When Rescission Was Ignored and Final Order/Judgment Entered: What now?

For further information please call 520-405-1688 or 954-495-9867

============================

One of the warriors in this fight just got a negative result in court relating to rescission. Not surprising. Judges never liked TILA and they certainly don’t like rescission, but Justice Scalia made it very plain that the Judges must apply the law as it is — not as they think it should be.

The facts are that the notice of rescission was sent years ago and the bank stonewalled it — the very thing that Congress wanted to make very painful for banks. While Judges all over the country were saying I was wrong about rescission under TILA and applying common law principles, the outcome was very predictable — they found reasons why the rescission was not effective. But Scalia in Jesinowski changed all that. TILA rescission is effective by operation of law at the time the notice is dropped in the mail. And what Judges are still seeking to do is “say it isn’t so.” Here is my response

Interesting and wrong. I understand the reasoning. But jurisdiction can be brought up at any time. If your rescission was effective, which it was, then by operation of law the note and mortgage did not exist at the time of the decision by the trial court. The Jesinowsi decision was not a change in the law. The law remained unchanged. The prior decisions under which the Court rendered judgment were all based on a misconception which this court continues to accept despite the explicit instruction from Justice Scalia, whom this court cannot overrule.

The LAW has always been that the rescission is effective by operation of law at the moment notice is given. There is no dispute as to whether the notice was given. The law has always been that “by operation of law” means that the mortgage and note ceased to legally exist at the point in time when rescission was effective. If the note and mortgage were void at the time of any decision regarding the enforcement of those nonexistent instruments then subject matter jurisdiction and probably personal jurisdiction was absent since there was no indication as to the identity of the true creditor.

For the court to say today that it is true that the mortgage and note didn’t exist when it rendered its judgment but that the attack now is collateral is a veiled attempt to overrule the unanimous decision of the Supreme Court. To the extent it rendered judgment on property and instruments that did not exist at the time of the order or judgment, the judgment or order is void.

The issue of finality is what this court is raising. That only applies with respect to facts that were known at the time of judgment and not raised. This is a legal issue since there are no factual issues in dispute and it is universally held that a Judgment without subject matter jurisdiction is void. And the void judgment cannot withstand any attack if the subject matter — the note and mortgage — did not exist. If a party wished to bring a proof of claim in court without the note and mortgage then that could have been considered. But it was not represented as such and so it the pretend creditor that should be barred from a “collateral attack” — a doctrine that does NOT apply to lack of jurisdiction.

Perhaps it is time for a motion for rehearing or an appeal from the order.

30 Responses

  1. Scalia said: ” rescission is effective upon notice” Pretty plain to me. Also said the pretender lender had 20 days to question the validity of the rescission. Also pretty plain. So now the person claiming to be the creditor or lender should have to prove it without a mortgage or note which of course is an easy matter if in fact they are the lender or creditor. But of course if they are not they have to rely on the void note and mortgage. That of course is why they have to get entities to confuse the issue with unfounded claims. The court decisions prior to the supreme court ruling in January 2015 should not be relied upon regarding this matter. Heck, How can a contract be consummated if you don’t know the true parties. A question of fact. Also it is not a residential mortgage transaction. It is a securities transaction where the homeowner was an unwilling and uniformed participant now entitled to rescission, recoupment and set off. Too bad the courts are corrupt and fail in their duty to uphold the law.

  2. Rock, why are appeals courts around the country reversing and remanding to lower courts? You however failed to answer my question the mandatory 20 day window granted to the servicers or lenders to either file for declaratory judgement or pay back every dime they’ve received. Why should a homeowner be forced by a servicer to sue when they’ve deliberately ignored their obligations prescribed in the act? Please answer the 20 day window part for some of us.

  3. This is where you’re wrong Dulpeck, the Jesinoski decision wasn’t “written plainly for every layman to easily digest it,” it was written with the understanding that the lower courts who are to follow it, already knows how rescission works,lb and that notice only STARTS the rescission process, not that it ends it.

    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).

    Like I duly noted, keep listening to the scammer/nitwits and lose your home like Dwight did.

  4. @Rock, in all your postings here, you seem to ignore the 20 days window the servicer or lender had to respond in the ways prescribed in the act. Why should a servicer show up 5 years later to claim ownership of a debt that was extinguished by operation of law. Furthermore, the act didn’t require the homeowner to file a lawsuit after am loan is rescinded . Jesinoski vs Countrywide was written plainly for every layman to easily digest it .

