Lawyers for Banks: Ignore Rescission at Your Peril

I have received a copy of the comments made at a very recent seminar for lawyers who represent the servicers, trustees and the alleged trusts. While they fail to commit to writing the issues regarding standing to challenge a rescission, the rest of it is pretty much spot on. Their message is that ignoring or even rejecting the rescission by a letter is not a good idea and that anyone who does so, is acting at their own peril.

They also point out, as have others who have been writing on the subject for the last couple of weeks, that the rescission law, as it now stands, makes it perilous to trade in consumer loans, especially mortgage loans.

In short, the other side has come to the same conclusion that I came to in 2007. They don’t like it, but they understand what the TILA rescission statutes say about procedure, and that a unanimous Supreme Court in Jesinoski v Countrywide, essentially puts every mortgage loan “at risk” — an admission with enormous implications. They are not out of strategies to change things but they recognize they have an uphill battle.

The point about standing is, in my opinion, the most important by far. The TILA rescission is effective upon mailing by operation of law. It is a specific statutory remedy with its own procedures, although there is a cryptic provision in there that allows a judge to change the procedures. But in order to do anything about the rescission once it is effective, which means that the note and mortgage are void, the servicers et al must come up with a real creditor — without which they have nobody who has standing. This puts them on the grill. They have been fighting successfully to keep this information from the borrowers under claims of privacy and confidentiality.

Most lawyers are contesting these claims in a timid way. I ask the fundamental question: why not give the name of the real creditor who could show proof of payment and vault the claim to that of a holder in due course, instead of a holder or attorney in fact? I have represented banks in foreclosure actions. If these defenses were thrown at me I would be proactive — I’d show the creditor, show the proof of payment, and shut the borrower down on all of his defenses. Case over. But the truth is that there is no one party or even one single group that can be identified as the creditor, with or without the empty trusts whose names are used to create the illusion of negotiation of instruments under the UCC.

My sources and my understanding of what they did prevents them from even KNOWING the name of the creditor, which of course opens the door for the servicers to keep the money instead of passing it on to a defined creditor. How can this be? We know the homeowner got the benefit of money being put on the table. How hard can it be to determine whose money was put on the table?

The answer is simple even if it is incredible: they cannot identify the name of the creditor becasue (a) they don’t know and (b) because they have no way of figuring it out. At any one time the huge slush funds controlled by the Investment Banker acting as Master servicer for a nonexistent trust (no res), had money going in and out of it in thousands of ways per minute. At whatever the time was that funding traveled to the closing agent through a sham conduit, the banks simply don’t know which investors had money in that fund and what interest any of the investors had in a particular loan. It is like putting different fruits in a blender and setting it on puree. If someone now asks to have the banana that went into the blender, it is impossible to do.

THAT is the problem with standing in foreclosure actions and the same problem exists for challenging rescissions. But in rescission the issue is laid bare — they can’t rely on the void note and void mortgage for standing. They have to show the real transaction.

122 Responses

  1. Judges and Attorneys lie, cheat, steal, and ignore the tila rescission statute and case law to protect lenders.
    I RESCINDED my mortgage in September 2007 when I found out there were over 20 disosure vio lk at ions in my mortgage including g a, $48,000.00 difference in my truth and lending disc and my mortgage and my interest only disc and my adjustable rate disclosures and my wife was never ask to sign the mortgage or the notice if right to cancel the mortgage.
    I closed September 2006 I rescinded it in September 2007. I made my October payment of $10,367.50 I was never late.
    I ioffered tender in October 2007.
    the mortgage company sent me aetterztaing they werd,addressing my Rescission request.
    they respond saying they knew of no legislation that would allow me to resind the mortgage just be Use .y wife didn’t get a notice of right to cancel even though she owns the house with me in orlando fl.
    they then sold it in Nov 2007 I again resent gh ed rescission documents,and the offer of tender to the new lender/servicer 5 times by fax and fed x they ignored it.
    in February 2008 they sold it.
    once again I sent the rescission documents stating I rescinded the mortgage and I am still rescinding it and again offered tender. They responded and stated they recognized my rescission and would honor it.
    But they. Ever excepted my tender offer.
    instead 2 months later they filed foreclosure.
    Never seeking the condition of tila rescission I counter sued 42 count claim which 33 went to trial We the evidence proved the disclosures were all inaccurate it proved. By THE tesimony of the closing agent he gave me 1 copy of the notice of right to cancel and my wife. None.
    we proved it was timely and correct.
    the judge refused to allow the jury to de lk I berate on any of our counter claims and granted the lender conditional rescission on tend er 6 years and 6 attempts to tendrr.
    Then the lenders used the 11th cir court case Williams v. Homestead that states thier is no such thing as conditional rescission just the modification of tila rescission procedures.
    The judge used thus casein her ruling and r
    she conditioned rescission on tender only never conditioning or reinstating the voided mortgage lien.
    and gave us 30 days to pay it off then gave the mortgage company over $700,000.00 in interest a n x thier attorneys over $147,000.00 in fees.
    our home was appraised in October 2007 at $2,000,000.00 we owed oy $1,000,000
    So we had over 1 million in equity and a 707 beacon when we rescinded the mortgage.
    By the time the mortgage company destroyed my. Credit and it we t to trial in October 2012 my beacon was 550 and the house value fell to $700,000.

    The judge refused to allow us to admit thier excepting e of our rescission and refused to actually read the case law she cited in her own Rulings and orders or the actual statute. We appealed but the 5th Dca ignored the statute the case law. Even the lead ders,attorneys when they stated we didn’t file our counter claims until Jan 2011 even thought the court record shows they were filed less than 25 days of receiving the foreclosure complaint in Oct 2008. When we sought damages under 1640 tila statute.

    After foreclosure I filed a wrongful foreclosure complaint in The middle district of Florida along with civil fraud civil Conzpiracy and civil theft and civil rico.
    the magistrate judge dismissed it.
    after the mortgage companies attorneys lied in thier motion to dismiss stating 1st the court granted us conditions al rescission based on are counter claim seeking rescission.
    we never had such a claim we sued for damages for failing to complete thier portion of tila rescission.
    then they lied to the federal court stating that Bradley Weiss was just a witness in the state court trial.
    But during the trial he testified he was the mangling partner and owned part of the mortgage company.
    The magistrate court dismissed our case siting tila stattention of limitations and resjucat since we were seeking a damage claim under tila.
    we are not seeking a damage claim we are suing for wrongful foreclosure since at no point did any of the mortgage companies seek the reinstatement of the voided mortgage or lien.

  2. 3 scenarios exist in TILA rescission. ..

    1) The borrower rescinded before the 3 years ran out …before the foreclosure complaint was filed …and the lender failed to comply in the 20 days of the statute ..and failed to file a successful complaint in the 1-year that followed the rescission. In this case the lender should be time barred from any further action.

    2) The lender responds within 20 days with a lawsuit and contests the rescission. Even these lenders should need to prove standing and proper chain of title all the way back to the consummation. The consummation needs to be proven and the chain of sales and transfers all the way back to the current alleged creditor. The service’s should not be allowed to contest a rescission.

    3) The borrower rescinds the loan after the 3 years has passed and raises the fact that TILA gives them 3 years from consummation. They argue to the Court that the clock never started ticking because there was no valid consummation. They are not time barred because the e years has not run ..it never even started due to no consummation

  3. The problem with Bob’s Kiernan case he linked is that they attempted to rescind DURING the foreclosure case.

    If they had rescinded more than 1-year BEFORE the foreclosure case, like in my case, they would have been barred.

    The mortgage is void when you have rescinded more than 1-year BEFORE the bank files a foreclosure.

    The criteria boils down to which party acted first.

    For borrowers rescinding AFTER the bank has already filed the Foreclosure Complaint or after the 3 years has run, their argument will be based on the fact that NO CONSUMMATION took place and NO TRUE CREDITOR can be established to contest the rescission.

  4. Bob again not what I said. 20 days us plenty of time for creditor to take court action. The case you posted reflects rogue court giving creditor extra bites ignoring the law. That case reflects Garfield’s fear of courts ignoring Supreme Court. Homeowners should be warned to stay out of that court or district. If bankster failed for years to prove its standing or verify debt should be little risk if TILA is followed by judge. The bias and hostility is obvious. We will need a legislative approach as Garfield suggests to stop the corruption. But the industry itself acknowledges banksters can’t ignore rescission doesn’t sound like there are any examples of specific 20 day challenge like in my and Dwight s case.

  5. Bob the change post Jesinoski is the judge only gets involved if creditor files the lawsuit vs the borrower having to file suit. By the plain reading of TILA procedure after the 20 days that creditor fails to unwind rescission the judge can’t change the sequence or undo rescission. That is what’s not clear in that case if within the 20 days there was court action. Even if borrower blows it like these did creditors shouldn’t be able to get redos after 20 days. If they tried to sue for damages after a year they blew it there too but shouldn’t rewind void note either just loss of damages but in this environment judges will probably try.

  6. Bob’s post do bring up the one loophole I was going to warn Dwight about if we could have had a grown up discussion. There is a clause that say judge can change the sequence as to tender etc. So it looks like courts are going to use this as an end around. IMO this confirms court’s continuing corruption and the hostility.

  7. Bob ur post and obsession with Garfield continue to miss the point. It seems the court contradicts itself acknowledging Jesinoski then ignoring it. But basically it confirms creditor had to make it’s case in court that there were no TILA violations. No one here or Garfield is saying just file rescission without anything to back you up IF it gets to court. The borrower here seemed to make every mistake possible and opened a can of worms.

  8. The Court erred in the instant case when it rejected Defendants argument and affirmative defense that the U.S. Supreme Court in Jesinoski had confirmed and validated that the rescission mailed by the Defendant was effective. The Court erred when it stated …

    “Jesinoski only dealt with whether a borrower needs to file a law suit”

    The Court erred when it failed to understand that the Supreme Court of the United States reached its holding by finding Jesinoski’s assertion that “his notice completed the rescission” of his loan was correct.

    That was a finding by the Supreme Court of the United States, that the rescission letter mailed by the borrower did in fact effectively rescind the loan, which was essential to its holding because, if notice is sufficient to effect the rescission, no lawsuit would be needed and, further, if no lawsuit would be needed, Jesinoski had no need to comply with the statute of repose. At least that was the argument Jesinoski presented to the Supreme Court of the United States to be considered.

    That is how the Supreme Court of the United States discarded the lender’s argument – which, if the lender was correct – would have necessarily destroyed Jesinoski’s rescission effected via notice argument.

    In short, it was a finding essential to the Supreme Court of the United States OPINION in the case.

    The Court erred when it denied and rejected DwightNJ argument that the United States Supreme Court affirmed and validated that his mailed TILA rescission letter was effective. The Court apparently has not read the entire case and briefs and thinks Jesinoski did not make “TILA rescission via notice” his central point in his argument before the Supreme Court of the United States, despite the fact that it comprised two out of the three major arguments in his brief and took up 24 out of the 31 pages of argument in his brief.

    Certainly it was clear to the lender in Jesinoski that it was Jesinoski’s essential point of argument before the Supreme Court of the United States, as can be seen from its brief:

    “Petitioners’ argument starts from the “fundamental premise” that they fully accomplished rescission in this contested case at the time they sent their notice of rescission—the only act they took within the
    three-year repose period relative to their asserted right to rescind — even if the notice were itself not valid because it was predicated on an alleged TILA violation that respondents contend did not occur. Pet. Br. 32 n.4.” See Respondent’s Brief at 20.

    So, it is clear that the Supreme Court of the United States finding, that Jesinoski had rescinded his loan via notice, was a point in the case that the Court here in the instant case failed to understand.

    The Court erred in relying on bad case law that is in conflict with the January 2015 unanimous decision of the Supreme Court of the United States. Up until January of 2015, a majority of courts were ruling the wrong way. However, the Supreme Court of the United States has now corrected those courts that did not recognize TILA rescission via notice and resolved the split of the circuits, plainly and succinctly.

    Since Jesinoski has shown the lower courts that they were wrong on that point, it is only right that the Court here in the instant case recognize and acknowledge that highest Court in the land has spoken, and must show judicial integrity by admitting its error and taking the steps to correct that error by granting the Defendants motion to vacate the summary judgment and to dismiss the complaint with prejudice.

  9. I’m gonna put this day out of its misery and head out to catch the game. Let’s see if any more laughs for tomorrow!

  10. hammer
    email me to swap numbers for a good friday nite laugh…
    lawman@gmx.us
    greg

  11. bob- what are you going to do when you can’t post here anymore…
    will you explode?

  12. try this metaphor on bob…
    wall street was sooo… interested to have sex with me that they decided to F–k me without checking to see if i had AIDS…
    i have it and now they do…
    done – we all die together…

  13. The creditor has 20 days to undo rescission and must establish standing to reverse. After 20 days game over. Just as it was for homeowners that failed to answer unlawful detainer in non judicial fc.

  14. Bob did u read the part where majority of DISTRICTS held that view and LOST. The millions of UNLAWFUL foreclosures are my proof. And if people quit arguing against their own interest and quit being shamed, scared off from asserting their rights we’d have millions of reversals. Basically courts can’t resolve this like Garfield said we need some type of legislative approach and these criminal enterprises need to be broken up.

  15. bob- that is an outright personal interpretation of controverting statutory language…

    tell the truth

  16. When the mortgage has been voided, the homeowner is not liable for “any charge” under the note, as TILA clearly states. So how can this court allow this Plaintiff to allege a default and proceed on a foreclosure claim? The Court erred by allowing a Plaintiff with no standing, not being the creditor/owner of the subject loan, to establish standing on a void mortgage instrument and to proceed to foreclose on that same void mortgage instrument. This is a clear error for several different reasons. 1) The Plaintiff lacks standing by not being the creditor/owner required to challenge a TILA rescission due to the fact that a party cannot rely on the mortgage or note to establish standing since they were already voided by operation of law before the complaint was filed. 2) The Complaint is based on an alleged default that couldn’t happen under the provisions of TILA. 3) The Court lacks jurisdiction to adjudicate a foreclosure case that is based on a void mortgage and note. If the proper party had responded in a timely manner within the 20-day requirement for creditors compliance, and established standing by proving ownership of the debt, only then could they contest by filing an action to vacate the rescission that had already taken place, or by requesting an injunction until the case is adjudicated. The point of the Act is to protect borrowers. The unwinding process is meant to allow borrowers to seek out a new lender to refinance their property with, and at that point they can tender back the difference to the creditor. The Act requires the creditor to comply quickly so that more harm and injury does not befall the borrowers. So when a lender decides to ignore the rescission as happened in the instant case, the TILA statute deals harshly with those lenders, which explains the lawmakers intent when they mandated a 20 day window for the creditors to comply. The overall intent of the law is to protect borrowers. It does not intend for borrowers to lose their homes due to a creditor ignoring the TILA rescission. The lawmakers intent was to put teeth into the Act, with severe consequences to any creditor who fails to comply in the 20 days.

    In the instant case, Defendants exercised their TILA right to rescind. The creditor failed to respond or comply inside the required 20 days.

    The Court erred in implying that the Defendant owed tender to the Plaintiff, who was not the creditor but only the servicer. The Plaintiff was not the real party in interest and could not even accurately calculate a tender amount due to its lack of standing. The Court erred when it misinterpreted TILA and thought that TILA implied that the Defendants owed tender to anyone who walks into the courtroom holding the void mortgage.
    Actually, TILA says NOTHING about that. It must be another of those IMPLIED requirements that upset all 9 Justices on the U.S. Supreme Court, which was unanimously rejected. If Jesinoski destroyed one implied requirement, what makes this court in the instant matter think that same Supreme Court of the United States will allow this court or others?

    The Court erred by arbitrarily, capriciously and unreasonably ruling that the Defendant should have just offered an unknown, uncalculated, unverified amount of tender less set-offs. But what does TILA say about the homeowner tendering the principal of the loan less set-offs due even in the face of the lender’s non-compliance?
    It says nothing about requiring the borrower to act when the lender fails to comply. The Court is in error to place that burden on the Defendant by twisting the plain language of TILA to imply that the borrower must perform steps of tendering after figuring off-sets to the non-creditor for the rescission to be valid and effective. That is an error by the Court in this matter. What does TILA say about the Court implying that it is the Defendants duty to tender minus off-sets? It says nothing. The Court erred in the instant matter and should not be incorrectly implying anything about what TILA says.
    See for yourself, here is 15 U.S.C. 1635(b) in its entirety:
    “When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it. The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.”
    There it is. Now you show me where it says the homeowner has to first tender the principal of the loan.

