Rescission and Moving to Strike Pleadings of “Holder”

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

This is for general information only. Get a lawyer.

===============================

THIS IS REALLY DIRECTED AT LAWYERS WHO ARE DEALING WITH RESCISSION. NO LAYMAN SHOULD ACT ON THIS WITHOUT CONSULTING WITH A LICENSED ATTORNEY IN THEIR JURISDICTION.

Among the zillions of email requests I have been receiving are emails from lawyers who are trying to get their heads around rescission. It seems to me that their problem is one of procedure rather than substance. So here is the answer I sent to one such lawyer.

I keep wondering about something here with respect to rescission. To be consistent with your position that the rescission was effective upon mailing and that the note and DOT are void, it would seem to me that the proper motion would be a motion to strike those portions of their brief dealing with the effectiveness of the rescission. The Supreme Court has already decided that.

But further — the record is devoid of any evidence that the parties attacking you are or ever were actual creditors. It seems to me that these parties lack standing to attack the rescission because their standing was only as good as them holding the note and mortgage which are now void. I think they are using a magician’s act — getting the court to assume they are lenders or creditors when in fact nothing in the record supports that. They insisted in the trial court that none of your foreclosure defenses were good because they were “holders”. But now they are “holders” of void instruments.

If anyone is going to be contesting the rescission they would need to do the following:

  1. They must be an injured party with standing — i.e., loss of finance charges on the loan along with fees etc that they loaned or paid for. Such a party cannot rely on void instruments to establish standing.
  2. They must file an action within 20 days of receipt of the rescission.
  3. The action would need to allege that the borrower rescinded the loan improperly.
  4. The prayer for relief would be to enter an order vacating the rescission because of whatever reason they think it was wrong.

Some courts are side-stepping this issue and allowing the foreclosure to proceed without ever granting relief that was sought by the “holder” who is being presumed as creditor. But they do so without ever entering an order vacating the rescission which means that the rescission is still standing and the note and mortgage are still void. It’s another pretender scenario. The banks and courts are pretending that the rescission was not effective even though it clearly is effective by operation of law on the day of mailing because the highest court in the land has accepted that with finality and unanimously.

What your opposition is doing here is creatively attempting to avoid basic pleading requirements and using motion practice and the appeal as a vehicle for sidestepping the basic requirements of getting relief in court. Hence the motions in the trial court and the brief in the appellate court should be struck with prejudice as raising issues that are untimely and on issues in which the jurisdiction of the trial court and the appellate court has not been invoked.

The Motion to Strike is based on jurisdiction which can be raised at any time. What you could be saying is that their brief should be struck because it is a disguised effort to obtain relief without ever having filed a lawsuit alleging a short plain statement upon which relief could be granted.

By filing the Motion to Strike it redirects the appellate court to the focus of your brief.

So in states where the homeowner sues somebody to stop them from attempting to enforce the note and mortgage, there is a tricky question of how to express the objection to standing and jurisdiction. To another lawyer I wrote:

This is legal procedure — not substantive arguments about why the banks are horrible. You need to have California cases on standing and jurisdiction. This is tricky because you are right, you did sue them so how can the court not have jurisdiction to hear arguments? The answer is that if I sue you for throwing a ball through my window, you can’t “answer” or file a “motion to dismiss” on the basis that I ran over your bicycle. You must file a counterclaim. They didn’t. So there is no jurisdiction to hear what is in essence a “Motion” instead of affirmative pleading of facts, standing and prayer for relief. I see no way that I am not right on this in view of the Supreme Court decision. Any other interpretation would mean that the rescission was NOT effective until a judge rules on it — directly opposite to the law of the land.

  1. You sued them for a TRO to stop them from proceeding with foreclosure.
  2. Your basis for doing includes the rescission.
  3. You did not sue them to make the rescission effective — hence you did not invoke the jurisdiction of the court on that point. In fact your point is that they are NOT the right parties to do anything and they have no standing and had no standing in the trial court except as to the issue of why they were acting like creditors when they were not.
  4. The fact that you sued them for one thing doesn’t mean they can “Defend” a case that was never filed and never needs to be filed — a lawsuit to make the rescission effective.
  5. Their defensive motions do not ask for the rescission to be vacated. Hence the court’s jurisdiction has NOT been invoked on that issue — neither side is pleading for relief that the rescission is either effective (you) or vacated (them).
  6. THAT is why the trial court did not and could not enter an order vacating the rescission. And THAT means that the rescission is still effective and time has run out on the ability of anyone to file an action to vacate the rescission.
  7. Thus THEY are attempting to do a little side step — since they obviously don’t have the ability to plead and prove they are the creditors or that they are representative of creditor X — they instead are trying the “everyone knows that…” defense so they are not required to plead or prove facts that would show the date of consummation, adequacy of disclosures, etc.
  8. The only way the trial court or any court could have entered an order vacating the rescission would be by pleading facts that include the rescission is complete but wrongful.
  9. The only way ANYONE could bring that claim for relief (Vacating the rescission) is if they had standing — according to THEIR pleading and their proof. They didn’t do that. They are seeking to walk around the TILA rescission procedures despite the clear language of the statute and a unanimous Supreme Court decision.
  10. You sued them because they were claiming to be holders of instruments entitling them to foreclose. Now that point is moot because the rescission is effective upon mailing and the instruments they claim to hold are void anyway.
  11. Thus it is improper for the banks, servicers, trustees etc. to file anything in court “contesting” the effectiveness of the rescission or assuming that the rescission was wrongful without filing a complaint alleging facts that establish standing, injury and the wrongful nature of the rescission. Their argument on appeal is the same as the court below — that the rescission was clearly wrongful or that it was somehow not effective because of no tender, no lawsuit etc.
  12. Hence their entire position is procedurally incorrect and should be struck. If they want the relief of vacating the rescission they must bring a lawsuit to do that — just as the statute says. Since they blew the time, not even the creditor can do that anymore and couldn’t anyway because they were at no time the actual creditors or “injured parties” by the allegedly wrongful rescission. Neither the trial court nor the appellate court has had their jurisdiction invoked by either the Plaintiff or the Defendant as to the whether the rescission was effective or should be vacated.

77 Responses

  1. http://foreclosuredefensenationwide.com/
    DISTURBING NEWS: CERTAIN JUDGES CLAIM THAT SUPREME COURT DECISIONS ARE NOT BINDING ON THEM
    Posted on October 22, 2015

    October 22, 2015

    In recent months, we have been advised by homeowners in different states that certain Judges in those states have taken the position that decisions by either the Supreme Court of that state or decisions of the United States Supreme Court are not binding on them. Taking such a position violates the Judge’s duties as an officer of the Court, erodes confidence in the judiciary, and renders the public more suspicious of the court system than it already is.