  5. Dulpeck, there was ONE holding in the Jesinoski case, and ONE holding only; borrower didn’t also have to file suit within the 3 yr. SOL!

    Moreover, the case was remanded back to see if in fact there really was a TILA violation.

    As a matter of fact, the Jesinoski case has the same factual scenario as dupe/nitwit Dwight’s case has. The bank holds a signed document that the Jesinoski’s signed, agreeing they received 2 notices of right to cancel. And just like Dwight–goodbye home.

    Keep listening to the scammer/nitwits Garfield, rciferri, Gault, trespass, neidermyer, et al, and lose your home as well.

  6. 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

  7. Dulpeck: “Thank you Neil and all the participants here who are willing to share their stories negative and positive, unlike those with an agenda which reminds me of the line banksters spoon fed to the media ” they bought homes they couldn’t afford.”

    “they bought homes they couldn’t afford.” That’s the damn truth and the lion’s share of the responsibility lays at the feet of the majorly predatory white collar criminals in approving and making loans to people who couldn’t possibly repay them and then making yet more money by laying off the other part of the train crash to yet others. Lost homes, lost pensions, lost faith….how low can you go? Hey, Bill. Sleeping well? Vomiting yet at the site of your own bully pulpit? Ready to join Mr. Arnold, maybe do a little deep-sea fishing or how about diving? This looks like one we’ve forgotten all about (scribd):

    “General Practice, Solo & Small Firm Division
    Best of ABA Sections (best of the bar association? scary)
    SPRING 1998 – VOLUME 2, NUMBER 1 Real Estate Law (law?)
    Yes, There Is Life on MERS®
    By R.K. Arnold

    “After nearly four years on the drawing board, Mortgage Electronic Registration Systems, Inc., (MERS®), is a reality. MERS® is the result of an industry effort to reduce the need for mortgage assignments in the residential mortgage market and thus increase efficiency and reduce costs” (that’s for sure, esp since the only consequence of taking one’s home that he has no right to is merely a 10k fine to mers’ parent corporation- sic).” MERS® will act as mortgagee of record for any mortgage loan registered on the computer system MERS® maintains, called the MERS® System. It will then track (track, a verb. really? mers will track? don’t they mean only that their deal allows for strictly voluntary entries into their computer program which ‘tracks’ nothing – sic) “servicing rights and beneficial ownership interests in those loans and provide a platform for mortgage servicing rights to be traded electronically among its members without the need to record a mortgage assignment in the public land records each time.

    MERS® is a Delaware nonstock corporation owned by its members, who, in most cases (oh, yeah, there were exceptions for non-member robo-signers) are also its users. Members pay annual fees to belong and transaction fees to execute electronic transactions on the MERS® System. (could we hear more about these “electronic transactions”? Is this one of thee statements that got Arnold reassigned to his yacht? also, what about all those other fees paid to foreclose in mers’ name and how bout those fees outta members to execute assgts to themselves using their own employees -or LPS’s- in mers name? Mers did diligence on all that, right?) Members control the company (isn’t there another name for this?) through a board of directors, which is empowered to set rules, fees, and penalties for operating the System………….
    The mortgage note holder can sell a mortgage note to another in what has become a gigantic secondary market. The negotiability of notes under the UCC is the foundation for the secondary market for mortgage loans. (then dash-gummit, why’d they go and tell that court these notes aren’t regulated by the article of the UCC which deals with negotiability? we need some help here)

    “As investors bought more and more loans in the secondary market, many of them contracted with servicing companies to handle loan servicing obligations.” (oh, I see, and some of those investors serviced the loans themselves).

    “For these servicing companies to perform their duties satisfactorily, the note and mortgage were bifurcated……”. (Geez. You’d think a corp president would know. he is alive and well on that yacht, right? )

    A “servicing contract is not an interest in real estate (sooo glad he cleared that up). Even before MERS®, servicers had no reason to appear in the public land records (dang. that’s what I thought! so I was so confused when courts were told change of servicing was always recorded and was cumbersome) except to receive the legal process they needed to service loans properly (that way servicers wouldn’t need to record that document called a request for notice, right? and is this to say, then, when ‘properly serviced’, notice to the servicer is notice to the lender? (hope they will clear this up since some servicers have argued otherwise).

