Rescission: The Ins and Outs

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

My administrative assistant is Susan Rose. She speaks for me but she is not a lawyer and cannot answer legal questions. This blog and the included articles are not legal opinions on any specific case and should never be used as a substitute for advice from a knowledgeable attorney who is licensed in the jurisdiction in which the property is located.

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So due to scheduling conflicts I can’t do the radio show tonight. Sorry. But here is what I will cover next week along with some late=breaking news regarding MERS and damage cases against the banks, servicers and their lawyers.

RESCISSION: I have received hundreds of requests and questions. It boils down to one thing — the rescission IS EFFECTIVE the moment it is dropped in the mail. People, lawyers and even Judges seem not to understand what that means despite a very terse snip from Justice Scalia speaking for an unusually unanimous Supreme Court in Jesinowksi. What it means is that the deal is done, canceled, rescinded (stick a fork in it). And what it also means is that the time starts to run on the duties of the “lender(s)” to comply with that cancellation/rescission. Telling you in a letter that you had no right to send it is NOTHING, as a matter of law.

So whether you were right or wrong when you sent the notice of rescission the deal was canceled. Anyone who interprets it differently is doing two things that are wrong: (1) interpreting that which is clear and ruled upon by the highest court in the land and (2) getting it exactly wrong.

There is no other interpretation of “effective” because the Supreme Court under the annoyed pen of Justice Scalia has said there is nothing to interpret. When the rescission was mailed it was effective BY OPERATION OF LAW.

During the 20 days, the duties of the “lender” or “creditor” are clear: (1) return the canceled note (2) file a satisfaction of mortgage and (3) return all money paid by borrower. If the banks fail to do that they have violated the statute. If anyone takes issue with whether the rescission should be effective this way, they would need to file a lawsuit within the 20 days allowed for performing the duties under TILA (see above). If they want to say the statute of limitations has run, they must do it in a lawsuit filed within the 20 days. Otherwise the window closes. If they want to say it was a purchase money mortgage and that the borrower rescinded a loan that could not be rescinded under TILA, they must do it in lawsuit filed within the 20 days. There are questions of fact in all these “defenses” as to whether it was really beyond the statute of limitations or really a purchase money mortgage (when coupled with a HELOC etc).

Everyone is having trouble with this after years of incorrect rulings from thousands of courts “interpreting” the statute (which was clear and thus not subject to interpretation). So here it is:

IF NOTICE OF RESCISSION IS SENT THE LOAN IS OVER AND THE NOTE AND MORTGAGE ARE VOID BY OPERATION OF LAW — NO LAWSUIT OR TENDER OF MONEY OR PROPERTY REQUIRED. PERIOD.

It apparently seems too simple, too powerful for people to accept. In one punch they could flatten a trillion dollar giant? The answer is yes. Stop over thinking this. Our rescission package analyzes your loan and gives you options and ways to utilize rescission and related actions to enforce rescission and quiet title. After 20 days the deal is over and no longer subject to attacking the rescission. But we know the Banks, servicers etc. are going to try to “defend” after the 20 days. So you need to know how the effects of rescission can be jammed down their throats and how it automatically frees your property from the encumbrance of the mortgage —regardless of whether or not anyone actually filed the satisfaction of mortgage. In fact, the statute bars any action by the “lender”until they have complied totally with the three duties outlined above.

Get it? If not, tune into the Neil Garfield Show next week.

62 Responses

  1. Dwight – right on and left off. Plus for Pete’s sake, we need electronic discovery – we need the REAL books, the ones which show ANY money-in for a loan (from any source) and the money paid to the trusts. And everyone should refuse to sign a mers mortgage.

    Neidermeyer, if you have my email, please email me. I have a question for you.

  2. johngault ,

    Tell me about it ,, OCWEN just sprung an assignment on me that is a real hoot ,,, ALL PARTIES on the doc are OCWEN (or subsidiary) employees with no authorization from the Assignee or Assignor ,, and it’s 7 years too late..

    They’re STILL attempting to fake standing…

    I’m reporting it to the Office of National Mortgage Settlement Oversight. They’re itching to yank OCWENS license(s).

  3. johngault ,

    Tell me about it ,, OCWEN just sprung an assignment on me that is a real hoot ,,, ALL PARTIES on the doc are OCWEN (or subsidiary) employees with no authorization from the Assignee or Assignor ,, and it’s 7 years too late..

