Rescission Confusion Persists

For more information on common law rescission, TILA Rescission and foreclosure defenses please call 954-495-9867 or 520-405-1688

THIS IS NOT A LEGAL OPINION ON ANY ONE PARTICULAR CASE. GET A LAWYER, BUT INSIST THAT HE OR SHE  DO THOROUGH ANALYSIS BEFORE HE OR SHE GIVES AN OPINION.

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THERE IS NOTHING CONTINGENT ABOUT TILA RESCISSION

“EFFECTIVE” MEANS GAME OVER, IT’S DONE

Confusion reigns only because those who are questioning me are not doing their homework and not reading the statute, and not reading Reg Z and not reading the Jesinoski decision. So let me be clear — there are dozens of lawyers who agree with what I am about to tell you. Our rescission package does look at the content and the addressees of the notice of rescission, but 99% of it is about what happens after the notice of rescission is sent. The problem is that most lawyers are starting in the middle or the end and assuming that they have properly analyzed the issue. They haven’t.

So here are some simple statements that might help you:

  1. If you are asking about the statute of limitations, whether the loan was a purchase money mortgage, and mixing up foreclosure defenses (no loan contract) with rescission, you are already in the wrong place.
  2. The starting point is the notice of rescission and the fact that it IS effective upon mailing. The less the notice says about the reason the better. The less the lawyer says when he seeks to enforce it, the better. All that needs to be known is that the rescission was sent and is legally effective by operation of law and as expressly stated and ruled upon Congress in TILA, by the Federal Reserve in Reg Z, and by the US Supreme Court in Jesinowski.
  3. So there is nothing to STOP a borrower from sending a notice of cancellation or a notice of rescission. In fact, the statute was drafted such that a lawyer is NOT necessary to send the notice of rescission and a lawsuit to MAKE THE RESCISSION EFFECTIVE is neither necessary nor prudent. (Remember a lawsuit seeking court approval of rescission is far different than the later action for seeking ENFORCEMENT of the rescission).
  4. Once the notice of rescission is sent, it is subject to the very specific statutory rescission scheme, which is to say that the loan deal is canceled and the “lender” or “creditor” is now under a statutory duty to (a) return the canceled note (b) file a satisfaction of mortgage (Judicial State) or a release and reconveyance (non-judicial) and (c) disgorge all money paid starting with the alleged origination of the loan and continuing through all the monthly payments.
  5. If the so-called lender has not complied with the statute within twenty (20) days they waive their defenses and are in violation of their statutory duties. Any other interpretation would mean that the rescission is NOT effective when filed, which is the exact opposite of what is expressly stated in TILA statutes, in Reg Z and the Jesinowski decision.
  6. If the “borrower” falls to take action to ENFORCE THE RESCISSION within 1 year from the date of the notice, then the borrower waives his right to disgorgement of all that money but he is still entitled to quiet title because the mortgage and note are void.
  7. BUT SINCE THE “LENDER” FAILED TO COMPLY WITH STATUTE, THE LENDER GIVES UP ITS RIGHT TO MAKE A CLAIM FOR THE MONEY THEY ALLEGE WAS LOANED TO BORROWER. GAME OVER. I.e., in this scenario the debt not only becomes unsecured, it is eradicated starting with the rescission notice and ending with the failure of the lender to comply with the statute within the time periods prescribed by TILA.

NOTE: PEOPLE ARE STILL CONFUSED. They think the first question is whether they CAN send the notice of rescission. The answer is almost always YES. If the mortgage and note still exist, the BORROWER can send a notice of rescission and the notice of rescission acts the same as a court order nullifying the mortgage and note — but not the debt. The question is what happens after that. And that is what our rescission package gives them — answers to their most likely questions. Lawyers use it, borrowers use it and investors are looking at using our work and the work of at least 20 other attorneys who are convinced. HOMEOWNERS: By all means get the rescission package — but I strongly advise using it WITH the advice and representation from competent legal counsel licensed in the jurisdiction in which your property is located.

