading a claim for rescission pursuant to TILA does not require
    that Macklin plead that tender has been made or is possible by the
    party seeking to rescind.

    T. In Jesinoski, the Supreme Court held that rescission under TILA
    requires only that the notice be given, altering the common law
    requirements for rescission.

    U. The decisions of the trial court, while consistent with
    controlling Ninth Circuit law in 2011 and 2012, are not consistent
    with the subsequent ruling of the Supreme Court in Jesinoski in 2015
    and the Ninth Circuit in Merritt in 2014.

    V. The 2015 and 2014 decisions render DBNTC to not have had
    standing in the 2011 and 2012 litigation by which it asserted to
    have an interest in the note and deed of trust or to challenge
    Macklin’s assertion that the loan transaction had been rescinded.

    Motion to Vacate, Dckt. 380.

    Most of Macklin’s extensive arguments relate to why Macklin
    should have won, why DBNTC should not have been allowed to defend
    itself against the claims asserted by Macklin, and that it is “unfair”
    for Macklin to be bound by the orders and judgment in this litigation
    he commenced, prosecuted, and sought summary judgment against DBNTC, and from which he failed to prosecute an appeal.

    jg: oh, those lously appeals. who among us? (cept maybe d wynn)

    Macklin Asserts Lack of Subject Matter Jurisdiction

    In this Adversary Proceeding, Macklin sought to obtain a monetary
    judgment against DBNTC under several stated theories: (1) Violation
    of the TILA federal law claim which was property of the bankruptcy estate;

    (2) Violation of RESPA federal law claim which was property of the
    bankruptcy estate;

    (3)
    Violation of the Fair Credit Reporting Act federal law claim which
    was property of the bankruptcy estate; (

    4) Fraud state law claim which was property of the bankruptcy estate;

    (5) Unjust Enrichment state law claim which was property of the
    bankruptcy estate;

    (6) Violation of RICO federal law claim which was property of the
    bankruptcy estate;

    (7) Violation of state Unfair Competition (Business Practices) law
    which was property of the bankruptcy estate;

    (8) Breach of Trust Instrument state law claim which was property
    of the bankruptcy estate;

    (9) Wrongful Foreclosure under state law claim which was property
    of the bankruptcy estate; and

    (10) Quiet Title state and federal law claims, for which the Property
    and claim were property of the bankruptcy estate.

    First Amended Complaint, Dckt. 120. Discussing the effect of the
    post-judgment decisions in Jesinoski, Macklin contends that
    DBNTC “never had constitution or prudential standing and this court
    lacked subject matter jurisdiction over DBNTC, ab initio.” Motion,
    p.2:14-16; Dckt. 380.
    It appears that Macklin contends since he alleges DBNTC does not
    have a valid interest or rights, and further that the bankruptcy
    estate and Macklin have multiple federal and state claims against
    DBNTC, this bankruptcy court could not have “subject matter
    jurisdiction” over DBNTC. However, it appears from the Motion that
    Macklin admits that the federal courts (district and this
    bankruptcy court) had both in personam and subject matter jurisdiction
    over Macklin, the claims, and the Property, and had ability to
    adjudicate the rights asserted by Macklin against DBNTC.

    After receiving DBNTCs opposition to the Motion, Macklin expanded his subject matter jurisdiction argument in his Response. Dckt. 400. Macklin states that he objects to the federal court’s subject matter jurisdiction “for the reason that Defendant DBNTC has never had standing in this court, or any court, as an operation of law under Truth in Lending Act § 1635 et. seg. [asserting that Macklin had rescinded the loan and therefore DBNTC could not have, and cannot assert, any rights, or defend itself against the various claims asserted by Macklin].” Response, p. 2:1-12, Dckt. 400.
    Though the fallacy of Macklin’s logic is evident, the court will specifically
    address the issue of subject matter jurisdiction infra.[fn7]

    jg: good because some of us don’t think it’s so evident.

  286. Doesn’t look anything like a win… in either court. So the question begs to be asked: what expertise does that prove, other than spending an enormous amount of time, energy and money to get nowhere? Macklin has no answer about what works. He does, however, have all the answers on what doesn’t work. Does that make an expert? Would anyone want to learn anything from such a fiasco?

  287. Part 2
    Parallel District Court Lawsuit

    When this Adversary Proceeding was commenced, Macklin was
    already litigating the same issues in the United States District
    Court for the Eastern District of California. Dist. Ct. 2:10-cv-
    01097 (“District Court Action”).

    When DBNTCs motion for summary judgment in the District Court
    Action was pending, Macklin commenced his Chapter 13 bankruptcy
    case in this court. Over the opposition of DBNTC, the District
    Court stayed the District Court Action, erroneously believing
    that the automatic stay prevented that action from proceeding.
    [fn6]

    On April 15, 2014, Macklin filed a motion for leave to file
    a second amended complaint in the District Court Action.
    10-01097, Dckt 40.

    This was ten months after this court entered the final judgment
    in this Adversary Proceeding. The motion was granted by the
    District Court and on July 1, 2014, the second amended complaint
    was deemed filed by Macklin in the District Court Action.

    DBNTC filed a motion to dismiss the second amended complaint,
    asserting that Macklin was barred from attempting to re-litigate
    those issues, the final judgment having been entered in this
    Adversary Proceeding.

    On September 29, 2014, Charles T. Marshall, Esq. substituted
    into the District Court Action as Macklin’s attorney. 10-01097,
    Dckt. 73.

    Macklin’s opposition (totaling 116 pages) to the motion to
    dismiss the second amended complaint in the District Court
    Action was filed on October 10, 2014. 10-01098, Dckt. 79.

    The motion to dismiss the second amended complaint in the
    District Court Action was granted on January 14, 2015, and it
    was dismissed with prejudice. 10-01098, Dckts. 87 and 88.

    Macklin has filed a motion to vacate the order dismissing the
    second amended complaint in the District Court Action pursuant
    to Rule 60(b). That motion is now under submission in the
    District Court.

    REVIEW OF MOTION FOR RELIEF UNDER RULE 60

    The court begins its review of the Motion with consideration
    of Rule 7 (b), as incorporated into this Adversary Proceeding
    by Bankruptcy Rule 7007.

    This requires that the motion must state with particularity the
    grounds upon which the relief is based. In addition to the
    pleading requirement for the motion, the Local Bankruptcy Rule
    and Revised Guidelines for Preparation of Documents in this
    District require

    that “[m]otions, notices, objections, responses, relies,
    declarations, affidavits, other documentary evidence, memoranda
    of points and authorities, other supporting documents, proofs
    of service, and related pleadings shall be filed as separate
    documents.”