    They’re STILL attempting to fake standing…

    I’m reporting it to the Office of National Mortgage Settlement Oversight. They’re itching to yank OCWENS license(s).

  4. Back in the ‘old’ days, except for the gse’s, the lender / creditor was also the servicer. That’s no longer true, and further, third parties now have their fingers in the pie (including obligations to make guarantee payments): the servicer’s records mean nothing as to the status of the loan. The alleged servicer’s records are not the records which tell anyone the true status of the loan. There’s at least one other set of records / ledger needed to determine that – the ones which show the actual payments to the lender / creditor.

    Loans are allegedly being assigned to trusts years after the closing date and also years after the borrower’s default. Can any court actually believe a trust is just now accepting assgt of a loan in default and especially loans that are years delinquent? Seriously?
    If a trust paid for a loan in 2004, why, when a trust (or anyone) has an election of remedies for non-delivery, would one accept a loan 4 to 7 (say) years down?

  5. Ill try that one more time – best defense is offense, bla bla

  6. Agree – best defende if offence. Devils advocacy works!

  7. @DNJ – IANAL. My suggestion is to follow the link to the link as described and read carefully that which you want to hear the least. Read the law with the thought of finding the worst case scenario for you.

    Hint: do a find on the word ‘tender’ and see if your judge was correct.

  8. Please all research every section of tila reg Z and your right to rescind
    Some purchase money mortgages ARE covered yes, dig deep research deep into this. Neil is right to make a big deal of this big green light we might have let them tbone right into you.the lower courts will struggle ( yeah i know 😗) but keep going precedents must come from somewhere and jesinoski showed us the way home. Onward.

    Not legal advice just sharing my belief.

  9. Pdf for those who have not read the jesinoski decision

    http://www.supremecourt.gov/opinions/14pdf/13-684_ba7d.pdf

  10. I don’t see the part where the banksters get the property .. Can you walk us thru it, which links to click…and which section this is stated that the bankers keep the property? Thanks

  11. @DwightNJ – after following the link to Sect 1640 found in the original link to TILA Rescission (below), the conclusion of the matter of violation of TILA Sect. 1635 is that 1) you get re-do of credit report due to rescission 2) banksters get the property 3) you get earnest money you paid 4) banksters pay you double the amount of finance charges in the refinance 5) you get attorney fees.

    The devil is in the details.

  12. In my opinion , you don’t have to file any lawsuit …once you mail your rescission letter it is up to the lender to respond. And if they do not respond, you have the option to either file a lawsuit to enforce, or to sit back and stop making payments , eventually they will try to foreclose or you can file a Quiet Title.

    The confusion over the “one year to file to enforce” clause pertains to borrowers who are seeking monetary damages on top of rescission. The law allows you to sue them for damages for violations, this is the one year window mentioned for “enforcing” the rescission.

    But “enforcing” is in regards to the borrower having a court enter a judgment against the lender ..it does not mean you have to file a suit to make your rescission effective.

    Justice Scalia made it clear, the rescission happens without a suit.

    So again, I blame the idiots in congress who wrote such a half assed piece of complicated legislation, it didn’t have to be confusing if they would just write things out in normal, understandable language. The system is so broken and biased against citizens, that what results from a law written to protect us against the banks, ends up being abused and hijacked by the courts and banks and used against us, by the twisting of words and meanings of the language used in the law.

    TILA was created for the borrowers benefit. It targeted banks and lenders who violated laws ..so this is how we should interpret any of the language in it , it should always lean in favor of the borrowers.

    Enforcing a rescission was a stupid choice of wording.

    They should have kept it simple and clear, rescission happens upon notice unless lender files an objection within 20 days.

    Borrowers seeking damages allowed must file for those damages within a year after the 3 year window. A court must enforce the damages by issuing an order.

    As far as how you bring a rescission claim in court ???

    Mine was stated in my Answer to the foreclosure complaint, I raised it as an affirmative defense , I explained that I had mailed the letter on a certain date and they had ignored it. My Counterclaim to their foreclosure also stated that I had rescinded and they owed me money and damages for their TILA violations.

    Of course my judge was defiant and rejected it all, so I will appeal to the state appellate division once a final judgment is entered.

    But some people here have raised the idea that maybe I can file my own action ..a Quiet Title based on several issues, consummation of the loan never really happened, meaning the 3 day window from consummation never tolled yet , etc, etc.