The mistake most lawyers, some judges and most borrowers are making is that they are starting in the middle instead of starting at the beginning:

1. Does the note and mortgage exist? If there has been a sale or judgment the note and mortgage might be merged into the certificate of title or the judgment. So any notice of rescission sent after judgment or sale will probably not be effective unless the judgment or sale is vacated.
2. Nothing can stop the borrower from sending a notice of rescission.
3. The defenses of statute of limitations and other factors are factual issues that must be raised by the banks. It is true that some of those attacks on the rescission might have merit — but that is no reason not to send the notice of rescission. If the banks don’t file a lawsuit challenging the rescission and seeking to have the rescission vacated (and do it within 20 days) there is no defense to the rescission.
4. So it is only if the bank files the lawsuit within 20 days that the issues on statute of limitations and other things are relevant. Those issues are not relevant when the notice of rescission is sent, unless you can reasonably expect that the bank will file the lawsuit, satisfy standing (without the void note or void mortgage) and prove that the rescission should not have been sent. Thus far no bank has ever filed that lawsuit challenging the rescission. And there are lots of reasons for that.
5. The mistake the lawyers are making is that they are assuming a loss on the issue of statute of limitations when (a) that is not necessarily true and more importantly (b) it doesn’t matter whether the borrower might lose if the bank filed the lawsuit because the banks are not filing the lawsuit.

6. The banks will defend an action filed by the borrower to either enforce the rescission or to get quiet title upon the basis that the rescission was not effective because of the statute of limitations and other factors. But they missed their chance to use those “defenses” when they failed to file the the lawsuit challenging the rescission within 20 days.

Thus there is no DEFENSE technically speaking. The rescission is effective. It is a done deal when mailed. The note and mortgage are void. The loan contract is canceled. It is not common law rescission where the borrower must show a reason or prove a reason. If the bank does nothing within the 20 days it is in violation of statute. If the violation of statute occurred 10 years ago, the homeowner probably only has a claim to quiet title which should be administratively granted based upon the rescission that was effective when mailed.
There are nuances to all this which is why we have offered a rescission package. But the basics are as I have outlined them above. If you don’t believe it, then you can also pretend that electricity doesn’t exist. No judge is going to like this. They mostly start out disliking TILA because they see it as a tool for freeloaders. But the Judge doesn’t need to like it; the duties of the judge are clear and the US Supreme Court has spoken. Justice Scalia has made it crystal clear that ANY attempt by ANY judge or any appellate court to interpret the statute is wrong and unconstitutional violating separation of powers. No court has the right to interpret a statute that is unambiguous. If the Judge or anyone else doesn’t like the TILA statutes they can lobby Congress to change it. But no ex post facto law will effect all the notices of rescission that have been sent or will be sent until that day comes — and no Judge can overrule the US Supreme Court.

37 Responses

  1. What happened to the post I did earlier today? And I got a reply from elexquisitor, but now it,s gone,

  2. Everyone keeps jumping to conclusions on this TILA Rescission, but isn’t there a statute of limitations of 3 years on this?

  3. A mid-summers night cruise is being planned for late July along the Jersey shore , Atlantic ocean, Barnegat bay, Toms River and to the historic Ocean County Courthouse where the judges scoff at the unanimous Supreme Court and stomp thei feet over Jesinowski …
    NG’s yacht “Unanimous Decision” will venture along the majestic shores with a wonderful view of all the foreclosed waterfront properties.

    We will take a nightime cruise north to lower Manhattan and Wall St. , where we will watch the sheriffs sale of the Statue of Liberty, it was foreclosed on by servicer Wells Fargo earlier this month. The judge who granted the foreclosure called Lady Liberty “a dead-beat borrower”

  4. O.K. I understand the Supreme Court ruling and everything Neil has stated. But what I don’t like in this article is the following: Note & Mortgage MIGHT be merged into judgment. So rescission sent AFTER judgment will probably Not be effective unless the judgment is vacated.

    So please someone with intelligence give some insight on this statement.

    Because if this is the case and 1st you have to get the judgment vacated and then send the rescission, we are screwed.

  5. Google It. The 36 page PDF is online.

    Many Blessings to All

  6. Estate Corporations by Edmond N Cahn

    Its worth the read..easy to read and comprehend.

    S Trust

  7. Why did the banks lawyer when asked by the Judge…..say laughingly..

    There is nothing we have to do …..when we get a recession requests.

    …. Maybe there was nothing to release.
    The note went one direction and was not recorded with the mortgage.
    The mortgage is an encumbrance.
    There is no lien. (Kept off record)
    Lien only appears when LP is filed.
    Dissapears when LP is released.

    Encumbrance is enforceable at point A or point B.
    Either way they lead to C. Liquidation of the Estate.

    Is the Estate a Corporation?

    Google..Estate Corporations Penn Law….to get a grasp.

  8. i want to remind all the naysayers jesinoski happened because they took it all the way. Giving up is not an option.