  17. You know what’s idiotic Bob? That people’s homes were stolen and lives destroyed because the law supposedly said filing anything proved bankster standing and authority. You can regurgitate all the bankster vomit you want but you have no clue as to purpose of law and basic fairness.

  18. bob – so what do you have to say about a rescission that was submitted, ignored for 2 years, and then the borrower offered tender and still ignored?

  19. Bob that’s where you’re completely off course. NO ONE is saying borrower doesn’t have to file a lawsuit to complete rescission if by tgat you mean sue for damages. You broadswipe all of us with trying to cheat bankster and wanting a free house. That’s the one thing ur consistent on.
    Before Jesinoski banksters said lawsuit required to initiate rescission void note – WRONG

  20. Plaintiff in the instant case disputes that Defendant had a valid TILA claim. The court erred when it supported this untimely challenge.

    The Court and the Plaintiff may be confusing “damages” under TILA with “rescission” under TILA. The collection of damages might need to be brought by way of a law suit by borrowers within 1-year. During the litigation and adjudication of that suit for damages the lender might dispute whether the borrower had a valid TILA claim. But rescission is effected by the mailing of the notice, it does not require a law suit or any adjudication by a court of law. It is unilateral and needs nothing else in order to effect the rescission. The US Supreme Court clearly states that the TILA rescission makes no distinction between disputed or non-disputed, it happens by operation of law. Any dispute that a lender might have should be raised by filing a court action within the 20-day window set for their compliance. If they choose to ignore the 20-day window required for their compliance, they are waiving their remedies and defenses due to being in violation of the statute.

    As to it being a valid TILA rescission, that would be for a court to decide IF the “creditor” (not the Plaintiff who is only a servicer) had timely complied with its obligations that were triggered by the Defendants rescission.

    Again, the “creditor/ owner” of the subject loan, knowingly gave up its right to challenge the Defendants TILA rescission by not acting in a timely fashion.

  21. The Supreme Court of the United States has made Jesinoski’s “completed rescission” law of the case, which must be followed by the trial courts. The mailing of the Notice by borrower exercising their TILA right of rescission, does effect the rescission. The first and immediate result of mailing the letter is that the mortgage is void, no payments are due from that point. There is no default due to the statutes plain language.

  22. i recall that when Pharaoh, ignited with rage against Moses and his people for the demand to be let go to go home, cast upon them a curse that all their first born children should die, that the curse was reversed and all first born of Egypt perished instead…

    be careful whom you curse…

    Life is a karmic boomerang!

  23. i’m sure glad that the word of g0d has been burned upon my chest by “The Prophet Pope Bob Hurt” – to let me know that i am just, “a kool-aid drinking bozo and myth monger who vomits stupid nonsense”… and… “write like an idiot on hallucinogens…”

    and he recently added… (must have forgotten): “A Christmas turkey isn’t as full of crap as you.” and “…you are a bozo who cannot understand plain English.”

    evidently i have sinned against the Church of Bob… seems like he has something to lose … i guess i should just die and go to hell now… anyone want to come with?

    anyone else want to have a kick at my head and insult me or are you all gonna let bob do all the work?

  24. Meant Bob started here pushing common law rescission.

  25. Bob you seemed to have parsed wgat I said or I assumed u were up to speed w banksters position pre Jesinoski. Their own slides make the point that TILA does not require lawsuit to void note as they had corrupted everyone in the system to believe. That’s how I started off here pushing common law rescission principles. The only thing to comprehend is ur deep bias against homeowners and Garfield for some reason. I May just post bobiswrong from now on since ur a distraction at this point but w ur approach u would have homeowners go along with the fraud committed against them. That’s where you’re dangerous. The presumption w TILA is protection is needed from DISHONEST CREDITORS. You and the banks have twisted that to make the banks the victims uv clearly stated a number of times. Ur kicking and screaming when all banksters have to do is show their “contract” and debt is valid. Why are they crying bloody murder?

  26. That sounds good Dwight i was going to say from previous posts to make it strong that note is void, foreclosure if that’s at issue is void. It seemed u were still debating right on earlier posts.

  27. “bobhurt, on October 23, 2015 at 2:04 pm said:

    Greg:

    …Borrowers never become beneficiaries of the trust or the PSA unless they coincidentally invest in the related mortgage backed security.”

    YOU JUST REITERATED AND MADE MY POINT!

    i have 10 years of proof that i am – and i did – though my agent, the State of Illinois Board of Investments, acting on my behalf, investing my money, and that of all Illinoisans !

  28. from my perspective bob – i have come to recognize that you are (as we all are) limited to your particular view of self and world view… i will not get preachy with you because i know i can’t teach an old dog new tricks…
    i know you are trying your best and i know, aside from universal facts, we will never agree
    peace
    amen
    greg

  29. (working on my arguments)

    The unanimous United States Supreme Court said:
    “The language leaves no doubt that rescission is EFFECTED WHEN the borrower NOTIFIES the creditor of his intention to rescind (capitalized emphasis added).” Jesinoski v. Countrywide, 135 S.Ct. 790, 792 (2015).
    Definition of the word “effect” from online dictionary:
    ef·fect
    əˈfekt/
    verb
    past tense: effected; past participle: effected
    cause (something) to happen; bring about.
    “nature always effected a cure”
    synonyms: ACHIEVE, ACCOMPLISH, carry out, realize, manage, bring off, execute, conduct, engineer, perform, do, perpetrate, discharge, COMPLETE, CONSUMATE; More (capitalized emphasis added).

    Now the Plaintiff ignored the Defendants TILA rescission since 2007 when it was mailed to them by the Defendant. The Plaintiff now wants to argue that the “Effected Rescission” only starts the process of unwinding procedures when the Plaintiff feels like getting around to it, in this case 14 years after the 20 days for them to act expired.
    If SCOTUS meant it that way, that a lender can stone-wall and ignore the TILA rescission, and not comply with the 20 day window, then SCOTUS would have said that – especially since it was resolving a circuit split in which four US circuit courts of appeal were saying that.
    No, SCOTUS said the “rescission is effected.” It didn’t say “the first step in a rescission process is effected”.
    Done. Complete. Effected.
    That’s not to say the lender has no remedy thereafter, if it acts in time. If the lender acts in time, THEN the unwinding process looks similar to common law rescission. If the lender doesn’t act in time, TILA rescission, in that instance, becomes a one step process.
    If the lender doesn’t do its part in a timely manner, the completed rescission should not be set aside by a collateral action, because its remedy was fully provided for in TILA and it knowingly gave up its right to the same by not acting pursuant to TILA in a timely fashion.

    Plaintiff, WELLS FARGO BANK, argues now that they would like to dispute the TILA violations and urges the court to dismiss the TILA rescission due to them now disputing it. But a unanimous United States Supreme Court said:
    “Section 1635(a) nowhere suggests a distinction between disputed and undisputed rescissions…”.

    In Jesinoski, the lender DID deny the rescission was effective and it did so within the 20 day period (it just didn’t do everything else it was supposed to do within that 20 day period to get its remedy – Jesinoski’s house). Yet, that didn’t change the fact SCOTUS found Jesinoski’s rescission was “effected” (completed) upon notice. Meaning the mortgage and note were void by operation of law. This operation of law being effected, does in turn, immediately prevent any non-creditor/servicer from contesting the rescission due to lack of standing. A mere “holder” of the void mortgage security instrument and note does not have legal standing to undo what the operation of law has already put into effect. Since the mortgage and note cannot establish standing, it means that the real party in interest must step forward and establish its standing without use of the void instrument or note. Standing would need to be established in some other way, with proof of the funding of the subject loan, all of its sales and transfers, all purchases and receipts, all the way through to the current party who is claiming to be the owner of the debt.
    The Court errs when it states on the record that the Defendant did not offer tender in the 2007 letter in which they were exercising their right to rescind under TILA. The court erred again when it dismissed the Defendants 2007 timely TILA rescission when it based the dismissal on an issue of borrowers not tendering first. This is an error by the court. The Defendant stated on the record that they did offer tender and the Plaintiff did not accept the offer. The Defendant needed the true owner of the debt to calculate an accurate payoff amount. The true creditor and owner of the subject loan who had the authority to issue a satisfaction of mortgage or take steps to void it, and who held authority as owner to cancel the note. The servicer was stone-walling the Defendants TILA rescission and should have stepped out of the way and allowed the real party in interest to come forward. The problem is that nobody can prove who owns the subject loan. This goes back to the original bedrock element of “standing”. The Defendants have properly pleaded in their answer and continues to assert that the Plaintiff in this matter lacks standing. They filed a foreclosure complaint against a void mortgage and note.
    The Court erred in citing tender as a reason to deny whether the Defendants TILA rescission letter was effected ..
    But a unanimous US Supreme Court said:
    “But the NEGATION of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity (capitalized emphasis added).”
    It is rescission in equity (common law lawsuit) that gives the court discretion to order the type of tender you are talking about. However, it’s clear that SCOTUS found TILA abrogated the common law in that regard:
    “To the extent § 1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.”

    The Plaintiff failed to comply within the TILA 20-day window for compliance. TILA says ..
    “WITHIN 20 DAYS after receipt of a notice of rescission, the creditor SHALL return to the obligor any money or property given as earnest money, down-payment, or otherwise, AND SHALL take ANY action necessary or appropriate to reflect the termination of any security interest created under the transaction (capitalized emphasis added).”
    The Plaintiff ignoring the Defendants TILA rescission letter can create a false impression that the Plaintiffs have effectively allowed all of the Defendants affirmative defense statutes of limitations to run out, which is apparently their strategy, however, it will not change the fact that the plain wording of the TILA statute expects the lender to comply fully within 20 days. The plaintiff intentionally runs out most Defendants statute of limitations successfully, but in the TILA statute the plain language prevents this type of unfair legal strategy from being utilized.
    With Jesinoski holding the lender to the plain meaning of the statute with regards to rescission by notice, does the court here in the instant matter really think they can read something into TILA that’s not there with regard to the Plaintiffs period to comply? This has been settled by the highest court in the land. It is now the law of the land. The court in the instant matter erred when it disregarded the ruling in Jesinoski. The Court erred in applying common law rescission principals after the United States Supreme Court just clearly explained “not to”.
    The court in the instant matter was arbitrary, capricious and unreasonable when it granted the Plaintiffs Motion for Summary Judgment. The Court in the instant matter was arbitrary, capricious and unreasonable to deny the Defendants Motions to Reconsider in regards to their TILA rescission being effected in 2007, before the instant foreclosure complaint was ever filed.

    *not done ..just beginning

  30. “bobhurt, on October 23, 2015 at 2:01 pm said:

    Greg, what makes a trustee into a 3rd party debt collector when the trustee’s name is on the assignment of the note, or the trustee holds the note indorsed in blank?

    Please explain that through the fog of your confusion.”

    bob – without being insulting – slow down and read each word in the assignment and apply your best college english…to wit: the word “as” carries a specific limitation… if i appear on stage “as” Hamlet – for the purpose of the construction (play) i am NOT greg – i am the man who portrays the essence of Hamlet – i cannot BE greg in the role…

    likewise a trustee assigned a duty “as” trustee is NOT assigned “as” trust…

    if the bank were assigned “as trust” it would be a 1st person issue but because it is assigned “as” trustee for the trust – the integrity and 1st person nature of the trust endures beyond the existence of the trustee

    a trustee must always be at arms length from the trust to be valid

    anything else?

  31. if we show the citizen/taxpayer is the creditor, realize we are foreclosing on ourselves – and as the creditor we can forgive ourselves – fire the banker intermediaries and have a jubilee and reset… just depends how deep the corruption of greed is within the american soul…

  32. again – borrowers are not party to trust PSAs and no court will let you in – in that capacity – you must add another party to the case – specifically YOU as Beneficiary of the trust PSA – and bring into evidence the investment record of your state, county, city, park district, etc. showing ownership in the trust on your behalf as taxpayer/citizen where the fruits of that trust have a direct affect on your life and cause you specific harm when violated (as when not in compliance with the PSA rendering the REMIC void and with a 100% tax liability)

    YOU MUST PICTURE THAT THE BANKS HAVE TAKEN THE TAIL OF THE SNAKE (BORROWER) AND SHOVED IT INTO THE MOUTH OF THE SNAKE (CITIZEN/TAXPAYER) AND YOU ARE BOTH!

    and the banks just sit back and laugh as they watch us EAT OURSELVES!

  33. lawyer for wells fargo is wrong – a trustee collecting a debt on behalf of a trust is NO DOUBT a 3rd party debt collector… as a function of office… because the trustee is NEVER the ‘1st person’ trust, and can be replaced…
    further, the lawyer acting on behalf of wells fargo, collecting for the trust is a 4th party debt collector FDCPA applies to each!

  34. Looking back at my flawed Pro Se attempt to properly file my answer to the servicer Wells Fargo’s 2nd attempt to foreclose … I messed up by copy & pasting the TILA rescission argument from Legal Services of NJ website .. they had it listed as a Counterclaim, in a way that the language was kind of stating that the Defendant is now trying to enforce the TILA rescission .. this was not my intent, I was trying to make the court aware that I had ALREADY rescinded in 2007, within the 3 years , and was stating that fact in my answer and counterclaim.

    Of course this answer was put together by me BEFORE Jesinoski came out ..so I didn’t understand all of the nuances and points of cautionary details that we all have learned now after Jesinoski.

    But regardless, I still believe that I was making clear that I had already Rescinded the loan on July 1, 2007 and that I was looking for the court to acknowledge the fact by issuing a Declaratory Judgment in my favor.

    I now understand that my claims for damages is out of time after the one year (1-year) window to enforce for damages, but the actual rescission was still effective by operation of law and should have been acknowledged as being so by the court.

    Here are a few parts of my answer and counterclaim from the 2nd complaint they filed in May of 2014 (keep in mind Jesinoski had not come out until 8 months after I prepared this).

    *The copy of my letter that I mailed exercising my TILA Right to Rescind dated July 1, 2007 stated several different Disclosure Violations .. including but not limited to: The Notices of Right to Cancel, Different APR amounts and discrepancies, etc. (keep in mind, the judge and Plaintiff in this case has only talked about the missing Notices of Right to Cancel .. I had clearly raised other disclosure violations as well, but they must have forgot about them).

    As you can see below .. it was far from perfect, but it was before the Jesinoski case became public .. now we know better. But I still believe I have enough there to argue that I was NOT now trying to rescind, but that I had already rescinded in 2007. From my answer below …

    ******************************************************************

    AFFIRMATIVE DEFENSE NINE, THE DEFENDANT(S) ALLEGE: (Truth in Lending Act)

    9. Plaintiff is in violation of the Truth in Lending Act, 15 U.S.C.A. § 1601 et. seq., since required disclosures were not made at the time of the closing of the loan.

    COUNTERCLAIMS:

    SECOND COUNT
    (Violations of the Truth in Lending Act)
    1. Defendant repeats and re alleges all paragraphs above as if fully set forth herein.
    2. At all times relevant Plaintiff or Plaintiff’s assignor was a creditor under the federal Truth in Lending
    Act, 15 U.S.C.A. § 1601 et, seq. (TILA) that was required to provide notices of the right to rescind the
    loan and deliver material disclosures to Defendants.
    3. Plaintiff or Plaintiff’s alleged assignor failed to comply with TILA by failing to provide Defendant with
    proper and accurate written rescission notices and accurate material disclosures as required by TILA.
    4. The TILA violations complained of herein were apparent on the face of the assigned documents,
    resulting in assignee liability pursuant to 15 U.S.C. § 1641(e),
    5. In light of these violations, Defendant was and is entitled to rescind the loan.
    (SEE ATTACHMENT “B”)

    ATTACHMENT “B” (TRUTH IN LENDING ACT)
    1. The transaction alleged in Plaintiffs Complaint is a consumer transaction that involved a non-purchase money mortgage secured by Defendant’s primary residence.
    2. At all times relevant hereto, Plaintiff or Plaintiffs alleged assignor was a creditor under the federal Truth in Lending Act, 15 U.S.C.A. § 1601 et seq. (“TILA”) that was required to provide notices of the right to rescind the mortgage and deliver material disclosures to Defendant.
    3. Plaintiff or Plaintiffs alleged assignor failed to comply with TILA by failing to provide Defendant with proper and accurate written rescission notices and accurate material disclosures as required by TILA.
    4. The TILA violations complained of herein were apparent on the face of the assigned documents, resulting in assignee liability pursuant to 15 LJ.S.C. § 1641(e),
    5. In light of these violations, Defendant was and is entitled to rescind the mortgage.
    6. Defendant exercised his/her right to rescind the mortgage on or about 07/01/2007 by sending a notice of rescission of mortgage to the plaintiff by mail.
    7. By virtue of the foregoing, the mortgage which is the basis of Plaintiff’s Complaint is rescinded, and Plaintiff’s alleged security interest in Defendant’s primary residence is void by operation of law.
    WHEREFORE, Defendant demands judgment dismissing the complaint with prejudice, and awarding actual and statutory damages, attorney fees and costs pursuant 15 U.S.C. 1640(a)(2)(A)(iii).