  13. Christine, your fellow trolls Larry and Curly already lost the Jesinoski argument in spades here on LL. As a matter of fact, I’d say they embarrassed themselves quite well.

    And everything Rod and Neil have stated is backed up in this JDSupra post.

    So, if you still deny the obvious, don’t keep ragging on Neil and Rod, take it up with the 600+ attorneys at Dorsey and Whitney.

  14. can anybody tell me what they filed in the courts as far as recession goes? Did you file a motion to rescind or a motion to enforce recession? The 2 are very different. I don’t care about who got what and where, meaning servicer, creditor, etc. If you send a notice to rescind to the servicer its good enough. I want to know what you did in the courts as far as your filing, what did you ask the courts for? Do not ask for recession, ask for enforcement of Tila. The recession is done, now you want ENORCEMENT OF TILA.

  15. TO DwighNJ: I just want to point out that you send a copy of the letter of recission to everybody in the chain….Do you think that Wells Fargo will send a copy oof the note to the previous holders?…..they fall short to send the letter to the shredder….you send a copy to everybody, not them

  16. Bear in mind at all times your rescission is to the Creditor – did it reach the creditor, who was the creditor at the material time if your rescission.
    Points to ponder – not legal advice

  17. We need to make distinctions between the ucc rescission and tila. The 20 day time to respond is an important point made in the jezinoski case, who, got a good result only by arguing to US Supreme Court level – thats what i understand is a point worth your time and mine, you have to fight for you rights – more now than ever.

  18. Elex … My initial purchase mortgage was CountryWide in 2003 ….

    And then we Refinanced with Commerce Bank in 2004 ..

    We mailed our rescission letter to Wells Fargo in 2007 …

    Our refinance is eligible because it was not with the same lender.

    The exclusion in the section you show pertains to refinances that are done with the same lender. (Unless extra money was advanced) not really sure what it means if you refi for more money with the same lender, if that allows you to rescind the entire transaction, or just the amount of the extra money advanced.

    But as in my case, and with many others, we went to a different bank to get our refinance ..which is totally okay and allowable under TILA.

    My refi loan switched hands from Commerce ..to Washington Mutual … To Wells Fargo … So in my letter to Wells Fargo I made clear that I was exercising my right to rescind effective on this date July 1, 2007 ..and asked that they please forward this to Commerce , WaMu, Fannie Mae or whatever entity may be the owner. In court Wells Fargo says they are the real party in interest because they are holders of the note. They never reveal who the real owner is. On some docs they mailed me in response to my QWR they list FANNIE MAE in sections that say “Who owns your loan – Fannie Mae”.

    So as long as you refinanced with a different lender, rescission is ok.

  19. @DwightNJ – Why does the statute in question, especially (e)(2), not apply to you? (e)(2) exempts refi from the statute, e.g., disallows rescission.

  20. Sometimes it is better to be on offensive. A good defense is actually a good offense. Of course, it would be nice if we actually had due process.

  21. Louise … Yes, I agree … We’re on the same page ..I like your idea of going on the offensive , I was just throwing in the likely hurdles that the judges would deploy to try and stop such an action against the bank. I know you understand the tactics they use …but your point is great, we should all file actions against our so-called lenders / servicers …and raise the TILA and other laws as our rights to defend our property.

  22. Elex … Mine was indeed a refinance … Which is exactly why the TILA Rescission statute was available to me … Are you confused about it?

    Don’t blame me for muddy waters , the waters were already muddied. This is why we are here discussing it, to try to make sense of it all.

    Blame the courts and judges for muddying the waters, not us victims of the travesty.

    We’re all just sharing ideas and opinions , nobody is 100% sure about any of these issues until it goes back before the courts, or is brought back in front of the Supreme Court .. thats why we’re talking and kicking ideas around.

  23. I hear what you are saying Dwight. We homeowners/pro se borrowers are not getting due process and that is a real problem. Full discovery would prove everything we say is true. Judges do not want to allow that, and there is some central place and power that tells them what to do with the cases related to foreclosure and notes and mortgages.

  24. i think you can only rescind if your loan is a principal residence and a refinancing loan thats the reason why refinancing has 3 days to close the loan, unlike purchase once you sign the documents in the title company you cannot rescind the loan.