  9. Now, following the recent UNANIMOUS United State Supreme Court decision that held the common law “tender rule” to exercise rescission is not necessarily the same as it is at common law, and that the law is not settled that in order for a borrower to exercise a right to rescind their mortgage (often relying on the three year extended right to rescind the loam as opposed to the 3 day right of recession) all that is needed to be done is for the borrower to send written notification of the cancellation within the three year period and this will trigger the cancellation and set in motion the lender’s next move, which now must be made within 20 days whether the borrower filed the lawsuit or not.

  10. Look at the section in tila -see tila reg z ss226.23(9)(1)-4 and 226.15(a)(1)-6
    So re ” first money loans” if a line of credit was pulled on your ( former) home as collateral down payment on a new home ( build – as in my case) then i believe to qualify you for that loan as such is predatory and probably illegal.

  11. What is the process and procedure in a federal declaratory judgment act?

    As discussed above, if a borrower sends, transmits, delivers, or tenders a TILA cancellation notice and seeks a return of all funds paid to, and received by the bank, loan servicer or securitized loan trustee, this will require a response within 20 days. If not, there is case law indicating the deed of trust is void and invalid and cannot support a non-judicial foreclosure action (which could lead to increased liability to the lender or creditor).

    What this means is there will be an increasing trend toward federal Declaratory judgement actions filed by financial institutions as Plaintiff. This itself raises many interesting issues such as “standing” and “real party in interest” claims that will undoubtedly be raised. Such a challenge to a Declaratory Judgment petition could be interesting. For example, can you produce the fully endorsed note to prove a proper transfer of the note pursuant to the California commercial code? Can you prove your are the “PETE” (person entitled to enforce the note). These threshold issues that can be raised in every court case could cause a huge problem for parties not properly represented in this actions.

    How these cases will likely proceed:

    1. Borrower send notice of rescission (note, they might also file a parallel quiet title action, or seek cancellation of instruments) if the 20 days passes without response. The borrower may seek to force the lender or creditor to comply wit the rescission process under 15 USC 1635(b) and seek a declaration of its rights to do that.

    2. Lender should evaluate the strength of the potential TILA claim (note, the TILA rescission statute says nothing about a borrower being required to list or enumerate the grounds for rescission);

    3. If the Claim is disputed, lender, servicer, securitized loan trust or financial institution creditor should file a declaratory judgement action within 20 days to have the rescission deemed invalidated mandating that the loan and security interest stay in tact. (there is case law that indicates selling a property before rescission is honored extinguishes the right to rescind), but this also opens up potential wrongful foreclosure actions which may be deemed intentional, willful and malicious raising claims for punitive damages for oppressive exercise of the power of sale. See Takushi v. BAC Home Loans Servicing, LP, 814 F. Supp. 2d 1073, 1080-81 (D. Haw. 2011) which discussed:

    “As explained in the 7/1/11 Order, under TILA, a borrower’s right of rescission expires either three years after the consummation of the loan transaction or upon the sale of the property, whichever occurs first. 15 U.S.C. § 1635(f); see also § 226.23(a)(3). It does not matter if the sale was not voluntary—the Official Staff Commentary to Regulation Z explains that “[a] sale or transfer of the property need not be voluntary to terminate the right to rescind. For example, a foreclosure sale would terminate an unexpired right to rescind.” Official Staff Commentary to Reg. Z, § 226.23(a)(3); see also Rodenhurst v. Bank of Am., 773 F.Supp.2d 886, 894 (D.Hawai’i 2011). This district court has repeatedly found that, where a property has been sold, rescission is no longer possible. “Even an involuntary sale of the subject property terminates a borrower’s right to rescind.”). Whether a timely TILA rescission request that predates the foreclosure sale of a property automatically preserves the borrower’s right to seek rescission post-sale is an issue of first impression for this district court. The Ninth Circuit, however, addressed this issue in Meyer v. Ameriquest Mortgage Co., stating that, under § 226.23(a)(3), the sale of a property extinguishes the borrower’s right to rescind that property. 342 F.3d 899, 903 (9th Cir.2003).”
    4. The Declaratory judgement action should be used to determine whether or not the borrower actually has the legal right and grounds to cancel the loan. There will undoubtedly be meritless, groundless, and frivolous TILA rescission claims filed.