    Local Bankruptcy Rule 9014-1(d)(1) and Revised Guidelines for the
    Preparation of Documents, 1(3) (a).

    Here, Macklin has failed to comply with the rule and instead
    filed a “Mothorities,” which is a pleading in which the Rule
    7(b) grounds are placed between extensive citations, quotations,
    arguments, speculation, facts, and conjecture.

    Macklin has left it to the court to decipher what are the
    actual grounds (subject to the warranties of Bankruptcy Rule
    9011) and the mere “argument” or “speculation.” The court has
    done the best it can to extract from the Mothorities the grounds
    asserted by Macklin.

    From the 11-page Motion, the court identifies the following
    grounds:

    I. Macklin seeks to vacate all, unspecified, orders which are
    in conflict with the U.S. Supreme Court’s 2015 decision in
    Jesinoski v. Countrywide Home Loans, U.S., 135 S.Ct. 790, 190
    L.Ed.2d 650 (2015), and the Ninth Circuit 2014 decisions in
    Merritt v. Countrywide Financial Corporation,759 F.3d 1023
    (9th Cir. 2014).

    II. The grounds are stated to be:

    A. There was no mortgage or deed of trust encumbering the
    Property at the time the bankruptcy case was filed by
    Macklin.

    B. Under the terms of the Truth in Lending Act (“TILA”),
    an unidentified “lender” failed to return Macklin’s money
    or file a declaratory action defending the rescission of the
    loan transaction.

    C. The loan transaction was nullified and the debt became
    void as of the March 3, 2009 rescission.

    D. Macklin is entitled to recovery of all payment made to
    the (unidentified) “original lender.” E. Because Macklin assets
    that the loan transaction was rescinded, DBNTC does not have
    standing to assert any rights with respect to the note or the
    asserted rescission of the loan transaction.

    F. All orders, judgments and decisions issued by the court
    are void by operation of law based upon the 2015 Supreme Court
    decision in Jesinoski.

    G. Macklin asserts he is entitled to relief pursuant to Rule
    60(b)(1), (4), (5) and (6), and (d).

    H. Since DBNTC could not have had any interest in note
    because Macklin asserts that it was rescinded, DBNTC is not
    prejudiced by vacating all orders, judgments, and decisions of
    the court in this Adversary Proceeding.

    I. Macklin is prejudiced, as he lost possession of his home.

    J. Macklin executed a note and two deeds of trust with
    Accredited Home Loans, Inc. (“AHL”) totaling $632,000.00.

    K. Macklin was not provided with the required disclosures
    at the time of the transaction with AHL and unidentified persons
    used false information to qualify Macklin for the $632,000.00 loan.

    L. On May 3, 2009, Macklin perfected a rescission of the
    AHL loan transaction under TILA 1635(a). An unidentified “lender”
    received a rescission notice from Macklin and failed to respond
    with the 21-day period.

    M. On March 3, 2009, counsel for the unidentified lender
    provided an untimely response disputing the notice of rescission.

    N. On November 30, 2009, AHL executed what Macklin asserts
    was a false or forged assignment of the deed of trust to a
    trust, for which DBNTC is the trustee.

    O. As of the November 30, 2009, assignment AHL had no rights or
    interest to assign in the note and deed of trust because of the
    rescission by Macklin.

    P. On February 16, 2012, the court dismissed all causes
    of action in Macklin’s First Amended Complaint except that the Ninth
    Cause of Action for Wrongful Foreclosure, and the Tenth Cause of
    Action for Quiet Title. The dismissal included the cause of action
    under TILA.

    Q. On October 4, 2012, Macklin sought to amend his complaint to
    assert TILA claim for rescission. The court denied the amendment
    based on Ninth Circuit controlling law that Macklin failed to file
    an action within one-year of the rejection of the notice of
    rescission.

    R. The court granted DBNTC summary judgment on July 2, 2013, on
    the causes of action for wrongful foreclosure and to quiet title.

    S. In Merritt v. Countrywide, the Ninth Circuit determined that
    pleading a claim for rescission pursuant to TILA does not require
    that Macklin plead that tender has been made or is possible by the
    party seeking to rescind.

    T. In Jesinoski, the Supreme Court held that rescission under TILA
    requires only that the notice be given, altering the common law
    requirements for rescission.

    U. The decisions of the trial court, while consistent with
    controlling Ninth Circuit law in 2011 and 2012, are not consistent
    with the subsequent ruling of the Supreme Court in Jesinoski in 2015
    and the Ninth Circuit in Merritt in 2014.

    V. The 2015 and 2014 decisions render DBNTC to not have had
    standing in the 2011 and 2012 litigation by which it asserted to
    have an interest in the note and deed of trust or to challenge
    Macklin’s assertion that the loan transaction had been rescinded.

  288. PART 1

    IN RE: MACKLIN (Bankr.E.D.Cal. 4-8-2015)
    In re JAMES L. MACKLIN, Debtor. JAMES L. MACKLIN, Plaintiff, v. DEUTSCHE
    BANK NATIONAL TRUST CO., Defendant.
    Case No. 10-44610-E-7, Adv. Proc. No. 11-2024, Docket Control No. JLM-1
    United States Bankruptcy Court, E.D. California
    April 8, 2015.

    MEMORANDUM OPINION AND DECISION
    Ronald H. Sargis, Bankruptcy Judge

    This memorandum decision is not approved for publication and may not be cited except when relevant under the doctrine of law of the case or the rules of claim preclusion or issue preclusion.

    James Macklin (“Macklin”) is the Plaintiff in this adversary proceeding,
    naming Deutsche Bank National Trust Co., as Indenture Trustee for the
    Accredited Mortgage Loan Trust 2006-2 Certificate Holders (“DBNTC”) as the only defendant (take note – sic)
    The Adversary Proceeding was commenced on January 13, 2011,
    and judgment was entered for DBNTC on July 2, 2013. Dckt. 349.

    On January 22, 2015, Macklin filed the present Motion for Relief Under Federal Rule of Civil Procedure 60(b),[fn1] seeking to vacate orders and the judgment entered in this Adversary Proceeding. Dckt. 380.