    A Judge is duty-bound to follow the “law of the land” whether they agree with it or not. A Judge cannot impose his or her own personal views as to whether the state or US Supreme Court made the correct decision on an issue: when a state Supreme Court or the US Supreme Court decides a specific legal issue, the law is established and Judges must follow it. State supreme courts (other than as so denominated in New York, as the “Supreme Court” is a lower level court in NY) and the US Supreme Court are the highest appellate courts, and their decisions establish “the law of the land”: a state Supreme Court decision establishes the law for that State, while the US Supreme Court establishes the law for the country.

    In our experience, the overwhelming majority of Judges are fair, honest, considerate of the position of both sides, and take the law into account when rendering their decisions. The examples below are isolated, but the fact that two such examples have been recently brought to our attention is disturbing.

    One of the cases which we were advised of concerned the use of Mr. Barnes’ successful appeal of the MERS issues in the Supreme Court of Montana, which by its decision established that MERS was not the “beneficiary” of a Deed of Trust despite claiming to be so. Although this decision was issued two years ago, the homeowner advised that when that decision was presented to a local Montana county Judge, the Judge took the position that he was not bound by the Supreme Court of Montana’s decision.

    Another homeowner advised us that in a prior foreclosure-related hearing before a state court Judge that the Judge told the homeowner that he was not bound by decisions of the United States Supreme Court.

    This contempt and disrespect for state Supreme Courts and the US Supreme Court is beyond disconcerting. There is no reason why homeowners facing foreclosure should be treated adversely when a decision of a state or the US Supreme Court is in favor of them and presented to the Judge. “And Justice for All” means just that: it does not mean “except no justice for homeowners in foreclosure.”

    Jeff Barnes, Esq.

  2. does this ruling still stand?
    http://afnetwork.org/item/484245
    SOUTH CAROLINA COURT HOLDS THAT FORECLOSURE LAW OF U.S. SUPREME COURT TRUMPS EVERYTHING: FORECLOSING PARTY MUST OWN BOTH THE NOTE AND THE MORTGAGE TO FORECLOSE

    September 20, 2013

    This ruling is based on foreclosure law from the United States Supreme Court, which trumps any contrary state law which does not require the foreclosing Plaintiff to own both the Note and the Mortgage at the time that the foreclosure Complaint is filed. This ruling demonstrates the essential fallacy in the “UCC, I have the Note, mortgage follows the Note” theory espoused by every attorney for the banks and servicers. What remains to be seen is whether the judiciary handling foreclosure cases will follow the law of the U.S. Supreme Court or not.

    A copy of the Order is available upon e-mail request.

    Jeff Barnes, Esq., [www.ForeclosureDefenseNationwide.com]

  3. L good point not necessarily a bad thing but we’re given false choices and the world will come to an end if otherwise. Will check it out. Another approach I was told about recently is mathematical model that makes alot of sense. Gets a little out there as to what is value which Wall St has corrupted but basically a reset with real businesses even barter. When the “crisis” was let loose some were talking about a reset but never got traction since “evil” homeowners would benefit I recall.

  4. Dandiener1, Good for you. I admire your courage. I am saving your comments & Maybe use some of your ideas. We need some attorneys to be thoroughly outed. They are an integral part of the whole scam right from when you sat down at the closing table. We have these terrible documents that are used to assign or transfer your property which are very obviously forged. How can you assign a note & mortgage from a bankrupt out-of-business entity to a trust that closed years before? You can’t yet the courts are accepting these documents? In my cases, I have transcripts that have taken out part of my testimony in favor of bank/servicer.

    I saw the bankruptcy court in one district has started looking at fabricated, forged documents and that is a federal crime which descends upon the attorneys and entities (Deutsche Bank) involved as well. Can’t wait for divine retribution.

  5. S, I was never notified of a new creditor or any creditor other than the entity that was bankrupt and not in business anymore, American Brokers Conduit. You can’t be a creditor or a lender if you are no longer in business and do not exist. I was informed by opp counsel that there was another ABC, but you can tell them apart by their FEIN number. Phooey!

  6. H, Here is a link to an article on the weakening power of the dollar across the planet. Dollar gets axed and it will have great effect upon all of us with krappy loans–maybe good, maybe bad.
    http://gizadeathstar.com/2015/11/the-u-k-s-economist-more-signals-from-the-city-of-london/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+GizaDeathStar+%28Giza+Death+Star%29

  7. A Man I was thinking along same lines if this were happening w gay marriage or gun control media would be all over it!

  8. Tila rescission post JesinoskiDefiant Judges can they spell

    Contempt of Congress
    Contempt of Unanimous SCOTUS

    Just like gay marriage

    Just a thought

    NEVER AGAIN

  9. DwightNJ- “we are the new caselaw”-
    Well said- and true- at some point, the judges or at least some of them are going to realize that when a noncreditor lacking standing boots a homeowner from his home, then this is not a foreclosure, this is theft, plain and simple theft, or grand larceny. Amd what do most courts demand a thief do when caught amd convicted?
    1. Compensate the victim

    2.Return the stolen goods
    3. Incarceration
    The day of
    Reckoning is approaching.
    And certain judges, attorneys, title companies, default servicers, and others are aiding amd abetting a crime.

  10. i presumed everyone downloaded and read this:

    https://dl.dropboxusercontent.com/u/4032131/ADMIN%20PROC-%20GREG%20-%20US%20BANK.zip

    if you have not, please do…

    -this is my concluded administrative process done under notary seal and declaratory judgment by a 3 notary panel of review, referred to in this blog…
    -this is where the alleged creditor confesses to the commercial and criminal stipulations contained therein…
    -this was recorded in the county land records and the court file 2 years before unlawful (VOID – NOT VOIDABLE) summary judgment…
    -this is admissible evidence… which judges and lawyers hate
    – everything is now about enforcement – i no longer ask for a guy in a black robe to permit me to be right – i am right – at his peril…
    – i’m available for Q&A [lawman@gmx.us] or on our Thursday night talkshoe

    greg

    PS – great stuff on the blog!