    5. During the Court proceeding, strategies can be employed on both sides (whether borrower or lender) to come up with a realistic payoff figure, strategy for completing the rescission if appropriate, and it remains to be seen if a Court Order seeking the Court to “alter the TILA rescission process” (i.e. whether or not despite Jenoski it will still be possible to force a borrower to tender before the lender first tenders, for example. For example In Yamamoto v. Bank of New York, 329 F.3d 1167, 1170-71 (9th Cir. 2003) the federal Court 9th circuit held:
    Section 226.23 of Regulation Z implements § 1635(b). It tracks the statute and states:

  12. The Supreme Court has changed all of that. They have taken the derailed rescission law train and put it firmly back on the tracks. They clarified in strong terms that the law MEANS WHAT IT SAYS. To enact the right of rescission, a borrower need only send a letter notifying the creditor of his wish to do so. PERIOD. At that moment, the note and the mortgage become VOID. There is a very good article from the Credit Union Association that states the obvious: This will be of no consequence to honest lenders. They already to everything right. It is rare that material errors are made on borrower Truth In Lending Documents. You can read it here: TILA Ready Credit Unions Safe IF a borrower sends a notice of rescission, the lender has only ONE option to defend itself: they must file a Declaratory Action in court and this will effectively make the borrower prove his claim. If the bank does NOT respond with a court filing, the rescission is deemed valid automatically and the lender loses their opportunity to protest it after 20 days. Contrary to the whining by banks who say there will be numerous frivolous rescission claims, this is an inexpensive fix for them. Why are they whining? BECAUSE THEY DON’T WANT A COURT TO LOOK AT YOUR DOCUMENTS! That is exactly what will have to happen in order for them to fight your rescission. Already we are seeing panic-stricken memos from bank attorney firms imploring their clients to stop ignoring rescission notices! This is a very powerful ruling and you will begin to see great victories against fraudulent, bullying lenders in the very near future. This is a great ruling! – See more at: http://theresalbaker.typepad.com/social_apocalypse/2015/01/huge-scotus-victory-for-borrowers-tila-rescission-is-back.html#sthash.01qsorbj.dpuf

  13. C.THREE YEAR EXTENDED RIGHT TO RESCIND A MORTGAGE LOAN
    (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: 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).

    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, when delivered to the creditor’s designated place of business.”

    D. EFFECTS OF RESCISSION
    (d) Effects of rescission. (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.
    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: “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.”

  14. elex … I see your point and concur that in all of the prior caselaw, the judges used a wide array of reasons to deny the rescission. Some looked at conditions or alleged violations, some looked at whether the borrower filed a lawsuit, but the end result was always aimed at making sure the borrower did not succeed, no matter what tactic the judge employed to deny the rescission.

    The courts, judges and criminal bankers have taken advantage of a poorly written TILA protection for borrowers, and they’ve turned the law inside-out and twisted it into a perversion of its original intent imo.
    I blame the writers of these laws for not taking the proper care to write it in a way that would have left no doubts and no opportunities for the biased judges to distort it so as to deny the victims the protections.

    But even that being what it is … The statute says nothing about the borrower needing to prove the conditions or violations in a lawsuit in order to effect the rescission. If it was vital that the conditions be present to rescind, the writers of the statute would have simply made it mandatory that a borrower file a court action and prove the violations at the time they mail the letter …but they didn’t mandate that.

    I believe the lenders lawyers in Jesinowski did try and argue all of the issues , but Scalia and the others rejected those arguments. The initial and main focus was about whether a lawsuit needed to be filed , but the lenders also attempted to raise the other issues, which were also rejected. So I take it as meaning the rescission is effective upon mailing of the letter. The borrower has no duty to explain or prove anything …he is a consumer returning a broken watch to Walmart. If the lender has a problem with it, they should act quickly and file a court action seeking litigation to resolve the dispute. Otherwise the law has its own built in remedy structure and process.

  15. What Jesinowski concluded was that there was NO language in the TILA rescission statute requiring the obligor to file a suit to notify the creditor of rescission. Conversely, there is no language requiring a creditor to file a suit to protect their interests. The conditions under which rescission may be effected are stated before the 20-day terms are presented, implying they are conditions precedent.

    I have no love for the banksters, and I am throwing this out as a caution, not a confusion. It may be that banksters don’t file suits because time is on THEIR side, as interest accrues, and it may not be profitable to over-foreclose in the area a particular property is located. And the banksters may be unloading loans with rescission requests and passing the problem on to the next creditor.