  25. the Congress makes the Law and The Court Interpret the law. when it comes to foreclosure cases most judges never interpret the law.

  26. @DwightNJ – I thought your loan was a re-fi and wouldn’t qualify for rescission in the first place. Take time to read the whole statute before you muddy waters in which you can’t tread anyway.

  27. Consider rescission is only part of the argument the obligation to pay the debt is to the true creditor

  28. Louise … In theory that sounds good, the problem is the judge allowing it to be litigated properly.

    All the sudden the judges will be looking for you as a plaintiff to bear the burden of proving up your case before he grants discovery. The opposite of how he treats foreclosure cases where nothing has to be proven regarding origination, consummation, table funding, MERS, legal transfer of title, etc….

    There are two ways to file a TILA Rescission lawsuit seeking QT , etc.

    1) Filed by borrower within 3 yrs claiming disclosure violations for not including all proper notices and required disclosres.

    2) Filed by borrower at anytime, even outside the 3 yr limit , in which the borrower is asserting that no valid consummation ever occurred.
    This presents problems because the lenders and judges will argue that TILA Rescission is only available to borrowers for the specific named violations in the statute. But the borrowers would need to argue that their lawsuit doesn’t rest on the viokations , but rests on the fact that TILA demands that a valid loan must have been consummated by the lenders who are the target of this consumer protection law, therefore the borrowers have a right to challenge and question the validity of any loan that falls under the umbrella of protection of TILA.

    The test of a loans validity must be open to inspection..just as a drunk driving breathalyzer machine must be open to inspection and the calibration records to ensure everyone that we are playing on a level playing field … The same scrutiny must be allowed for consumers who question their lenders integrity ..and question whether the full legal consummation ever really took place … The argument is that the pretender lenders, who TILA is supposedly protecting us from, has full control and custody of all the pertinant, vital information regarding whether the loan was actually consummated. Its the classic case of the fox guarding the hen house.

    So ..if a borrower simply comes forward claiming he is rescinding under TILA , the court is more likely to hold him to proving one of the named disclosure violations took place and make him prove it as the plaintiff.

    But a lawsuit arguing that no consummation occured , incorporating the TILA rescission language of “consummation” is interesting.

    My judge couldn’t care less about origination or consummation ..and this is the problem … How do you get past them? They have the power to dismiss your complaint before you ever get to discovery.

    NG claims the lender/servicer needs to prove the origination all the way through to where they now allege standing … But the judges don’t seem to understand this …or they just act like that way ..they all keep saying that UCC and caselaw of their state grants them to merely see the party is at least the holder of the note ..they dont care about ownership.

    How do we break thru this wall?

    TILA Rescission in theory would demand that the real party is in court, but the judges control the court room .. How do you show him the law in black and white that says the party needs to be the real party and that they have to prove the consummation was valid?

  29. There are any way to know about the status of the case of people that already sent the “Letter”?

  30. DwightNJ, or file the lawsuit with the rescission issue in it and make them prove they own the note and mortgage, how they got it, all the entities that had control of it, how it made it into the Trust, who actually funded it and all documents to prove it. Sue under rescission and FDCPA.

  31. The problems are caused by the poorly written statute itself. This is what happens when you put a bunch of lawyers in charge of writing the language for statutes, they confuse things because they don’t keep it simple and staight-forward. In all thier self-proclaimed wisdom and never ending stream of words , they still fail to deliver a clear, easy to understand message from their Washington tower of babel. They are the authors of confusion. If we readers of this blog were given the task of writing the TILA Rescission statute, Im sure we could have done it in a more clear, concise way …leaving no doubt about the effectiveness, the 20 day window and reprucussions for ignoring it , etc.

    The language about lawsuits, the agency enforcing the provisions, enforcing a rescission, the courts , rebuttable presumptions, etc .. does nothing but cloud the issues and raise more questions , the lawmakers did an awful job and a dis-service to everyone by putting together such a poorly written, half-assed , confusing piece of law.

    On the face, in its initial language and plain meaning it seems to treat the act of rescission just like the 3 day right ..simple, effective, done deal.

    When it extends the 3 year right ..this is where they go off into the weeds …they begin by making it clear that you simply mail the letter.
    The Supreme Court agreed with this part. The letter voids the loan.