    When a mortgage loan is registered on the MERS® System, it receives a mortgage identification number (MIN). The borrower executes a traditional paper mortgage naming the lender as mortgagee, and the lender executes an assignment of the mortgage to MERS®……

    When a mortgage loan is registered on the MERS® System, it receives a mortgage identification number (MIN). The borrower executes a traditional paper mortgage naming the lender as mortgagee, and the lender executes an assignment of the mortgage to MERS®. Both documents are executed according to state law and recorded in the public land records, making MERS® the mortgagee of record. From that point on, no additional mortgage assignments will be recorded because MERS® will remain the mortgagee of record throughout the life of the loan (shucky darn. Guess Mr Arnold didn’t see the Consent Order coming). In states where deeds of trust are used instead of mortgages, MERS® is typically named as beneficiary of the deed of trust.

    The MIN is unique and will not change during the life of the loan, avoiding the confusion of multiple loan numbers that may be assigned when loans are sold on the secondary market. The MIN is never used again for another loan, reducing the risk of multiple FUNDING of the same loan by different lenders, which is a significant cause of fraud loss for the mortgage industry. (I’d REALLY like to hear more on this one). As mortgagee of record or beneficiary of the deed of trust, MERS® receives service of all legal process related to the property.When mail is physically received in the MERS® mailroom, it is imaged and forwarded electronically to the company shown as the servicer for that loan on the MERS® System. The servicer then responds as required under its servicing contract with the investor. (oh, dear. something ELSE mers doesn’t do. And i’d sure like to hear more about what your mmsp says about ‘routine’ litigation in mers’ name).

  8. @Christine, my lawyer shouldn’t be wondering after Justice Scalia’s well written unanimous opinion. It is the law of the land, end of story. For too long,judges have been legislating from the bench while denying homeowners their rights. Enough of this and the Supreme Court had ordered so accordingly.

  9. ” As I type, I’m spending funds on a lawyer who’s still wondering what Jesinoski vs countrywide means even though the ruling is very clear that homeowners shouldn’t be burdened with a lawsuit after rescinding a loan.”

    Enough said.

  10. @neidermeyer, thank you for speaking for some of us who are still in this fight, thanks to what I personally learned here of how to fight back. Seven years ago, I sent a rescission letter which was rejected by Homecomings financial two months later. Had to file bankruptcy and list rescinded mortgage as unsecured once again thanks to Mr Garfield as all the attorneys I spoke to in my state thought I was crazy . Unsecured debts were discharged in 2010. Two years later Gilbert vs Residential funding followed by Jesinoski vs Countrywide fully vindicated Mr Garfield’s positions offered here in this blog. As I type, I’m spending funds on a lawyer who’s still wondering what Jesinoski vs countrywide means even though the ruling is very clear that homeowners shouldn’t be burdened with a lawsuit after rescinding a loan. Thank you Neil and all the participants here who are willing to share their stories negative and positive, unlike those with an agenda which reminds me of the line banksters spoon fed to the media ” they bought homes they couldn’t afford.”

  11. @ Christine ,

    Have to agree with E. Tolle , you’re a boor ,,, Even if Mr. Garfield hasn’t been 100% correct 100% of the time he has been amazingly accurate for many years and has not strayed greatly from his premises except when exploring new developments … That is how we learn… and don’t fault him for that (I know you’ll try) … for we all are products of our environment and the legal environment has been constantly changing … to fail to question is to die. My mother is 85 , has mild alzheimers and is forever “stuck” in the 1970’s … Rock reminds me of her.. He is stuck in 2011 and can never advance into the post Jesinowski era.

    We have all fought different fights , many have lost despite having the truth and the law on their side. That doesn’t make them losers in my book unless they have the means to keep fighting and decide not to. I have “lost” and am appealing, I am using every tool available to me. I have the truth and the law behind me… and I may still lose. I “lost” a MSJ where the decision was pre-filled out and signed before the hearing, where no valid evidence was submitted to support the MSJ and where my evidence was excluded by calendar manipulation (had it all ready to go for trial when plaintiff got the court to schedule a msj hearing in front of it with minimal time , less time than the rules of evidence require for my submissions to be “valid”) …

    To be blunt ,, if you don’t have anything constructive to say follow your mothers advice and remain silent, else you start looking like Rock… a bank/securitization shill stuck in the past…

    The banks are finally on the losing side of the table… they held us off for 8 long years , they made their money, they obfuscated long enough to escape without criminal charges and now it’s our turn , the warriors who haven’t given up to press on to victory. There aren’t many of us left… In the end you can say the banks won because of the loot they collected… but we will get our crumbs as they pay us off to maintain the illusion that they aren’t criminal.