    FIFTH COUNT (VIOLATIONS OF THE TRUTH IN LENDING ACT)
    SEE ATTACHMENT “D”

    ATTACHMENT “D”
    (Violations of the Truth in Lending Act)
    1. Defendant repeats and re-alleges all paragraphs above as if fully set forth herein.
    2. The transaction alleged in Plaintiffs Complaint is a consumer transaction that
    involved a non-purchase money mortgage secured by Defendant’s primary residence.
    3. At all times relevant Plaintiff or Plaintiffs assignor was a creditor under the
    federal Truth in Lending Act, 15 U.S.C.A. § 1601 et seq. (“TILA”) that was required to provide
    notices of the right to rescind the mortgage and deliver material disclosures to Defendants.
    4. Plaintiff or Plaintiffs alleged assignor failed to comply with TILA by failing to
    provide Defendant with proper and accurate written rescission notices and accurate material
    disclosures as required by TILA.
    5. The TILA violations complained of herein were apparent on the face of the
    assigned documents, resulting in assignee liability pursuant to 15 U.S.C. § 1641(e).
    6. In light of these violations, Defendant was and is entitled to rescind the mortgage.
    7. Defendant exercised his/her right to rescind the mortgage on or about July 1, 2007 by sending a Notice of Rescission of Mortgage to Plaintiff via mail.
    8. Plaintiff failed to comply with its rescission obligations under TILA.
    WHEREFORE, Defendant seeks a judgment as follows:
    A. Declaratory and injunctive relief enforcing rescission of the mortgage, including a declaration that Defendant is not liable for any finance charge or other charge imposed in connection with the transaction;
    B. Declaratory and injunctive relief voiding the mortgage;
    C. Awarding actual damages;
    E. Awarding statutory damages;
    F. Awarding attorneys fees and costs.

    ————————————————

    WELLS FARGO substituted out the foreclosure mill and brought in their main law firm who represented them in NJ in regards to the State of NJ threatening to throw out all of their foreclosure cases because of the scandal of Robo-signers, faulty fabricated docs, forged instruments, etc. .. This lawyer Diane Bettino wrote the brief for Wells Fargo in which she promised that they had corrected all of the problems and would never do such a thing ever again .. She was brought in to personally take care of litigating my case. Below is her response and her motion to dismiss my affirmative defenses and counterclaims.

    REED SMITH LLP
    Formed in the State of Delaware – Diane A. Bettino, Esquire
    Princeton Forrestal Village 136 Main Street, Suite 250
    Princeton, New Jersey 08540
    Attorneys for Plaintiff Wells Fargo Bank, N.A.

    SUBSTITUTION OF COUNSEL
    The undersigned hereby consent to the substitution of Reed Smith LLP as attorneys for Plaintiff Wells Fargo Bank, N.A.

    PHELAN HALLINAN & DIAMOND, P.C.
    Withdrawing Attorneys

    REED SMITH LLP
    Superseding Attorneys

    MOTION TO DISMISS DEFENDANTS AFFIRMATIVE DEFENSES AND COUNTERCLAIM … Filed : August 29, 2014

    COURTESY COPY TO CHAMBERS
    Clerk, Chancery Division
    Superior Court of New Jersey

    Dear Sir/Madam:
    This firm represents Plaintiff Wells Fargo Bank, N.A. (“Plaintiff’) in the above-referenced matter. In connection with this matter, enclosed please find the following documents, which are being filed electronically via JEFIS, with a courtesy copy to chambers:

    (1) Motion to Dismiss the Counterclaim and Affirmative Defenses 2, 3, 8, 9, 10, 11,13, 14, 15, 17, 18, 20, 21, 22, 23, 25, 26, 29, 30, 31, 32, and 33 with Prejudice;

    (2) Memorandum of Law in Support of Plaintiff’s Motion to Dismiss the
    Counterclaim and Affirmative Defenses 2, 3, 8, 9, 10, 11, 13, 14, 15, 17,
    18, 20, 21, 22, 23, 25, 26, 29, 30, 31, 32, and 33 with Prejudice;

    (3) Proposed Order; and

    (4) Certification of Service.

    POINT I
    STANDARD OF REVIEW ON A MOTION TO DISMISS.

    POINT II
    DEFENDANTS’ CLAIM AND DEFENSES FOR VIOLATION OF THE CONSUMER FRAUD ACT ARE BARRED BY THE STATUTE OF LIMITATION.
    Defendants claim that Wells Fargo is liable for violating the New Jersey Consumer Fraud Act (“CFA”). Count I, Defense 22.
    A claim under the CFA is governed by a six year statute of limitation. N.J.S.A. §2A:14-1; Dilorio v. Structural Stone & Brick Co., 368 N. J. Super. 134 (App/ Div. 2004) ; D’Angelo v. Miller Yacht Sales,, 261 N.J. Super. 683 (App. Div. 1993) .
    The Loan was originated on October 19, 2004, which triggered the running of the statute of limitation on Defendants’ CFA claim. The statute of limitation expired on October 19, 2010, barring any CFA claims brought after that date. Defendants did not file a claim against Wells Fargo until June 27, 2014 – almost four years after the statute of limitation had expired. Therefore, Defendants’ CFA claim and Defense are necessarily time-barred and must be dismissed with prejudice.

    POINT III
    DEFENDANTS’ CLAIMS AND DEFENSES FOR VIOLATION OF THE TRUTH IN LENDING ACT ARE BARRED BY THE STATUTES OF LIMITATION.
    Defendants’ claims and Defenses for violation of the Truth in Lending Act fails as a matter of law and must be dismissed with prejudice because (1) Defendants’ claim for monetary damages under TILA is barred by the one-year statute of limitation; and (2) Defendants’ TILA rescission claim is barred by the three-year statute of limitation.
    Count II, V, Defense 9. (TILA Rescission)

    A) Defendants’ TILA Claim For Damages Is Barred By The One Year Statute Of Limitation. The one-year statute of limitation for bringing a claim for violations of TILA bars the Defendants’ claim for monetary
    damages for a violation of the statute. See 15 U.S.C. § 1640(e) (“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”).
    In a loan transaction, the one year period for bringing an action for damages under TILA commences on the date the transaction was consummated. Chevalier v. Baird Sav. Ass’n, 371 F.Supp. 1282, 1284 (B.C. Pa. 1974); Thorp Loan & Thrift Co. v. Buckles (In re Buckles) , 189 B.R. 752, 763 (D. Minn. 1995) (“the one-year period for bringing actions for damages under TILA under this provision commences with the consummation of the underlying loan transaction–the date on which the parties’ contract is formed and credit is extended pursuant to it.”)
    Here, the statute of limitation began to run when the Loan closed, on October 19, 2004. The statute of limitation expired one year later, on October 19, 2005, barring any claims brought after that date. Defendants did not assert a claim for monetary damages for an alleged TILA violation until June 27, 2014, when they filed the Answer and Counterclaim. Defendants’ Counterclaim was filed nine years beyond the one-year statute of limitation applicable to claims for monetary damages for an alleged TILA violation.- Accordingly, Defendants’ TILA claim and Defense fail as a matter of law and must be dismissed with prejudice.

    B) Defendants’ TILA Rescission Claim Is Barred By The Three-Year Statute Of Limitation.
    Defendants claim they have some right to rescind the Loan. Wells Fargo disputes Defendants’ allegation, but, for purposes of this Motion only, even if Defendants could hypothetically state a viable TILA violation which would provide an extended right of rescission, any right to rescind has already been “completely extinguished.”
    TILA unambiguously provides a three-year statute of
    limitation for the right of rescission. See 15 U.S.C. §1635(f)
    (“[a]n obligor’s right of rescission shall expire three years
    after the date of consummation of the transaction or upon the
    sale of the property, whichever occurs first.”).
    In a mortgage transaction, a borrower’s right to rescind begins to run on the date the mortgage is executed. See Bartholomew v. Northampton Nat’ 1 Bank of Easton, 584 F.2d 1288, 1296 (3rd Cir. 1978) . Here, the closing on the Loan took place on October 19, 2004, and the statute of limitation began to run that day. Thus, Defendants were required to bring any claim for rescission under TILA by October 19, 2007 – three years after the date the Mortgage was executed. Defendants did not do so.
    Defendants did not bring a claim for rescission until they filed the Answer and Counterclaim on .June 27, 2014, almost ten years after the Loan closed, and more than six years after the statute of limitation had expired. Defendants’ claim for rescission was filed far beyond the three-year statute of limitation.
    Accordingly, any right Defendants possibly had to rescind the Loan was completely extinguished and this Court no longer has jurisdiction to hear this claim. Beach v. Ocwen Federal Bank, 523 U.S. 410, 412 (1998) (“We [ 3 hold that §1635(f) completely extinguishes the right of rescission at the end of the 3-year period.”).
    C. Defendants Have Neither Tendered Nor Offered To Tender The Loan Proceeds.
    Even if Defendants’ rescission demand had been timely made, they would still have no right to rescind the Loan under the circumstances presented here. It is well-settled that rescission is a remedy “that restores the status quo ante. If a party has a legal or equitable right to annul a transaction, he may do so, but only upon returning any benefit he has received.” Ray v. Citi financial, Inc., 228 F.Supp.2d 664, 667 (D. Md. 2002). To that end, courts have consistently held that in order for a borrower to obtain rescission under TILA, he must tender a return of the loan proceeds. See U.S. Bank Nat’ 1 Ass’ n. v. Guillaume, 209 N.J. 449, 482-83 (2012); Jobe v. Argent Mortg. Co. , LLC, 373 F.App’x, 260, 262 (3d*Cir. 2010) (per curiam) , quoting Ljepava v. M.L.S.C. Props., Inc., 511 F.2d 935, 944 (9th Cir. 1975) . The equitable goal of rescission under TILA “is to restore the parties to the * status quo ante.’” Am. Mortg. Network, Inc. v. Shelton, 486 F.3d 815, 820 (4th Cir. 2007). Thus, courts have denied rescission where the borrowers were unable to tender payment of the loan amount. See Yamamoto v. Bank of New York, 329 F.3d 1167, 1173 (9th Cir. 2003) (holding unconditional rescission was inappropriate where borrower was unable to tender the loan proceeds); Williams v. Homestake Mortg. Co. , 968 F.2d 1137, 1140 (llth Cir. 1992) (“… another goal of § 1635 (b) is to return the parties most nearly to the position they held prior to entering into the transaction.”).
    Where “rescission is attempted under circumstances which would deprive the lender of its legal due, the attempted rescission will not be judicially enforced unless it is so conditioned that the lender will be assured of receiving its legal due.” Powers v. Sims & Levin, 542 F.2d 1216, 1222 (4th Cir. 1976).
    In this case, Defendants are in default. In order for equitable principles to apply, Defendants would have to return all monies tendered pursuant to the Note and Mortgage in order to restore the parties to the status quo. 24 C.F.R. § 226.23 (d) . As no payments have been made on the Loan for more than seven years, it appears that Defendants are unable to repay the monies loaned.
    In essence, Defendants believe they can just walk away with a windfall, without any further obligation. This scenario not only offends traditional notions of equity, but misinterprets the procedural requirements of section 1635(b). In addition, Regulation Z requires a borrower who has rescinded a transaction to return any money or property that has been delivered by the creditor. 12 C.F.R. § 226.15(d)(3).

    1. POINT IV
    DEFENDANTS’ DEFAMATION OF CREDIT CLAIM IS BARRED BY THE LITIGATION PRIVILEGE.
    Defendants seeks to assert a claim for “defamation of credit,” alleging that the filing of this lawsuit has damaged their credit as a matter of public record. Count III.
    Defendants’ claim is barred by New Jersey’s litigation privilege and as such, must be dismissed.
    The litigation privilege has long been embedded in New Jersey’s jurisprudence and precludes litigants from filing subsequent actions based upon the conduct of an attorney or party to a litigation. See Penning v. S.0. Holding Com. , 47 N.J. Super. 110, 117 (App. Div. 1957) (observing that lawyers and litigants must “be permitted to speak and write freely without the restraint of fear of an ensuing defamation action”).

    POINT VII
    ANY FRAUD CLAIMS OR DEFENSES ARE BARRED.
    Claims of fraud are subject to a six year statute of limitations. See N.J.S.A. §2A:14-1. The Loan was originated on October 19, 2004, which triggered the running of the statute of limitation on Defendants’ fraud claims, which expired six years later, on October 19, 2010, barring any fraud claims brought after that date. Defendants did not file their Answer and Counterclaim until June 27, 2014 – almost four years after the statute of limitation had expired. Defendants’ fraud claims and Defenses are time-barred and must be dismissed with prejudice.

    POINT VIII
    DEFENDANTS’ BREACH OF FIDUCIARY DUTY DEFENSE FAILS AS A MATTER OF LAW AND MUST BE STRICKEN.
    Defendants have asserted a defense against Wells Fargo for breach of fiduciary duty. Defense 15. The Defense fails as a matter of fact and law, and must be dismissed with prejudice.
    A fiduciary relationship is one in which a person has an equitable duty to act on behalf of, or for the benefit of, another person. The duty arises as a result of a manifestation of an intention to create that type of relationship.

    POINT IX
    RESPA VIOLATIONS
    (” [T] he Court finds that RESPA does not create a private right of action for a violation of § 2603.”); Lamb v. Bank of America, N.A., No. 11-819, 2012 WL 87146, at *4 (E.D.Mo.2012) (“[C]ourts have consistently held that Congress did not create a private right of action for violation of § § 2603 and 2604.”). Accordingly, Defendants’ RESPA Defense must be dismissed with prejudice.

    POINT X
    WELLS FARGO IS EXEMPT FROM THE FAIR DEBT COLLECTION PRACTICES ACT
    Defendants contend that Wells Fargo violated the Fair Debt Collection Practices Act. Defense 8, 14, and 17. These Defenses fail as a matter of law because Wells Fargo is exempt from the FDCPA.
    Wells Fargo is a creditor – not a “debt collector” as defined by the statute. The FDCPA applies only to “debt collectors.” 15 U.S.C. § 1692a(6); Pollice v. Nat’l Tax Funding, L.P. , 225 F_._3d 379, 403 (3d Cir. 2000) ; F.T.C. v. Check Investors, Inc., 502 F_._3d 159, 171 (3d Cir. 2007) . The FDCPA defines a “debt collector” as:
    [A]ny person who uses any instrumentality of interstate commerce of the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
    15 U.S.C. § 1692a(6).
    Creditors are not considered to be “debt collectors” under the FDCPA, 15 U.S.C. §1692a(6)(A) (“The term [‘debt collector’] does not include . . . any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor. “).
    Wells Fargo is the current holder of the Note and Mortgage at issue in the foreclosure. Wells Fargo was the holder of the subject Note at the time the Notice of Intention to Foreclose was sent and when this foreclosure action was initiated. Wells Fargo is not engaged in the business of collecting debt on behalf of others.
    Wells Fargo is a creditor, not a “debt collector” as defined by the FDCPA. Since creditors are not covered by the FDCPA, any FDCPA claim or defense must be dismissed with prejudice.

    POINT XI
    ANY DEFENSE REGARDING THE “MERS ASSIGNMENT” MUST BE STRICKEN.
    Defendants’ allege that there is something improper with the Assignment of Mortgage. There is simply no credence to Defendants’ argument regarding the validity of the publicly recorded Assignment of Mortgage, and all Defenses based on this theory must be stricken,
    As a threshold matter, under the Rules of Evidence, the Assignment of Mortgage is a publicly, recorded document affixed with the stamp and seal of the County Clerk. Thus, pursuant to Rule of Evidence 902(a), 902(d) and 902(h), the Assignment of Mortgage is self-authenticating and “extrinsic evidence of authenticity as a condition precedent to admissibility is not required.” N.J. Rule of Evidence 902.
    Moreover, it is well settled that borrowers are strangers to the documents by which their Mortgages are assigned, and therefore have no legal standing to challenge its propriety. See Bank of New York v. Raftogianis, 418 N.J. Super. 323, 350 (Ch. Div. 2010) (“litigants generally have no standing to assert the rights of third parties,”); English v. Federal Nat. Mortg. Ass’n, No. 13-2028, 2013 WL 6188572, at *4 (D.N.J. Nov. 26, 2013) (borrower lacks standing to challenge assignment of mortgage). Thus, Defendants’ Defenses regarding an alleged improper Assignment of Mortgage must be stricken.