    The letter must be mailed inside the 3 year window ..but if the matter ends up in litigation by some reason, most likely due to the lender filing an action opposing , or if the borrower is looking for damages to be awarded on top of his rescission, well then that would explain why it ended up in court …the lawmakers must have been saying that if a lawsuit was filed…then the process could extend further, even a year after the litigation had ended … But all of this mention of lawsuits, courts, litigation, etc …seems to have been the reason for the confusion and twisted case law on the books … The judges used this opening to wrestle control away from the borrowers, the judges made it seem as though a borrower HAD TO FILE A LAWSUIT , thats bullshit.

    Congress had their heads up their asses when they failed to fully and properly explain what would happen if the lender failed to comply in 20 days.

    What if the lender lied and claimed they gave you the notices?

    I thought it said somewhere that rescission had no time limit if it was raised as a defense in foreclosures ..anyone remember that?

  32. This ‘which came first, chicken or egg’ issue of rescission is bothersome. You have a plain language statute defining rescission and the time limits within which to invoke it, e.g. “until midnight of the third business day following the consummation of the transaction or the delivery of the [disclosures required by the Act], whichever is later,”. In order for the statute to be effective there are conditions that need to be met by the obligor, including forms and statements. and primary residence (, not a refinance), for example.

    The statutes mention the ‘intent’ of the obligor at some point, which is bothersome. So if the obligor simply mails a note “… I’m gonna rescind my refi”, but without accompanying forms and statements defined in the statute, has the 20 days been invoked?

    IANAL, but it seems to me that if a ‘request’ is made without all the conditions being met, it is void ab inito. See the statute here – https://www.law.cornell.edu/uscode/text/15/1635. This statement from the decision seems to reflect this quite well – “We concluded only that there was “no federal right to rescind, defensively or otherwise, after the 3-year period of §1635(f) has run,” id., at 419, not that there was no rescission until a suit is filed [by obligor].” It stands to reason that if the effect of the law does not require a suit by the obligor, the effect of the law does not require a suit by the creditor.

  33. E, having worked in law firms and with/for attys, I can tell you that many of them do not know what they are doing. They want to make money and not make the judge angry at them. They want to put on their little dog and pony show, and it is all about them–not the client. Very narcissistic people. There are some, of course, who really care–not many, unfortunately. Even if you do hire an atty, you need to know EXACTLY what is going on in your case.

  34. Rod Ciferri, Esq., is likely considering a number of possible cases to propose to the courts. I would expect it to take some time if he is considering the work of pro se defendants to insure they kept all their legal arguments in play during their trials. If I were him I would be looking for as large an impact case that is winnable at the SCOTUS level.

    Having the power of a judge’s seat doesn’t grant wisdom. If anything, the corruption such power will swallow basic reasoning and common sense over time. Case in point is that I had appellate judges introduce argument that wasn’t presented in lower court, nor supported by evidence, and used it in their ruling. And most of the time the clerks working for the judges come up with the decisions based on a ‘gut feeling’ or corrupt motivation of the judge.

    To say judges are smarter than attorneys is a no-brainer.
    Consider the sour source …

  35. @ Christine

    I’d like to know what you really think… about why SCOTUS would remand down 3 rescission related cases VACATING THE JUDGEMENTS if Jesinoski isn’t meant to be followed.

    You’re not being logical here.

    “one has to wonder about his intellectual faculties, his motives or the condition of his brain.”

    It’s not him that I’m questioning.

  36. Once again, people like Christine ruin your credibility. Why are you publishing her rants?

  37. Rciferrri hasn’t even dignified the most Alzheimer’s-like post ever on LL.

    Might he be concerned with his own reputation, after having made a fool of himself on the LL Thursday Evening Show no serious attorney with solid results would ever listen to, let alone participate in?

    I sure wouldn’t, if I claimed to be an attorney anywhere in the states…. Shoot! Those licenses are so damn hard to obtain! And the exams one has to put oneself through!! And they frickin’ cost so much!!! You want reciprocity? Nah! Not for attorney’s nor doctor’s licenses: you need to PASS state exams each time. Rciferri just owns one license… If he fucks it up on LL, he might actually… Oh well. Never mind.

  38. The Supreme Court has spoken …. the loan is void.

    And if the lower courts don’t like it and rule against the borrowers, then the Supreme Court will speak again , and again …and AGAIN ….until those defiant, miserable criminal thug bankers and bias judges have it shoved down their throats ..and makes them understand ..or they can go to jail and think about the harms and injuries they have caused.