  11. BASICS OF CREATION AND PERFECTION OF SECURITY INTERESTS
    UNDER ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE
    Presented by Robert K. Weiler to the Onondaga County Bar Association (September 2006)

  12. New York and California Foreclosures: Rod Ciferri Guest on Neil Garfield Show Tonight!
    Posted on May 14, 2015 by Neil Garfield |
    Click in to tune in at The Neil Garfield Show Or call in at (347) 850-1260, 6pm Eastern Thursdays More than 20,000 people listen to the Neil Garfield Show. Maybe you should too. ====================================== Tonight we talk about navigating the foreclosure process with our guest Rod Ciferri, a New York lawyer transplanted to California. That […]
    Filed under: foreclosure | Tagged: | 85 Comments »
    REMIC Trusts: VOID means VOID — Not Voidable
    Posted on May 19, 2015 by Neil Garfield |
    For further information please call 954-495-9867 or 520-405-1688 Rod Ciferri’s Telephone is 650-346-3741 ============================= Rod Ciferri, who was the guest on the Neil Garfield Show last week, has nailed the issue with extensive research and a highly articulate explanation of why the cutoff date and other requirements of the Trust Instrument (the Pooling and Servicing […]
    Filed under: foreclosure | Tagged: | 57 Comments »

  13. Dan has done a terriic job by acting on his own behalf. A hired attorney would never have agreed to doing it his way. This is why the Pro se people are making a difference , we are asserting what mn refers to as mere “bravado” but call it what you may, its the truth.

    This is why it’s important that we all share our strategies and the templates of our motions, recording of our rescission in the land records, etc.

    We are on the frontlines of this battle using un-orthodoxed methods and arguments that have not been used before. This is why we need to work on the convincing language to be used in our arguments on the issues of consummation, valid contract, legal contract, creditor, standing …

    It will be up to us to make these arguments in convincing ways using what little we have at our disposal. The TILA laws were created as a protection for us, to protect us against the very banks who are in Court trying to steal our homes. Our best weapon is TILA and why it should be viewed as a trigger to establishing a true creditor who can prove they own the subject loan. This issue of standing is the most important step of the TILA fight ..but it’s still being ignored by the courts..

    Charles Reed used to post here about the importance of UCC-9 and how it mandates proof of a holder in due course / Owner of the debt.

    We need to try and make the successful argument for the higher courts as to why TILA cases need a complete forensic examination of the loan from inception and onward …our argument is because TILA is our protection that was created for us …its our 2 nd ammendment, our gun, our right to defend our property ..its our weapon. And no court should deny us of our full TILA protection when it is triggered by us.

  14. “As it would get the judges attention”? …

    You mean it would get the corrupt judges attention?

    The same corrupt judges who have been working in conjunction with the corrupt attorneys ?

    Those judges???

    I think they are part of the same team from what the evidence shows.

    Those same judges have been well aware of the mortgage fraud that was at the heart of the attorney general’s all wanting to prosecute before they got stopped by the federal settlement. The Judges are very aware of the crimes and Ponzi scheme mortgage scam , and they play an important role in allowing it to continue . Just the fact that Dan from Georgia and other Pro se homeowners like myself are fighting back is the important point in all of this. The legal community has failed the homeowners and have not policed themselves ..They have allowed the corruption to fester and grow for many years, which is why we take the judges feelings with a grain of salt.

  15. dandiener1,

    I say you the man…great job. Keep posting…great info. We should be reporting these corrupt attorneys to every state bar as it would get the judges attention.

  16. mn … What you fail to recognise is how most of the existing caselaw in regards to foreclosure defense and TILA rescission is tainted because it was based on years of fraud, faulty documents, presumptions, lack of discovery, lack of due process, parties without standing being allowed to proceed, disregard for the TILA Statutes plain language, etc., etc.

    You keep telling us to go find the existing caselaw that supports our arguments …and we keep telling you that we are the new caselaw that will be cited in future cases if and when we prevail…we are the ones who need to set a new precedant that all other courts will follow.

    You are the typical pre-Jesinoski mind-set ..where Judges kept looking at the caselaw that was wrong as their way to justify the travesty.

    Now we do agree on the fundamental arguments of citing caselaw on the issues of Standing in general, and like Neil said, motions to strike when the court attempts to ignore the Standing issues …

    But you sound as though you would have been blaming homeowners all these years before Jesinoski , for not properly researching caselaw in order to preval in their TILA rescission cases …we are telling you, look at the Supreme Court decision and understand that the caselaw was wrong for decades …decades …regarding TILA rescission.

    So all I’m saying is that we are still dealing with these same defiant Judges ..who have proven track records of getting it wrong. We may as well come in and force the issue on new strategies like consummation, creditor, 20 days or they are time-barred and waived their remedies, etc.

    There is no caselaw for our new strategies and arguments ..but we do have the plain language of the TILA statute on our side…and the unanimous Supreme Court that says the lower courts must abide by that clear plain language.

    That is our argument.

  17. Monday 9 November 2015

    DwightNJ:

    >mn says the arguments don’t matter ..that we will lose unless we go
    >find the mystical caselaw in the land of Oz that will act as the silver
    >bullet to force the Judge to see it our way …

    Do not attribute matters to me I never stated, as you imply. There is no
    mystical case law, and your choice to remain ignorant of relevant case
    law in your persistent failure to search for any does not substantiate
    your false, unsupported conclusions.

  18. DWIGHT. I’M ROOTING FOR YOU.

    HOWEVER 2 Things pissed me off about your post.

    1. Garfield never contacting you. As usual.

    2. You wishing you could find Rod Cieferi contact. I googled it and found it in 3 seconds (granted I’m not sure this is his current contact , but I’m sure if you spent 3 minutes you could track him DIWN, if you really want/Need to)………Good Luck. (I’m still in NJ and getting ready to go after Wells Fargo , this time on offense……contact me if you ever want to compare notes in Ocean County)

    http://www.lawyer.com/roderick-ciferri-contact-information.html?ft=0

  19. A major part of the problem in this TILA rescission fight is the fact that most, if not all, of the caselaw is bad. The caselaw on the books is biased against borrowers on the fundamental issues of Standing and discovery in regards to loan originations and their sales and transfers.

    This is why Neil’s blog article above is on-point. We are all going to face these same problems no matter if our cases do differ in certain aspects. In judicial or non-judicial …in state court or federal court…if rescinded inside 3 years or outside 3 years … Neil is pointing out that the critical frontlines of this war need to be fought over Standing.

    Now I have seen evidence of government agencies recognising the services as the creditors in many situations, like the Notice of Intent to foreclose, the Acts written to protect borrowers always seem to give a nod to the services acting in the place of creditors without question. The Notice of Intent is supposed to name your lender, but the services is and always has been acknowledged by the courts as being the representative who is collecting the payments and has been assigned the mortgage and is now holder of the note to enforce foreclosure.