    POINT XIII
    THIS COURT HAS PERSONAL JURISDICTION OVER THE DEFENDANTS
    Defendants allege that this Court does not have personal jurisdiction over them. Defenses 2, 13, and 25.
    The Complaint for Foreclosure was filed on May 9, 2014. Defendants filed an Answer and Counterclaim on June 27, 2014. Therefore, personal jurisdiction was established pursuant to R. 4:4-6.
    Defendants’ appearance in this matter and assertion of their own affirmative claims confirms this Court has personal jurisdiction over them. As such, Defenses 2, 13, and 25 must be stricken.

    POINT XIV
    WELLS FARGO’S COMPLAINT WAS FILED WITHIN THE TWENTY YEAR STATUTE OF LIMITATION.
    Defendants allege that the Complaint for Foreclosure is somehow barred by the statute of limitations. Defenses 3 and 26.
    The limitation period to institute a mortgage foreclosure suit is 20 years. Security National Partners Limited Partnership v. Mahler, 336 N.J. Super. 101, 108 (App. Div. 2000). Defendants obtained the Loan on October 19, 2004. Defendants failed to make the payment.due on October 1, 2007 and all payments due thereafter. Thus, the limitation period was triggered and would have expired on October 1, 2027.
    Wells Fargo filed its Complaint for Foreclosure on May 9, 2014. Wells Fargo filed its Complaint well before the expiration of the 20 year statute of limitation. Accordingly, Defenses 3 and 26 must be stricken.

    *(Our argument like that of the Federal Bankruptcy Judge in NJ who awarded the borrower the free house, is that the 20 year rule was intended for a default that had never had a foreclosure complaint filed against it, was in default and never had an acceleration of the Note triggered by the lender to initiate foreclosure. The argument on our side and that of the Bankruptcy Judge is that once they accelerate and file a foreclosure, the lender only gets 6 years to enforce the note once accelerated, and that is right in the NJ-UCC statutes regarding the enforcement of Notes .. after 6 years the note becomes void and is unenforceable. This 20 year rule was created by NJ politicians as a knee jerk response to the wave of foreclosures after the meltdown. They say they didn’t want clouded property titles of homes that may have never been foreclosed on , so they created a 20 year window for the banks to foreclose. The judges are twisting this to mean that a bank can litigate for 20 years, but they are wrong. The 20 year rule only speaks about “mortgages” and not the notes. The notes are still governed by NJ Statutes that void them 6 years after acceleration)

    The judge in my case says the note being void doesn’t matter because this 20 year rule allows them to foreclose … Our argument is, you can’t have a mortgage if there is no note .. without a note , how are you saying there is still a mortgage ?? This is another argument for my appeal. They accelerated on Sept 2007 … they dismissed their first complaint in Nov 2011 …

    they filed again in May of 2014 … 7 years after the acceleration

    The note was void by NJ statutes after 6 years

    The Judge in my case disagrees

  35. Wolf in sheep’s clothing lol
    Focus of Jesinoski was borrower didn’t have to sue. The other was courts were not applying the law as written. Their interpretation served lenders interest not purpose of law/Congress. That’s ur corruption.

  36. circuit courts are below and so cant trump the SCOTUS they cant rule otherwise and if they do they are out of their jurisdiction, because it is the final word, until challenged – IN the United States Supreme Court.

  37. … Within 3 years the right ” does not last forever”

  38. bobs wrong
    Read The decision
    Quote
    ” because that is all a borrower must do” repeat
    ” because that is ALL a borrower must do”
    The burden then is on them and they cant meet it

  39. And like Bob…
    It all looked very convincing
    ( sorry Bob couldnt resist a poke)

  40. Now… Consider the mortgage against that analogy of my fake silver bracelet
    The pre qual, the down payment for the bulid, based on a full doc loan application, consider the underwriter and the concept of cause to know, ( did know) and any reasonably diligent person of their equal training would and should know, consider the loan to value being the main inducement to sign for the loan, whilst the real economic climate screamed ” hostile environment” again who had cause to know, did know but did it anyway, who had a clear advantage
    Buyer beware is ridiculous, the home is the singke most important investment of ones life not just in monetary terms.

  41. Intent another one of their weapons to manipulate the courts. Case I reviewed recently said preponderance of evidence can pass the intent test.

  42. Sorry for your loss…ur keeping hope going as well

  43. And yes, it looked and felt vety convincing the jeweler did not know until he heated it up to polish

  44. Heres a little example
    I bought a bracelet at auction which had 925 stamped on the inside, ok thats the sterling quality, it looked and felt and weighed the same as sterling silver, i took it to the jeweler to polish it changed color it turned out to be copper plated with nickel, i wasted dollars getting it polished and paid far too much at auction because it was represented and fraudulently stamped on the inside – intent was?

  45. OMG – brain dead

    my apologies to ALL for missing the hosting of tonite’s follow up Q&A Call

    with all the hubbub pertaining to the passing of my mother-in-law (my 4 kids’ grandma) 2 days ago and preparation – i completely lost a day of the week and lived today as if it were Wednesday…

    i will be back in sync next week, OK?

    please forgive –

    thank you
    greg

  46. I’m on a roll lol for next round of complaints.

  47. Hammer is a hammerin’ tonite!😉
    you go pal…
    thanks for keepin’ hope alive through research

  48. Here’s a lying homeowner story to be “fair” but comments even make lender/court look bad

    http://www.dailybusinessreview.com/id=1202727983894/Foreclosure-Defenses-Dismissed-After-Homeowner-Lies-in-Court?slreturn=20150922193747

  49. 2010 REPLAY: Dismissed with prejudice for FRAUD…
    JPMorgan Brings Foreclosure Case In Mortgage In Which It Was Just A Servicer, Court Finds Bank Committed Fraud
    Here the Judge got really angry: “The court finds WAMU, with the assistance of its previous counsel, Shapiro and Fishman, submitted the assignment when [they] knew that only Fannie Mae was entitled to foreclose on the Mortgage, and that WAMU never owned or held the note and Mortgage.” And, oops, “the Court finds by clear and convincing evidence that WAMU, Chase and Shapiro & Fishman committed fraud on this Court” and that these “acts committed by WAMU, Chase and Shapiro amount to a “knowing deception intended to prevent the defendants from discovery essential to defending the claim” and are therefore fraud.
    JPMORGAN CHASE v.POCOPANNI
    http://www.zerohedge.com/article/jpmorgan-brings-foreclosure-case-mortgage-which-it-was-just-servicer-court-finds-bank-commit

  50. BOB SAID THIS,

    bobhurt, on October 22, 2015 at 3:21 pm said:
    Hammertime:
    Thank you for explaining the slide show.
    I believe you and most others here automatically deny reality because you simply cannot face the fact that a borrower breach of a valid note fully justifies foreclosure. To circumvent this hard reality, many look to TILA rescission for salvation, and some actually LIE about not getting proper disclosures, as proven later when the creditor shows the borrower’s written receipt for them.

    BOB TAKE THIS AND I KNOW WERE YOU SHOULD PUT IT.

    Written acknowledgement only a “rebuttable presumption.” 15 U.S.C. § 1635(b).

    SO BOB EVEN IF A BORROWER SIGN SOMETHING THAT THEY RECIEVED 2 COPYS. IT DOES NOT MEAN THEY GOT 2 COPY’S IN HAND.

  51. Dwight…

    The “old judge” you described was very wise. He proved he knew the central issue to these “securitized loans” *begins* with proof of legal standing. He demonstrated that in your case by dismissing all claims in your suit *except* “standing.”

    Es ist doch ein Schade dass…. he retired and his replacement’s understanding of his decision was so shallow that his decision was ignored.

    Still,, the “gateway issue” of “standing” remains! Nothing should proceed in a matter until that bedrock issue is fully addressed!
    .

  52. This is where we’re at 4 years later with Garfield’s proposal and cases like mine and others engaging local government:

    “http://www.nytimes.com/…

    Presidents George W. Bush and Obama spent more than $1 trillion in taxpayer money to bail out our largest banks and corporations. But they exacted no quid pro quo. JPMorgan Chase has recorded splendid profits and has no obligation to bail out hundreds of thousands of homeowners facing dispossession.

    Instead, the battle to hold JPMorgan Chase — and its brothers in government-supported finance — accountable has fallen to state and city officials. Some in New York sound eager for a rumble (the attorney general, Eric T. Schneiderman, has taken a tough line, seeking piles of documents from banks, including JPMorgan Chase).

    Pitchforks, too, are raised by movements like the one that Ms. Johnson has enlisted in, New York Communities for Change. Run by the reconstituted remnants of Acorn (a community organizing group laid low by conservative dirty tricksters and its own missteps), the group has joined with unions to lobby towns and cities to close accounts with Chase, unless the bank begins to write down mortgages.

    This campaign has a mouse-that-roared quality. The villages of Hempstead and Freeport withdrew millions of dollars. Ithaca barred the bank from bond offerings.

    /bSeems like a good time for each of us to look into the involvement of our towns and cities by talking to your mayor and/or councilman… this can only snowball./b
    Originally posted to route66 on Tue Sep 13, 2011 at 07:45 PM PDT.”
    http://www.dailykos.com/story/2011/09/14/1016701/-JP-Morgan-Chase-accused-of-nationalized-fraud-in-civil-RICO-suit-update#

  53. An oldie but goodie…where’s the valid transaction? question everything, follow the money, who are the deadbeats?

    “NOTE: Do not make any assumptions that your loan was securitized. Even if it was securitized it is entirely possible, if not probable, that the “assignment” is barred by a cutoff date in the securitization documents, or that the assignment was not executed with the form and content required by the securitization documents. Thus even if there is an assignment, you should not assume that it was or could be accepted. It is highly possible if your loan appears to be securitized, or even if there is a “Trustee” under an alleged securitization structure that a party making a claim on an assignment is unaware of the absence of acceptance or even that there is no authority for the Trustee to accept the assignment.You can be certain that if the other party is unaware of these defects, that the Judge is equally unaware.

    The key to understanding this evolving process is that the Judge is looking at your transaction as the beginning point. That is simply flat wrong and you need to make that point as clearly as you can.

    The beginning was the creation of the securitization structure.

    The first transactions that occurred was the sale of securities to unsuspecting investors.
    The second transaction that occurred was that the investor money was put into an account at an investment banking firm.
    The third transaction was that the investment banker divided the money between fees for itself and then distributing the funds to aggregators or a Depository Institution.
    The fourth transaction was the closing with the borrower. The loan was funded with the money from the investor but because of the disparity between the interest payable to the investor and the interest payable by the borrower, a yield spread was created, adding huge sums to what the investment banker took as fees without disclosure to the ivnestors or the borrowers.
    The fifth was the assignment AND ACCEPTANCE of the loan (See below) into between 1 and 3 asset pools, each bearing distinctive language describing the pool such that they appeared to be different assets than already presumed to exist in the first pool.
    The sixth was the receipt of insurance or counter-party payments on behalf of the pool pursuant to the documents creating the securitization structure.
    The seventh was the resecuritization of the pooled assets between one and three times.
    The eighth was the federal bailout payments and receipts allocable to the balances owed on the loans that were claimed to be part of the pool.
    The ninth are the foreclosures by parties who never handled any money who allegedly represent investors who no longer have any interest in the loan.

    Through the creation of multiple entities that never existed before securitization of mortgage loans, the intermediaries are able to support the illusion that they never received payment from outside parties on the obligations owed from borrowers.

    Most loans are assigned only after they are delinquent or even after foreclosure has been ordered. By definition, the documents creating the securitized pool usually prohibit such an assignment from being accepted into the pool. Therefore, although an assignment was executed, it is entirely possible that it accomplished nothing of legal consequence. ”
    https://livinglies.wordpress.com/2010/05/14/acceptance-of-the-assignment-and-status-of-the-assignment/

  54. Unfair, deceptive and abusive practices UDAAP


    SIGNIFICANT RULING OBTAINED IN NEW JERSEY DENYING FINAL SUMMARY JUDGMENT AND ORDERING DEPOSITIONS OF ROBOSIGNER, JPMORGAN CHASE, AND PENNYNMAC
    Posted on September 21, 2014

    September 21, 2014

    A New Jersey Chancery Judge has denied final summary judgment to PennyMac Corp. which attempted to foreclose on a WaMu-initiated loan which PennyMac claimed to have inherited by assignment from the FDIC through an interim assignment to PennyMac’s predecessor-in-interest (which is another “PennyMac” entity). The Court also ordered that the homeowner take the depositions of known robo-signer Cynthia Riley and the appropriate witnesses from JPMorgan Chase, PennyMac, and any other witnesses deemed material by the homeowner’s counsel.

    Michael Jacobson, Esq., local NJ counsel for the homeowner, argued the matter on the Brief and opposition papers research and drafted by Jeff Barnes, Esq. who was also retained by the homeowner.

    As those of you who follow this website know, JPM claimed to have purchased all of WaMu loans and loan commitments from the FDIC pursuant to a Purchase and Assumption Agreement (P&AA) executed on September 25, 2008 (the day WaMu failed and went into FDIC Receivership). As it is also known, there is more than one version of the P&AA, and WaMu went into bankruptcy the next day (on September 26, 2008). Thus, whatever was not “sold” to JPM would have been a part of the WaMu Bankruptcy Estate.

    PennyMac claimed that the FDIC assigned the loan to it on September 3, 2013, which was almost 5 years after JPM claims to have purchased the WaMu loans from the FDIC as set forth within the now infamous Affidavit of Robert Schoppe, which JPM has used around the United States in alleged support of its claim to have purchased all WaMu mortgage loans from the FDIC when WaMu failed.

    PennyMac attempted to support its summary judgment request with a Certification (form of Affidavit in NJ) from a “Default Specialist” of the servicer who never worked for WaMu, or JPM, or the FDIC, or PennyMac. The Certification did not state the date that PennyMac acquired the loan, and the “screen shot” provided with the Certification (in alleged support of the “acquisition” of the loan) showed “Deutsche Bank Authentication”. The effective date of the “Power of Attorney” post-dates the alleged “acquisition date” in the “screen shot.” Further, the Certification does not contain any information on personal knowledge, and equivocates as to how the information in the “records reviewed” were created.

    The Note bears an origination date of 2005, and contains a stamp “signed” by robo-signer Cynthia Riley who testified in a deposition taken in a Florida foreclosure case that she never endorsed any notes or put any endorsement stamps on notes from 2004 through 2006.

    In denying PennyMac’s request for final summary judgment, the Judge stated that he was “very intrigued” by these issues, and ordered that the homeowner take the depositions of Cynthia Riley, the appropriate person(s) from JPM, and any other depositions necessary (which would include the depositions of those from the FDIC and the two PennyMac entities involved with the alleged “transfer”).

    This ruling now permits a homeowner to inquire, under oath, of those witnesses who were involved with what JPM allegedly purchased from the FDIC; what, if anything, the FDIC retained following the September 25, 2008 P&AA; and into the issues as to how a loan which JPM has told the world was part of its acquisition from the FDIC was somehow “assigned” to PennyMac Corp.’s predecessor-in-interest 5 years after the alleged JPM acquisition and then assigned to PennyMac Corp. or otherwise transferred by a claimed “endorsement” which the alleged signer thereof stated under oath she did not place on the Note and did not sign.

    This should be very interesting.

    Jeff Barnes, Esq., http://www.ForeclosureDefenseNationwide.com

  55. Bob, my quick response is your presumptions and ifs ignore the reality of the past 10 years and are the exact bias of banksters and courts.
    Most of us are in our homes exactly because the notes/”loans” are invalid and we have tons of evidence of cause and fraud. You and the banks are in denial of all the cases and fines literally as cost of doing business but that’s your delusion. It is fraud and we’re getting closer to the criminal side day by day.