    The economy will collapse on a worldwide scale before the banks win this rescission battle. .. watch & learn … people will retain their homes.

    God’s judgment is coming to the corrupt bankers and world leaders.

  39. “The silence on Scalia’s rescission decision is deafening …the courts want to sweep this under the rug and ignore it …the judges are defiant and will continue to proceed as business as usual…” increasingly more surreal…

    “Everyone is having trouble with this after years of incorrect rulings from thousands of courts “interpreting” the statute (which was clear and thus not subject to interpretation). So here it is:
    IF NOTICE OF RESCISSION IS SENT THE LOAN IS OVER AND THE NOTE AND MORTGAGE ARE VOID BY OPERATION OF LAW — NO LAWSUIT OR TENDER OF MONEY OR PROPERTY REQUIRED. PERIOD.” This is no longer Kool-Aid addiction. This is serious impairment!

    The insanity of this statement is such that, if that guy is truly an attorney, he ought to be disbarred and I hope he will be for having single-handedly hurt more homeowners than all the banks together. All the road kills on this blog played right into Grafiled’ hands and we know the result. And hundreds more got the same results but have either the humility to shut the F*** up, instead of flaunting their stupidity, or were smart enough to learn their lesson and move on.

    Funny that ONE attorney with absolutely nothing to show for his alleged diploma would question 10 years of rulings from every state, every jurisdiction and many, many judges. Talk about megalomania!

    Judges are ruling on Scalia’s decision and not as the self-proclaimed attorney who has never tried a case, let alone won one, consistently misunderstands and misrepresents it, so much that one has to wonder about his intellectual faculties, his motives or the condition of his brain.

  40. Garfield-town News. ……..

    People are asking about Rod Ciferri … We have not heard from him lately …

    People are asking for a nation-wide campaign to educate all families facing foreclosure on how to utilize the TILA Rescission by mailing the letter … We need millions of homeowners to flood the courts with the rescission arguments .. including …extended equitable tolling, fraud, no actual consummation, etc .. Bury these judges in contested cases ..bury these foreclosure mills and pretender lenders in litigation …turn this battle into an all-out war with a massive offensive by homeowners fighting back …this has been a one-sided persecution against the victims of the criminal banks thus far .. Its time to fight back and get down and dirty by convincing everyone in foreclosure to turn their case into a contested matter involving rescission, consummation, equitable tolling, fraud, etc.

    The silence on Scalia’s rescission decision is deafening …the courts want to sweep this under the rug and ignore it …the judges are defiant and will continue to proceed as business as usual ..we cannot allow this opportunity to slip away …you know the banks are telling the politicians to hurry up and change the laws ..we must act now and we must act in full force and in great numbers …we need everybody to utilize the rescission argument , demand proof of lenders standing, proof of a valid consummation, etc.

  41. In light of Jesinowski the following cases have been remanded to lower courts

    http://www.supremecourt.gov/orders/courtorders/012015zor_bq7d.pdf

  42. AND I WILL SEND YOU A LETTER I JUST GOT LAST MONTH, FROM LAWYERS FOR A FORECLOSURE THEY HAVE BEEN TRYING TO DO FOR 5 YRS NOW. SO SEND ME A EMAIL AT djabelanger@hotmail.com

  43. WICHO, SEND ME A NOTE AT DJABELANGER@HOTMAIL.COM AND I WILL SEND YOU A LETTER I JUST GOT LAST MONTH, FROM LAWYERS FOR A FORECLOSURE THEY HAVE BEEN TRYING TO DO FOR 5 YRS NOW.

  44. BOOTS,

    12-12020-mg Doc 6021 Filed 12/05/13 Entered 12/05/13 22:37:30 Main Document

  45. Have received any rescission case filed and Won by homeowners after the US Supreme Court issued opinion last jan 2015?

    If you have, please let us know

  46. Rogue Judges will have to study the Nuremberg Trials. We will go viral on them. Bully Judges have no place in our communities.

    Rescission Case Law

    http://msfraud.org/LAW/Lounge/CASE-LAW-ABOUT-RESCISSION.pdf

    NEVER AGAIN

  47. Am suing WF for various things. Did a motion for judgment on the pleadings following Scalia’s opinion. Judge did take the motion under consideration but denied the motion and claimed the rescission was not done properly because it was outside the 3 year window and it was a residential mortgage transaction. Now I wait and see what they are going to do. The rescission was done 3 years ago and I have all the documentation that they received it. Heck, I even have it as an exhibit to the pleadings. And in the property records. I suppose wf will try a summary judgment next. The judge might as well be shacking up with wf lawyers.