    HISTORY OF ADVERSARY PROCEEDING AND MACKLIN’S MULTI-COURT PARALLEL LITIGATION

    The court begins with a review of what has transpired in this Adversary
    Proceeding (for which there are now 472 docket entries)……….

    When Macklin commenced this Adversary Proceeding, he also filed a Motion for a Temporary Restraining Order and a Motion for Preliminary Injunction. Dkts. 6 and 26. The court granted both the Motion for Temporary Restraining Order and Motion for Preliminary Injunction. Orders, Dckts. 66 and 100………

    On April 4, 2011, the court granted DBNTCs motion to dismiss the
    original Complaint. Dckt. 64. Macklin filed his First Amended
    Complaint on June 17, 2011. Dckt. 120. On February 16, 2012, the
    court entered its order granting the Motion to Dismiss the First
    Amended Complaint, dismissing the causes of action 1 through 8.
    Order, Dckt. 222. The court’s Memorandum Opinion and Decision for
    the Motion contains a detailed review of the history of the
    Adversary Proceeding to that time. Dckt. 221.

    While the Motion to Dismiss the First Amended Complaint was under
    submission, Macklin replaced his first counsel, Holly S. Burgess,
    with Allan Frumkin. Macklin, represented by Mr. Frumkin, filed a
    Motion to Allow Re-Argument of the Motion to Dismiss. Dckt. 198.

    In the Motion and Mr. Frumkin’s declaration (Dckt. 199), the court
    was advised that Macklin and his new attorney recognized that the
    First Amended Complaint should be amended, asserted prior counsel
    had failed to adequately represent Macklin, and represented that
    Mr. Frumkin was ready, willing, and able to prosecute this
    Adversary Proceeding.

    The court denied Macklin’s request for re-argument of the
    Motion to Dismiss the First Amended Complaint. Order, Dckt. 220.
    In its ruling, the court noted that, if the court’s ruling on the
    Motion to Dismiss the First Amended Complaint was adverse to
    Macklin, then Macklin could seek leave to file a further amended
    complaint at that time. Civil Minutes, Dckt. 219.

    Though Macklin and Mr. Frumkin stated that they knew what
    amendments they wanted to make to the First Amended Complaint,
    no motion for leave to file a second amended complaint was filed
    by Macklin and Mr. Frumkin.

    On April 23, 2012, the court filed its order authorizing Allan
    R. Frumkin to withdraw as counsel for Macklin in this Adversary
    Proceeding. Dckt. 243. Macklin requested, and the court so
    substituted in, Holly S. Burgess as Macklin’s attorney in this
    Adversary Proceeding. Dckt. 244.

    On June 4, 2012, the court issued its Scheduling Order in this
    Adversary Proceeding. Dckt. 250. Macklin was represented by Holly
    S. Burgess and the Scheduling Order was set with input from, and
    the participation of, Macklin’s attorney.

    Non-Expert Witness discovery closed on October 15, 2012,
    and Expert Witness Discovery closed on January 31, 2013.
    Dispositive Motions were to be heard by March 22, 2013, and the
    Pre-Trial Conference was to be conducted in April 2013. Id.

    In June 2012, DBNTC sought to have the District Court withdraw
    the reference to this bankruptcy court for the Adversary
    Proceeding. Dckt. 215.
    This request was opposed by Macklin. Dckt. 259. The Motion to
    Withdraw the Reference was denied by the District Court. Dckt.
    262.

    The parties proceeded with discovery. On July 30, 2012, Macklin
    filed a Joint Statement re: Discovery Agreement. Dckt. 263.

    The court denied the Motion to Compel Production.
    Order, Dckt.268; Civil Minutes, Dckt. 267.

    On August 23, 2012, Macklin filed another Notice of
    Substitution of Counsel. Macklin sought to terminate Holly S.
    Burgess as his attorney (who replaced Allan Frumkin, who replaced
    Holly S. Burgess the first time).
    The Motion to Substitute was filed on September 13, 2012. Dckt.
    275.

    At the September 27, 2012 hearing on the Motion to Substitute,
    the court confirmed with the proposed new counsel that he
    understood discovery was closing shortly in the Adversary
    Proceeding and that Macklin’s desire to engage a fifth attorney
    to represent him (counting the termination and re-hiring of
    Ms. Burgess as two attorneys)

    was not, in and of itself, a basis for reopening discovery and
    further delaying the prosecution of this Adversary Proceeding.

    When the proposed fifth counsel for Macklin confirmed that he
    clearly understood and was able to represent Macklin in the case
    as it then stood (with discovery closing), the court allowed
    Daniel J. Hanecak to be substituted in as the fifth attorney
    for Macklin n this Adversary Proceeding.
    Order Dckt. 287; Civil Minutes, Dckt. 285.[fn3]

    On October 4, 2012, two days later, Macklin, represented by
    Mr. Hanecak, filed his Motion to File a Second Amended Complaint.
    Dckt. 288.

    The court denied that Motion. Dckt. 306.

    The court discusses in greater detail below this Motion and the
    grounds for denial of that motion.

    On February 21, 2013, Macklin filed his Motion for Summary
    Judgment. Dckt. 307.
    DBNTC opposed and requested that summary judgment be granted in
    its favor pursuant to Rule 56(f).Dckt. 314.

    The court denied summary judgment for Macklin and granted
    summary judgment for DBNTC for the remaining two causes of
    action.
    Order, Dckt. 327; Memorandum Opinion and Decision, Dckt. 325. J

    Judgment was entered for DBNTC and against Macklin on July 2,
    2013. Dckt. 349. (The court having to address another motion to
    withdraw filed by Mr. Hanecak, the attorney for Macklin.
    Order denying, Dckt. 344.)

    On June 20, 2013, Macklin filed a motion to vacate the order
    granting DBNTC summary judgment and denying Macklin summary
    judgment. Dckt. 338.

    Macklin filed the motion in pro se, with the consent of his
    attorney of record.[fn4] The Motion to Vacate was denied on
    July 29, 2013. Dckt. 357.

    Appeal of Judgment Entered In This Adversary Proceeding

    The final judgment was issued in this Adversary Proceeding on
    July 2, 2013. Dckt. 349.

    On August 26, 2013, Macklin filed a Notice of Appeal of the
    order granting DBNTC summary judgment, order denying Macklin’s
    motion to vacate, and “all interlocutory Orders as evidenced
    in the Record, including the Order on Debtor’s First Amended
    Complaint.” Dckt. 361.