  12. trial de novo
    new trial,
    motion for rehearing.
    Do over with more objections and better claim with supporting elements?

  13. Tolle,

    I rest my case. Grown ups fess up to their bad results. I don’t need the story of a lost case told by its poor player: I’d want to see the pleadings so that I know even better what does not work and I have more reasons to guard people against going that way. Technically, you should: your case, your pleadings and it didn’t pan out. Thing is… you don’t have the guts to take responsibility for your outcome. The reason this country is where it is: no guts, no sense of responsibility. Always somebody else’s fault.

    Make me shut up. I’m sure you can. Denouncing is very big among Garfield cult followers: that’s what they do. Makes them feel good about following bad advice. Won’t stop me from helping homeowners though. Been kicked out a few times. Used to it. Always came back. Helped elsewhere in the meantime. Picked up a few new people here to help each time. Some of them have gotten what they wanted just by focusing on the issues, gathering the proper documents and bringing along their timeline to court or to the bank when negotiating: banks never have that much admissible information. Those people don’t come here. They learned their lesson: LL costs and neither sells nor teaches anything of value. Others too far gone for me are now in the hands of very solid attorneys because I have my limits. They don’t come here either. What for?

    Still. A lot better than what LL has to show for… Where are the positive results, on or out of court? They don’t exist.

    And I still don’t ask for a cent because I don’t need the money. I want a winning country able to think and pull itself by the bootstraps.

    Not taught here.

  14. Actually Christine, I don’t want proof. It would just be nice if you’d shut-the-fuck-up on occasion. Your holier-than-thou shtick is really gruesome to witness day in-day out. Like a bad car wreck.

    Oh Christine, I honestly wouldn’t wish anything bad on anyone. But you’d better hope you get another kindly judge, because there are plenty of us around who did everything JUST RIGHT but were still shown the door by the great robed ones.

    Don’t kid yourself….it wasn’t your prowess as much as it was the luck of the robe draw. Fate may not be as kind to you your second go-round.

    Of course, we’ll only have your word on that outcome. But I do wish you the best.

    And btw, I didn’t have a single “Garfield” item in my suit. No forensics….no securitization thingys, like you enjoy thumping on. It was simply about the fraud piled upon fraud. Two notes, two banks showing concurrent assignments. But the judges don’t care to address that. End of that story.

  15. And Tolle,

    Just for the hell of it, you want proof? Plenty of people here have it. The thing is: I don’t give anything until I know whom I’m dealing with. Too many weirdos on this site. I’ve posted my email address often enough. So, you can remain anonymously snide with no credibility as the Garfield Cult enforcer or you can learn what works by contacting me.

    And if you don’t, it will only confirm my conclusions.

  16. “justify their inadequacies”

    Wow, projection….as they say in psychology.

    The insatiable need to be noticed and thought of as accomplished, by following those one thinks are capable, then diminishing those who are deemed not!

    One who pushes beyond reason to have their ideas or thoughts heard, no matter what the cost. What a frightening legacy…to berate, insult and bully others into one mind, hers! I’ll pass….medication is a far better option., IMHO This is way out of control, Neil what are you thinking?

    The “facts” in one case are specific to that case ONLY.

  17. No need to: facts are facts. As long as I can prove what I say, I’ll say it. And I’ll prove to those I need to prove it to. That doesn’t include fanatical cult followers who play the blaming game to justify their inadequacies and limited understanding of their own country’s judicial system.

  18. Delusions of grandeur much?

  19. TO ROCK AND CHRISTINE, AGAIN MOTHER MAY I, IT’S TIME FOR SOMEONE TO SAY TO JUDGE, OBJECTION TO YOU YOUR HONOR, WERE DO YOU GET TO OVER RULE, THE U.S.SUPREME COURT?? I WILL NOT AFRAID.

    The express wording of the TILA rescission as affirmed by a unanimous united states Supreme court in Jesinowski is that the rescission is effective by operation of law when it is dropped in the mailbox — and that there is nothing else required by the borrower.