  48. Elexquisitor … Some argue that none of the math matters if the lender fails to comply or act in 20 days , they waived their opportunity to seek the remedies available in the process outlined in the statute. Failure to comply with the 20 day window bars them from demanding tender.

    My servicer didn’t respond in the 20 days. Not sure if the appeals court will agree that their non-compliance constitutes a waiving of their remedies.

    Justice Scalia seemed to clearly imply that the borrowers tender was not a prerequisite to effecting a rescission.

    Now in my case the judge was aware of the numbers on the face, but he never allowed us to proceed in order to establish standing of this servicer…I was challenging everything.

    230,000 … amount of the 30 yr refinance at 6%

    50,000 … rough estimate of my payments made

    180,000 … balance due to lender if they complied with statute

    My home was valued at between 300,000 and 330,000 at the time of my rescission … Now it has dropped in value to about 230,000-250k

    So the judge at some point asks me if I tendered …while I was in the middle of saying yes .. he adds “do you have 180,000 dollars?” … and as he hears me saying yes ..he gets confused because he asked me two different questions at the same time …

    I explained to him that I responded “yes” to his question did I tender ..I explained that I had the property and therefore had the ability to tender if they had complied first …meaning I could either refinance with a new lender or sell the property ..but it was all a moot point because they didnt comply, which prevented the process , they waived the remedies.

    The judge didn’t follow the logic , and insisted that I did not tender the money to them.

    But like I pointed out earlier…the Supreme Court said the tender issue was not relevant to whether a rescission was effected by mailing of the letter.

    My judge didn’t even care about them proving standing, didnt care about the origination, the forged fraudulent MERS assignment, the fake phony fabricated note with the faked stamp endorsement added from WaMu 2 yrs after they went out of business, etc, etc

    He ruled I was in default even though he acknowledged I sent the rescission letter. … you cannot be in default if you effected rescission

  49. 2012 release of liens. No liens. The mortgage is an encumbrance .
    Wrong party filed the prior foreclosures.

    Took to dam long to get the release …….

  50. @davidbelanger can you tell me if this documents from recap was under the approved of BK plan? really appreciates your time on this and what docket no.? thanks.

  51. Consumer Rights Defenders is here for you all…818.453.3585

    Our panel of attorneys and experts on banking law urge that the failure of the banks to contest the rescission timely [20 days rule] may arguably waive their right to assert the running of the applicable statute of limitations on rescission actions you may need to legally enforce the cancellation and restitution called out in the act, essentially eliminating this as a defense by them to your Rescission suit.

    Don’t wage the war alone, people!!! If you need help….call us today for assistance and ask for Steve Nelson or Sara Stephens.

  52. @DwightNJ – The bank has to rescind all payment you made toward the loan, regardless of whether it was designated principal or interest. That is credited against the amount of the loan at signing that you have to repay the lender. At roughly 2/3 of loan term (at 6%, longer if lower interest), what you paid and what you have to return in rescission balance out. If the judge did not take that into consideration then you have judicial error. And if the judge missed that, you might apply leverage that he had better be damned sure WF can show business records of entitlement as beneficiary from the inception of the loan.