    On October 25, 2013, the Bankruptcy Appellate Panel issued a
    “Notice of Deficient Appeal and Impending Dismissal.” Dckt. 372.

    The Notice states that the Notice of Appeal was filed beyond the
    fourteen day period required pursuant to Bankruptcy Rule 8002 and
    8019.

    Macklin was instructed to file a”legally-sufficient explanation”
    as to why the appeal should not be dismissed as untimely.

    Macklin did not respond to the Notice or attempt to prosecute the
    appeal.

    On December 16, 2013, the Bankruptcy Appellate Panel issued an
    order dismissing the appeal of the judgment and interlocutory
    orders issued in this Adversary Proceeding. Dckt. 373.[fn5]

    No other appeals have been identified by Macklin as having
    been taken from the judgment or any orders issued in this
    Adversary Proceeding.

    No action, other than as stated above, had been taken (as
    reflected on the court’s docket for this Adversary Proceeding)
    by Macklin to attempt prosecute any appeal from the orders and
    judgment of this court in this Adversary Proceeding.

  289. The fact is… those who come here don’t win and those who win don’t come here.

    Coincidence?

  290. But then again Christine you may not be human

  291. Christine my Uncle Albert meant you

  292. Rock is that you Maher?

  293. “Only two things are infinite, the universe and human stupidity, and I’m not sure about the former.”-Albert Einstein

    There are no winners on LL. Any wonder?

  294. Rock is that you Maher Suleiman? Still in Jail?

  295. HEY ROCK, PLEASE TELL WHY ALLOT OF THE HEAD BANKS ASSISTANTS, V.P.’S ARE FOUND HANGING,KILL THEMSELVES, AS PAPERS AND STORY’S PUT OUT.

    SORRY, IT’S THE BANKS KILLING THERE OWN, TO TRY TO STOP THEM FROM COMING FOREWORD.,

    I CANT WAIT TO SEE AND HERE THAT THEY FOUND ALLOT MORE, MAYBE THEY WILL GET OUT OF MY COUNTRY.
    OR SOMEONE JUST MIGHT GO HUNTING , IT’S IS BANK HUNTING SEASON RIGHT NOW.

  296. @ Rock:

    You said:

    “Rock, on April 17, 2015 at 4:43 pm said:

    To all you brainless Kool-Aid drinkers, take heed: ““Macklin attempts to argue that under Jesinoski and Merritt that the rescission was valid and thus the security interest is void….This is INCORRECT” In re MACKLIN.

    You nitwits are in for RUDE awakening. Would you like me to give you the # for Allied Moving Vans now, or shall I wait until after you poop yourselves when the court awards your home to the bank like they did to Macklin?”

    Hey Rock, how about a real citation to the case you are purportedly quoting?

    Do you know what a citation is? If not, just ask and I will tell you what it is.

    Sorry, but I’m certainly not about to take your word for it…

    Also, if you’re so right about the law, you could just post a legal citation to those of us who you think are “brainless Kool-Aid drinkers” rather than resorting to your ad hominen abusive attacks as a poor substitute for reason legal argument.

  297. Rock… They can’t afford an attorney so I can only assume they can not afford Allied Moving Services….. Call U-Haul.

    *Grins*

  298. To all you brainless Kool-Aid drinkers, take heed: ““Macklin attempts to argue that under Jesinoski and Merritt that the rescission was valid and thus the security interest is void….This is INCORRECT” In re MACKLIN.

    You nitwits are in for RUDE awakening. Would you like me to give you the # for Allied Moving Vans now, or shall I wait until after you poop yourselves when the court awards your home to the bank like they did to Macklin?