    If the “lender” wants to challenge that rescission it must do so before the 20 day deadline for compliance — return of canceled note, satisfaction of mortgage and disgorgement of all money paid. This makes it very clear that stonewalling or bringing up defenses later when the borrower seeks to enforce the rescission is not permissible. The idea behind TILA rescission has been to allow a borrower to cancel one transaction and replace it with another — which means that title is clear for a new lender to offer a first or second mortgage free from claims of the prior pretender lender.
    Thus the expected defense from the banks and servicersis going to be that the rescission was void ab initio because of the statute of limitations or some other reason. But these are affirmative defenses which is to say they are pleas for affirmative relief in a formal pleading with a court of competent jurisdiction. That court does not have any jurisdiction or discretion to find that the rescission was void ab initio if more than 20 days has expired after the notice of cancellation or rescission was made.Thus procedurally, the express wording of TILA and Jesinowski totally bars the banks and servicers from raising any defenses to the effectiveness of the rescission after 20 days from the date of notice of rescission.

    this is all about the law of the United States of America.
    How to Recind a Mortgage
    The following information pertains to the right to recind an agreement between HSBC and a customer. It is quite lengthy, but very interesting. The information comes from the FTC and OCC, respectively, according to the submitter. Case law is included:
    I. TILA & Res Judicata
    (Analogous to Mr. Curtis xxxxxx , situation since he had never litigated fully or raised any TILA claims affirmatively or defensively) A rescission action may not be barred by prior or subsequent TIL litigation which did not involve rescission (Smith v. Wells Fargo Credit Corp., 713 F. Supp. 354 (D. Ariz. 1989) (state court action involving, inter alia TIL disclosure violations did not bar a subsequent action based on rescission notice violations in conjunction with same transaction which were not alleged or litigated in prior action) (See also In re Laubach, 77 B.R. 483 (Bankr. E.D. Pa. 1987) (doctrine of merger bars raising state and federal law claims arising from a transaction on which a previous successful federal TILA action was based; merger does not bar, however, rescission-based on the same transaction)).
    The Truth-in-Lending law empower Mr. Curtis xxxxxxx , to exercise his right in writing by notifying creditors of his cancellation by mail to rescind the mortgage loan transactions per (Reg. Z 226.15(a)(2), 226.23(a)(2), Official Staff Commentary 226.23(a)(2)-1) and 15 U.S.C. 1635(b).
    2. Security Interest is Void
    The statute and regulation specify that the security interest, promissory note or lien arising by operation of law on the property becomes automatically void. (15 U.S.C. 1635(b); Reg. Z 226.15(d)(1), 226.23(d)(1). As noted by the Official Staff Commentary, the creditor’s interest in the property is “automatically negated regardless of its status and whether or not it was recorded or perfected.” (Official Staff Commentary 226.15(d)(1)-1, 226.23(d)(1)-1.). Also, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification. This requires HSBC Mortgage Services to submit canceling documents creating the security interest and filing release or termination statements in the public record. (Official Staff Commentary 226.15(d)(2)-3, 226.23(d)(2)-
    3. Extended Right of Rescission
    The statute and Regulation Z make it clear that, if Mr. Curtis xxxxxxx , has the extended right and chooses to exercise it, the security interest and obligation to pay charges are automatically voided. (Cf. Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704-05 (9th Cir. 1986) (courts do not have equitable discretion to alter substantive provisions of TILA, so cases on equitable modification are irrelevant). The statute, section 1635(b) states: “When an obligor exercises his right to cancel, any security interest given by the obligor becomes void upon such rescission”. Also, it is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1625(b).
    The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. The statute makes no distinction between the right to rescind in three day or extended in three years for federal and four years under Mass. TILA, as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Since the rescission process was intended to be self-enforcing, failure to comply with the rescission obligations subjects Hsbc Mortgage Services Inc. to potential liability
    Non-compliance is a violation of the act which gives rise to a claim for actual and statutory damages under 15 USC 1640. TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the Mr. Curtis xxxxxxxx , to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to Mr. Curtis xxxxxxxx , all finance charges and fees paid.