  56. The Story of Bob Hurt on Living Lies in 15 Steps…

    1) my way works, my way works, my way works!
    2) you guys are foolish to doubt that my way works!
    3) you guys are foolish to try any other way than my way!
    4) bob – please cite any or all cases in which your way and your direct service resulted in a winning outcome for a homeowner…
    5) i don’t have to – it is self evident – you drink kool-aid!
    6) c’mon bob – please – you are so darn passionate about your way, you must have been involved in at least one case where one customer you brought to the table to have Storm or others do the review came out a winner… tell us… show us, please…
    7) i’m sick and tired of you guys just ignoring me and my way, you dare doubt me – after all i am retired and have nothing to do except sit here and type 10,000 words a day into his blog to convince you
    8) hey bob – do you get a commission for people you bring to these mortgage analysts?
    9) that has nothing to do with this – i never charge a customer anything for my service…
    10) but do you deny that the mortgage analysts you refer people to pay you a commission?
    11) i’m retired and in good shape and don’t need any money…
    12) are you avoiding the question bob?
    13) i am so sick and tired of all you kool-aid drinkers and Garfield fans it makes me scream and call you names (oh BTW sorry)
    14) getting back to the question bob – would you please cite any or all cases in which your way and your direct service resulted in a winning outcome for a homeowner?
    15) F_ _K OFF!

    the end…
    repeat again and again…

  57. bob –

    consider these indisputable facts:

    0) lender violates all rules of GAAP
    1) borrower tenders value to a banking institution
    2) a banking institution uses that value to transmit a credit to some person
    3) computer accounts are manipulated to cause certain perceived outcomes
    4) computer records are deleted
    5) full disclosure would deliver certain evidence that the loan was funded by the borrower and not the named lender (or subsequent investors) – which was just a conduit for the borrower’s tendered value

    until you realize what is really going on (the siphoning of man’s life energy – with his own uninformed, ignorant consent) you will never know the real evil of this whole mess

    bob is right only that the fraud takes place at the initial step – he is wrong as to what the real fraud is… those other steps he discusses are already into the smokescreen which covers up the initial fraud…

    and nobody can prove this right or wrong without the banks or government confessing to the fact… (but there is a way to induce a confession)

  58. state/county court judges play willy-nilly with the law and UCC – which is now the uniform governing law for all financial transactions in the US (or USA)

    * if it suits their fancy, they cite UCC to confuse and defeat you…
    * if it suits their fancy, they say UCC does not apply and old state law rules…
    * if it suits their fancy – they say there is no state supreme or appellate court decision which addresses “precisely” the elements of your case or any UCC term which applies – and therefore the judge claims discretion to create new law for your case…
    * if it suits their fancy – they just pass judgment without any explanation at all, basically baiting you to come pick a fight with them…

  59. friends & fellow law-nerds:

    as some of you have asked, i compiled my court doc & associated links i posted on living lies for convenience – all in one email – instead of hunting them down again

    many are large zip files from my dropbox

    if you would like to receive this email, please email a request to lawman@gmx.us

    all emails sent out will be BCC so others do not know your private email…

    thank you
    greg

  60. That’s what . I think I mean lol ur in a strange place. But at one point u said everything was dismissed except standing? Like other case on other board guy had no documents, recorded docs so how was he being foreclosed? This blind rubber stamping gets ridiculous.

  61. I don’t think a non-creditor, mere holder, non-owner ..just a servicer trying to foreclose on a TILA rescinded mortgage ..dismissing their own complaint has any meaning ..

    They were not the proper party .. they had no standing because their standing was established on the already void mortgage and note.

    So if they dismissed their previous FC , it shouldn’t matter to my TILA rescinded loan which happened before they filed that complaint.

    make sense ? lol

  62. is it possible to get Justice Scalia to issue a global open amicus brief that we could use to paste into all our cases?

    has that ever been done?

  63. You’re on point and on track Dwight. It’s crystal clear from Jesinoski that judges took the law into their own hands. If not out and out corruption tge bias the free house mythers represent. The pdf I mentioned has good footnotes and references. The CA HBOR site also has good references for various case types. You are in a strange place, seems criminal though with ur court situation. Article at one point says rescission simply is. May hinge on whether previous dismissal? Actually undid rescission. Garfield posted case where rejection of rescission was undone due to Jesinoski.

  64. THIS IS WERE ALL SECURITIES THAT WELLS FARGO TRUST/TRUSTEE SAY THEY HANDLE, AS YOU CAN SEE THERE IS NO TRUST NAMED AS THE ONE IN MY LAND RECORDS. NONE. THE ISSUER FOR THE TRUST TRYING AND SAYING THEY OWN MY MORTGAGE AND NOTE, IS
    GMACM MORTGAGE LOAN TRUST 2006-J1
    Issuing Entity

    DONT SEE THAT TRUST ANYWHERE. IN THE LIST OF ACTIVE TRUST.

    No unread notices
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    Welcome to the CTSLink website, a service of Wells Fargo Bank, N.A., where accurate and timely reporting is available around the globe and around the clock. The CTSLink website is your direct link to collateral and bond information on a variety of investment vehicles administered by the Corporate Trust Services group of Wells Fargo Bank, N.A. including CMES, RMBS, CMBS, ABS and CDO securities. The CTSLink website provides comprehensive and quality data reporting that is updated frequently and made available in industry-standard formats. We also make certain closing documents available and have the ability to produce customized reports to meet unique portfolio requirements.

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    H

    $546,153,384

    GMAC MORTGAGE CORPORATION
    Seller, Servicer and Sponsor

    GMACM MORTGAGE LOAN TRUST 2006-J1
    Issuing Entity

    Residential Asset Mortgage Products, Inc.
    Depositor

    GMACM Mortgage Pass-Through Certificates, Series 2006-J1

    MORTGAGE LOAN PURCHASE AGREEMENT

    This is a Mortgage Loan Purchase Agreement (the “Agreement”) dated as of February 27, 2006 by and between GMAC Mortgage Corporation, a Pennsylvania corporation, having an office at 100 Witmer Road, Horsham, Pennsylvania 19044 (the “Seller”) and Residential Asset Mortgage Products, Inc., a Delaware corporation, and having an office at 8400 Normandale Lake Boulevard, Minneapolis, Minnesota 55437 (the “Purchaser”).

    The Purchaser and Seller intend that the conveyance by the Seller to the Purchaser of all its right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall be, and be construed as, a sale of the Mortgage Loans by the Seller to the Purchaser and the
    Record Title and Possession of Mortgage Files. The Seller hereby sells, transfers, assigns, sets over and conveys to the Purchaser, without recourse, but subject to the terms of this Agreement and the Seller hereby acknowledges that the Purchaser, subject to the terms of this Agreement, shall have all the right, title and interest of the Seller in and to the Mortgage Loans. From the Closing Date, but as of the Cut-off Date, the ownership of each Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the related Mortgage File and all rights, benefits, proceeds and obligations arising therefrom or in connection therewith, has been vested in the Purchaser. All rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with the Mortgage Loans and all records or documents with respect to the Mortgage Loans prepared by or which come into the possession of the Seller shall be received and held by the Seller in trust for the exclusive benefit of the Purchaser as the owner of the Mortgage Loans. On and after the Closing Date, any portion of the related Mortgage Files or servicing files related to the Mortgage Loans (the “Servicing Files”) in Seller’s possession shall be held by Seller in a custodial capacity only for the benefit of the Purchaser. The Seller shall release its custody of any contents of the related Mortgage Files or Servicing Files only in accordance with written instructions of the Purchaser or the Purchaser’s designee.

    Issuing Entity
    The depositor will establish a trust with respect to the GMACM Mortgage Pass Through Certificates, Series 2006-J1 on the closing date pursuant to the pooling and servicing agreement. The pooling and servicing agreement is governed by the laws of the State of New York. On the closing date, the depositor will deposit into the trust a pool of mortgage loans that in the aggregate will constitute a mortgage pool, secured by one to four family residential properties with terms to maturity of not more than 30 years. All of the mortgage loans will have been purchased by the depositor from the seller pursuant to a mortgage loan purchase agreement, dated as of the closing date, between the seller and the depositor.
    The pooling and servicing agreement provides that the depositor assigns to the trustee for the benefit of the certificateholders without recourse all the right, title and interest of the depositor in and to the mortgage loans. Furthermore, the pooling and servicing agreement states that, although it is intended that the conveyance by the depositor to the trustee of the mortgage loans be construed as a sale, the conveyance of the mortgage loans shall also be deemed to be a grant by the depositor to the trustee of a security interest in the mortgage loans and related collateral.

    The seller will not be required to record assignments of the mortgages to the trustee in the real property records of the states in which the related mortgaged properties are located.

    Other than

    with respect to the mortgage loans recorded in the name of MERS,
    GMACM will retain record title to the mortgages on behalf of the trustee and the certificateholders.

  65. Jesinoski v. Countrywide Home Loans, Inc., 574 U.S. ___ (2015), is a United States Supreme Court case in which the Court held that the Truth in Lending Act does not oblige borrowers to record a claim to cancel advances and that sending composed notification is adequate to effectuate rescission.[1] Some pundits portrayed Justice Antonin Scalia’s consistent larger part assessment as “laconic” and the “most limited supposition of the year”.[2] Other investigators have depicted Jesinoski as a “historic point case” in Truth in Lending Act statute.

    On January 13, 2015, the United States Supreme Court declared its choice on account of Jesinoski v. Countrywide Home Loans, Inc. The consistent assessment, composed by Justice Antonin Scalia, affirmed that a borrower require not record suit keeping in mind the end goal to revoke a home loan exchange and rather may practice his entitlement to repeal under the Truth in Providing so as to lend Act (“TILA”) basically convenient notification to the moneylender.

    In February 2010, precisely three years after they had renegotiated the home loan on their home, the Jesinoskis sent a composed notification to their moneylender expressing that they were cancelling the credit. They guaranteed that they had not got two duplicates of an exposure archive needed by TILA. Their bank, Countrywide Home Loans, denied the rescission case based upon archives in which the Jesinoskis recognized their receipt of the obliged divulgences. One year and one day after they initially conveyed the rescission see, the Jesinoskis recorded suit in government court to implement the rescission of the credit. Countrywide Home Loans contended that the Jesinoskis couldn’t successfully revoke the advance exchange unless they really started suit inside of three years of the date the renegotiating had been finished. The District Court concurred, holding that TILA obliged the Jesinoskis to sue for rescission inside of three years after the exchange was fulfilled. Since they didn’t, their case was banned. The Court of Appeals concurred.

    The focal inquiry introduced to the Supreme Court was what steps are needed under TILA to cancel a home loan credit exchange. In answer to this question, the Supreme Court considered the content of TILA, and confirmed that under Section 1635(a’s) unequivocal terms a borrower, “…shall have the privilege to cancel . . . by telling the loan boss . . . of his aim to do as such”. In this way, a TILA rescission is compelling when the borrower tells the bank of his goal to revoke. A borrower’s letter advising a loan specialist of the plan to repeal is itself the rescission.

    This decision obviously obliges that banks give careful consideration to any composed TILA based notification of rescission that they may get inside of three years of making a credit. TILA by and large obliges moneylenders to auspicious deliver and react to a borrower’s rescission inside of twenty days. An inability to make the convenient reaction may block any activity to challenge the rescission.

    The prime mistake among foreclosure defense attorneys is that (a) they are looking at substantive law only without studying procedural law and (b) they still can’t get over the “free house” myth.

    If you are confronted by a court order signed by a real judge that you are absolutely convinced is wrong, what happens. ANSWER: Nothing. The order stands unless you do something about it. The “Something” is filing a pleading that establishes who you are; why you have a right to complain about the order; and then what is wrong with the order. It may be motion to vacate, or any number of other pleadings.

    If you think that the court violated your civil rights, you would probably bring a new lawsuit in Federal Court asking the Federal District Judge to vacate the state court order perhaps because the law denied due process or the way it was applied violated due process. The signed order (regardless of how offensive it is), at all times, during the contest, remains in full force and effect. Even if everyone is convinced you will win and get the order vacated, you must wait until the end of litigation to get it vacated — if the Judge agrees with you.

    When a consumer sends a notice of rescission on a debt, it may have all kinds of things wrong on its face and in the circumstances under which it was sent. But the basic fact is that it was sent.

    That is all that is needed to make it the equivalent of the court order in the preceding paragraph. It is effective BY OPERATION OF LAW. Why is the court order effective? It is effective BY OPERATION OF LAW. AT THAT POINT IN TIME WHEN THE NOTICE OF RESCISSION WAS SENT, THE LOAN CONTRACT IS CANCELED, THE NOTE IS VOID AND THE MORTGAGE IS VOID — BY OPERATION OF LAW.

    The banks and servicers are mounting a challenge to the inevitable and only ruling allowed regarding TILA rescissions. They don’t want to file a lawsuit or a petition for temporary restraining order to relieve the creditor of the duty to (a) cancel the note and return it to the borrower, (b) file the satisfaction of mortgage and (c) pay all money ever collected from the borrower and ever paid to third parties as compensation arising out of the origination (i.e., execution of loan documents).

    Execution of loan documents is NOT the same time as consummation.

    Ask any closing agent. They get the funds after the documents are sent to the underwriting department where it is reviewed again before the funds are released — hours, days and even months later. .

    The question is what underwriting department?

    It is the automated computerized set of standards maintained by LPS/Black Night and others who are distancing themselves from the table funded transaction in which the “lender” has engaged in behavioral that is “predatory per se” and which therefore does not entitle them to equitable relief (foreclosure) since they come to court with unclean hands. By layering the stack with multiple parties, none of whom have any interest in the loan, they create the illusion of a transaction with an originator who never spent a dime lending money to the borrower.

    So we know that the identity is not going to be made available by the banks and servicers. That much is assured. The trusts are empty shells of trusts that exist on paper only, never did business and were never registered with any state or the federal government. They can’t get away from the simple truth that the ONLY parties entitled to payment are the investors whose money was used to fund or acquire loans — even though they didn’t know and would never have approved of the violation of the terms of the offer contained in the MBS prospectus, the Pooling and Servicing agreement, or anything else.

    They are dancing around the issue. If this is handled correctly, the issue of when consummation occurred will be a factual issue in dispute. That means they will have to raise it in a lawsuit against the borrower. And that means they are going to have to plead and prove standing. Since the rescission is effective as of the date of mailing, and effective means that the loan contract has been canceled (if it ever existed), the note and mortgage are void and the party who is actually the creditor has a duty to return the canceled note, file the satisfaction of mortgage, and pay the money to the borrower that was paid by the borrower and that was paid to third parties as compensation for the origination of the loan.

    If these loans were actually legitimate, the strategy would have little merit. The real creditor would allege that they were the lender to the borrower or that they had purchased alone from a party that owned the loan. They would be able to show Proof of that purchase in the form of a canceled check, a wire transfer receipt that could be verified or some other indication of the movement of money. But if the banks and servicers actually could produce the real creditor, there would be virtually no foreclosure litigation, as most of the defenses and attacks by the borrower would be moot.

    The truth is that the loan contract probably never existed because the party on the note and mortgage was not the lender. This is a table funded loan which is predatory per se, under Regulation Z. So you get them coming and going — either there was no consummation with any of the parties in the chain of people and entities that are relied upon by the collector or foreclosing party; or the transaction IS RESCINDED, as of the date of mailing. This prevents them from using the same arguments on standing as they do in foreclosure actions.

    In actions to vacate the rescission, the suing party cannot allege standing much less prove it by using the note and mortgage because those are now void instruments according to TILA, REGULATION Z, and the Supreme Court in Jesinoski v. Countrywide Home Loans.

    Either way the remedy is the same, more or less, to wit: return of the canceled note, filing of satisfaction of mortgage (or having it nullified by a court) and payment of all money ever paid by borrower plus potential damages under consumer protection statutes.

    It might be suspected that the three years has run, or expired, and that the rescission is faulty because of other restrictions in TILA. But it is nevertheless effective and requires no judge to rule upon its effectiveness. That puts the burden of pleading and the burden of proof completely on the party seeking to vacate the rescission. If they do nothing, the rescission stands. And as pointed out by Justice Scalia TILA rescission makes no distinction between disputed and undisputed recessions. So even if a faulty rescission is nonetheless effective, this means that the creditor has 20 days in which to satisfy the three duties under TILA rescission. If nobody files a lawsuit to vacate the rescission within 20 days of receipt of the notice of rescission (and remember that under Dodd Frank notice to one is notice to all), then the rescission is final and any of the factual issues that you would have expected to arrive on a faulty rescission would have been waved. This is a procedural argument but there is no doubt that it is correct, especially with the wording of the opinion in Jesinoski v. Countrywide Home Loans.