  299. FOR MY FRIEND ROCK,CHRISTENE

    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
    *Counsel of Record
    (Additional Counsel Listed on Signature Page)
    i
    QUESTION PRESENTED
    The Truth in Lending Act provides that
    consumers who enter into credit transactions secured
    by their principal dwelling shall have the right to
    rescind the transaction until three business days
    after the delivery of legally mandated “information
    and rescission forms” by the creditor. 15 U.S.C.
    § 1635(a). A consumer exercises the statutory right of
    rescission “by notifying the creditor, in accordance
    with [governing] regulations,” of his or her intent to
    rescind. Id. The Act further provides that a
    consumer’s “right of rescission shall expire three
    years after consummation of the transaction.”
    whether or not a creditor has made required
    disclosures by that time. Id. § 1635(f).
    The question presented is:
    Do consumers timely exercise rescission rights
    under the Act by notifying creditors of their intent to
    rescind within three years of consummation of a
    transaction, or must consumers both give notice and
    also file a lawsuit seeking rescission within three
    years of consummation of a transaction to prevent
    statutory rescission rights from expiring?
    ii
    TABLE OF CONTENTS
    Page
    INTEREST OF THE AMICI STATES …………………… 1
    STATEMENT OF THE CASE ……………………………… 4
    SUMMARY OF THE ARGUMENT ………………………. 8
    ARGUMENT …………………………………………………….. 10
    I. TILA’s Timely-Notice Requirement Already
    Ensures That Creditors Can Resolve Title
    Disputes Promptly. ………………………………….. 10
    II. State Laws Confirm That Longer Statutory
    Rescission Periods Are Workable and Do
    Not Hamper Lending Transactions. ………….. 15
    III. Requiring Consumers to File Court Actions
    to Timely Exercise TILA Rescission Rights
    Would Improperly Dilute the Deterrent
    Purpose of TILA’s Rescission Remedy. ………. 19
    CONCLUSION …………………………………………………. 25
    iii
    TABLE OF AUTHORITIES
    Cases Page(s)
    Aames Capital Corp. v. Sather, No. C9-99-
    1435, 2000 WL 343218 (Minn. Ct. App. Apr.
    4, 2000) ……………………………………………………….. 13
    AFS Financial, Inc. v. Burdette, 105 F. Supp.
    2d 881 (N.D. Ill. 2000) …………………………………… 13
    American Mortgage Network, Inc. v. Shelton,
    486 F.3d 815 (4th Cir. 2007) ………………………….. 13
    Aurora Loan Services, LLC v. Britton, No. 08–
    cv–1535, 2009 WL 2501192 (E.D. Cal. Aug.
    14, 2009) ……………………………………………………… 13
    Aurora Loan Services, LLC v. Lucero, No. 08-
    cv-950, 2009 WL 2485356 (S.D. Cal. Aug.
    12, 2009) ……………………………………………………… 13
    Bank of America, N.A. v. Peterson, 746 F.3d
    357 (8th Cir. 2014) ……………………………………….. 13
    Beach v. Ocwen Federal Bank, 523 U.S. 410
    (1998) …………………………………………………. 8, 10, 21
    Belini v. Washington Mutual Bank, 412 F.3d
    17 (1st Cir. 2005) ………………………………………….. 22
    Cornerstone Mortgage, Inc. v. Ponzar, 254
    S.W.3d 221 (Mo. Ct. App. 2008) ……………………… 13
    Decision One Mortgage Co. v. Fraley, No. 00-
    3270, 2000 WL 1889700 (6th Cir. 2000) ………….. 13
    Fairley v. Turan-Foley Imports, Inc., 65 F.3d
    475 (5th Cir. 1995) ……………………………………….. 19
    Financial Freedom Senior Funding Corp. v.
    Fischer, No. L–5900–08, 2011 WL 1161123
    (N.J. Super. Ct. App. Div. Mar. 31, 2011) ………… 13
    iv
    TABLE OF AUTHORITIES (cont’d)
    Cases Page(s)
    Keiran v. Home Capital, Inc., 720 F.3d 721
    (8th Cir. 2013) ……………………………………………….. 9
    McGowan v. King, Inc., 569 F.2d 845 (5th
    Cir.1978) ……………………………………………………….. 5
    McKenna v. First Horizon Home Loan Corp.,
    475 F.3d 418 (1st Cir. 2007)…………………………….. 7
    McOmie-Gray v. Bank of America Home Loans,
    667 F.3d 1325 (9th Cir. 2012) ………………………… 23
    New Maine National Bank v. Gendron, 780 F.
    Supp. 52 (D. Me. 1991) ………………………………….. 13
    Pacific Shore Funding v. Lozo, 138 Cal. App.
    4th 1342 (2006) …………………………………………….. 13
    Rosenfield v. HSBC Bank, USA, 681 F.3d 1172
    (10th Cir. 2012) …………………………………….. passim
    Sherzer v. Homestar Mortgage Services, 707
    F.3d 255 (3d Cir. 2013) …………………………………… 8
    Stewart v. BAC Home Loans Servicing, LP, No.
    10-cv-2033, 2011 WL 862938 (N.D. Ill. Mar.
    10, 2011) ……………………………………………………….. 9
    Turner v. Beneficial Corp., 242 F.3d 1023 (11th
    Cir. 2001) …………………………………………………….. 20
    WMC Mortgage LLC v. Baker, No. 10-cv-3118,
    2012 WL 628003 (E.D. Pa. Feb. 28, 2012) ……….. 13
    Yamamoto v. Bank of New York, 329 F.3d 1167
    (9th Cir. 2003) ……………………………………………… 15
    v
    TABLE OF AUTHORITIES (cont’d)
    Laws Page(s)
    Federal
    15 U.S.C.
    § 1601 ……………………………………………………………. 4
    § 1602 ……………………………………………………………. 5
    § 1607 ……………………………………………………………. 5
    § 1631 ……………………………………………………………. 4
    § 1632 ……………………………………………………………. 4
    § 1633 ………………………………………………………….. 16
    § 1635 …………………………………………………… passim
    § 1638 ……………………………………………………………. 4
    § 1640 …………………………………………………… passim
    § 1641 ………………………………………………………….. 21
    § 1666j …………………………………………………………. 16
    § 1703 ………………………………………………………….. 24
    § 1711 ………………………………………………………….. 24
    Consumer Credit Protection Act, Pub. L. No.
    90-321, 82 Stat. 146 (1968) ………………………… 6, 11
    Pub. L. No. 93-495, 88 Stat. 1500 (1974) ……………….. 6
    State
    Ark. Code § 23-53-106 …………………………………………. 3
    Cal. Civ. Code § 1695.5(d) ………………………………….. 17
    Colo. Rev. Stat. § 5-3.5-201 ………………………………….. 3
    Ga. Code § 7-6A-7(e) ………………………………………….. 17
    815 Ill. Comp. Stat. 505/2B ………………………………… 18
    Ind. Code § 24-4.5-5-204 ………………………………………. 3
    Ky. Rev. Stat. § 367.420 …………………………………….. 18
    Md. Code Real Property § 7-311 …………………………. 17
    Mass. Gen. Laws ch. 140D, § 10(f) ………………………. 16
    Mass. Gen. Laws ch. 183C, § 15 ………………………….. 17
    vi
    TABLE OF AUTHORITIES (cont’d)
    Laws Page(s)
    Mass. Gen. Laws ch. 183C, § 18 ………………………….. 17
    Ch. 733, 1981 Mass. Acts 1143 …………………………… 16
    N.Y. Banking Law § 6-l ……………………………………… 17
    Ohio Rev. Code § 1345.09 …………………………………….. 3
    Okla. Stat. tit. 14A, § 5-204 ……………………………….. 18
    Tex. Code Occ. § 1201.162 ………………………………….. 18
    Vt. Stat. tit. 9, § 2454 ………………………………………… 18
    Regulations
    12 C.F.R.
    pt. 226 …………………………………………………………… 4
    pt. 226, supp. I, § 226.15 ……………………………….. 12
    pt. 226, supp. I, § 226.23 ……………………………….. 12
    pt. 1026, supp. I § 1026.15 …………………………….. 12
    pt. 1026, supp. I, §1026.23 ……………………………… 12
    pt. 1026, supp. I, § 1026.29 ……………………………. 16
    § 226.29 ……………………………………………………….. 16
    § 1026.15 ……………………………………………………….. 6
    § 1026.23 ……………………………………………………….. 7
    § 1026.29 ……………………………………………………… 16
    76 Fed. Reg. 79,768 (Dec. 22, 2011) ………………………. 4
    Miscellaneous Authorities
    Board of Governors of Federal Reserve System,
    Annual Report to Congress on Truth in
    Lending for the Year 1972 (Jan. 3, 1972) ………… 11
    Brennan Center for Justice, Foreclosures: A
    Crisis in Legal Representation (2009) …………….. 14
    Lopucki, Lynn M., The Death of Liability, 106
    Yale L.J. 1 (1996) …………………………………………. 21
    vii
    TABLE OF AUTHORITIES (cont’d)
    Miscellaneous Authorities Page(s)
    National Consumer Law Center, Federal
    Deception Law (2012) ……………………………………. 18
    National Consumer Law Center, Truth in
    Lending (8th ed. 2012) …………………………….. 17-18
    S. Rep. No. 96-368 (1980), reprinted in 1980
    U.S.C.C.A.N. 236 ……………………………………………. 5

  300. 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.