    In case HSBC Mortgage Services Inc. do not respond to this default letter, Mr. Curtis xxxxxxxx, has the option of enforcing the rescission right in the federal, bankruptcy or state court (See S. Rep. No. 368, 96th Cong. 2 Sess. 28 at 32 reprinted in 1980 U.S.C.A.N. 236, 268 (“The bill also makes explicit that a consumer may institute suit under section 130 [15 U.S.C., 1640] to enforce the right of rescission and recover costs and attorney fees”).
    TIL rescission does not only cancel a security interest in the property but it also cancels any liability for Mr. Curtis xxxxxxxx , to pay finance and other charges, including accrued interest, points, broker fees, closing costs and the lender must refund to Mr. Curtis E Frazier , all finance charges and fees paid. Thus,HSBC Mortgage Services Inc. are obligated to return those charges to Mr. Curtis xxxxxxxx , (Pulphus v. Sullivan, 2003 WL 1964333, at *17 (N.D. Apr. 28, 2003) (citing lender’s duty to return consumer’s money as reason for allowing rescission of refinanced loan); McIntosh v. Irwing Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003) (citing borrower’s right to be reimbursed for prepayment penalty as reason for allowing rescission of paid-off loan).
    4. Step One of Rescission
    First, by operation of law, the security interest and promissory note automatically becomes void and the consumer is relieved of any obligation to pay any finance or other charges (15 USC 1635(b); Reg. Z-226.15(d)(1),226.23(d)(1). . See Official Staff Commentary 226.23(d)(2)-1. (See Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002) (Once the right to rescind is exercised, the security interest in the Mr. Curtis E Frazier’s property becomes void ab initio). Thus, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. (See Family Financial Services v. Spencer, 677 A.2d 479 (Conn. App. 1996) (all that is required is notification of the intent to rescind, and the agreement is automatically rescinded).
    It is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1635(b). The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. The statute makes no distinction between the right to rescind in 3-day or extended as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Also, after the security interest is voided, secured creditor becomes unsecured.
    5. Step Two of Rescission
    Second, since Mr. Curtis xxxxxxxxx has legally rescinded the loans transaction, the mortgage holders (HSBC Mortgage Services Inc.) must return any money, including that which may have been passed on to a third party, such as a broker or an appraiser and to take any action necessary to reflect the termination of the security interest within 20 calendar days of receiving the rescission notice which has expired. The creditor’s other task is to take any necessary or appropriate action to reflect the fact that the security interest was automatically terminated by the rescission within 20 days of the creditor’s receipt of the rescission notice (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2).
    6. Step Three of Rescission
    Mr. Curtis xxxxxxx was prepared to discuss a tender obligation, should it arise, and satisfactory ways in which to meet this obligation. The termination of the security interest is required before tendering and step 1 and 2 have to be respected by HSBC Mortgage Services Inc.
    XIV. Conclusion
    When Mr. Curtis xxxxxxxx rescinds within the context of a bankruptcy, courts have held that the rescission effectively voids the security interest, rendering the debt, if any, unsecured (See Exhibit #6). (See in re Perkins, 106 B.R. 863, 874 (Bankr. E.D.Pa. 1989); In re Brown, 134 B.R. 134 (Bankr. E.D.Pa. 1991); In re Moore, 117 B.R. 135 (Bankr.E.D. Pa. 1990)).
    Once the court finds a violation such as not responding to the TILA rescission letter, no matter how technical, it has no discretion with respect to liability (in re Wright, supra. At 708; In re Porter v. Mid-Penn Consumer Discount Co., 961 F,2d 1066, 1078 (3d. Cir. 1992); Smith v. Fidelity Consumer Discount Co., Supra. At 898. Any misgivings creditors may have about the technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not the courts.
    Since HSBC Mortgage Services Inc. have not cancelled the security interest and return all monies paid by Mr. Curtis xxxxxxxx within the 20 days of receipt of the letter of rescission of April 4th, 2007, the lenders named above are responsible for actual and statutory damages pursuant to 15 U.S.C. 1640(a).
    HSBC Mortgage Services Inc. are to take any necessary or appropriate action to reflect the fact that the security interest was automatically terminated by the rescission (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2). This requires canceling documents creating the security interest and filing release or termination statements in the public record of FREE and CLEAR TITLE to Mr. Curtis xxxxxxx .
    If a lender fails to respond within twenty days to the notice of