    Now we as the victims of the Ponzi scheme understand why we would need to drill down into the issues of Standing, consummation, etc. , but as Neil points out, its the courts who have decades of habit and bad presumptions based on its own biased caselaw against borrowers that we are fighting. We may find the same problems in federal court due to the years of bias.

    We the borrowers see the language used in TILA..it says “creditor” ..

    We all agree that the word creditor should be reason enough for a court to want to explore the whole entire loan, from consummation on through to all intervening transactions in the chain, right up to the current status ..backed with real evidence and not presumptions.

    But I think the courts are going to put up severe resistance over us trying to pursue this argument ..they will try to claim that our arguments are not relevant because precedence has been set recognizing the holders as the real parties in foreclosure cases forever. Creditor, lender, servicer, holder, …”what’s the difference? You borrower the money” The Judge will cry as he attempts to steer the case away from this argument … We see it already happening in cases since Jesinoski, but in those cases the borrowers have not done a good job arguing the importance of these issues.

    So Neil’s article is on-point in that we will need to blaze new trails in this battle…by submitting motions to strike, motions to dismiss, etc., which argue and articulate why the true creditor needs to be established in order for a plaintiff to meet its burden of Standing …and then, even if that is established thru their normal fabricated documents , then we need to press the other argument of TILA being the 20 day time window was not complied with.

    What we see happening now is the courts seem to be understanding of the banks ignoring the rescission and the 20 day compliance. The courts seem to think that the foreclosure litigation process is an acceptable venue for ajudication of a TILA rescission argument. They simply act like its nothing more than a borrowers last desperation move to avoid foreclosure ..there is no respect shown to TILA or its plain language. And the courts know they have all of the had caselaw in their corner to back their moves to undermine and destroy your Rescission.

    We have Jesinoski …but we don’t have any supporting caselaw.

    I think Neil is saying that we will need to create our own new caselaw based on our new arguments …we are the trail blazers in this war.

    mn says the arguments don’t matter ..that we will lose unless we go find the mystical caselaw in the land of Oz that will act as the silver bullet to force the Judge to see it our way …

    But I say we do need to argue and articulate the reasons why , because this is a new day ..post-Jesinoski …where we have now learned the dirty truth, that the courts have been getting it all wrong, they have shown a great bias against the borrowers as Jesinoski exposed for all to see.

    And knowing this ..we would be fools to walk into those same corrupt courts and expect those same corrupt judges to suddenly jump for joy because mn listed a few pages of bad caselaw from years gone by , in hopes that the big bad judge would smile and show mercy on him ..but what mn doesn’t understand is that he will be dragged out kicking and screaming and thrown into the streets, along with his old caselaw.

    I agree with Neil … We need to create the caselaw right now, we are the founders of this new post-Jesinoski nation ..this war will be won or lost on our cases …on how we argue the issues … This is what separates a good lawyer, one who can actually argue and convince others …from the mn’s of the world who are not true litigators, they are nothing more than paralegals who only know how to look up old had caselaw.

    This is the reason the legal community has failed all of us …we do not have access to any competent lawyers to defend us. And when you read mn’s posts it is evident. Now I’m sure mn is just like every other attorney in the field , its not just him, its the lazy, spineless , gutless way that foreclosure defense attorneys have always conducted themselves. They are the reason the judges got away with murder all these years. The bad biased pre-Jesinoski world was ushered in under the watch of the mn’s who never had the brains of the balls to fight against the corrupt system …they basically bent over for the judges and took it.

    So as much as mn tries to discourage us from making passionate and convincing arguments, and implores us to rely on bad caselaw instead, we need to follow the Neil Garfields and Justice Scalia’s of the world, and bring the fight to the judges and the pretender lenders, by telling the truth about what is going on. We need to sit the corrupt judges down in a corner like a little school room defiant disruptive punks that they are and teach them why a new world is dawning in their courtrooms where we are now setting the new standards and creating the new caselaw.
    It’s up to us to explain why standing is relevant, why consummation is relevant…its our property, its our TILA protection that was written for us.

  20. I’ve represented myself Pro se against Wells Fargo’s best, they substitute out from the foreclosure mill attorneys and bring in their real lawyers when you start getting traction in your case, as I have.

    I was able to turn a final judgment and scheduled sheriff’s sale into a year-long litigation against WF’s two best attorneys in NJ, eventually gaining the upper hand in Court and forcing them to ask the Judge to Vacate the final judgment, vacate the scheduled sheriff’s sale and Dismiss the complaint in November 2011 ..on a 2007 complaint.

    Back then attorneys told me that the rescission argument was meaningless unless I had the tender to offer the bank first, so I instead argued the issues of Standing and Fraud.

    Now in their second attempt to foreclose in 2014, a year before Jesinoski, I decided to raise the TILA rescission anyway, even with the legal community still saying it was a meaningless defense or counterclaim. Fortunately I didn’t listen to the legal community this time. So regardless of the chancery court judge hating Jesinoski and refusing to accept its ruling .. I am still in better shape for appeal. And of course the foreclosure mill attorneys were substituted out and replaced by the real lawfirm again.

    Although the Judge granted WF a summary judgment .. There are major problems with his decision and his lack of reasoning pertaining to the issue of Standing among many other things.

    I submitted a motion to vacate the SJ and Dismiss the complaint ..but am working on an amendment to the motion and possibly a motion to strike … Oral arguments scheduled for Nov. 20

    I have the perfect case for Neil …emailed him when he started advertising rescission after Jesinoski but never heard back.

    Have not met a single attorney anywhere who knows how to defend, argue …the last one who could was rod Ciferri when he posted on this board …wish I had his number.

  21. DD looks like ur on same path from last post. On that site there are good examples of cease and desist letters that could be effective in building pressure. Basically it’s administrative approach without going into extreme approaches.

  22. DD the abuse all the way around in ur situation is unbelievable. MN is giving a good strategy to get out of ur court trap w rescission. U have alot going on in ur post. I’m getting hit by the bias beyond court and in my situation I’m dealing with city govt , others I’m talking to are dealing w bk court bias or civil state bias. Basically it’s coming down to keep our fight going in our cases while exposing the bias. In your case it seems there’s some basic misapplication of law it looks to me as lay guy but using common sense like u. What jumped out was that debt was considered unsecured but fc sale went forward? Ocwen has been hit hard by the cfpb. This small group we hope to grow will be focused on obvious, extreme cases to put complaints together and take to next level. I’ll try to review further or see if ur interested. Here’s a group that has good support info in GA http://www.operationrest.org

  23. Oh yes, Pf = Plaintiff.

  24. Yes, mn, I was referring to the Bk judge, o/w, I’ve had no court involvement. The C7 Discharge was in 2011.

  25. mn…

    Pf?