    Jesinowski refers to another case, presented earlier, where the conditions precedent took effect and nullified the rescission demand. Sorry, but I see nothing by Garfield stating why that case is not still good law. If the demand is null, then the 20-day provisions can’t possibly apply.

  16. Thank You For The People!
    And Congratulations on your success!
    They fight til the end!
    Let your attorney eat them for lunch and you go Enjoy your life!
    Pay It Forward!

  17. Well I can say this …..
    I filed the complaints with the proper agencies. ….
    I hired an attorney.

    I never understood the legal words….but I do know how to keep records and I started claiming they owe me a lot of money. Where did my money go? Why is there an incomplete chain of title?

    The rest…the legal words I did not know the meaning of….I went home and studied because I didnt understand what they had to do with my claims. Oh Boy…did I learn. My attorney said they owed me a lot of money….but never in my wildest dreams did I imagine why they refused to correct their mistakes.

    I leave practicing law to the Legal Eagles. You should to.

  18. SC is telling the truth.

  19. “I won SJ !”

    Sure you did SC. Funny how one day you’re trying to put two and two together and the next you claim a win.

    You couldn’t win a zirconium ring if you were the only contestant!

  20. Dwight…that attitude is why you will end up like E-TROLLE –

    See how well that worked out for you so far?

    I am not here licking my wounds because my wounds have been heeled. I hired a Good Title, Estate, Mortgage Tax Attorney a Very Long Time Ago. I am here so save your sorry ass because its what I do.

    I can not be bought….
    I did Not Settle….
    I won SJ !

  21. If shadowcat had half a brain she would realize we have been arguing all the correct issues all along …and it burns her ass to a crisp that we have been correct , and she has been wrong !!!! She and her cohorts now try and flip flop and spin their stance acting like they are trying to tell us what we already know …we’ve been the ones schooling them, and the Supreme Court ruled in OUR favor , they supported OUR arguments that we’ve been saying all along, that the judges have been wrong about everything …it was not about attack the mortgage , it was about the judges getting everything wrong …on every issue.
    Shadowcat offers nothing of value , she is only here to lick her wounds and try and save face , she’s been telling us we’re all wrong, but its now been proven that we have been right !!! She’s irrelevant and should be ignored.

  22. “What I like about my job is I can pick and choose my clients.”

    So when nurse Ratched comes around with the med cart, you get to choose the red ones or the blue ones? Is that your privlage [sic]?

    May you be blessed with a spell-checker, and an IQ higher than your age.

  23. .What I like about my job is I can pick and choose my clients.

    I know many Good Attorneys Blessed with the same Privlage!

  24. Dwight does not know what his laws are on the Elements Required to Prove Standing. That’s what Attorneys are for.

    They didn’t give me RTCs … the dog ate them.
    They violated TILA because the the APR was fuzzy to me.
    They paid my taxes because I didnt but but but butthead

    Good Grief! Just what TILA didn’t intend…freeloaders.

  25. Dimwit? Ok ..you are entitled to call it ..the way you see it, Kool- Aid drinker.

    But this is how I call it ……

    Winning vs Losing

  26. I swear SC, your intellect has absolutely nothing over a bag of hammers! Even a very small bag! A jeweler’s ball peen hammer in a tiny pouch!

    Do you really feel the need to constantly post public service announcements, such as “always consult an attorney….?”

    “ It’s not about show me the note…
    it’s about how they became holder..”

    Can’t you understand that that’s exactly what DwightNJ is talking about? It’s not about “who” foreclosing….it’s about how they’ll show, or be allowed to show, proof of standing.

    “State laws vary?” You reckon? Dimwit…..

  27. It’s not about show me the note…
    it’s about how they became holder..
    who do they represent?

    Who is FC… on you?

    You are just beating yourself up.

  28. Or as allowed by state law. …
    State Laws Vary.

    Always consult an Attorney in the Jurisdiction the property is located.

    Many Blessings to All
    Irrevocably One Half of the Estate

  29. In answer to my own question … the question of standing in rescission cases demands deeper discovery due to note & mortgage being void. The lower courts have always relied upon possession of the note and a showing of the mortgage to satisfy standing. But if they have been rescinded, the court would need to see real proof of standing based on something other than the note and mortgage …and even upon that proof, the party would only have standing to a claim against an unsecured debt .. some states like NJ allow parties to go after property to satisfy unsecured debts, has anyone ever heard of that? Or can it only be in the form of a judgment lien against any future sale of your property?