    The important thing to remember is that the rescission is effective upon mailing, which means that it is the same as a court order bearing the date of mailing of the notice of rescission. If no lawsuit to vacate a TILA rescission is filed by the bank, then they probably cannot come up with a creditor who actually has standing. And that is because they stole the money in the first place from investors who are the ONLY parties entitles to be paid.

  66. the elephant in the room is that the homeowner funded the loan as the original investor by way of the original note (which they will not tell or admit to you IS legal tender – with real cash value) and they used a demand deposit account in your name to create a bank balance for them to write a check to whomever it was supposed to go to… then closed the account.

    then they negotiated your note, etc…

    was there any line in the mortgage security agreement that said, the borrower shall fund the lender AND then agree to pretend that the lender loaned it’s own funds to the borrower’s assignee?

  67. mn …. You continue to side-step the issue of “standing” .

    The “old way” of foreclosures was based on presumptions of the court that accepted the banks documents as authentic and legal, which in turn allowed those mere “holders” of the documents to backdoor their way into the vital and crucial element of proving “standing”.

    We all know now that those documents cannot be relied upon.

    There have been settlements and Consent Orders signed by these plaintiffs where they promise “not to do it anymore”, but phrased in different ways like “we have corrected the problems” … There was criminal wrongdoing involved, the plaintiffs were stealing homes through the “old way” of doing business in the foreclosure courts. The case law all reflects this corrupted “old way” of adjudicating foreclosure cases. The table is slanted in favor of the cheating, lying, criminal bankers. It’s called “presumptions”, where the court deliberately turns a blind eye to the criminal scheme, and instead continues to perform the court circus of making the defendants jump through the hoops ..the hoops represent the entire corrupted, flawed way that was allowing the criminal plaintiffs to prevail before. Nothing has changed.

    The TILA rescission is just a small crumb of hope tossed our way. We have seen no justice in the courts. We have been denied due process.

    What the Jesinoski case and decision by the Supreme Court did, was it shed light back on the elementary and fundamental issue of standing.

    “Standing” is what most of this boils down to. Can the bankers and servicers who are foreclosing prove that there is a real party in interest, a true Holder in Due Course , a valid, legal owner of the debt ??

    No good case law exists because the courts have been asleep at the wheel and allowed the criminals to steal properties for years. The criminal scheme included the process that took place in the courts, where the mere “holders” never had to prove a proper chain of title, with proof of who purchased and owned the loans they were now foreclosing on. It was like taking candy from a baby, and it still is thanks to the corrupt judiciary who holds a severe bias against borrowers.

    So my main argument is this .. how do we change the way of doing “business as usual” in the courts?

    That way of doing business is not arriving at the truth .. and it is not arriving at justice. And you mn, who are most likely a lawyer, it offends you that the integrity of the judicial system has been compromised and is a disgrace today.

    In my opinion the way to fix this quickly, would be to simply return to the fundamental element of making sure a plaintiff has established standing to proceed.

    But because of the criminal schemes employed by the banking system, we need to now implement new ways of establishing standing. We can no longer rely on presumptions and mere holders waving a note around in the court room, we need to examine the loan, from its origination and funding, right on through every step of the chain of title.

    This is the logical procedure that any fair justice system would want to implement. We are talking about taking away a citizens home, with the full knowledge that criminal activities were being undertaken in the mortgage and banking industry who now come in as plaintiffs to foreclose on these citizens.

    It is not asking too much that the courts mandate an examination of the entire loan from funding at originations, to each sale and transfer along the way ..to the current owner of the subject loan.

    Why is this not being implemented? Why is there resistance when the borrower attempts to assert this in court ??

    Why is there resistance to digging for the truth in these cases ?

    This is the corruption speak of by the courts .. they are providing cover and its wrong, its a travesty and its unjust.

  68. Thursday 22 2015

    DwightNJ

    How many “pro se” defenders do you think have a law degree you use
    as your defense in response?

    >The bad case law that you ridicule me for not citing is bad case law.

    One, I have not ridiculed you, lose the victim attitude. Two, nor did I say
    you should cite bad case law. Here is what I said:

    “One of my issues with a primary detractor on this site against those
    who self-defend is that they lose for making either poor or wrong
    arguments backed by “belief in words” and not case law.”

    > Do you understand that bad case law is part of the problem?

    Non sequitur. See comment above.

    >Do you understand how the Jesinoski decision exposed the corrupt >judicial system?

    No, I fail to see your point. It did no such thing.

    >Do you acknowledge or understand that the old way of doing business >in these foreclosure courts is tainted and not fair? That they are based >on bad presumptions .. no proof of who the creditor is .. no standing

    You mix presumptions, and what you just said makes no sense.

    >Do you acknowledge that the mortgage industry was found to be >corrupted and filled with false documents, fabricated docs, etc ?

    And your point would be…

    >You want us to continue to jump thru the hoops that were set up by the >clowns who corrupted the courts .

    I have never stated anyone has to jump through hoops, even without
    knowing exactly to which hoops you do not refer. Even more muddled
    is your reference to “clowns who corrupted the courts.” Who are the
    clowns and how did “they” corrupt the courts?

    My questions are rhetorical to give you pause that the way in which you
    express yourself is unclear and full of presumptuous holes.

    >This blog and the bravado we display is a sign of people waking up to >the fact that the game is over and we are done playing the victim. We >are fighting back , and we are asking the relevant questions. I don’t >understand what your problem is with that.

    What “game is over?” Done playing the victim? You speak in self-
    serving platitudes that accomplish nothing but venting, if that is your
    objective. You are faced with a serious situation, and I empathize with
    your plight, and not just you…anyone facing foreclosure.

    Do not misconstrue bravado with waking up. The two are not necessarily
    synonymous when fighting for one’s home in foreclosure. My point to
    you is to be more pragmatic in tackling your case. If you have problems
    with me, you do not stand a chance against the opposing plaintiff and
    judge.

    I do not read all of your posts, and the ones I have are not always clear,
    evidenced by the above response. You talk about notices Wells Fargo
    has yet to produce, notices you claim not to have received, then ask,
    what if they produce the copies you signed?

    Now, I could be misreading what you post, but it sounds like you are
    admitting you signed some papers that are not being produced and are
    wondering how to respond if those notices are produced.

    It is not for me to figure out your lack of clarity. I suggested you look into
    your state statutes to see if a non-waivable condition precedent existed,
    for it is a more substantive argument to make, based on law. If there is
    no such statute, then no such argument can be made.

    Your plan of attack on rescission seems to be floundering because you
    are not finding case law/arguments to make in your favor. That is your
    responsibility in your current fight.

    What I imply to you is that bravado is not going to win you the day.
    Waking up, fighting back, and asking the relevant questions is only half
    the battle. You have to translate that into a well-pled response in court
    that will serve your need. Otherwise, what you espouse means nothing
    re winning your cause.

    The scrutiny I present to you is just an exercise. The scrutiny you face
    in court is what matters. Courts of chancery take no prisoners, sometimes
    not even those who are better prepared.

    As feedback, and I will make this my last one lest you feel more non-
    existent ridicule, your stating that the Jesinoski case “exposed the
    corrupt judicial system” is not encouraging.

  69. @ mn ….

    You commented –
    >In your hand-written motion to dismiss based, at least in part, on fraud,
    > did you plead all of the elements of fraud as applied to the specific
    >allegations you made that constituted fraud? If not, your motion was a
    >waste, and you are wasting the court’s time and weakening your
    >credibility

    my reply: That was my motion from the first case back in 2007 .. it may not have been properly and fully pleaded because I do not have a degree in law .. but the Judge understood the arguments I raised and ordered a plenary hearing in which he wanted witnesses provided by Wells Fargo to come in and explain a couple of the discrepancies in order for him to be satisfied that they did have standing. That 2007 complaint was eventually vacated and dismissed in 2011 after the plaintiff refused to provide a witness, they requested the court sign an order vacating and dismissing without prejudice, which the court did in Nov. 2011. The fraud that I was attempting to raise as a Pro se, was in regards to the fraudulent assignment of mortgage which had a forged signature of the Notary. I submitted exhibits of assignments that showed the Notary’s apparent true, authentic signature, which did not match the signature on our assignment. There were 2 different versions of the note submitted at different times. Their initial complaint had a certification with exhibit of the note , but it was missing the blank endorsement from Washington Mutual Bank .. now in 2010 I was motioning the court to inquire about the note , WaMu was now out of business since 2008 .. they magically fabricated a new version after I opposed … the judge and I both wanted to know how it happened since there was no date on the endorsement.

    mn commented – Do you really think “buzz words” will work, with no specific references or case law from which the “buss words” might apply?

    My reply: The case law is already in my memorandum of law and brief, but I want to mention that the court erred, was unreasonable, arbitrary and capricious , etc .. in order to defeat any oppositions to my motion for being late or out of time from the SJ order .. sorry, I didn’t go to law school, I’m doing the best I can as a Pro se who works all day and cannot find a competent attorney with a backbone and a brain.

    mn commented – My sense is you are doing just that, developing a sense of bravado from feedback on this site. Most of the comments made here do not and will not work in a court of law.

    My reply : We have every right to develop a sense of bravado after the 9 unanimous Supreme Court Justices validated our concerns about the integrity of the judicial system being corrupt and defiant about following the rule of law.

    You can attempt to mock and ridicule us if that’s what makes you feel better for being a part of an unjust, corrupted system , but you will not discourage us from fighting this injustice every step of the way. You should be more concerned with posting helpful hints and tips for the people here who are seeking justice, instead of scorning them for not being as educated in the field of law and justice as yourself.

    I posted that the issue of Standing needs to be the centerpiece of our arguments .. I noticed you have nothing to say about THAT !

    The bad case law that you ridicule me for not citing is bad case law.

    Do you understand that bad case law is part of the problem?

    Do you understand how the Jesinoski decision exposed the corrupt judicial system?

    Do you acknowledge or understand that the old way of doing business in these foreclosure courts is tainted and not fair? That they are based on bad presumptions .. no proof of who the creditor is .. no standing

    Do you acknowledge that the mortgage industry was found to be corrupted and filled with false documents, fabricated docs, etc ?

    You want us to continue to jump thru the hoops that were set up by the clowns who corrupted the courts .

    This blog and the bravado we display is a sign of people waking up to the fact that the game is over and we are done playing the victim. We are fighting back , and we are asking the relevant questions. I don’t understand what your problem is with that.

  70. THIS IS EVERY MORTGAGE CONTRACT BOB. READ IT. UNDERSTAND IT.

    david belanger (@revolutionnow1), on October 21, 2015 at 3:28 pm said:
    Now, pull out, or up, your mortgage or deed of trust. Find the following language:
    “BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record.”
    borrower covenantsOver several years I’ve looked at more mortgages than I care to admit. Given a choice between knowing any of this stuff and having a lit cigar stuck up my nose I’d opt for the latter. I used to get paid to start fires without matches. I’d rather be doing that still. The last five (5) years are not what I had planned. Yet I am here.
    Did you see the part that contractually obligates the borrower to “defend generally the title to the Property against all claims and demands?” Maybe, you don’t need to assert standing to challenge the validity of an assignment after all? To this layman it looks to be “Contract Law 101.” And even better it is found in a seminal document; the mortgage or DOT.
    Since reading my own again several months ago (you can’t EVER read your own documents, your own pleadings, motions and other papers, the pleadings, motions and other papers of adverse party, or the rules [Read the Rules. Read the Rules. Read ReadTheRulesthe Rules] too many times), and noticing that language, I’ve reviewed several hundred more mortgages and DOTs. Thus far I’ve found the language in every one I’ve reviewed. I hesitate to say it is universal, but I’m hopeful.
    Every example I’ve seen has always started with “BORROWER COVENANTS” in all caps (that makes it a bit easier to find). I’ve seen it in different places, on different pages, but thus far it has been in every one I’ve reviewed.
    woman-courtroomImagine this conversation.
    Homeowner: Your Honor, I dispute the validity of the assignment.
    Court: You’re a non-party to the assignment. You don’t have standing to challenge it.
    Homeowner: I’m not asserting standing to challenge the assignment, Your Honor. I’m contractually obligated to defend generally the title to the Property against all claims and demands.
    Court: Are you trying to get a free house?
    Homeowner: No, Your Honor. My contractual obligation, expressed in the mortgage on page X, par. Y, is to protect the interests of the holder/owner/investor/real party in interest. It appears that is not the party before this court.
    Court: Well, I don’t think that is what it means.
    Homeowner: It looks pretty unambiguous to me, Your Honor. Even if it is ambiguous, Your Honor, the doctrine of “contra proferentem” is applicable; ambiguities are to be construed unfavorably to the drafter. I didn’t draft the mortgage…
    From this point, fulfilling a contractual obligation to protect the interests of the proper party, connecting the dots that lead to the PSA, a CLP, and NY EPTL may become considerably easier.
    * Disclaimer: This is research and personal experience expressed and shared for the purpose of thought and conversation. Nothing in this post should be construed as legal advice or practicing law. If you need legal advice you should consult an attorney.
    Thank you Glenn Augenstein for a terrific post.

  71. ok bob, here is the proof that the note,mortgage was CONVERTED , TO A STOCK CERTIFICATES/BONDS. CHANGING THE NOTE AND MORTGAGE FOREVER. AND YOU CAN NOTE , CONVERT IT BACK TO A MORTGAGE AND NOTE.

    THE BANKS ARE SAYING A TRUST HOLDS YOUR MORTGAGE AND NOTE. NOT TRUE. THEY ARE HOLDING STOCKS AND BONDS FOR THE CERTIFICATE HOLDERS, AND THIS IS WHY I ASK THE TRUSTEE THAT IS TRYING TO FORECLOSE FOR WHAT TRAUNCH AND CUISP NUMBER THEY SAY MY MORTGAGE WAS SLICED INTO.

    THIS IS WHAT I WAS SENT.

    Hedge funds do not have, ( Committee on Uniform Securities Identification Procedures (CUSIP) numbers )

    because they are private investment vehicles. CUSIP numbers are used to ( identify securities such as stocks, bonds and exchange-traded funds (ETFs) )

    registered to be sold publicly, usually on an exchange such as the New York Stock Exchange (NYSE).

    your bond administrator is-
    Bond Administrator:
    Jeanne Weiss
    Telephone: 818-260-1506
    Pool(s) 140009

    now this is the bond ( cusip number ) they say my loan is in.

    1099 Form – CUSIP 36185MEB4-

    CLASS:
    CUSIP:
    No
    GMACM Home Equity Loan Trust
    Series 2006-J1 REMIC
    54-2195437
    9062 Old Annapolis Road
    Columbia, MD 21045
    A1
    36185MEB4
    251,679,000.00
    Premium
    http://www.ctslink.com
    TYPE OF ISSUE:
    THIS DEBT INSTRUMENT WAS ISSUED WITH:
    RETAIL CLASS:
    FORM 1099 SUPPLEMENTAL FACTOR INFORMATION FOR THE TAX YEAR 2013
    ORIGINAL BALANCE:
    REMIC

    now do you see the name of the trust. GMACM HOME EQUITY LOAN TRUST-2006-J1 REMIC.

    NOW THIS IS THE TRUST THAT IS ON MY RECORD AT REGISTRY OF DEEDS, THAT WAS ASSIGNED FROM MERS TO A TRUST, THIS TRUST. GMACM MORTGAGE LOAN TRUST 2006 J1. REMIC.

    NOT EVEN THE SAME TRUST. THE TRUST CUSIP GO’S TO HOME EQUITY LOANS.

    HERE IS THE NAME OF THE DEAL.

    Deal Name: Residential Asset Mtge Products, 2006-J1
    Asset Type: Mortgage Asset-Backed Pass-Through Certificates

    SO WERE IS THIS, GMACM MORTGAGE LOAN TRUST 2006-J1???

  72. Thursday 22 October 2015

    DwightNJ…

    In your hand-written motion to dismiss based, at least in part, on fraud,
    did you plead all of the elements of fraud as applied to the specific
    allegations you made that constituted fraud? If not, your motion was a
    waste, and you are wasting the court’s time and weakening your
    credibility.

    > am trying to now clean up my paralegals motion by adding key buzz
    >words like …the court erred, was unreasonable, arbitrary, capricious

    Do you really think “buzz words” will work, with no specific references or
    case law from which the “buss words” might apply?

    You keep asking the same question[s] on your rescission instead of
    reading everything you can on already decided rescission case law
    that will better guide you. It may take a day, a weekend, whatever, but
    you will then know what to do with understanding, instead of hoping for
    some band-aid answer for which you have no understanding as to how
    to apply it effectively for your specific circumstances.