    Thank you for your very helpful response….
    I’d already decided on Federal court… for a quiet title action.. maybe after some kind of TILA results.

    Have not decided whether I should sue for TILA enforcement before the end of my year to press for compliance, or whether to wait out the year and lodge a quiet title action.

    To this point, I’ve purposely avoided pursuing remedy in a court environment. I’ve deemed it more prudent to “frustrate” the foreclosing attorney with written responses to his Client’s efforts to exercise a non-judicial foreclosure for three reasons:

    1. It’s less expensive to exploit weaknesses in the collections process (Robo-signed documents, a collection agency’s Robo-case management, and inter-office misteps…..
    Which, in my case, have exposed the attorneys to possible Ga Bar oversight.)

    (On this last note, I finally received a letter from the foreclosing attorney’s collection agency that they, henceforth, would no longer be involved in collection efforts pursuant to my debt, but that future activity of that nature would be initiated by Ocwen … I did once work as a salesman for a reputable collection agency, so I have knowlege of the fact I have presented myself as a “high maintenance” adversary – or it may be my last letter pointing out my courtesy of not yet pursuing my now, well-documented case for submitting a bar complaint.)

    I also once worked in the collections department of a mortgage banker, but that’s another story. ..It also helps that I was trained by the US Army to investigate conspiracies and to document my agent reports with collaborative evidence. …there’s other government investigative experience, but that was at the state level.

    2. After lodging a criminal case to a non-responsive county sheriffs office and county District Attorney, I was personally “bullied” by “fraud investigators” who grilled me as though I was the offending culprit. …”to show me what would happen when pressing my Pro Se case in court.” They were persuasive, in that I decided internally on the spot, I would never attempt to represent myself as an actual litigant, but hire a competent litigator who is intimately acquainted with all the issues involved with the fraudulent Ponzi scheme that is the Securitized Mortgages Mess.

    3. That until I had exhausted everything I could accomplish as a Pro Se, I would never employ a “all things to all people” self-professing “foreclosure defense attorney ” who would proceed “on my dime” to learn what he/she did not already know.

    I *am* well beyond the disputed “3 year TILA Rescission period, but am now also beyond Georgia’s 6 year SOL.

    One step at a time with much forethought and counsel from others… especially godly counselors.

    Thanks, again Hammertime and mn.

  26. You conveyed and warranted free and clear of encumbrences and liens on the day of closing….in the encumbering contract mortgage loan product..

  27. I may not be personally responsible for the debt…..
    But…..!!!!
    They could foreclose on the lien if?

    Now consider this…the mortgage product is an encumbrance.
    There is no recorded lien,….
    Until….Until…??????

    Judicial Lien theory State

  28. Sunday 8 November 2015

    dandienert:

    Just read your last post. Great job taking it upon yourself and being able
    to carry it as far as you have!

    You mention a judge a few times, but I am not certain to the judge’s
    status, and am guessing BK judge?

    If it were me, I would initiate a new case in federal court to have the
    notice of rescission enforced. Pf has waived the 20 day right to
    challenge. That means you get to state in your complaint that the loan
    was either never consummated, or if you are within the 3 year period,
    then use that approach.

    This gives you a fresh start, in a way, and it also puts you more in
    control of your own foreclosure destiny because you get to set the
    agenda. However the “lender” responds, you get to deny it is a lender
    with any financial stake in the note/foreclosure, and read up on a motion
    to dismiss to make this response. Also look up federal rule 17, capacity
    of plaintiff and defendant to bolster your response.

    Pf’s are usually only good when dealing with a non responding defendant.
    They are often incompetent when having to del with issues outside of
    their narrow comfort zone. Be persistent and keep them on the
    defensive. You may find the judge willing to give you more leeway, if
    your argument is strong and backed up by case law and not by opinions.
    Do not ask the judge for anything. It is YOUR case. Put what you want in the form of a motion.

    Well done, so far, well done. Keep pressing.

  29. good thought MN
    (i’m off making Jalapeno Poppers)

  30. Sunday 8 November 2015

    dandienert:

    Apologies, but I have no experience in dealing with a non-judiclal state and
    foreclosure, so I must plead ignorance. Not knowing anything, my only
    thought would be to immediately proceed to a federal venue as a challenge
    to plaintiff, if a rescission notice were sent and ignored. Actually, that
    seems like a plus, based on what I read, for federal court is more
    rescission savvy for a borrower, which is not to say it is any easier, but
    the odds seem more favorable, at least to me.

  31. Hammertime

    My situation:

    In Ga, non-judicial foreclosure state.

    Foreclosure advertised 10 separate times.

    Each case, dealt with foreclosure attorney with letters drafted by independent paralegal.

    At least 4 times I threatened atty with state bar involvement based on fraudulent documents including atty staff’s “handwritten doctoring” intended to pass holder status directly from original “pretender lender” past robo-signed assignment stamped by MERS official in favor of Wells Fargo – robo-signed left the scene where he purportedly worked 4 years years before the date of the “assignment”…. Later Saxon passed servicing to Ocwen who robosigned an assignment to Deutche Bank, using already exposed robosigners.

    In process, in 2011, I filed Chapter 7 Bk and listed all parties since 2006 closing as “unsecured creditors.” This was done to “flush out” a real Creditor at the 341 hearing. Ocwen attempted end around run by avoiding the creditor’s meeting by scheduling a hearing with the judge (not the trustee) to lift the automatic stay of forclosure. I prepared a synopsis of the whole matter in a letter to the Trustee and delivered that letter at the 341 meeting.

    The trustee directed me to come to her office so she could review all my papers. At that meeting she said “The judge doesn’t like this! I know the foreclosing attorney and will contact him about the hearing to lift the stay of foreclosure.” 24 hours later, I received an email from the trustee informing me the “hearing has been indefinitely postponed. ” 48 hours later, I received an email from the foreclosing atty affirming the trustees email and an assurance the auction for my home was removed from the court house steps.

    I quizzed my paralegal about the effect of an “indefinite postponement. He explained the C7 process would continue unless the servicer addressed the postponement procedurally. Two months later I received a “discharge of all unsecured debt.” I promptly paid the Bk clerk’s office for a certified copy of the Bk discharge, and recorded that document in my county land records.. it specifically enumerated every “unsecured party” declared in the Bk record.