    SIGN BY ALL ATTORNEY GENERALS. IN COUTRY OR MOST ANYAYS.

    Preserving TILA’s readily accessible right of
    consumer rescission is critical to advancement of the
    Act’s purposes. In amici States’ experience, few
    consumers realize that they have been the victims of
    TILA violations until several years after taking out a
    loan, both because it is difficult to ascertain
    violations if mandated disclosures are missing, and
    because it may not be obvious that key information,
    such as calculation of annual percentage rates of
    interest, is misstated. As a result, many consumers
    do not discover TILA violations until foreclosure is
    threatened, the first time when consumers may seek
    legal help. Legal representation is often unavailable,
    however, due to a severe shortage of attorneys to
    represent consumers in foreclosure. Thus, in practice,
    requiring consumers to sue within three years of a
    loan would bar consumers in many cases from
    exercising valid rescission rights—preventing
    effective enforcement of TILA’s mandatory disclosure
    obligations altogether. Requiring a lawsuit would
    also dilute the deterrent function of rescission by
    shifting the burden of litigation solely to consumers
    when creditors can also file court actions after
    receiving notice of rescission—and are far better
    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
    *Counsel of Record
    (Additional Counsel Listed on Signature Page)

  301. For all of these reasons, rescission may be the
    only practical remedy in many cases and, as a result,
    the only effective way to hold lenders accountable for
    faulty consumer disclosures. Moreover, because the
    purpose of rescission is deterrence as well as
    restoration, the difficulty or expense of unwinding a
    loan transaction is not an independent reason to
    restrict TILA rescission rights. See Response to Cert.
    Pets. 29-30. The fact that lenders may find it
    onerous to unwind a loan transaction—and fear that
    consumers will readily seek rescission because TILA
    requires only written notice to exercise statutory
    rescission rights—confirms that rescission is serving
    its intended deterrent function. Rescission may be
    strong medicine, and defending against rescission
    demands may impose burdens on creditors, but that
    should motivate lenders to make true and accurate
    disclosures and keep careful records to respond to
    and refute consumer rescission claims if necessary.

    FROM ALL ATTORNEY GENERAL IN COUNTRY.

  302. @David Belanger.

    You said:

    “The potential for rescission also gives the secondary mortgage market strong incentives to police loan originators to prevent threshold TILA violations.”

    Good point.

  303. @ Ian, who said:

    “Ian, on April 17, 2015 at 3:42 pm said:

    Regarding TILA, everyone is talking about the lender. TILA doesnt say a word about the servicer. It doesn’t say anything about a non existent trust. I also did t see ( ill have to read again) anything about a mortgagee, first named Insured, holder, holder In due course, nonholder with the rights of a holder, nonholder in possession, assignee, PETE, or anyone else.
    Simply, the creditor.”

    Clearly you are right, Ian.

    And “Creditor” is defined in TILA and Regulation Z as: “…the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness…”

    That would be whoever is noted as “lender” in your note and mortgage and/or deed of trust.

  304. Rescission is also particularly important as a
    means for deterring TILA violations because many
    mortgage loans are sold on the secondary market or
    securitized, effectively exempting the loans from
    consumer damages claims. In many cases, the original
    lender goes out of business or becomes insolvent after
    selling the loan. Assignees are liable under TILA
    only if the original creditor’s TILA violations were
    apparent on the face of loan disclosure statements—
    an exceedingly difficult standard to meet. Id.
    § 1641(a), (e). Indeed, one of the very purposes of
    securitization is to insulate parties from responsibility
    for the liability-producing conduct of the
    original lender by taking advantage of assigneeliability
    limitations. See, e.g., Lynn M. Lopucki, The
    Death of Liability, 106 Yale L.J. 1, 23-30 (1996).
    Congress specified, however, that consumers may
    exercise TILA rescission rights “against any
    assignee,” 15 U.S.C. § 1641(c), thus ensuring that
    rescission would remain as a deterrent even if a
    mortgage loan is sold or securitized. The potential for
    rescission also gives the secondary mortgage market
    strong incentives to police loan originators to prevent
    threshold TILA violations.

  305. Hey, Rock, this following comment from you to Boots is the right thing to do from the perspective of the banks, but, from the perspective of the borrower it’s WAY off the mark:

    “Rock, on April 17, 2015 at 11:35 am said:

    boots, if it were me, I’d send it to my servicer, the lender on the mortgage docs, any assignee, and bank counsel.”

    Boots was asking where to send the notice of rescission. Presumably, a borrower would want to send it to the person initially noted in the note and deed of trust as the lender, because that is who TILA says you have to send it to in order to effectuate the rescission. TILA doesn’t say you have to send it to the pretender trust, purported assignee of the loan or servicer.

    Now, why would a borrower give all those other parties notice? If you were the borrower, you definitely wouldn’t do that. If you were the borrower you would want to limit the possibility of the pretender lender challenging the rescission within 20 days.

    By contrast, if you worked for the banks, you would definitely tell the borrower to do that. Not too hard to figure out who you work for.

    The loan assignee, pretender trust, servicer, etc., will learn of the notice of rescission in time if they planned for this eventuality and made sure any notices that go to the one to whom the note was initially payable are forwarded to them.

    But, they probably didn’t do that, did they Rock?

    I mean, why would they? They were only using those originators to, among other things, insulate themselves and add a layer of obfuscation as to who really was running the scam (investment banks). They didn’t think SCOTUS would actually enforce rescission procedures exactly as written by the legislature.

    They thought the courts would continue to protect their scam.

    In light of Jesinosky, it sucks to be them!

  306. @Rock. You said:

    “Should the lender wish to contest the rescission notice, it will send a letter so stating to the borrower. Then either the lender or the borrower may file a declaratory judgment action to determine whether the notice was valid. If the borrower defaults, the lender will file a foreclosure action or initiate nonjudicial foreclosure as appropriate. The borrower would then assert rescission as an affirmative defense to foreclosure or in a declaratory judgment action to halt a nonjudicial sale.

    Also, courts have the discretion to not only determine whether there is a proper basis for a rescission notice but also to reorder the creditor’s and debtor’s obligations in the event rescission was proper. 1635(b). Even if the rescission notice is well founded, a court can still require the borrower to show an ability to tender before forcing the lender to return funds and void a security interest.”