    You posted an excellent “anonymous” article pertaining to rescission.
    That is the kind of effort you need to keep on “discovering” for yourself
    how to extract available information and formulate a pleading that says
    something with authority.

    One of my issues with a primary detractor on this site against those who
    self-defend is that they lose for making either poor or wrong arguments
    backed by “belief in words” and not case law.

    My sense is you are doing just that, developing a sense of bravado from
    feedback on this site. Most of the comments made here do not and will
    not work in a court of law.

  73. Thanks Hammer … The word “enforcement” in relation to rescission is a dangerous and confusing word for us who are outside the 1-year SOL to bring an enforcement lawsuit. I rescinded in 2007 …and was told by the legal community back then that I would need to tender first before the bank releases the security mortgage lien .. So I never filed an answer to the complaint …it went thru as an uncontested case and got a final judgement … Sheriffs sale date …and that’s when I fought back.

    I submitted an emergency last-minute handwritten motion to Vacate and Dismiss based on fraud and lack of standing.

    The nice old judge who heard that motion in 2010 and who just retired in March 2015, stopped the sheriff’s sale and told Wells Fargo to prove their standing by bringing in a witness to testify under oath about the transfer of the note ..since they had submitted two different versions of the note ..one with the blank endorsement by Washington Mutual and the first one they submitted had no stamped endorsement …

    They adjourned multiple times for a year ..finally asking the judge to just vacate the final judgment and to Dismiss the complaint Nov. 2011

    Now they come back and file again in May 2014 …same alleged default, same forged assignment with LPS Robo-signers, etc., the note with the blank stamped endorsement, etc.

    The same old judge was still here on the bench ..he remembered they had walked away and refused to settle the issues and standing …

    So in a Sept 2014 motion hearing where WF is attempting to wipe out all of my affirmative defenses, TILA rescission, etc., etc. … He states on the record that he grants the motion for everything except standing , he wants this case to go to trial on any and all issues of Standing.
    He sets the schedule for Discovery .. He was still pre-beautiful which had not come out until Jan 2015 … But this old judge was right to make WF go to trial on the issue of standing

    Well unfortunately the old judge retired on March 1, 2015

    The new judge destroyed my case on March 20, 2015 ..granting SJ for Wells Fargo. … the new Judge walks in, wipes out the trial ordered by the previous Judge ..denies my cross-motion based on Jesinoski ..accuses me of trying to get “a free house”.

    So here I am now … I filed this new motion to Vacate the SJ

    I am trying to now clean up my paralegals motion by adding key buzz words like …the court erred, was unreasonable, arbitrary, capricious

    The WF opposition continues to claim they have the proof that we signed the disclosures ..although they never submit them.

    I don’t want this to boil down to an argument about whether the rescission was valid … No, I want to argue that they …

    1) The Creditor is in violation of the TILA 20-day compliance requirement.

    2) The Creditors non-compliance in the 20 days, and in the following year, bars them from raising defenses now. They have waived their remedies and their defenses.

    3) Wells Fargo is not the CREDITOR and has no standing here in this dispute.

    4) The court lacks jurisdiction to adjudicate this foreclosure complaint.

    5) Any party attempting to challenge this 2007 rescission is time barred. Any party attempting to contest it would have needed to file an action to Vacate the rescission in a timely manner. That party would have needed to prove standing as the CREDITOR, Owner, HIDC of the subject loan.

    6) Standing to contest a TILA rescission cannot be established by use of the void mortgage and note.

    7) Standing needs to be proven by producing a complete accounting of the loan, transfers and chain of title.

    The entire proof of debt needs to be proven ..from funding origination, to each transfer and sale along the way. Proof of purchase transactions

    All of this is required , and for these reasons Plaintiff Wells Fargo Bank must have their SJ Vacated and their foreclosure complaint Dismissed with Prejudice.

    Now ..how to I back this argument up with caselaw and a proper memorandum of law argument in my brief ???

    All we have is Jesinoski …and the TILA statute

    But are all of my arguments supported in the text of either TILA or Jesinoski ???

  74. Dwight – the-truth-shall-set-you-free.pdf from Garfield’s post last week I think should help.

    EXPLAINING JUDICIAL HOSTILITY TO THE
    TRUTH IN LENDING ACT’S RIGHT TO
    RESCIND A MORTGAGE LOAN
    Alexandra P. Everhart Sickler*

    Could be a key point in footnote “21 Rescission is defined as “[a] party’s unilateral unmaking of a contract for a legally sufficient reason, such as the other party’s material breach.”
    BLACK’S LAW DICTIONARY (10th ed. 2014). It is also defined as “an agreement by contracting parties to discharge all remaining duties of performance and terminate the contract.” Id. In short, rescission is accomplished either unilaterally or by mutual agreement of the parties. Id.”

    The bankster slide show Garfield posted also warns them that they can be charged with violating TILA if they don’t go through the steps.
    If they didn’t file lawsuit within 20 days then it seems they lost their chance to prove standing. If it’s still being brought up in your case then the judge/court is using equitable autIhority that Jesinoski shot down is my understanding.

    Here’s another reference and footnotes:
    “As explained below, the Section 1635(b) and Regulation Z
    dictate the process by which a consumer borrower exercises her
    right to rescind.”

    30 See, e.g., In re Regan, 439 B.R. at 527 (holding that when a lender has violated TILA provisions, courts impose strict liability regardless of the nature of the violation or the creditor’s intent and that the court has no discretion to decline rescission “because of the equities of the case”).
    31 See, e.g., Newton v. United Cos. Fin., 24 F. Supp. 2d 444 (E.D. Pa. 1998) (acknowledging that TILA is a strict liability statute with the result that a lender that violates its provisions is liable regardless of whether lender’s conduct was intentional, negligent, or inadvertent).

    CFPB rules also dictate.

    Another point that could be raised – from banker slide

    • The property is in a non-judicial foreclosure state.
    – Consideration must be given to so-called “one-action”
    statutes that may impact filing of a lawsuit challenging
    the validity of a rescission.

    Not clear on if standing is directly TILA. From what I recall is if they want to challenge the rescission they have to have standing to file the lawsuit from what Garfield’s posted.

    I keep thinking your way beyond that point and you should be at enforcement stage.

    My 2 cents from what I’m seeing, not legal advice.

  75. The “consensus” of this forum is becoming crystal clear: “Standing” *is* the issue when the question is “Who, specifically, has the right (the legal “Standing”) to foreclose?”

    There has been another “consensus” by judges in state courts (led to unjust decisions by “banks’ well-heeled lawyers,”) that homeowners just “don’t get it… They are deadbeats; they just want a “free house”; they have no understanding about contract and real estate law; they don’t realize they waived their most important owners rights at the closing table when reams of documents were being thrust at them by smiling attorneys who knew that they, personally, we’re the closing agents for a system stacked against the trusting, naive, and ignorant (not knowing what they didn’t know) husbands, wives, and single persons who were just trying to struggle though a process they hoped would enable them to house and raise their families.

    That said, there is a new consensus building in appellate courts… a consensus that judges in inferior courts were either asleep in Basic Law 101 and missed the session on the gateway legal issue of “standing, ” (or for more nefarious, unspoken reasons, are purposely ignoring the classes they attended on legal ethics, and the session(s) they “audited” on the duties and responsibilities of the officers of the court who are members of state and local bar associations.)

    Sooner or later, these lawyers who know who they are (and should be ashamed of themselves and their actions ….as though retainers and fees “cleanse their souls from their sins) will “get the reality that many homeowners have an innate sense of “equity” and have reached the point where they refuse to make payments that have no financial “audit trail” to the HIDC, who has the true right to receive the payments they agreed to pay…. the HIDC who is the only person who has the legal right to initiate foreclosure proceedings.

    BTW, I know who rightfully deserves my payments…. And *if* my closing transaction can be proven not to have been fraudulent; and *if* the security deed I signed was not destroyed; and *if* it was physically transferred to a real Trustee and used to fund a real trust;
    and *if* certain, specific, certificate holder(s) can prove they own certificates designating an interest in the house and parcel of land it stands on…. *If* the four preceding “ifs” can be legally established (because this whole financing scheme is so confusing to this “ignorant homeowner”)… then, I’m willing to “tender” to the HIDC(s) whatever specific amount a judge determines is due to to the HIDC (s.) …Of course, somewhere in this judicial process, the fraud issues, my C7 BK discharge of my “*unsecured* mortgage loan/, and my recorded, post- Jesinoski TILA Rescission must also be addressed.

    IF not….. (or even because of all this) *and* the expiration of the SOL regarding my loan. ..I want a Federal court to entertain the idea of either sorting all this out and granting me Quiet Title and expunging all the fraudulent closing documents, and the robo-signed “Assigments” from the records of my local courthouse.

    Then, I’ll get a Reverse Mortgage …and finally get some well-deserved relief. I’ve fought the good fight.

  76. Dc they may be covering up broken chain of title. After QWRs I was sent purported original copies. On the blank version I was provided at closing tgere were closing instructions that said documents were to be stamped by closing agent. Documents provided had someone else’s stamp. I challenged reliability of their documentation ever since. I thwn started finding references to old loans and changes to past loans on credit reports. Basically as lms said the more you dig the more garbage you’ll find tgat judge can’t dismiss most likely.

  77. Wells Fargo says to me we have to go by “Investor Guidelines” go home “Investor” is history in BK filing disputes Wells Fargo claims and calls the Unsecured,Non-priority creditors,but Wells is on the deed as Lender,never got closing docs my broker promised to send at that time was no biggie,she had done like 12 loans for me so…..

    When I get the docs after QWR WF is claiming they paid my 2nd with chase that I paid 2 months prior to closing and have canceled checks and statement showing zero balance.
    Judge doesnt care says they must have been paid twice,did I ask Chase duh,they said only one payment from me.

    Did anyone get copies of closing docs?Most folks I know did not.

  78. Okay Michael … I will contact you. Thank you.

    Deb …yes, I needed the extra time .. God is watching over us.

  79. But you have a set bob
    Ill say that

  80. Ok bobster fair enough
    Question, who is was my lender, who is creditor under the contract deed of trust who is the purported sub servicer who is the master servicer, who is sub trustee, who is the bank na, where did i begin with what causes of action what happened historically, whats left of my case, where is it going where are the strengths and weakenesses, what do i want out of it all…
    See my point.
    Until you have walked in my shoes you might
    shut up a bit.

  81. Under a TILA rescission argument , I believe the issue of standing will become the centerpiece of the contest.

    Somebody needs to prove they purchased the subject loan in order to to establish what party can be deemed the creditor / owner of the debt, who can show all of the payments made since origination, payments made to third parties, ability and authority to issue a satisfaction of mortgage , ability to prove the accurate tender amount …etc.

    Without a real party in interest who can prove ownership ..all of the other issues of tender, disclosures, validity of the rescission, etc. are a moot point ..none of those other issues matter if they can’t prove who the owner of the debt is. …does this make sense? Standing by the true owner of the debt must be proven without using the Note and mortgage

    Now how do we show this in the TILA statute ..what do we cite that backs this argument up?

  82. So we don’t ever need to see proof of consideration since we can believe anything filed with county clerk is the truth. Straight out of banker playbook and I can show Chase lawyer saying exactly same thing. Incredible.

  83. My questions is: what proves the transaction actually took place? When was the loan consummated?

  84. Dwight see you have time – more time is always good

  85. Hello DwightNJ,

    My contact info is mikekeane@optonline.net. Please contact me when you have a moment.

    We are beginning to assemble a suit you may be interested in.

  86. My motion to Vacate the summary judgment was scheduled for this Friday morning at 9 a.m. … Clerk called and said the Judge has a medical condition not sure when he will be back, adjourning for a month until Nov. 20 …they will let me know as we get near that date …they don’t want my case being heard by another Judge …lol

    The Wells Fargo attorneys wrote an opposition arguing that my TILA rescission was already denied by the court at the SJ hearing.

    Keep in mind at the SJ hearing that female attorney for WF stated that we never had a right to rescind because they have the notices that we signed on Oct. 19, 2004 …and then signed notices on Oct. 24 saying we were not rescinding … But she didn’t have them in court with her.

    Now she writes in her opposition to my motion that it is an undisputed fact that we signed the notices … But she still doesn’t submit them .

    In our Discovery demands for documents …they were not included.

    In our QWR to Wells Fargo they were not there.

    She goes on to say that we did receive those notices of right to cancel, (but nobody has ever seen the phantom notices she speaks of)

    Can an attorney continue to make statements about a piece of evidence that has never been submitted or authenticated into the record? This is very bizarre indeed.

    But I don’t trust them, they might have the docs ..so my question ….

    If I rescinded on July 1, 2007 …

    The Servicer Wells Fargo filed a foreclosure Sept 25, 2007

    Wells Fargo dismissed their complaint in 2011

    Wells Fargo filed a new foreclosure in May 2014 stating the same default of 2007 when I rescinded and stopped paying

    Question: what is my argument if they produce the signed notices?

    Are they too late to argue about the merits of the rescission?

    Do they as the servicer/holder have standing to argue about my TILA rescission in a foreclosure action?

    How do I argue this?

  87. Bob, contract cant be enforced devoid of standing
    Would they rather get on with answering the right of the borrower to rescind ( minus equitable setoffs)

  88. Greg thus is not the question i asked myself
    You said:
    “greg, on October 21, 2015 at 3:29 pm said:
    the question everyone must aks and answer for themselves is:
    – do i just want my house and have the vipers forced to let me be?
    or
    – do i want to play the “court lottery” for a big financial win and file a suit which might allow a judge to take my house and my money”

    I asked myself ,
    1. How did i get it so wrong investing in this home
    Answer , i did not get it wrong i believed that the equity was real and my investment was reasonably safe when I signed the contract where the loan was 150k less than the purported value of the house

    2. Do i want to fight for my right not to be defrauded out of my entire lifes savings/ assets
    Answer yes i do because i believe the law protects me and the united states constitution

    3. Will i die trying to get justice
    Answer maybe but everythung in life is a risk yes?

    5. Which ever way i decide will i be able to live with my decision in five years,
    Answer – then i must fight.

  89. Possible issue to raise with CFPB. How can an overstatement on finance charge not be a violation for foreclosure rescission info posted. Is that some type of accounting trick?

  90. Bob u can look it up on Garfield’s site. I won’t give away too much since you may be a bankster spy!

    Ur going round in circles!

  91. Actually Bob u do raise a point I’m researching:
    201509_cfpb_truth-in-lending-act-exam-procedures.pdf
    from CFPB TILA Manual Sept ’15
    http://www.consumerfinance.gov/guidance/supervision/manual/

    Seems like interesting possibilities when you request verification of debt and info doesn’t match?

    P 11
    Rescission rights in foreclosure:
    o The disclosed finance charge is considered accurate if it does not vary from the actual
    finance charge by more than $35.
    o Overstatements are not considered violations.
    o The consumer can rescind if a mortgage broker fee that should have been included in the
    finance charge was not included.
    NOTE: Normally, the finance charge tolerance for a rescindable transaction is either 0.5
    percent of the credit transaction or, for certain refinancings, 1 percent of the credit
    transaction. However, in the event of a foreclosure, the consumer may exercise the right of
    rescission if the disclosed finance charge is understated by more than $35.
    See the “Finance Charge Tolerances” charts within these examination procedures for help in
    determining appropriate finance charge tolerances.

  92. as i said on the other blog…

    bob – i pray someday you have reason and balls to sue me and i can meet you face to face in court…

  93. Void note, no foreclosure if laws apply to banksters

  94. I will say it again….
    YOU CAN NOT CONVEY WHAT YOU DON’T HAVE!
    A Forged Deed has no Effect,,,its Moot!
    Just ask the banks lawyer. .

    Look at the FCs as Washing Assets

  95. Contract for Deed?

  96. The phrase Rent Free keeps popping up…..
    That’s odd …..

    Rent?

  97. the supreme court has original jurisdiction in such a case – not review – actual trial court jurisdiction!

  98. i think it is time for a class action lawsuit with a possible parallel criminal claim “by the people” ; the native born landholders; against the judges in every county… for warring against the people and the constitution for the USA and your state…

  99. BTW – consider all the “bullets” you collect through any type of discovery (be it court enforced, creation analysis, forensic analysis, securitzation analysis, or even TILA rescission docs) and stockpile them to fight your fight – What good is this mountain of “bullets” when the so-called neutral referee will not let you bring the “legal gun” that they fit to the battle, and only allow you a kitchen knife to fight a bankers’ gunfight…?