    Despite this, Ocwen’s foreclosure attorney began advertising a non-judicial auction of our home, claiming that while I was not being personally held responsible for the debt, he had the right to foreclose on the lein.

    I sent him another letter threatening bar involvement if he proceeded but this time included a Memorandum containing the details of a meeting l had with his associate, junior attorney. As my witness to the meeting, I paid an attorney in good standing with the state bar to review the note I was told I could inspect. Before the meeting, I asked and received written assurance that a copy mailed to me was a certified copy of the note. While we were there, the associate made a copy of the note she was bringing to the table, and at my request, also certified that copy of the note.

    When we inspected the note and compared it with the now-certified mailed copy, we discovered the endorsements on the notes were different! One endorsement was the original, undated, unsigned endorsement stamp by the original “pretender lender”; the second was the same.. *but* included a handwritten statement that the endorsement passed *directly* from the original lender, Fremont Investment and Loan, to Ocwen’s client, Deutche Bank’s REMIC Trust!

    On the basis if that letter and the attached Memorandum of Meeting, my home was once again removed from the court house steps.

    Three times more this process was successfully repeated…. necessary because the foreclosing attorney’s Mers-based computer system generated orders to run the 30-day required legal advertising preceding a non-judicial auction and a staff member “signed off” instead of the attorney.

    (There is currently a CFPB case working through the Ga court system directly attacking a collection agency/foreclosure mill who sends similar staff-signed documents that should be personally signed by an attorney in good standing with the Ga bar.)

    Post-Jenoski, on July 4th, I sent certified TILA Rescission Letters to Fremont, Wells Fargo, and Deutche Bank. After more than 30 days of Creditor non-response I recorded a sworn TILA Rescission affadavit, and after attaching the aforementioned TILA Rescission Letters as an attachment.

    If the real Creditor had acted appropriately during the 20 day TILA-mandated time frame, after invoking disclosure, my counter defense would have included a count pointing out Regulation Z and the non-disclosure of who the party was who actually table-funded my loan.

    I would have asked the Judge to require a certified forensic accounting audit be prepared to determine who has claimed (and how many dollars have been remitted funds by all claimants) towards the repayment of my loan.. including any GSE, and any and all claims based upon CDOs, Credit Default Swaps, etc.

    That defense would not deny that (if a real Creditor is revealed) the Creditor, the real Creditor is entitled to payment.

    I would ask the judge to determine any amounts owed by all parties under TILA and off set amounts due from me, and the net amount owed to me (if any) to which named parties. (Even though I stopped payments, because I found it prudent not to send money to “strangers” who refused to provide me proof of legal entitlement of receiving those payments.)

    BUT!…. after the SCOTUS Jesinosk decision and Scalia’s ruling, no Creditor action within 30 days of receiving my TILA Rescission Letters, renders all of the forgoing explanation relevant.

    Even *I* cannot use the fraudulent documents created since the closing to bolster any argument I may make.

    But I’m not an attorney or a judge…. I’m just a Pro Se homeowner. I may be wrong.

    What say you Hammertime, Louise, mn, and Greg, et al.

  32. And as Garfield has said and I experienced for a year another one of their grand deceptions the “investor”/creditor? Would not allow loan to be changed m

  33. I know..when an asset/personal property of the Estate is sold…..

    Oh never mind……
    One Half of the Estate

  34. Louise… My husband was notified of a new creditor … 3 services later.
    The missing info……from whom (origional creditor),?

    They know nothing..”Want of Knowledge”.

    But what do I know?

  35. BTW – Dear Lawyers:
    There are NO licensed attorneys in America ANYWHERE – the perception of a real operator’s license under STATE (controlled by THE PEOPLE) issue is a fallacy and all a BAR card is, in actuality, is a UNION card for an unlawful and repugnant closed shop monopoly hoisted upon THE PEOPLE… in total violation of the Sherman Act, etc. and in violation of every court officer’s oath of office…

    There is not one STATE issued license for an attorney anywhere which would leave the final control of the actions of attorneys within the power of officials directly elected by the people…

    NO – rather it is your own UNION shop leaders who govern you outside the reach of THE PEOPLE… You might as well be the in-auditable Federal Reserve System…

    Tom Jefferson et. al. roll in their graves…

    there! said it… please deny it with proof

  36. Good one, because none of us ever received a letter informing us of the “new creditor”. The creditors are hiding out.

  37. I can understand that Greg but we have to question the courts and anyone trying to interpret TILA in order to take away our protections and not ho back to square 1. The reality us if ur in a biased court u prob won’t win no matter what. Those caught in coirt trap and trying to assert rescission will probably have to appeal. Every one else better get their rescission in while it’s hot or the banksters are gonna shut the door if we don’t hold courts, elected leaders accountable

  38. hammer
    i sometimes make arguments here as my own devil’s advocate examining possible attacks on my own case… i really appreciate anyone finding that these arguments could beat me…
    gg

  39. On below in non judicial CA u couldn’t bring up standing in unlawful fc cases if assignment etc was filed. But if challenged 3 day notice and unlawful detainer standing issues have been raised where homeowners have won.

  40. Greg i would fine tune that. By the statute if I remember correctly timeliness is defined by consummation or sale whichever is later. So if u have 21 days before a sale and they don’t respond they blew it. We shouldn’t throw away the protection rescission gives us.

  41. DD good question. Imo it depends at what stage of the process ur in. If pre fc should work the same. In judicial states challenge wiuld be to be consistent in court if rescission was asserted. On other hand should be dismissed if rescission was in effect but denied similar to bk cases. In CA servicer lawyer who was robosigning rejected rescission by letter only and went forward with illegal sale. My stance is note,sale are void since no court response w/in 20 days. In strange twist they’re going forward w eviction and looks like I will have to ENFORCE at unlawful detainer case. The other twist is for non judicial in CA you CAN raise standing, void note where courts did not allow in unlawful FC cases previously. Although should have changed w settlements, homeowner bill of rights but ignoring law everywhere.

  42. BTW – i heard a great argument by an appellate court lawyer re standing…

    there are TWO TIMES during every lawsuit in which the plaintiff must have standing:
    1) upon commencement
    2) prior to judgment

    if it is lost en-route – the judgment is void!

  43. dandiener1

    IMHO
    only if you rescind before their non-judicial foreclosure
    it’s a duel
    if you fire your pistol after them – YOU MUST SUE
    i don’t care if you think that is wrong – i think you will be screaming while handcuffed being dragged out of your home if you don’t

  44. mn…

    If one’s home is in a non-judicial foreclosure state, no judicial proceeding exists to have a judge rule whether or not the 3 year TILA requirement exists.