    rescission, the ownership of the property vests in the borrowers and they are no longer
    required to pay the loan. See 1635(b); Staley v. Americorp Credit Corp., 164 F. Supp.
    2d 578, 584 (D. Md. 2001); Gill v. Mid-Penn Consumer Disc. Co., 671 F. Supp. 1021
    (E.D. Pa. 1987).
    7. Where, as here, if, a Creditors does not respond to a properly served and ignores a duly issued TILA notice of rescission, an Entry of default, is the appropriate and, indeed, just and only recourse. According to The Office of the Comptroller of the Currency, “a consumer’s right to rescind is not affected by the sequence of the rescission procedures or a court order modifying those procedures in both open and closed-end credit (Comptroller of Currency, OCC Bulletin 2004-19 (May 7, 2004)). Since the Creditors do not appear disposed to follow and to abide by the rule of law of the Federal Truth-In-Lending Law, this Court has as the only avenue available to conclude this matter, the entry of default against Creditors for failure to comply by illegally proceeding with a foreclosure action despite having received the TILA rescission notice that automatically void the security interest as described in 15 USC 1635(b).
    8. TILA Achieves its Remedial Goals by A System of Strict Liability To further this congressional policy TILA achieves its remedial goals by a system of strict liability in favor of consumers when mandated disclosures have not been made. 15 U.S.C. 1640(a) (emphasis added). The standard applied is considered “strict liability in the sense that absolute compliance is required and even technical violations will form the basis for liability.” Shepeard v. Quality Siding & Window Factory, Inc., supra. at 1299; In re McElvany, 98 B.R. 237, 240 (Bankr. W.D. Pa. 1989). This means that “technical or minor violations of TILA, or Reg. Z, as well as major violations impose liability on the creditor and entitle the borrower to rescind [the loan].” Smith v. Wells Fargo Credit Corp., 713 F.Supp. 354, 355 (D.Ariz. 1989); Jackson v. Grant, 890 F.2d. 118, 120 (9th Cir. 1989); Semar v. Platte Valley Fed. S & L Assoc., supra. at 704.
    This rule is inviolate and is followed by courts in all jurisdictions. See, e.g., Smith v. Fidelity Consumer Discount Co., 989 F.2d 896, 898 (3rd Cir. 1990)(The federal Truth in Lending Act (TILA) achieves its remedial goals by a system of strict liability in favor of consumers when mandated disclosures have not been made); Lewis v. Dodge, 620 F.Supp. 135, 138 (D. Conn. 1985); In re Porter, 961 F.2d 1066 (3rd Cir. 1992); Rowland (John M., Carol S.) v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (C.D. Ill. 1992) (“even technical violations will form the basis for liability”); New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (D. Me. 1992); Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567 (S.D. Ga. 1990); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (D. Conn. 1990) (same with Unfair Debt Collection Practices Act); Morris v. Lomas and Nettleton Co., 708 F.Supp. 1198 (D. Kan. 1989); Jenkins v. Landmark Mortg. Corp. of Virginia, 696 F.Supp. 1089 (W.D. Va. 1988); Laubach v. Fidelity Consumer Discount Co., 686 F.Supp. 504 (E.D. Pa. 1988); Searles v. Clarion Mortg. Co., 1987 WL 61932 (E.D. Pa. 1987); “Liability will flow from even minute deviations from requirements of the statute and Regulation Z.” Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567, 1570 (S.D. Ga. 1990); Shroder v. Suburban Coastal Corp., supra. at 1380; Charles v. Krauss Co., Ltd., 572 F.2d 544 (5th Cir. 1978).Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984) ; Goldberg v. Delaware Olds, Inc., 670 F.Supp. 125 (D. Del. 1987); Curry v. Fidelity Consumer Discount Co., 656 F.Supp. 1129 (E.D. Pa. 1987); Laubach v. Fidelity Consumer Discount Co., 1986 WL 4464 (E.D. Pa. 1986); In re Wright, 133 B.R. 704 (E.D. Pa. 1991); Moore v. Mid-Penn Consumer Discount Co., 1991 WL 146241 (E.D. Pa. 1991); In re Marshall, 121 B.R. 814 (Bankr.C.D. Ill. 1990); In re Steinbrecher, 110 B.R. 155 (Bankr.E.D. Pa. 1990); Nichols v. Mid-Penn Consumer Discount Co., 1989 WL 46682 (E.D. Pa. 1989); In re McElvany, 98 B.R. 237 (Bankr.W.D. Pa. 1989); In re Johnson-Allen, 67 B.R. 968 (Bankr.E.D. Pa. 1986); In re Cervantes, 67 B.R. 816 (Bankr.E.D. Pa. 1986); In re McCausland, 63 B.R. 665, 55 U.S.L.W. 2214, 1 UCC Rep.Serv.2d 1372 (Bankr.E.D. Pa. 1986); In re Perry, 59 B.R. 947 (Bankr.E.D. Pa. 1986); In re Schultz, 58 B.R. 945 (Bankr,E.D. Pa. 1986); Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (E.D. Pa. 1986).
    Violation of the rule of law, since neither you nor any of the defendants have Standing to pursue foreclosure action because, once TILA notice of rescission is given, the lien or security interest in plaintiff’s property becomes void ab initio, even if a court has not yet ruled on the validity of the plaintiff’s rescission (Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002)).
    © 2015 Microsoft Terms Privacy & cookies Developers English (United States)