    First, in the scenario you’ve outlined above, if foreclosure proceeds or is initiated in the face of a TILA rescission and enforcement action by the borrower, the borrower should do more than just assert a TILA rescission defense – the borrower should apply for a TRO and temporary injunction to enjoin any foreclosure or eviction pending the determination of the enforcement proceeding.

    Second, your proposed procedures are certainly not explicitly provided for in TILA. So, you’ve laid out a whole new administrative procedure above that you must think is IMPLIED in TILA.

    Guess a UNANIMOUS SCOTUS destroying another “implied” requirement – the need for a borrower to get a court to agree with his rescission before the rescission is effective – doesn’t deter you from grafting on several other implied requirements.

    Lol! Don’t you get it? SCOTUS is not playing the judge made law game anymore as far as TILA rescission is concerned.

    So, here are the pretender lender TILA rescission remedies:

    1. Suing within 20 days of being served with the rescission notice (and, I believe, they are also required to get a judgment, TRO and/or preliminary injunction, within those 20 days); and,

    2. Change the law.

  307. Regarding TILA, everyone is talking about the lender. TILA doesnt say a word about the servicer. It doesn’t say anything about a non existent trust. I also did t see ( ill have to read again) anything about a mortgagee, first named Insured, holder, holder In due course, nonholder with the rights of a holder, nonholder in possession, assignee, PETE, or anyone else.
    Simply, the creditor.

  308. “Read Rock’s letter. Whom is he addressing it to? LENDER.
    Who advanced the money? LENDER”.

    Only a mere comment and idiot opinion….LENDER?, whom may that be? Certainly not who is listed on DOT or recordation at court house!

    Rescission, LOL? Most of us never had a loan with debt-collectors, or servicers of a trust that is empty. Jeez….and lest not forget the money that was used by many a so-called lender, lines of credit, with repurchase agreements “demanded” to be honored, which were not; from forged/fabricated information, appraisals, NINA products (some with financial info validated and changed), 100% borrowing, etc…that began with the originators from where I can see. They own this! AHMC, Countrywide, and New Century pumped and dumped their companies and the courts allowed absolutely no investigative counsel to proceed with charges. All under the radar, with the sanctioning of the bankruptcy court. The books and records presented from these companies is perjury, simple. Having the KPMG report (in part) from New Century, holy shite….all spelled out, all sugar-coated.

    On a side note: my defense is a breach of contract, for a variety of reasons. Securitiaztion, IMHO is a nightmare to prove without discovery, try to get it, near impossible.

    Non-lawyer here and is only an opinion. Kool-aid is great over here, quenches one’s thirst for the battle ahead!

  309. FIRST OF ALL ROCK HE WAS IN BK COURT, AND HAD BEEN GOING THRU THIS WELL BEFORE HIND.

    SO SOMEONE THAT HAS DONE NOTHING IN COURT, OR ANYTHING, AND RESCIND’S , THEN THERE IS NOTHING THE BANK CAN SAY . WHEN HOMEOWNER FILES TO ENFORCE THE RESCISSION. ITS THAT SIMPLE.

    SO NOW , IF YOU HAVE BEEN FIGHTING OTHER ITEMS AND STUFF IN COURT WITH THIS BANK. YOU ARE NOW GOING TO SEND OUT RESCISSION LETTER. DONT THINK SO.

    Congress deliberately provided
    remedies to consumers to encourage consumers to act
    as private attorneys general in enforcing TILA’s
    disclosure requirements. Thus, for example, TILA
    entitles consumers to collect statutory damage
    awards, even when they suffered no actual damages.
    See 15 U.S.C. § 1640(a)(2)(A), (3).
    Like statutory damages, TILA’s extended right of
    rescission also encourages consumers to police lender
    conduct. Rescission is uniquely important, however,
    and central to TILA’s deterrent scheme because it
    serves a function not replicated by other TILA
    remedies. Recovery of actual damages under TILA
    generally requires proof of detrimental reliance, a
    difficult showing for consumers to establish. See, e.g.,
    Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th
    Cir. 2001) (en banc). Although statutory damages are
    available without proof of reliance, TILA caps
    statutory damages awards to only $4,000 for credit
    transactions secured by a consumer’s home—a
    relatively low amount that limits consumer incentives
    to enforce TILA. See 15 U.S.C. § 1640(a)(2)(A)(iv). In
    addition, TILA damages are frequently unavailable
    to consumers for practical reasons. In amici States’
    experience, many consumers fail to realize that TILA
    violations have occurred until a threatened
    foreclosure or impending bankruptcy forces them to
    seek legal help. But TILA requires that damages
    claims be brought within a year of a creditor’s
    violation, see id. at § 1640(e), a time limitation that
    frequently precludes damages recovery.15

  310. When ―the statute‘s language is plain, the sole function of the courts is to enforce it according to its terms.

    What? No common sense need apply? What’s a banker to do? For years now, all we’ve had to do was ignore the rescission notice! And now….they want, no, they demand that we…. do what? Actually rescind? Who does this Tony Scalia think he is?

  311. @Rock: you said: “Common sense dictates, something you brainless seem to lack; the lender has choices upon receiving a rescission notice, either to accept the rescission or dispute it.”

    Hey Rock, please point out where in TILA you see provision for the pretender lender to accept or dispute a rescission. Also, while you’re at it, where’s the provision that says a pretender lender may dispute, or, even accept a rescission after the 20 days have passed.

    Finally, its the rules of statutory construction that govern what the statute requires or doesn’t require – sorry, but your version of “common sense” is not part of those rules. Please review your first year law school legal analysis and research class notes, lol!

  312. Sorry rciferri, reading it isn’t enough, you have to understand it.

    Common sense dictates, something you brainless seem to lack; the lender has choices upon receiving a rescission notice, either to accept the rescission or dispute it.

    If accepted the lender must return all payments and terminate its security interest. The borrower then must tender the loan proceeds to the lender.

    Should the lender wish to contest the rescission notice, it will send a letter so stating to the borrower. Then either the lender or the borrower may file a declaratory judgment action to determine whether the notice was valid. If the borrower defaults, the lender will file a foreclosure action or initiate nonjudicial foreclosure as appropriate. The borrower would then assert rescission as an affirmative defense to foreclosure or in a declaratory judgment action to halt a nonjudicial sale.