    Imo, once a TILA Rescission Letter is mailed and the rescission is “Jesinoski-ruled” *effective* immediately, regardless of when the letter is mailed. Since there is no judge present in a non-judicial foreclosure state, any disputes about past transactions must follow the initiation of a lawsuit by either an aggrieved party with legitimate standing or by a borrower.

    The true Creditor has a definite right to “dispute” the legality of any rescission under TILA but must do so within 20 days and in strict accordance, not with established “common law rescission law”, but, instead, with the recent SCOTUS ruling.

    In a non-judicial foreclosure state, the “person” or Creditor who timely files a lawsuit to dispute any TILA issues, and
    can demonstrate legal standing to the judge without relying upon non-admissible, voided documents…. that “person” or Creditor is well within their rights to define the issue of “Consumation,” time-barred rights to remit a rescission letter, what the borrower stated in the rescission letter that was sent, or even to Allege the paternity or maternity of the borrower.

    The borrower, who is brought into court as a result of a timely filling of an interested “person” or Creditor has available to him/her all the lawful benefits due to a defendant, including, but not limited to requirements relative to disclosure.

    The borrower has the right after mailing a TILA Rescission Letter to ignore any letters from Mortgage Servicers, but may retain them as proof of delivery of a letter of rescission. The borrower has a right for one year to compel the Creditor to abide by the requirements of TILA. That borrower would muddy the water unnecessarily by including *anything* in excess of the TILA – mandated compliance requirements.

    So…. does this mean that homeowners in non-judicial foreclosure states have a procedural, or stategic advantage over homeowners in “judicial foreclosure states”?

  45. nice MN!
    thanks for the enhancement

  46. Sunday 8 November 2015

    One of the most significant questions pertaining to rescission revolves
    around the question, when was the loan consummated? Using rescission
    as a means to fight against one’s foreclosing plaintiff will require some
    substantial opposition, more addressed to the court/judge in whose
    hands a determining ruling will be made.

    Because local chancery courts have already accepted the plaintiff’s
    status as a lender/creditor, that cuts the legs out of having the plaintiff
    prove its status as a hurdle in challenging a borrower’s right to rescind.
    For this reason, it seems one could have a greater probability of success
    in federal court where a challenge to a plaintiff’s status can be more readily made.

    It should be noted that under TILA, courts must look to state law as to
    when a borrower becomes contractually obligated. With that in mind,
    one would do well to be intimately familiar with what constitutes being
    contractually obligated in one’s own state, IF one chooses to make a
    case for rescission. It will become the basis for building one’s case.

    Take a look at Grimes v New Century Mtg Corp, 340 F 3d 1007, 1009,
    [2003] For those unfamiliar with researching case law, the “340 F 3d 1007”
    is used to find the case in a search. Once you find the case, the pertinent
    section to read is found on page 1009.

    One can then also look up Jackson v Grant, 890 F 2d 118, 9th Cir 1989.
    I do not have the page reference handy, but read the case and it will
    discuss when a loan is consummated under California law. The 9th
    Circuit covers California, and the case was decided in 1989. When you
    find the page that explains how California defines consummation, if you
    choose to cite it as a reference, you would then add the specific page number to the case. Assume the wording is on page 125, just as an example, citing the case would then look like this:

    Jackson v Grant, 890 F 2d 118, 125, 9th Cir, [1989]

    These cases are like jig saw pieces, and you keep reading them to
    formulate your own case, taking even just a sentence if it can be applied
    to how you want to create your own pleading.

  47. mn

    at this moment, notice of rescission is only absolutely final under Jesinoski if done within the ALL THE REQUIREMENTS of the language of the statute – in other words 3 years of consummation…

    the parties will disagree upon if/when consummation occurred

    bank will say at closing…

    homeowner will say maybe never since the original creditor was never identified, etc.

    it is reasonable and plausible deniability for the bank to presume consummation at the closing

    certain states have consummation defined as closing table and the bank will rely upon your state’s definition

    if your rescission was beyond 3 years of the closing table – you will still have a fight to fight which you may lose…

  48. everyone should read this themselves and digest it
    15 U.S. Code § 1641 – Liability of assignees
    https://www.law.cornell.edu/uscode/text/15/1641

  49. Sunday 8 November 2015

    From Greg:
    >listen to the Dorsey video… they state that the Consumer Protection
    >group has stated that if the lender believes that the borrower has failed
    > to submit a timely rescission that the lender is not obliged to respond
    > in any way… this could be critical

    Why do you deem this to be critical? Pay attention: Rescission is
    effective as soon as it is mailed. Period.

    >i…f the lender believes that the borrower has failed to submit a timely
    >rescission that the lender is not obliged to respond in any way

    This does not make any sense. What do you think the 20 day response
    period is all about if the lender wants to contest an invalid rescission?
    Under what TILA states, should the lender believe it is not obligated to
    respond, so be it. Lender’s “belief” is now waived.

    Trespass:

    While I understand your POV and the logic behind it, unless you can
    present case law to back up your sentiment, something you more than
    likely choose not to pursue, and it is your choice, such sentiment will
    not fly in a court where judges favor even unqualified plaintiffs that are
    foreclosing, irrespective of claimed status.

    As to your distinction between creditor and lender, in a court of law, it
    is almost always a distinction without a difference, as stated.

    The lender v creditor scenario is taken as one and the same and as
    true in the initial pleading. The burden is now upon the borrower to
    successfully rebut the plaintiff’s and court’s POV as to what a lender v
    creditor might signify, and more specifically how said status pertains
    to the borrower’s case. A rebuttal, to be effective in court, will require a
    substantiated response, as in previous case law.

    Your stated position, as a response, would be considered insufficient to
    successfully rebut plaintiff’s status. It then becomes a losing argument.
    Should one not challenge plaintiff’s lender/creditor status after the
    borrower’s initial response, it is then waived.

    What is right and what is legal can often be mutually exclusive in court.
    You can disagree and stand on the might of being right, but you will do
    so sans your property, on that basis.

    A singular opinion, as you qualify what constitutes an opinion…

    I still enjoy reading your posts…

    Cheers…

  50. they seem to use “lender” and “creditor” interchangeably

  51. now contemplate this…https://www.law.cornell.edu/cfr/text/12/226.23
    —————————–
    12 CFR 226.23 – Right of rescission.