  100. I agree but if pretender lender is jerking you around for years in thise 20 days you’ve turned the tables on them. At very least you will know who ur dealing with or validate everything you knew was wrong.

  101. HAMMER

    in terms of risk of losing –
    i look at 20 days as a RED zone, 1 year + 20 days as an AMBER zone, and post 1 year 20 days as a GREEN zone…

  102. Greg i think we agree lol.

    Depends on what actions are taken. To be clear though after 20 days and creditor did not take action rescission is not rebuttable. Note is void, creditor must establish debt somehow to rebut borrower’s damages.

  103. the question everyone must aks and answer for themselves is:

    – do i just want my house and have the vipers forced to let me be?
    or
    – do i want to play the “court lottery” for a big financial win and file a suit which might allow a judge to take my house and my money and my credit?

  104. Imho rescission gave them an out – they file for declaratory relief – the debt is still owed but oh no they dont want to prove their end of the ” bargain” ( god it hurts ne to say that word) either way what they want us their cake and eat it, they chose foreclosure and the legal risks they took with the court and their accomplices, but when the the tide turns lets see how loyal they are to one another with ethics such as they have, anticipate – “where the puck is going to be”

  105. hammer

    you are right

    but after 20 days and before 1 year & 20 days it is still a rebuttable claim which can be challenged in a proper court…

    i am saying that after 1 year & 20 days – it is no longer rebuttable

  106. further – i have a family member on the inside at a bank which is working overtime to implement a new set of documents to use at a closing forcing the borrower to confess that the closing time IS the loan consummation time…

    if they were not scared of what is already out there – they would not be burning the midnight oil to get this done…

  107. Greg, if you’re saying rescission is in effect after 1 yr, 20 days that would be incorrect per my reading of Jesinoski. The rescission is in effect from mailing. If nobody does anything to keep out of judge’s hands then 1 yr 20 days seals everything and there should be no way to contest quiet title etc at that point it seems.

  108. So plain English creditor has 20 days to undo rescission. Then within 1 yr borrower sues to enforce if rescission is not undone by court action in the 20 days. Judge then rules on damages if note not cancelled, money’s returned if borrower takes court action to enforce. Then tender can be an issue. That’s where borrower needs to be prepared with fraud and other issues.
    So could be a standoff until court action within one year but if creditor wants to get to tender enforcement they must cancel note, return funds and prove standing first or successfully undo rescission w/in 20 days as I see it, not legal advice.

  109. after we let the dust settle (clock times out and default or summary foreclosure judgment/sale is issued), then

    we go to federal court to get a declaratory judgment that

    – the now res judicata rescission is final as of the date (1 yr 20 days)
    – the note and mortgage are void as of the date (1 yr 20 days)
    – that the foreclosure and sale are void (as they occurred after the note and mortgage were void)
    and an
    – order that the alleged creditor (including heirs or assigns) shall cease & desist all further actions formerly attributed to the note & mortgage
    – order that the court shall not allow any suit to be filed in that behalf
    – order that the county sheriff, et. al. will cease & desist all attempts to evict the homeowner – and defend the homeowner against any trespass relating to further breaches of this order

  110. No Bob creditor continues to violate rescission and could add on to damages until borrower sues to ENFORCE rescission but note is void that’s all Neil’s saying.

  111. the only way a judge can monkey with the final 2 steps of the rescission sequence is if it is brought into his court by a motion – if neither party puts the question before a judge before the statutory clock runs out – there is no way a judge can rule on it…

  112. The confusion seems to be that if borrower sues to enforce within the one year, judge can rule on timeliness. I feel it would be a matter of res judicata or else the 20 days is meaningless. By ignoring the letter of the law servicer can continue to do harm as in my case with illegal eviction attempt.

  113. This would include “yanking the rug out from under” the plaintiff and court in a long protracted foreclosure case if the rescission and 1 year 20 day period elapsed before judgement of foreclosure, without the plaintiff bringing up and denying the validity of the rescission in that court in a specific motion…

  114. res judicata?

    can it be said that:

    IF once a homeowner/so-called borrower issues a letter of rescission under TILA, and the clock ticks 20 days from receipt by alleged creditor, or its representative(s), without response or action; and; then the clock tics a full year after the 20 days without response or action by alleged creditor, or its representative(s); That the rescission is final; and the right of the alleged creditor, or its representative(s)’ ability to sue or recover against the note or mortgage rescinded are lost, res judicata, forever, for failure to act within the time granted to the alleged creditor, or its representative(s) in the statute?

    Both parties have the right to sue within 1 year. Neither party has the right to sue after 1 year.

    A letter of rescission is a rebuttable “lawful claim” This would apply to a rescission letter even if there were fundamental errors in the claim. It is empowered with the force of law by the peoples’ will through congress. It is verified true by the government’s Supreme Court. It requires a timely rebuttal, as defined, or stands as fact – a “one-way valve” so-to-speak .

    It seems lack of timely action – which is usually thrown in the homeowners face, is a “boomerang” which will hit either in the head if not caught.

    It would then follow that any action using the note or mortgage as the defining instruments of standing by alleged creditor, or its representative(s) as a plaintiff; initiated after this period or continued after this period; would be without standing, ultra vires, barred by res judicata and void – not voidable.

    what say ye?

  115. Poor banksters they might have to invest in REAL businesses and create jobs!

  116. That’s funny Steve another “consumer attorney ” told me the same thing in LA area. They were shocked when I went ahead and they DID NOT take action except for these bogus letters signed by DIFFERENT BANK’S LAWYERS. Never assume.

  117. Consumer Protection Laws
    Numerous federal and state consumer protection laws impose requirements applicable to the origination of loans, including the Truth in Lending Act, as implemented by Regulation Z, the Federal Trade Commission Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the Equal Credit Opportunity Act, as implemented by Regulation B, the Fair Debt Collection Practices Act, the Real Estate Settlement Procedures Act, as implemented by Regulation X, the Fair Housing Act, the Uniform Consumer Credit Code and related statutes. These laws can impose specific statutory liabilities upon creditors who fail to comply with their provisions. In some cases, this liability may affect an assignee’s ability to enforce the related loan. In particular, the originator’s failure to comply with certain requirements of the federal Truth-in-Lending Act, as implemented by Regulation Z, could subject both originators and assignees of such obligations to monetary penalties and could result in obligors rescinding the mortgage loans against either the originators or assignees. In addition, some of the mortgage loans may be subject to special rules, disclosure requirements and other provisions that are applicable to Homeownership Act Loans as discussed under “—The Mortgage Loans—Homeownership Act and Similar State Laws.”
    If the transferor of a consumer credit contract is also the seller of goods that give rise to the transaction, and, in certain cases, related lenders and assignees, the “Holder-in-Due-Course” rule of the Federal Trade Commission is intended to defeat the ability of the transferor to transfer the contract free of notice of claims by the debtor thereunder. The effect of this rule is to subject the assignee of the contract to all claims and defenses that the debtor could assert against the seller of goods. Liability under this rule is limited to amounts paid under a contract; however, the borrower also may be able to assert the rule to set off remaining amounts due as a defense against a claim brought against the borrower.

  118. Neil and readers: From your friends at Consumer Rights Defenders:

    ROBUST Discovery is key in rescission actions to judicially confirm the rescission by court order if the banks deny you [which they will]. Litigants have to disclose facts under oath….that is were you find out the bank’s version of ownership of the note if its been assigned.
    We can help all with rescission [and all other litigation] suits moving forward.
    Call today at 818.453.3585.
    Looking forward to working with your readers….
    Steve Nelson and Sara Stephens 818.453.3585

  119. Greg had posted a question the other day, wondering what the next fraud might be to all of this .. example: what is to stop the servicer from now fabricating a proof of receipt stating that they purchased the loan. My question is about the assignment of mortgage, can someone clarify for me that an assignment is in no way stating that the party receiving it is in someway the new owner or purchaser of the subject loan, true?

    Below is a great article posted on the web which speaks about the problem of the banks and servicers having no real creditor ..they could not name the creditor in foreclosure actions as they instead chose to come in as mere holders … well now they have a bigger problem in trying to challenge a TILA rescission where it requires the creditor to comply. And any servicer attempting to contest a rescission cannot establish standing as a mere servicer. Read below .. author unknown

    Jesinoski v. Countrywide Home Loans, Inc., 574 U.S. ___ (2015), is a United States Supreme Court case in which the Court held that the Truth in Lending Act does not oblige borrowers to record a claim to cancel advances and that sending composed notification is adequate to effectuate rescission.[1] Some pundits portrayed Justice Antonin Scalia’s consistent larger part assessment as “laconic” and the “most limited supposition of the year”.[2] Other investigators have depicted Jesinoski as a “historic point case” in Truth in Lending Act statute.

    On January 13, 2015, the United States Supreme Court declared its choice on account of Jesinoski v. Countrywide Home Loans, Inc. The consistent assessment, composed by Justice Antonin Scalia, affirmed that a borrower require not record suit keeping in mind the end goal to revoke a home loan exchange and rather may practice his entitlement to repeal under the Truth in Providing so as to lend Act (“TILA”) basically convenient notification to the moneylender.

    In February 2010, precisely three years after they had renegotiated the home loan on their home, the Jesinoskis sent a composed notification to their moneylender expressing that they were cancelling the credit. They guaranteed that they had not got two duplicates of an exposure archive needed by TILA. Their bank, Countrywide Home Loans, denied the rescission case based upon archives in which the Jesinoskis recognized their receipt of the obliged divulgences. One year and one day after they initially conveyed the rescission see, the Jesinoskis recorded suit in government court to implement the rescission of the credit. Countrywide Home Loans contended that the Jesinoskis couldn’t successfully revoke the advance exchange unless they really started suit inside of three years of the date the renegotiating had been finished. The District Court concurred, holding that TILA obliged the Jesinoskis to sue for rescission inside of three years after the exchange was fulfilled. Since they didn’t, their case was banned. The Court of Appeals concurred.

    The focal inquiry introduced to the Supreme Court was what steps are needed under TILA to cancel a home loan credit exchange. In answer to this question, the Supreme Court considered the content of TILA, and confirmed that under Section 1635(a’s) unequivocal terms a borrower, “…shall have the privilege to cancel . . . by telling the loan boss . . . of his aim to do as such”. In this way, a TILA rescission is compelling when the borrower tells the bank of his goal to revoke. A borrower’s letter advising a loan specialist of the plan to repeal is itself the rescission.

    This decision obviously obliges that banks give careful consideration to any composed TILA based notification of rescission that they may get inside of three years of making a credit. TILA by and large obliges moneylenders to auspicious deliver and react to a borrower’s rescission inside of twenty days. An inability to make the convenient reaction may block any activity to challenge the rescission.

    The prime mistake among foreclosure defense attorneys is that (a) they are looking at substantive law only without studying procedural law and (b) they still can’t get over the “free house” myth.

    If you are confronted by a court order signed by a real judge that you are absolutely convinced is wrong, what happens. ANSWER: Nothing. The order stands unless you do something about it. The “Something” is filing a pleading that establishes who you are; why you have a right to complain about the order; and then what is wrong with the order. It may be motion to vacate, or any number of other pleadings.

    If you think that the court violated your civil rights, you would probably bring a new lawsuit in Federal Court asking the Federal District Judge to vacate the state court order perhaps because the law denied due process or the way it was applied violated due process. The signed order (regardless of how offensive it is), at all times, during the contest, remains in full force and effect. Even if everyone is convinced you will win and get the order vacated, you must wait until the end of litigation to get it vacated — if the Judge agrees with you.

    When a consumer sends a notice of rescission on a debt, it may have all kinds of things wrong on its face and in the circumstances under which it was sent. But the basic fact is that it was sent.

    That is all that is needed to make it the equivalent of the court order in the preceding paragraph. It is effective BY OPERATION OF LAW. Why is the court order effective? It is effective BY OPERATION OF LAW. AT THAT POINT IN TIME WHEN THE NOTICE OF RESCISSION WAS SENT, THE LOAN CONTRACT IS CANCELED, THE NOTE IS VOID AND THE MORTGAGE IS VOID — BY OPERATION OF LAW.

    The banks and servicers are mounting a challenge to the inevitable and only ruling allowed regarding TILA rescissions. They don’t want to file a lawsuit or a petition for temporary restraining order to relieve the creditor of the duty to (a) cancel the note and return it to the borrower, (b) file the satisfaction of mortgage and (c) pay all money ever collected from the borrower and ever paid to third parties as compensation arising out of the origination (i.e., execution of loan documents).

    Execution of loan documents is NOT the same time as consummation.

    Ask any closing agent. They get the funds after the documents are sent to the underwriting department where it is reviewed again before the funds are released — hours, days and even months later. .

    The question is what underwriting department?

    It is the automated computerized set of standards maintained by LPS/Black Night and others who are distancing themselves from the table funded transaction in which the “lender” has engaged in behavioral that is “predatory per se” and which therefore does not entitle them to equitable relief (foreclosure) since they come to court with unclean hands. By layering the stack with multiple parties, none of whom have any interest in the loan, they create the illusion of a transaction with an originator who never spent a dime lending money to the borrower.

    So we know that the identity is not going to be made available by the banks and servicers. That much is assured. The trusts are empty shells of trusts that exist on paper only, never did business and were never registered with any state or the federal government. They can’t get away from the simple truth that the ONLY parties entitled to payment are the investors whose money was used to fund or acquire loans — even though they didn’t know and would never have approved of the violation of the terms of the offer contained in the MBS prospectus, the Pooling and Servicing agreement, or anything else.

    They are dancing around the issue. If this is handled correctly, the issue of when consummation occurred will be a factual issue in dispute. That means they will have to raise it in a lawsuit against the borrower. And that means they are going to have to plead and prove standing. Since the rescission is effective as of the date of mailing, and effective means that the loan contract has been canceled (if it ever existed), the note and mortgage are void and the party who is actually the creditor has a duty to return the canceled note, file the satisfaction of mortgage, and pay the money to the borrower that was paid by the borrower and that was paid to third parties as compensation for the origination of the loan.

    If these loans were actually legitimate, the strategy would have little merit. The real creditor would allege that they were the lender to the borrower or that they had purchased alone from a party that owned the loan. They would be able to show Proof of that purchase in the form of a canceled check, a wire transfer receipt that could be verified or some other indication of the movement of money. But if the banks and servicers actually could produce the real creditor, there would be virtually no foreclosure litigation, as most of the defenses and attacks by the borrower would be moot.

    The truth is that the loan contract probably never existed because the party on the note and mortgage was not the lender. This is a table funded loan which is predatory per se, under Regulation Z. So you get them coming and going — either there was no consummation with any of the parties in the chain of people and entities that are relied upon by the collector or foreclosing party; or the transaction IS RESCINDED, as of the date of mailing. This prevents them from using the same arguments on standing as they do in foreclosure actions.

    In actions to vacate the rescission, the suing party cannot allege standing much less prove it by using the note and mortgage because those are now void instruments according to TILA, REGULATION Z, and the Supreme Court in Jesinoski v. Countrywide Home Loans.

    Either way the remedy is the same, more or less, to wit: return of the canceled note, filing of satisfaction of mortgage (or having it nullified by a court) and payment of all money ever paid by borrower plus potential damages under consumer protection statutes.

    It might be suspected that the three years has run, or expired, and that the rescission is faulty because of other restrictions in TILA. But it is nevertheless effective and requires no judge to rule upon its effectiveness. That puts the burden of pleading and the burden of proof completely on the party seeking to vacate the rescission. If they do nothing, the rescission stands. And as pointed out by Justice Scalia TILA rescission makes no distinction between disputed and undisputed recessions. So even if a faulty rescission is nonetheless effective, this means that the creditor has 20 days in which to satisfy the three duties under TILA rescission. If nobody files a lawsuit to vacate the rescission within 20 days of receipt of the notice of rescission (and remember that under Dodd Frank notice to one is notice to all), then the rescission is final and any of the factual issues that you would have expected to arrive on a faulty rescission would have been waved. This is a procedural argument but there is no doubt that it is correct, especially with the wording of the opinion in Jesinoski v. Countrywide Home Loans.

    The important thing to remember is that the rescission is effective upon mailing, which means that it is the same as a court order bearing the date of mailing of the notice of rescission. If no lawsuit to vacate a TILA rescission is filed by the bank, then they probably cannot come up with a creditor who actually has standing. And that is because they stole the money in the first place from investors who are the ONLY parties entitles to be paid.

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