    Also, courts have the discretion to not only determine whether there is a proper basis for a rescission notice but also to reorder the creditor’s and debtor’s obligations in the event rescission was proper. 1635(b). Even if the rescission notice is well founded, a court can still require the borrower to show an ability to tender before forcing the lender to return funds and void a security interest.

  313. @Rock: If I were as drunk as you on pretender lender designer drugs, I wouldn’t be able to read the Truth in Lending Act either. Same thing happened to the bank owned judges who just got bitch slapped into reality by SCOTUS in Jesinosky. I see it didn’t sober you up…yet.

  314. For the legal illiterates who want to learn, and Kool-aid drinkers like you rciferri, you had better read the In re Macklin case I provided. This is what happens when you listen to Garfield and the other “charlatans” like Macklin–you lose your home.

    “Macklin attempts to argue that under Jesinoski and Merritt that the recession was valid and thus the security interest is void. As such, Macklin argues that DBNTC has no interest and thus the court has no subject-matter jurisdiction. This is INCORRECT, and DBNTC can defend its rights and interests against Macklin’s claims, including asserting that it held the title to the Property. Further, this federal court had and has subject matter jurisdiction.” In re JAMES L. MACKLIN, Case No. 10-44610-5-7, Adv. Proc. No. 11-2024, Docket Control No. JLM-1. United States Bankruptcy Court, E.D. California. April 8, 2015.

    If anyone other than a crackpot has a legitimate question, I will answer it; other than that I won’t waste anymore of my time.

    BTW, the fall back position of every loser: “those court’s corrupt rulings.”

  315. rciferri, I see you’re drunk on the Kool-Aid as well.

  316. @Rock:

    You said: “…the courts have ruled the opposite.”

    And those court’s corrupt rulings (ignoring the plain wording of TILA and improperly re-writing the statute despite un-ambiguous language) just got bitch slapped by SCOTUS.

    Sorry, you are wrong. The plain language of TILA sets up a statutory remedy with particular consequences to the pretender lender if not complied with. It also gives the pretender lender a 20 day deadline in which to do so. In contrast, there is no procedure in TILA to nullify the rescission or unwind the transaction after the 20 days have passed.

  317. Rich, you would be right, there is no authority. Matter of fact the courts have ruled the opposite.

    Only the dupes that drank Garfield’s Kool-Aid believe the bank has to do anything when they receive a notice of rescission.

  318. Consumer Rights Defenders likes Neil’s discussion.

    We are here to help you “enforce” the rescission since rescission means cancellation and we guarantee that no bank will willingly give you back the money paid them, whether escrow based fees or on the Note without a war. Let us help you win your war with litigation support and scholarly assistance be calling 818.453.3585. We can help with all of your rescission issues and foreclosure defenses.
    Ask for Steve or Sara at 818.453.3585. We are here for you.

  319. @Rock:

    I wouldn’t give any alleged violations of TILA in the notice of rescission. That just gives the pretender lender a way to obfuscate the issues in a borrower’s action to enforce the rescission.

    I would abridge your free notice to:

    [Month, Date & Year]

    Sent by 1st class certified mail & by facsimile ____________
    [Name], Legal Counsel [LENDER]
    [Street, City, etc. address]

    Re: [Name of Homeowner / borrower] Property: [address] [loan number]

    Dear ____________:

    Pursuant to the provisions of the Truth and Lending Act (“TILA”), 15 U.S.C. Section 1635, the above-captioned homeowner hereby rescinds the above-referenced loan.

    Also, I’m not sure why you would give all those parties notice.

    A homeowner’s TILA rescission is effective when served on the “lender” noted INITIALLY in the note and deed of trust. No notice to an assignee or servicer is needed for a TILA notice of rescission to be effective.

  320. @javagold:

    Each of your questions invoke a contention by the pretender lender that the borrow had no right to rescind. However, the pretender lender has waived any such contentions if it does not sue within 20 days of the rescission.

  321. @Rich: The legal authority you are seeking is the plain wording of the Truth In Lending Act and Regulation Z.

  322. congressional Act must be construed as implementing itsclosest common-law analogue. Cf. Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108–109 (1991). The clear import of §1635(a) is that a borrower need onlyprovide written notice to a lender in order to exercise his right to rescind. To the extent §1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory lawmodifies common-law practice.
    * * * The Jesinoskis mailed respondents written notice oftheir intention to rescind within three years of their loan’s consummation. Because this is all that a borrower must do in order to exercise his right to rescind under the Act,the court below erred in dismissing the complaint. Accordingly, we reverse the judgment of the Eighth Circuit andremand the case for further proceedings consistent with this opinion.
    It is so ordered.

  323. I agree with the entire rescission procedure. However, I am not aware of the legal authority that requires the “lender” to respond in court in 20 days, creating a default where all affirmative defenses are thereby waived by the bank. Does anybody have legal authority that the bank must respond with some sort of legal judicial filing?

  324. Rock Maher Suleiman

  325. ok thanks guys..

  326. Boot:

    Read Rock’s letter. Whom is he addressing it to? LENDER.
    Who advanced the money? LENDER.

  327. boots, if it were me, I’d send it to my servicer, the lender on the mortgage docs, any assignee, and bank counsel.

  328. whose lender we have to send the notice of rescission if it is securitize loan? the original lender on the Deed or the assignment of deed in a securitized trust?

  329. Rock on, fuck off

  330. This post is factually and legally incorrect. Don’t be a sucker and buy some crap rescission package fro someone who has no clue what he’s talking about.

    Here’s a letter for free:

    [Month, Date & Year]

    Sent by 1st class certified mail & by facsimile ____________
    [Name], Legal Counsel [LENDER]
    [Street, City, etc. address]

    Re: [Name of Homeowner / borrower] Property: [address]

    Dear ____________:

    Pursuant to the provisions of the Truth and Lending Act (“TILA”), 15 U.S.C. Section 1635, the above-captioned homeowner hereby rescinds the above-referenced loan, due to violations of TILA, including but not limited to the unlawful failure to give timely and proper notices required under TILA.

    This rescission is based on the provisions of TILA, including but not limited to 15 U.S.C. 1635(a) and 12 C.F.R. 226.23(b)(5).

    Please contact me at xxx-xx-xxxx regarding this matter. Thank you.

    Sincerely,
    
    [Homeowner]

  331. So in your opinion
    1. is this for ALL loans or only refinanced loans ?????

    2. Is this for ALL time frames or only 3 years ??

    3. What about previously modifications and fraudclosed homes ??

    Simple questions. How about some simple answers !

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