  30. And of course we know that the majority of lower court judges will reject many of these arguments like happened to me. The judge you get in front of may decide that “they do not have to prove standing” other than their alleged possession of the note .. my judge never even allowed it to get that far, he was satisfied that they did have standing based on their assertion that they are holders of the note.

    So the whole question of a rescission argument may never get to the point where the lower court judge allows discovery into standing , they seem to be defiant and in denial about what rescission means. I cannot even imagine one of these state court judges showing enough patience to listen and understand why rescission demands a proof of standing from the other party holding the note.

    So everything has to be aimed at the Appellate Division , everything said on the record needs to be directed at helping the appeals judges understand why these arguments are relevant. The lower court judges don’t really have any precedence to rely on ..this is new territory and it will come down to each states appeals courts to create the correct interpretation and application of rescission , in a way that keeps it in line with the Supreme Court.

    But maybe someone can refresh us about how the issue of standing argument comes in with the rescission argument … where exactly does it state that the owner of the debt must prove standing in order to fight a rescission?

  31. He explains the court room game.
    youtube(dot)com/watch?v=mkLNShrp90A
    He explains how the language and how it’s used.
    He explains why we don’t ‘speak’ their language and the language they speak is fraud, as well as the language of contracts are fraud.

    FEDERAL POSTAL COURT MORTGAGE DEED OF TRUST LANGUAGE FRAUD TRIAL HEARING Merge

    Trespass Unwanted, Creator, Corporeal, Life

  32. Dwight, thanks for the insights. Another issue here from everyone to take note of is that if they want to fight the rescission and send a legal complaint against you, they have to prove standing and put up all the documentation to prove standing which they do not have. As we have seen in David B’s case, they just went away. Now, the next question will be, can you go after them for money damages?

  33. Home owners may want to see this from the perspective, if their home was foreclosed by the creditor, it’s a foreclosure, if it was stolen by anyone else, in my opinion, the sale can and should be vacated.
    The people purchasing purportedly foreclosed homes were informed they may not own the homes they purportedly purchased. Without them taking some action to find out if they are the owner of the stolen home, then they are not.

    collection of legal maxims
    archive(dot)org/stream/cu31924021688670/cu31924021688670_djvu.txt

    161. Nemo dat quod non habet.
    No one can give what lie has not.

    No one can, other than by sale in market overt,
    confer upon another a better title than he himself has.
    A great exception to this principle occurs in the case
    of “negotiable securities,” which by custom are trans-
    ferable like cash by delivery. (See Miller v. Race, i Sm.
    L. C. p. 463.) A thief can confer no title to stolen goods.
    (See Maxs. Nos. 166 and 232.)

    Trespass Unwanted, Creator, Corporeal, Life

  34. Please help me understand. Is the recission only for a primary residence? If yes, then what did Neil mean when he said “investors are looking at using our work”?

  35. Java … I believe what Neil is saying is that you can file a Quiet Title action if the property is still in the foreclosure process and the judge is not acknowledging the rescission was effective and you missed the one year time period to file for enforcement …the Quiet Title action pertains to property that has not yet been sold after a foreclosure. And if your property has already been foreclosed on and sold, I believe you would need to file a Wrongful Foreclosure action and seek monetary damages for having your property wrongfully foreclosed upon and sold after you had already rescinded. The argument would be that the Court erred and allowed the bank to foreclose on a non-existent mortgage, and that the bank intentionally violated the TILA statutes in regards to your right to rescission, causing you harm, injury and loss of property. You were protected by federal law and were injured due to the unjust actions of the bank and the judge, you deserve compensation for your losses.

    Settlements and modifications …did the borrower rescind before the modification? If so, they could argue that the act of rescission supercedes the modification, voiding the subsequent modification.

    If the rescission was mailed after the modification, the argument would need to be that the modification didn’t bar you from sending your rescission letter against the original mortgage contract and that the modification is not binding due to standing .. the party who created the modification did not have proper standing to form a new contract on the property .. Whether someone can rescind a modification can get tricky because the statute seems to be aimed at the refinance loan and the 3 year window. But its worth fighting for, even if you missed the original 3 year window to rescind the original contract, you would argue that the modification extends the 3 year window …you would need to form a clever and convincing argument , but its possible imo.

  36. Java, good question. Also, another question is: what about homeowners/borrowers who had a settlement agreement or loan modification? How does that affect rescission?

  37. What about homeowners who sent Recission and QWR to Servicer. Hear no replies. And have been fraudclosed on ?? Any remedies for them !!

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