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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.
Filed under: foreclosure |