  20. And that is exactly why they don’t get anywhere and why I won’t give them the caption of my federal case: petty, catty and completely irrelevant. And in the meantime, I’m back in federal court by choice (again: the best defense is an attack), to collect all the damages I didn’t get the first time around. I’m not in foreclosure and my second was voluntarily written off by the mortgagor. Well planned strategy that has so far paid off.

    Then again, they wouldn’t know anything about that: they played the Garfield cards… so, they got absolutely nowhere and they won’t get any farther. A dime a dozen on this blog. A true microcosm of why this country is turning into a third world country.

  21. Poppy, yes, her reply was very cryptic….

    I believe she means Colonel Mustard in the kitchen with a candelabra, but I can’t quite make it out for sure. This calls for the Magic 8 Ball! Possibly followed by the Quija board. That should do it….

    We’ll figure her out shortly….

  22. NEIL GARFIELD RULES.

  23. I guess she told you E….He, He, He….the clues to what? What is this an Alfred Hitchcock drama? That ole suspense account case, is a no brainer, doesn’t qualify as a studied, complex case.

    Should have never gotten to Federal Court and it doesn’t qualify for advisement on other different types of actions. Good Grief!

    Lest not forget the CPA advice, jeez, an expert on everything tax, foreclosure, TILA, FDCPA, Rescission, holy crap. Why has no one hired her, for 7 figures?

  24. Tolle,

    Those who need to know do. And those who do their research instead of coming here find it very easily. I’ve given enough clues for anyone with half a brain to find it.

  25. We agree with Neil’s position, don’t let an old antiquated ruling defeat you in light of the J. Scalia Decision how the supreme law of the land….

    ….and you can bring your follow up motion [nunc pro tunc] or new action to enforce the rescission with our assistance at Consumer Rights Defenders….at 818.453.3585 today. We are standing by to assist pro se’s whether with their old cases, new actions, motions, or appeals. Let us assist with powerful litigation strategies suited to your needs.

  26. It is difficult for some judges to get off the free ATM Machine. Withdrawal’s a Bi$ch.

  27. “If you’re going to refer to a specific case, integrity and honesty demand that we be provided with the actual complaint and judgment….”

    Now that’s funny, I don’t care who you are! The one who’s always harping on how everyone EXCEPT for her is a loser, boasting on and on about her alleged win, and yet she refuses to point to her own case for anyone to have a look-see. “It’s all over the internet!” The internet’s a bit large for statements like that.

    Do what I say, not what I do, eh Christine?

  28. Garfield,

    “One of the warriors in this fight just got a negative result in court relating to rescission. Not surprising. Judges never liked TILA and they certainly don’t like rescission, but Justice Scalia made it very plain that the Judges must apply the law as it is — not as they think it should be.”

    If you’re going to refer to a specific case, integrity and honesty demand that we be provided with the actual complaint and judgment (even with names whited out to protect the homeowner’s ID) in order to read for ourselves the rationale behind the judge’s decision. Why? Because so far, ever single case you have quoted and “interpreted” was not what you misrepresented it to be. Unless they are demented or senile, judges don’t flip the coin to make a decision. They know better than risk reversal on appeal. They go through great length to explain their decision. To flat out conclude “judges never liked TILA”, as an explanation for a bad and probably foreseeable result, is contemptible, underhanded and a serious breach of ethics on the part of someone claiming to be an attorney.

    In the great majority of the cases I’ve read, judges did apply the law. Those who didn’t got reversed on appeal.

  29. Thank you Neil, a motion for re-hearing sounds like the next move. If final judgment is eventually entered I would then Appeal to the Appellate Division …. unless there is a way to appeal sooner, in NJ we normally have to wait for a final judgment before we can appeal.

    Motion for re-hearing .. Not sure how and why they are granted , do i motion the same court who just granted Wells Fargo’s MSJ ?

  30. Once again, you prove you have no clue whatsoever, and just keep harming homeowners with your false legal advice.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: