20 days for the Banks to File Lawsuit or Waive Any Claim Against Borrower’s TILA Rescission

NEW FEATURE: YOU KNOW THERE IS SOMETHING STUPID GOING ON: You know there is something stupid going on when the banks have us thinking that our FICO score is more important than having money. Isn’t that the real reason wages stagnated (replacing wages with debt)?

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

This is not a legal opinion on your case. It is no substitute for an opinion from local licensed counsel who has done the research through Jesinoski.

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So the question that is coming up is the wrong question.”How do we know the bank’s defenses can’t be raised after 20 days.” The very fact that anyone asks that question means that they either have not read or perhaps did not understand the US Supreme Court in Jesinoski. The bank’s CLAIMS are not DEFENSES. They can’t be raised as defenses because rescission is full, final and complete the moment it is dropped into the mailbox. Reading conditions or contingencies into the TILA statute is wrong. In fact, it is illegal and unconstitutional.

The question people are asking shows that many lawyers and many borrowers still don’t understand the simplicity of rescission under TILA. Everyone seems to reading into it the same way the thousands of courts in millions of decisions did — who were reprimanded by Justice Scalia speaking for a unanimous Supreme Court in Jesinoski. The Supreme Court says, in essence “STOP reading into the statute.” Nobody has a right to do that when the statute is clear on its face. Any attempt at interpreting conditions into TILA rescission is wrong and always has been wrong. AND THAT MEANS THAT RESCISSION IS EFFECTIVE BY OPERATION OF LAW ON THE DAY WHEN IT WAS SENT IN THE MAIL.”

How do we know this? Because the statute says so. End of discussion. Why can’t we continue arguing about it or questioning it? because the Supreme Court said so. The discussion is over.

The bank is required to comply with the TILA rescission within 20 days. And as Justice Scalia said, the statute is clear on its face and therefore NOT subject to a judge’s interpretation of it. So the point is that the rescission has already happened the moment the borrower drops it in the mail.
If the bank feels aggrieved by the rescission they must petition a court for relief — to get the court to agree that the suing party has standing and that they have meritorious CLAIMS (not defenses). Their action must specify why they should not be obligated to comply with the TILA rescission statute. But there are no grounds specified in the statute that state or even imply that if the banks raise issues about whether the rescission was proper, they could be relieved for that reason. And the bank (or its successor) can only do that within 20 days from the date the notice was mailed. The reason for the 20 days is that Congress specifically wanted to deprive the banks of any opportunity of trapping the borrower into an unwanted loan deal.

The statute does not allow for any stonewalling by the banks. How do we know? — because it isn’t there in the statute. If your question relates to “why couldn’t the bank…”[fill in the blank] the answer is “because it isn’t in the clear unambiguous statute.”

Congress gave the banks 20 days in which to comply. After that, they are in violation of the statute. They have blown the time to comply. So IF they want to bring a lawsuit, they MUST file within 20 days while the clock is still ticking on when compliance with TILA rescission is due.  Any other interpretation would negate the 20 day compliance requirement (improper “interpretation” of the statute).

Think about it. If the banks could bring their claims as defenses, then the rescission would never be truly effective until a Judge said so —exactly the opposite of what the statute says, exactly contrary to the Supreme Court ruling on exactly that subject and exactly in violation of the Federal Reserve (REG Z).

Many of you are searching for something in the statute that not only isn’t there, it also doesn’t belong there considering the goal of the statute. Any attempt to read something “extra” or contingent into the statute is clearly unauthorized after the Jesinoski decision.

In the lawsuit filed by the bank (or successor) they can raise the issues that so many people are calling “defenses” but the entire burden is on them to prove (a) JURISDICTION: standing without the void note and mortgage and (b) whatever grounds they want to assert that they should be relieved from their obligation to comply with the statute. There is nothing contingent about the rescission.

When the Notice of Rescission is dropped in the mail it is done and has the same effect as a Judge entering a court order and having the court order made a part of a court record. But the statute removes the requirement that the rescission be made a part of any court record, and removes any possibility that the borrower would need to sue to GET a rescission. This is the part that most lawyers and borrowers are still not comprehending probably because they can’t believe it would be that easy.

This is not to say that there won’t be litigation after rescission as banks attempt to wriggle out of this perfectly clear statute that is “unambiguous” according to a unanimous US Supreme Court. The effect of this statue means that all disclosures to all investors were wrong, possibly fraudulent and certainly incomplete.

The banks will try everything they can think of because in most cases they cannot file (lack of standing) the lawsuit seeking to get relief from the TILA statutes requiring their compliance with TILA rescission, to wit: (a) return of the canceled promissory note, (b) filing papers to release the property from any lien or encumbrance or mortgage or deed of trust related to the subject loan and (c) paying the borrower all interest principal and fees ever paid to anyone on this loan.

It is the anticipation of further legal action — like when the borrower goes to court saying “You can’t foreclose on me because your mortgage and note are void” that  we offer the rescission package. The banks will try to raise the “defenses” that everyone is talking about. The smart lawyer won’t get pulled into that controversy. The issue is whether the rescission was mailed. If so, it was effective and is effective from that moment on.

And THAT is why our help is needed to provide local counsel with the strategies and tactics to combat the futile attempts of the bank to raise issues that they waived by not filing within the 20 days. The best example is the the Jesinoski decision itself. But there are many other cases that have started up. Most of them are getting settled on very favorable terms to the borrower but many are headed for an actual decision. With the Jesinoski decision only being final this past February, there hasn’t been enough time for these cases to wind their way all the way through the court systems.

In view of the Jesinoski decision, it is probably a stronger argument to say that NO action is permitted after the rescission notice has been sent, than to say that the banks can raise “defenses” at any time — clearly against the express wording of the statute as drafted and passed by the US Congress. To say that the banks could raise these as defenses to rescission at any time would mean that the rescission is somehow contingent upon a ruling of a court. THAT is clearly and expressly (read Scalia’s opinion) off the table thanks to the TILA Statute, the Supreme Court and the Federal Reserve (REG Z).

PRACTICE HINT FOR LAWYERS: Be careful in researching this because all decisions before Jesinoski are explicitly wrong. For the lawyer casually researching the matter it will appear as though the greater weight of the law is clearly in favor of the banks. Nothing could be further from the truth. The deck is now stacked in favor of borrowers.

56 Responses

  1. The done deal is note/deed, mortgage are void. Reading the whole post it’s understood the servicer has to file suit to prove standing and challenge rescission or accept. Yeah you don’t want to go in blind bbmim but if it’s true 90% of foreclosures or loans in general are toxic or fraudulent then chances are pretty good. At very least you force them to produce documents in court instead of jerking us around.

  2. DwightNJ
    I agree that a valid rescission is indeed effective upon mailing as per Justice Scalia’s written decision.

    However, you are misquoting what I said. What I said was, “The problem that I see is that NG is leading the reader to believe that, “right or wrong” once the borrower mails the rescission letter, it’s a done deal by operation of law. That’s not the case.”

    The reason why I made that particular statement is because when NG makes such statements, he fails to distinguish between exempt and non-exempt transactions.

    If the borrower attempts to rescind any transaction after three years of consummation or any exempt transaction as enumerated at 12 CFR§1026.23(f) and 15USC 1635(e), there is no “right or wrong”, it’s just plain wrong. There is no rescission by operation of law. Therefore, there is no action needed to oppose it.

    And as for the “what if’s”, they should be concerns of an informed borrower.

  3. Coincidentally saw post on this http://www.useforeclosurelaw.com/2011/02/01/foreclosure-not-legal-if-loans-illegally-securitized/

    Since 2011! ILLEGALLY securitized. Courts, judges NOT going by our laws and rules all this time and TILA, Ocwen etc started to change that.

  4. I’m in the middle of my 20 day countdown so won’t go into details. I’ve consistently posted my case on cfpb and reached out and shared my info here and on other sites. My case doesn’t fit the securitization, sub prime mold so if people are looking for a formula and attacking if it doesn’t fit their agenda it’s pointless. A person on here took my info and disappeared at one point making me think they were w “lender” at critical point. After 7 years I’ve seen every possible twist it seems and am down to the wire. I tried to set up a site where we can share info securely and effectively but people didn’t get it or it was bad timing for me or overall. I have a background in business and real estate information services that has helped me get a handle on data and property records info corruption.

    In general my experience goes from being steered into high payment loan after credit report “error”. This “error” has popped up consistently ever since through the loan in dispute. In the first year I hired a lawyer but he and lender made me a false offer. They refused to document offer and I refused to be extorted for a large sum. A paralegal helped me review loan docs and I made first complaint to OCC.

    I’ll fast forward to now where I’ve documented violations of settlements and CA hbor. Lender claims to have transferred loan after 7 years. I responded to notice to verify debt. New servicer /investor documentation did not match loan info.

    Since ’09 I have never accepted debt, default or standing in correspondence and other communication.

    I have consistently contacted agencies and officials at every level.

    In this way I’ve stayed out of court trap and stayed in my home by right.

    I will be thinking over best approach to make my story public and I hope to revive group effort if feasible.

    Hope that helps and I will update as much as possible in next days or post on how to get in touch. If anyone else has submitted rescission leave info if you’d like or let’s see if we can follow up.

  5. Hammer … Can you tell us what your situation is, what you have done so far, and what you plan on doing going forward. That would help us understand better.

  6. Btw not legal advice. And haven’t paid legal fees since ’08.

  7. The mentally and morally deficient ones have been pretender lenders, their counsel and paid off judges. If you want to keep going by their rules have at it and let us know what legal argument got through to them. The only way is if your just as morally and mentally deficient as they are.

  8. The “borrower coming forward” is independent of the right of TILA rescission, and can be pursued without reference to TILA.

    What Hammer is doing is setting himself up to maximize payment of attorney fees to the creditors for his baseless conclusions of law. And that can be especially dangerous if they dismiss a non-judicial foreclosure and re-file a judicial foreclosure with the ability to go after deficiency judgment. I’m presuming the more incompetent the homeowner presents themselves, the more likely opposing counsel will consider going after the deficiency. In other words, a mental deficiency may lead to a deficiency judgment. If you can’t be your worst critic, you can bet opposing counsel will take advantage of that weakness.

  9. But it’s whichever is later, as to consummation the way I read it. But bank has to come forward and argue their points and if judge only looks at 3 yr rule they’d be wrong again. Are you guys abuser victims where judge, abuser must be justified?

  10. The 3 year rule is what most judges will use to try and prevent these new rescissions filed now, beyond the 3 year window. The borrower will be demanding that the true creditor come forward , but the judge will be saying that youre outside the 3 yr window

    http://mybookoftruth.com/

  11. So as to true creditor issue my thinkong is have your evidence, argument ready IF they file suit. Keep it simple don’t volunteer info, not legal advice though my approach.Depending on ur situation stopping sale etc. We can widen the net and anyone w toxic loan can cancel whether in foreclosure, default or not since banks have screwed up who knows how many “prime” and every other kind of loan and title.

  12. @ Deborah actually what I was referring to was that homeowners.lost in past since courts were using common law rescission that required tender. My understanding is TILA does not. From what I saw in code there are also foreclosure and fraud sub sections. It’s toigh to get mind wrapped around but if void and goal is to rewind then strong motivation to not commit fraud. My thinking is those are nuances Garfield refers to when you enforce but foreclosure sub section could worth looking into before sale.

  13. Hammertime you mentiined tender,
    Thing is when ready and willing to tender – it is to the TRUE CREDITOR and that tender is minus equitable setoffs and 3 rd party pAyments…( is this worth discussing Neil ? ) ie default swaps
    So they ( servicer) are obligated to ensure that notice of rescission ( and tender if you included that) indeed reaches the true creditor
    Who is the only entity entitled to enforce and if the agency status is devoid of nexus to the true creditor then we have a problem dont we, well im thinking FDCPA now.

  14. Nobody acted …..
    Borrower didn’t file suit and lost what was owed to him
    Pretender didn’t file suit and lost what was not owed to them

    Borrower defaults on taxes
    Tax sale…
    Due on Sale Clause..

    In a mortgage lien theory state…
    When the mortgage is an encumbrance and not a lien
    …. Never Mind… Hire an Attorney.

  15. Someone had posted at one time a section of the statute which stated that there is no statute of limitations for raising the fact that you rescinded years prior in regards to foreclosure cases. Maybe someone will stumble across the commentary or section that states this.

    My understanding is that as long as the borrower mailed the letter within the 3 year period …then it can be raised years later as a defense against foreclosure…since the note and Mortgage were voided by operation of law. Once you rescind, it is good forever into infinity, even if you never filed an action to enforce. So since I rescinded in 2007, my rescission was still valid in 2015 when the judge granted the bank summary judgment on their foreclosure …their complaint asserts that I had defaulted in July of 2007 by not making my monthly payment, but that is the date that I had rescinded on July 1, 2007 .. TILA grants the borrower the legal right to stop making payments once they mail the rescission letter. So legally there was no default, legally my note and Mortgage were void …no judge can foreclose on a rescinded note and Mortgage …he would first have to adjudicate a seperate action brought by the lender seeking to declare my rescission invalid based on material facts submitted into a court record and hearing or trial on those issues. But the lender would or should be time-barred from bringing such an action after 20 days. Otherwise lenders could argue rescissions that took place at any time in the past, a free ticket to stonewall and ignore, there has to be a time limit for the lenders to either comply or face losing their remedies ..most every law on the books has limits, the lenders face being time-barred here too ..the only indication of a time period for them is the clear language of the statute itself ..20 days.

    If anything else was intended for lenders to be allowed to ignore and still prevail, it would have been stated in the statute.

  16. @ el you may be confusing the purpose of TILA and specific sections as to timeframe. Under title 15 on Cornell law web site it’s pretty straightforward. Garfield has posted specific TILA code as well that corresponds but need to verify but pretty sure. Not lawyer etc etc. Significance of Supreme Court decision is that common law version of rescission courts and politicians jammed down our throat was wrong that we had to sue, offer tender. TILA rescission makes note, deed, mortgage void as soon as it’s in mailbox. If jury, judges rule against that they’re going against Supreme Court. See section for time frame.www.law.Cornell.edu/uscode/text/15/1635
    As far as I can see issue is consummation and sale for those beyond 3 yrs or previous rescission attempts. This is a powerful tool but doesn’t cover every situation. But we don’t want to keep falling for banksters word games.

  17. The judge in my case also erred by allowing the lenders attorney to make a statement about phantom evidence that was not submitted into the record …she stated that the originator Commerce Bank had given me the notice of right to cancel, and that they had signed copies of those that indicated we acknowledged receiving the phantom docs.

    Rod Ciferri said that was a big no no …the judge used her statement in his pre-written decision, somehow knowing beforehand that she would make such a statement. This is indicative of Ex Parte communication.

  18. I never received any rescission notice form in my closing docs, and the QWR response docs from Well Fargo shows no evidence of any of those docs being included in my closing docs.

    The rescission letter I mailed conformed to the statute in regards to it being mailed to Wells Fargo the servicer, it also mentioned that the should notify the true owner of the loan if it is not them, I.e., Commerce Bank, Washington Mutual or Fannie Mae or whomever the owner was if not them …it noted the loan number, etc. And was signed and dated. It clearly stated that we were exercising our right to rescind, effective at the date of this notice.

    Wells Fargo responded with a written correspondence mailed to me 4 weeks later, stating that they are aware of “a problem” and verifying as per our telephone conversation , that they are working to look into a resolution, etc etc …but they never use the word rescission. They are referring to our telephone conversation about the rescission letter.
    I asserted that this corroborates my contention that they received the rescission letter. We were current on our payments when we mailed the rescission letter. So when their corrospodence acknowledges that a “problem is being discussed” it weighs in my favor as corroborating evidence. Their mailed response was right after I rescinded, and I was current on payments.

    Almost 3 months after the rescission letter, they filed foreclosure claiming I was in default (from the point that I had rescinded in my letter) …sent the letter on July 1, 2007 …they filed FC Sept 25, 07

    The letter they mailed to me was dated August 2007

    I also rescinded again when they filed the recent FC in May 2014

    Wells Fargo responded to this rescission in their QWR by sending me copies of my rescission letter and QWR letter in their reply. They again ignored the rescission but sent copies of the closing docs, note and Mortgage and assignment of mortgage .

    So they ignored both of my rescission letters. I also answered the current FC with affirmative defenses stating that I had rescinded this loan in 2007. And also counter claimed in my answer that I had sent the rescission in 2007 and furnished a copy of the letter and a copy of their response .

    I also submitted an affidavit stating that I had rescinded .

    Rod Ciferri suggested that I submit another affidavit stating that I had mailed the rescission letter on such and such a date and mailed it to such and such an address ..in order to create some record of the fact that it was mailed to a correct address.

    My paralegal is dragging his feet and has not produced any motions or paperwork yet .. I paid him 1800 in March …and 500 a month since..he keeps telling me to relax he’s working on it …no final judgment has been entered yet … But the summary judgment was granted March 18

    I don’t want to wait to appeal …I want to motion right now to try and bolster my case before it goes to appeal.

    The judge basically cited Yammamoto in his decision, citing that I had not tendered money when I attempted to rescind.

  19. @Hammertime – your statement is incorrect. Correctly stated, it would read – “With rescission [within 3 days] deed is void[, but within the 3-years] a– the l—— lender has to file has to overcome that and prove debt [after borrower proves inaccurate documents],

    IANAL, but if I were on your jury, I’d toss the case.

  20. @DwNJ – you’re over-complicating things because you haven’t asked the question that applies in your case – rescission notice within 3 years, ignored by creditor, applicable 1 year condition has passed, incorrectly ruled upon by court, overruled by a court. Your question is – how do I apply the new ruling to my old case?

    The answer is simple if you retained the delivery receipt for your rescission letter. If you were a homeowner who mailed important documents to creditor w/ out return receipt requested, then you have no leverage because you ignored the basics of evidence gathering. You can’t state for sure whether your were ignored because you have no evidence of delivery. Bear in mind you didn’t mention whether you used the rescission notification form that was supposedly included in your TILA documents from the creditor. You might need to research case law to see if that conformed to the TILA statutory requirements (which referenced yet a different statute) in the event the delivery issue is overcome.

  21. @ Dwight I think you answered ur own question lol. There was a CA lawyer on call and referring esp to non judicial fc she agreed w NG on shift of burden of proof to servicer/lender. My understanding is on non judicial fc sale on default clause in deed puts borrower on defensive if default, loan is accepted as fact. With rescission deed is void a d the lawsuit lender has to file has to overcome that and prove debt, standing etc.Judicial same concepts apply and my understanding as long as sale has not occurred. Should be able to listen to pod cast.

  22. Darryl Evans … The rescission is indeed effective upon mailing as per Justice Scalia’s written decision. You state that it is not so, but then you throw out a lot of “what it’s” … Well the what its are the lenders problem, they need to move and take action to oppose the rescission. Their oppositions or assertions don’t supersede the effect of rescission, until and unless they do something by filing a court action, simply ignoring it should not reward them in any way. The intent of TILA is to protect borrowers and allow them to go refinance with a different lender. The lenders are not the concern of this statute, they are treated with the same disdain as borrowers are treated in non’judicial foreclosure states, if you don’t respond in the time window, you lose.

  23. Hammer … Can you explain more, for those of us who missed it …the burden of proof has shifted? Can you elaborate please? Thanks

  24. A key point from podcast was burden of proof is shifted. @Deb are your court documents available for review?

  25. Bob … Some of us mailed our rescission letters inside 3 years.

    The banks ignored them. 20 days came and went.

    Borrowers back then we’re told they can’t rescind for many different reasons..all wrong reasons based on bad case law, no tender offered at time of notice, no lawsuit filed within a year, etc etc

    Years later we are in foreclosure court telling the judge that our rescission letters that were mailed with the 3 years were ignored, but they are still valid and effective since they were mailed within 3 yrs.

    As long as you were timely …you can raise and assert your rescinded note and Mortgage at any time after the 3 years …because you had effected the rescission with your mailed notice.

    6 … 8. …10 years later …you can point back to the date you rescinded, it was rescinded inside the 3 year window…do you understand this?

    Now for people rescinding now , outside the 3 yr window …Maybe Neil is asserting that the true creditor would need to come forward and contest it in order to defeat it? Or argue that no consummation had yet taken place due to disclosure violations , who funded the loan, table funded loan, etc etc

    What are the 1635’s that you are talking about? And why do you think the lawmakers wrote 20 days in the statute? For what purpose?

    The remedies are in the statute …the lender need only comply to receive those remedies…non-compliance of the 20 days should be construed as the lender waiving the remedies.

    The statute actually states that the borrower may keep everything if the lender fails to accept your offer of tender., assuming that the two parties were negotiating and communicating. So it’s clear they didn’t seem to bothered about the lenders plight , or them needing to comply in 20 days as stated.

  26. @DEvans – IANAL, and your answers to my questions are similar to mine.

    As for why the banks would hold a borrower to an illicit rescission request, Neil is likely correct – they cannot return the original loan documents. At that point a “lost or destroyed note” scenario might arise, and the judges are looking so stupid for previous decisions about not needing the note they are finally questioning the “holder” status when there’s nothing to hold.

  27. Bob.. Good Questions!
    It took me along time to get the answers.

    I was of belief that the only thing they had their dirty hands on was the deed to the house. Oh boy was I Wrong!!!

    Successors Liability Claims

  28. Im not knocking any discussion understand , thank you Bob thank you darryl.

  29. And Thats why they can file for declaratory relief

  30. The balance of harm at least should be reason enough

  31. darryl Evans
    BY OPERATION OF LAW –
    At least the point must be argued from a borrowers perspective
    Who stood to lose the most who stood to lose forever their unique property and the art inside it who was the weaker party with actual SKIN IN THE GAME

  32. Neil’s take on TILA rescission…I don’t agree. You can’t say that the rescission is effective when you drop the notice in the mail, then ignore the rest of Jesinoski, i.e., that you only have 3 years to make file your rescission notice. I’ve asked neil about this in writing and can get no answer out of him. also, the rescission entitlement is pursuant to the provisions of 1635(b). but the provisions of that statute only apply if you are also invoking 1635(b), as a result of compliance with 1635(a). 1635(a) says three years. Period. SCOTUS says 3 years, Period. Neil says 3 years, Comma.

    On the other hand, I just received today a BofA letter rejecting one of the TILA rescission notices that we had sent out for folks that we are working with. The letter was dated June 18 (the 20th day), but not mailed via FedEx until June 22. And of course BofA rejected based on more than 3 years since closing. And said the case is now closed.

    Which got me to thinking. If the creditor must tender the obligor’s note and cash receipts paid in by the obligor, and the obligor in turn tender the loan proceeds to the creditor, why wouldn’t the bank do this? Why continue to battle and slug it out in a court, and possibly lose, rather than just take the money and run? Let’s say the homeowner borrowed $400,000 and paid in $50,000 in P&I payments. Pursuant to TILA and Reg Z, a rescission would net the bank $350,000 cash on the barrel head. So why reject a TILA rescission?

  33. elexquisitor,

    The problem that I see is that NG is leading the reader to believe that, “right or wrong” once the borrower mails the rescission letter, it’s a done deal by operation of law. That’s not the case.
    What if the borrower attempts to rescind an exempt transaction? What if it’s determined as such by the lender within the 20-day window? Couldn’t they simply wait until the borrower files suit to clear title then remove the case to federal court and have the rescission declared void? Wouldn’t the borrower lose standing? Wouldn’t the borrower fail to state a claim? Wouldn’t the banks have meritorious claims and defenses all of which are outside of the 20-day window?

  34. Reminder – not legal advice this matter is my particulat case and im pro se, i recommend you consult great lawyer specialising in such areas of practice because its health damaging stuff to do by yourself. And thats all i have to say bout that.

  35. Oh and btw consider where im going with my motion for joinder of necessary parties : successors and assigns corp 1 thru 10 jane/ john doe – best part – burden of proof is on them

  36. Yes Dwight
    They did take the home amd i have a state court matter ( separate suit from the federal) because in the unlawful detainer they filed and got a default judgement which was premature my time to answer had nit tolled either but more importantly i was not served – therefore the judgement is void on that basis but also rescission long time sent prior – nothing to foreclose upon deed void contract void – they told me i could not rescind and i have their answer but its improper and WRONG obviously the court ( US SUPREME) only just solidified my right to do what i did and backs my claims for relief and casts so much doubt on the documents they present and i am not letting go of that 1099a issue either. Aint over.

  37. Neil’s post about rescission is delivered in a very clear way, if you mailed the rescission letter within 3 years and they failed to respond in 20 days ..they waive their rights to the remedies in the statute.

    The statute does NOT even mandate the letter be mailed certified with a return receipt, just a regular mailed letter is all the statute says. So the bank arguing they didn’t get any letter is just too bad and not a valid opposition …once the borrower rescinds they stop making payments. So it’s the banks word against your word , but the statute is on your side

    It’s effective when mailed … The bank has 20 days to act.

    If they don’t like the law … Well that’s too bad. It is what it is.

    Debra …like me, you did rescind inside 3 yrs …so what is your current strategy ..did they already sell your home?

  38. And i AM raising the fact that i rescinded within 3 years before foreclosure before trustees deed upon sale and all that jazzz

  39. James smith
    The pooling and servicing agreement is in that particular trust prospectus get someone to find the prospectus.

  40. Trespass Unwanted,

    Thank you for your long response. I know it seems to be your passion, but hopefully you didn’t spent too much time.

    Thanks,

    Billy

  41. Thanks Hammertime.

    Simple is always good.
    All that complexity, who wants to read the entire document just to find the word rescission written twice. (smile)

    I guess, people do the complex things to keep from being accused of actually teaching someone something that is probably in the forbidden knowledge category.

    Trespass Unwanted

  42. Good rant Trespass exactly my mo out of necessity if nothing else and large dose of faith. But I would add keep letter/notice simple just as NG’s post is about. Not legal advice. Some templates are complex others just have title, text that you rescind the purported account with account info, servicer address and that’s it. Sign, send certified mail. Garfield’s point was deal w claims etc once they respond. Like Trespass says apply the approach that is right for you.

  43. I am trying to help someone find their Pooling and Servicing Agreement. The information is below:

    M ERS #: 100091805003039211 SIS #: 1-888-679-6377
    Date of Assignment: March 6th, 2012
    Assignor: MORTGAGE ELECTRONIC REGISTRAT ION SYSTEMS . INC., AS NOMINEE FOR RESOURCE MORTGAGE BANKING, LIMITED, ITS SUCCESSORS AND ASSIGNS at BOX 2026 FLINT Ml 48501 , 1901 E VOORHEES ST STE C., DANVILLE. IL 61834
    Assignee : US BANK NATIONAL ASSOCIAT ION, AS TRUSTEE FOR ADJUSTABLE RATE MORTGAGE TRUST 2005-2 , ADJUSTAB LE RATE MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-2 al 4801 FREDER ICA STREET, OWENSBORO , KY 42301

    · Executed By: STUART DENZIL EDWARDS AND KELLY ANNE EDWARDS HUSBAND AND WIFE AS TENANTS BY THE ENTIRETY To : MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR RESOURCE MORTGAGE BANKING, LTD., ITS SUCCESSORS AND ASSIGNS
    Date of Mortgage: 12/10/2004 Recorded: 12/20/2004 as Instrument No.: 2004-255773 In the County of Honolulu, State of Hawaii.

    Property Address : 82-6291 MANIN! BEACH ROAD, KEALAKEKUA, HI 96750

    James Smith: jsmith5915@msn.com or 443 677 2799. Thanks

  44. Billy,

    Let me start with the standard disclaimer, because the ‘unknown persons’ hate for people like me to teach anyone any thing. So I will tell you I know no tihng, and if I know no thing, I can’t teach something out of nothing because that’s a perceived impossibility. I also cannot give legal advice because I do not know legal things, and to ‘practice’, yes practice, practice, practice, (think if the things you practice), law without a license is illegal, as as much as other people do illegal things, they are not held to the standards we are, as we should know better the consequences of our actions, and we do not have enough fiat currency and no access to our unlimited credit to purchase our way out of practicing law without a license or giving legal advice or teaching things when we should not know anything to teach.

    Done with the disclaimer.
    Here’s the opinion, as opinions are not statements of fact, and no one can be punished for their opinion as long as they are inciting violence or causing harm or injury to another by their opinion, so use at your discretion, an opinion has no standing as fact.

    If the trustee in your DOT colludes by inaction, allowing the pretenders to appoint a substitute trustee when your documents may specifically indicate there is no provision for a substitute trustee, or the trustee on your DOT or mortgage, allow a substitute to self appoint when the trustee is supposed to be the only one capable of appointing his replacement (your trustee’s attempt at plausible deniability by not doing anything to make it happen but not doing anything to stop it either); then filing a complaint with the DOJ, in my opinion, is a avenue for remedy. msfraud had a link where DOJ is very interested in information of the fraud and collusion among other things.
    The energy used here can be used to give the DOJ the eyes to see what we see as we are up close to the corruption and collusion, we know what to look for. Once we show them, they know what to look for, the patterns are there.

    A trustee has a fiduciary duty to abide by and within the terms of the trust or mortgage, and when that duty is violated, it’s ‘answering time’, to agencies, but only if the victim (did we ask to be victims? No, but only if we complain so someone can see what they did to us),
    and since trustees are usually bar licensed, a complaint with the BAR of what they did or chose not to do when they should have done something; will start to change things, make them less ready to sell their souls to others at our dis-possession of property; and since giving them such responsibility comes with risk and they have to pay higher prices in insurance for being higher risk as public servants in control of people’s real property and real property transfer;
    when you send the rescission, in my opinion and imagination of all things possible, you could make sure CFPB gets the complaint 20 days out from sending it, if nothing else, your complaint says you sent it to the pretender they haven’t acknowledged it or sent any kind of letter in response to your letter.

    In my imagination and opinion; this would do or start at least two things. One, force them to acknowlege they received the rescission. Strengthening your position for them having no standing and having to disgourge payments according to the rule of law, and / or Two, if they claim to not have received it, you can read their response and reply to their response right within the CFPB website (within 30 days, but sooner is better, with the affirmation you sent it, the day you sent it, and put the dictation of the letter you sent into that reply), thus forcing them to have received it via CFPB for a second notice of 20 days chance to respond to whether they got it or not and/or disgourge of the money.

    I believe, they will ignore all letters hoping to send the people back into the corrupt courts buildings for purported justice.

    If the people only knew the judges do not work for the city, they do not work for the state, they do not answer to a governor, nor a mayor, nor anyone holding any office. It’s like going to a cashier of a fast food restaurant to get remedy, and then complaining to a governor that they didn’t do their job, when the governor will probably reply the cashier is not their direct employee, and the mayor will state the same and the city of ___ will state the same.
    The building has a name to trick you into thinking it’s an official legal place for getting justice, but it is not.

    When the people see, the people acting in those buildings and wearing robes and sitting higher are just employees holding a pretend office that had been vacated a long time ago and are churning property because you didn’t ask and they won’t tell, well, they consider you should have known.

    That’s why they have no immunity and their judgment can be reversed, voided, vacated, remanded back to them and all kinds of things. If something is final can you change it? Would final mean final?

    Just use your imagination, if you are acting in good faith, when you try to get your remedy from these thieves, no one can punish you for your conscience. Conscience is of the Creator. We all have creative conscience.

    Use what is given to you, look at it from a different angle. Prevail.
    Limitless, Lucy, Big Hero 6, Kung Fu Panda 1 and 2, there are many movies teaching to see more than what is shown to you, and to hear more than you are told.

    We have the power to change our world, they know it, and they hire people to change your mind or to give you self doubt, because they know you will give your power away and listen to anyone who seems to know what they are talking about rather than trusting yourself with the knowledge to know how to life your life.

    Billy, you have the tools, use what you read, see, and hear, to navigate through that jungle, and use what makes sense to you, what feels right in your heart and soul. Shelve, but don’t discard what doesn’t makes sense, it may be as you learn more, what didn’t make sense get’s connected in some way.

    There is a distortion in everything. No thing is 100% true, not even my things, as I cannot be 100% true in what I type, I may miss a comma or semi-colon, or miss spell a word or miss use a word or have a miss understanding of something that someone else had intended.

    But I do use my mind, and I do listen, and relate the things I know to what I hear and see and do, and I have made a difference when I did things different from the box we have been told is our remedy.

    If you think about it, as soon as someone wins a case, and everyone tries to use the same strategy, it stops working.
    It’s because each thing is unique, and there is no one-way to win, but the way to be robbed is straight through those court house doors, in my opinion, and they inside will say, he came here to contract with us for remedy and we told him, and he accepted it, and they claim immunity.

    If you show you did not accept, in my opinion, well things end up quite different.

    Beside, court was under coercion for me. Not sure how many people actually agreed to walk into that place for strangers and unknown persons to tell you all the years of your labor and upkeep were a waste of time and by a signature you don’t recognize they play god and claim to take what’s yours, and send armed me to remove you, and those armed men are hired by someone and will do it, and none of these people were there when you put pen to paper to make the agreement, but an entire city it feels like is there to take it from you.

    Complain, in the open, and give names, is my opinion.
    Stop the madness, show who’s causing it and continuing it.
    Let them roll over on each other when their name is called.

    That’s the end of my imagination, because I don’t see nor know what happens after these things are done, I do know something changes because it was done.

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

  45. Billy,

    Here.

    https://livinglies.wordpress.com/2008/05/29/218/

    I used some combination of letters, info, found here and at sites that gave help with RESPA rights.

    Trespass Unwanted

  46. The June 19 blog, OCC Finds 6 Banks Have Not Complied With Consent Orders, is not the only violation JP Morgan Chase is openly acting in.

    Their balance sheet shows profits from purchased stocks due to stolen properties on their books; stolen and obtained by violating OCC rules, regulations, provisions, codes, etc, and as the regular lay people who have been robbed have been pointing fingers, and the Board of Directors sit with Hold Harmless Agreements on record, and employees of departments and divisions, and arms, and legs of that corporate body that has a head CEO, CFO, CIO, and so on, the corporate body has been able to obtain physical silver while not losing a single penny in trading in the silver market.

    Did you hear me?

    As big as that bank corporation is, and as much as profit and loss is part of the business cycle, that business has not lost a single penny, one cent, a pence, it has lost nothing trading silver and continues to purchase it after others have been forced to sell their positions and holdings.

    OCC saw what they did to property that by the way is still on their books as legitimate holdings, and JPMorgan purchased a vault to hold silver, probably in anticipation of their enormous good luck or manipulation or control, or something.

    The average lay man can see it, and this, in my opinion, is pure evidence of colluding when 4 or more can make purchases at the same time and make profits, and four or more can sell at the same time and make profits.

    For a government agency to pretend it needs a whistleblower or a complaint from someone affected, the entire world is affected, including the government agency which is either part of the collusion, in my opinion, or will have so many bought off employees, there will be no one to keep the agency from being part of JPMorgan Chase’s balance sheet of assets, including the building, down to the ink put on their pretty little memos.

    How do you find out whose manipulating? Who traded? Oh a computer, eh? Who entered the trade into the computer? It’s programmed to trade on an interval, total Artificial Intelligence? Who programmed it? The programmer was hired by the corp, not any particular employee? Who authorized his hire? Some supervisor from direction of some manager? Who told the manager it was okay to do a purchase order to hire the programmer? you keep asking questions, you move up the scales to the head.

    Have I said enough? Yep. It’s only opinions anyway, just like this guy’s opinions that appear to be traceable to some pure facts of manipulation.

    Fraud and thievery is the way of the world, why punish some and not others if all men are created equal? If we all be corporate bodies, then punish none, or punish at a value that is one millionth of a percent of our wealth like it is done for other corporate bodies.

    http://www.silverseek.com/commentary/ultimate-confirmation-14556

    OCC a corporate body can see,
    can CFTC see or will it choose to selectively see, or if my imagination is correct, are they a part of JP Morgan’s balance sheet, too.

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

  47. But if you mailed a rescission letter within the 3 years …

    And the bank ignored it …

    And the bank files a foreclosure complaint because you stopped making payments after you rescinded …

    The bank missed the 20 day window to comply …

    You should be allowed to raise the fact that you rescinded this loan, and you did it inside the 3 year window , and the note and Mortgage are void by operation of law …. Regardless of this now being years later, it was not the borrowers fault that the lender ignored and let time go by.

    I believe the 3 year window is the window for exercising the rescission, not for raising it as a defense to foreclosure …as long as it was mailed within the 3 years makes it effective.

    Now your conditions precedent …not sure that applies unless lender files an action to contest it within 20 days..which would trigger an adjudication where a judge can inquire about the conditions being met to allow the rescission …but that is when both sides are complying and bring it to a judge to decide those issues. But if the lender stone walls and attempts to ignore your rescission, they should not benefit from their non-compliance. The borrower needs to move on with life and refinance or sell …why should a bank be allowed to ignore federal law and then gain and benefit from their own inaction and non-compliance. This is why I believe the 20 day window has meaning , otherwise its completely useless language.

  48. @DwNJ – IANAL – I am not a lawyer. But consider this. There is no ‘operation of equity’, but there is an ‘operation of law’. Operation of law can remove jurisdiction from a judge, e.g., ‘standing’. There is no ‘tolling of law’, but there is ‘equitable tolling’. TILA rescission is both an equitable action, and an extinguishable right (an operation of law). You may have other grounds of recoupment available in a court of equity after 3 years. But the right of rescission no longer exists (if it ever did). Another condition precedent is that the home is owner-occupied. What does NG think happens if an investment home is attempted to be rescinded within the 3 years? If by statute the right for rescission is excluded by conditions precedent, does the right ever exist? That leads to the question, if the right doesn’t exist, how could the 20-day requirement be in effect?

  49. People who attempt to rescind outside of the 3 year window will most likely have to overcome the court wanting to dismiss due to you being time barred … You will probably have to be ready to argue why your rescission should be allowed , equitable tolling due to fraud or table funded loan where no true creditor was disclosed. The argument that no consummation happened will give you the burden of proving the table funded loan was not valid , hard to do when they control the documents and the judge doesn’t allow discovery. The equitable tolling argument is the one that needs to be brought before the higher courts. The argument would be based on the TILA language of 3 yrs from consummation where the borrower received the disclosures …the fight would be over what those disclosures actually disclosed , did they really disclose the true valid creditor who funded the loan? Or did they fool and trick the borrower by naming a straw man creditor whose name was used to employ a table funded loan? If you were never given the true disclosures, you were only given fake fraudulent disclosures, then why would your right to rescind end in 3 years? The judges try to play word games and respond with “how can you rescind a loan that was never valid”? … Valid … invalid …the point is that the consumer was placed into a fraudulent Ponzi scheme that he wants no part of. TILA is a protection for this consumer , the crazy loan is rescinded 6 years later because the consumer was hoodwinked and bamboozled during the first 3 years and beyond …the pretender lender should not benefit from his Ponzi scheme being so well created and hidden ..in the interest of justice the victim of the scheme deserves protection by way of equitable tolling of a statute that was created for this victim, the protection should extend out as far as to the point that wrongdoing is discovered…the lender can respond to the equitable tolling rescission by proving their legal standing in order to defeat it based on the same 20 day window.

  50. Elex … Beach ruled that a borrower cannot rescind after 3 years, even as a defense to foreclosure. I believe Beach tried to rescind 6 years after the consummation. So the Supreme Court was making it clear that nobody can exercise their rescission after the 3 year window. But it does not, or should not bar someone like me, who rescinded inside the allowable 3 year window ..and raised the rescission as a defense in a foreclosure years later. The other issue Beach didn’t address because the borrower didn’t argue it is, equitable tolling due to hidden fraud and or lack of a real party in interest being in existence …or that no real consummation offered due to it being a table funded loan. Can you explain what you mean by conditions precedent, thank you.

  51. Trespass Unwanted,

    How did you write your TILA Rescission Notice?

    Thanks,

    Billy

  52. I contacted the lawyer’s office Garfield had on the other day and the office manager tried to put the fear of God in me that I could be accused of being a squatter! Lawyer’s are going to resist this as well esp if run by office managers. This is a huge disruptor to their business model as well. Too late I was pushed into a corner and filed letter day before sale. The countdown is on! The other big truth will be was loan EVER consummated.

  53. There is no explanation by Neil why the SCOTUS affirmation of Beach in Jesinoski doesn’t extinguish the right rescission as a matter of law after 3 years. So likely Neil is correct if the notice is mailed by the borrower within the 3-year window from the loan consummation, and the other conditions precedent are met. That is what happened in Jesinoski.

    Neil does NOT explain how the 20-day window, as a part of the right of rescission, is operative after the right is extinguished, per Beach. The jesinoski ruling focused on the manner and effect of notification, affirmed the 3-year condition precedent, and was silent on the remaining conditions precedent, which may or may not be as limiting as the 3-year condition.

  54. Neil Garfield is correct, every older case that the naysayers rely on were wrong and should not be cited now … In my case, the judge ruled against my 3 year timely rescission, he granted foreclosure on a void Note and Mortgage , he cited old case law like Yamammoto which happened before Jesinowski … Yamammoto allowed judges to deny rescission based on their opinion that the borrower had no tender to offer to the lender. But that case is wrong, it’s bad law. It ignores the 20 day window stated in the statute and it ignores the rescission was effective upon mailing. It twisted the statute and judges legislated their own invented TILA Rescission interpretation that was tailored to deny the borrowers the rescission. In layman’s terms, it’s pure bullshit.

    So how many times have we victims complained that these corrupt judges have intentionally and deliberately misinterpreted the laws? This is a national scandle , a national disgrace and a travesty of justice. This is the biggest robbery of citizens properties in the history of the USA. The judges responsible for collusion with the criminal bankers deserve to be dragged off the bench and thrown into prison for their crimes.

  55. Some people are just stuck.
    They can’t see the remedy has already been there, but ignored by our ignorance and their arrogance.

    And some will just not try, because Fear will make them immobile.
    What are they afraid of?
    This time, its possible the people are afraid of being right.

    We were always right.
    We’ve been robbed and will continue to be robbed if we remain immobile.

    Release the mind, and see what is there, NOT what is being shown to you.

    Lift the Veil.

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

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