    IANAL (I am not a lawyer, thank God), but I’m back in the shark tank anyway

  53. THIS IS FROM THE BK OF RES-CAP/GMAC MORTGAGE AND 5 OTHER BANKS, READ THE RELEASE.

    NOW THIS WAS BACK IN 2012, MAY

    40. Release of Liens. Except as otherwise provided in the Plan or in any
    contract, instrument, release, or other agreement or document created pursuant to the Plan, on
    the Effective Date and concurrently with the applicable distributions made pursuant to the Plan
    and, in the case of any Secured Claim, satisfaction in full of the portion of the Secured Claim
    that is Allowed as of the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other
    security interests against any property of the Estates shall be fully released and discharged, and
    all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges,
    or other security interests shall vest in the Liquidating Trust.
    41. Discharge. Except as expressly provided in the Plan or the Confirmation
    Order, (a) each holder (as well as any trustees and agents on behalf of each holder) of a Claim
    against or Equity Interest in a Debtor shall be deemed to have forever waived, released and
    discharged the Debtors, to the fullest extent permitted by section 1141 of the Bankruptcy Code,
    of and from any and all Claims, Equity Interests, rights and liabilities that arose prior to the
    Effective Date and (b) all such holders shall be forever precluded and enjoined, pursuant to
    12-12020-mg Doc 6021-1 Filed 12/05/13 Entered 12/05/13 22:37:30 Exhibit 1 –
    Revised Order (Clean) Pg 57 of 81- 57 –
    section 524 of the Bankruptcy Code, from prosecuting or asserting any discharged Claim
    against or terminated Equity Interest in the Debtors.
    42. Satisfaction and Release of Claims and Equity Interests. The rights
    afforded in the Plan and the treatment of all Claims and Equity Interests under the Plan shall be
    in exchange for and in complete satisfaction and release of all Claims of any nature whatsoever,
    including any interest accrued on such Claims from and after the Petition Date, against the
    Debtors, the Plan Trusts, or any of their respective assets or properties arising prior to the
    Effective Date. Except as otherwise expressly specified in the Plan, after the Effective Date,
    any holder of such Claim or Equity Interest shall be precluded from asserting against the
    Debtors, the Plan Trusts, or any of their respective assets or properties, any other or further
    Claim based on any document, instrument, act, omission, transaction, or other activity of any
    kind or nature that occurred before the entry of this Order.
    4
    © 2015 Microsoft Terms Privacy & cookies Developers English (United States)

  54. AND IF A SHERIFF COMES TO HOUSE WITH AUCTION, NOTICE, OR IF THEY SHOW UP AT HOME TO DO SALE, WALK OUT AND SHOW THE AUCTIONEER YOUR RESCISSION LETTER, AND HAVE HIM SIGN IT AS HE HAD FULL KNOWLEDGE BEFORE SALE THAT THE MORTGAGE AND NOTES IS NO LONGER VALID.

    HE WILL RUN, LIKE , RUN FOREST RUN , HAHAHAHAH

    THE SHERIFF SHOULD HALT IT ANYWAYS , HE WILL NOT SIGN IT EITHER. BUT WILL CANCEL IT .

  55. EVERYONE, that has rescission there mortgage s and notes should do so by putting it on there land records ASAP. AND DO NOTE LOST ALL YOUR CERTIFIED LETTER RECEIPTS, AND PAYMENT RECORDS.

  56. I always answered their demands within 30 days they never answered mine regarding verification of the debt and their obligations under the FDCPA – who was it that said ” know it and love it”. All should read up on FDCPA. Plus state laws re consumer debt, they are similar.

  57. Boots, they are collecting debts illegally just go and read the Fair Debt Collections Practices Act.

  58. DwightNJ: I hold to the kitchen sink approach. Do all of it and make sure you do your Notice of Appeal properly. Look up Court of Appeals rules in your state. Make sure you find out whether a super cedeas bond is required. If so, you may have to file another lawsuit. Rescission, standing, quiet title–all to be considered. Just my ideas and not legal advice.

  59. anytime you send any correspondence letter to the lender/loan servicer regarding QWR, Debt Validation and Rescission, the debt collector will hit you with foreclosure notice such as a newly fabricated assignment of deed, notice of default and notice of trustee sale. harassment is there business with the intent to collect a void debts.

  60. So in my case, where I sent the letter and Wells Fargo ignored it and failed to comply in 20 days, but almost 90 days later filed a foreclosure complaint alleging I was in default, is not good enough.

    And when the judge ruled that my rescission was not effective because I didn’t tender money to the bank at the time I rescinded, is wrong.

    And now that this judge granted Wells Fargo Summary Judgment and sent the foreclosure back to the office of foreclosure to be processed for a final judgment .. I sit here waiting to appeal?

    Should I consider filing a Quiet Title action? Based on my rescission? But that court would say that a judge already ruled that my rescission was not effective ..so what is the purpose of filing a QT ?

    Do I consider also filing something in the county land records office stating that I had rescinded ..in order to throw a wrench into any possible future sale of my property?

  61. I think it is time to write a letter to Justice Scalia about the Rogue Judges and maybe he can site them for contempt of court among other things.
    just an Idea from a humble layperson

    NEVER AGAIN

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