    (c) Delay of creditor’s performance. Unless a consumer waives the right of rescission under paragraph (e) of this section,

    no money shall be disbursed other than in escrow, no services shall be performed and no materials delivered until the rescission period has expired

    and

    the creditor is reasonably satisfied that the consumer has not rescinded.
    ————————

    Could this mean that the funds could not be disbursed until 3 years after the closing table signature… when the extended rescission period was past? AND would that mean the loan could not be fully consummated until that date? AND would that indicate that another 3 year clock began ticking at that time?

    your thoughts?

  52. you are right Louise

    must know the precise words used in TILA / RESPA / RegZ, etc… and their “legalese” definitions as used in the statute…
    [i’ve put the links below in brackets because WordPress will only allow ONE link per posting or it gets tossed out]
    [https://www.law.cornell.edu/cfr/text/12/226.2]
    [https://www.law.cornell.edu/uscode/text/15/1602]
    [https://www.law.cornell.edu/uscode/text/15/1672]
    [https://www.law.cornell.edu/uscode/text/15/1679a]
    [https://www.law.cornell.edu/uscode/text/15/1681a]
    [https://www.law.cornell.edu/uscode/text/15/1691a]
    [https://www.law.cornell.edu/uscode/text/15/1692a]
    [https://www.law.cornell.edu/uscode/text/15/1693a]

  53. TU
    are you talking about this?
    Supreme Court Case 14-1305
    https://supremecourtcase.wordpress.com/

  54. The A Man, on November 7, 2015 at 10:43 pm said:
    Read what Dorsey says in this article
    https://www.dorsey.com/newsresources/publications/2015/02/supreme-courts-jesinoski-ruling-provides-clarity

    thanks… we’ve posted this several times as a resource and it is also what is contained in the Dorsey video below – the video includes the dialog from the presenting lawyers and has additional information to hear, in addition to the text…

  55. TU, agree with you. My so-called lender does not exist anymore and, to top it all off, never lent any money because there was a warehouse lender in the middle which allegedly lent money through a wire transfer which was not really lending any money because it was rescinded.

    TILA says “lender” is who you must address for rescission. The servicer is stealing the money and collecting on massive insurance policies when they can get you into foreclosure. How many times did they sell the note that never made it to a REMIC trust? How much money did they make on each and every note using our signatures, which is ID theft?

    The multiple criminal scams are breathtaking. They could not resist scamming every single entity involved including the investor, homeowner, courts, taxpayers, trusts, etc.

  56. Yup the kniw nothing offense is the best defense. Where’s the friggin loan they’re talking about, the friggin bank or any of the friggin bodies at any of their imaginary entities fake signing their fake documents!

  57. I doubt it. When I read the following – I doubt it. Why?
    read what is written first. It is written by Greg and states:

    Dorsey video… they state that the Consumer Protection group has stated that if the lender believes that the borrower has failed to submit a timely rescission that the lender is not obliged to respond in any way… this could be critical

    —————–

    Why do I doubt it could be critical. — could be? I doubt it.

    Lender is not the creditor.
    My opinion, as opinions are protected speech and no one can claim I’m giving legal advice because I admit I know nothing and do not know legal things so I don’t give legal advice:

    Only the creditor can respond to the rescission and issue an action in court to stop the action. Lenders are just ‘entities’ in the middle with no standing. Servicers and MERS are listed as lenders by definition of being called one without defining what ‘one’ is.

    A rescission is valid as long as the creditor is not revealed and that keeps the loan from being consummated.

    A rescission WILL ALWAYS BE TIMELY.

    Anyone stating otherwise without revealing the creditor [you] is slinging mud and helping to keep the confusion going.
    It has been decided.
    You can listen to the Supreme court, or all these people who are BAR attorneys and beholden to the banks to get you to not raise the issue at any time.

    It’s so timely, a rescission could happen at the time a foreclosure action is initiated, because the Creditor is not the one initiating the foreclosure.
    That’s how timely it is.
    They have to stop, contact the creditor, pull back the securities, give back all money paid, yadda, yadda, yadda, or go to court and claim to be the creditor [fraud on the court is criminal, no immunity for the man or woman or owner of the law firm who has employees that pull that stunt.]

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

  58. Although it mentions tax, the parts dealing with jurisdiction is the information that may be relate to this topic ‘when’ One sees fit to have it relate based on jurisdiction or lack of.

    Found at rense(.com) site.
    I would not have found it had it not been for the home page and link.

    look for the image/frame/link US Supreme Court

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

  59. Greg, that videos pre Jesinoski and FL!

  60. listen to the Dorsey video… they state that the Consumer Protection group has stated that if the lender believes that the borrower has failed to submit a timely rescission that the lender is not obliged to respond in any way… this could be critical

  61. In hindsight, the counterclaim was not needed, but what did anyone know pre-Jesinoski .. So this is why Neils article above addressed the possible arguments about “borrower invoked jurisdiction” ..

    He admits its tricky and confusing for others to understand why even this argument fails the banks due to several problems.

    1) They lack standing

    2) The 20 days has passed and even the real party is barred.

    Regardless of a Defendants counterclaim …the first issue the bank must overcome is what the Supreme Court said in Jesinoski ..which is that the loan security instrument is void by operation of law.

    So if this is true…it means that my servicer was assigned the void mortgage AFTER I had already rescinded. My rescission supersedes their assignment of Mortgage which didn’t occur until more than 3 months after we had rescinded.

    Which means, this servicer is basing their pleadings and standing on an Assignment of Mortgage that was created after the fact.

    Standing is the paramount issue .. regardless of my counterclaim, I was already out of time to enforce for damages, so that counterclaim should get dismissed. But the other counterclaim where I am requesting the court to issue a declaration that the void mortgage security instrument that the plaintiffs based this foreclosure complaint on and used to attempt to establish their standing, fails and should be dismissed with Prejudice. This counterclaim is not looking to argue the merits of the TILA rescission, it is not invoking the court to do anything other than recognise that the mortgage security instrument being used to try and take my house was already void long before the plaintiff filed.

    And the Ace in the hole is standing.

    The Ace up the sleeve is the 20 day compliance violation in which the creditor, whoever that may be, waived their remedies under TILA.

  62. TILA-Right of Rescission: Supreme Court’s Decision in Jesinoski v. Countrywide

  63. This might help in Cali thanx Stan Berman

    http://legaldocspro.net/blog/standing-to-sue-in-california/

  64. Affermitive defenses …. Good
    Counterclaims invoke the jurisdiction of the court,
    Be Very Very Careful!

  65. UGH!!!!

    The article says, “You need to have California cases on standing and jurisdiction.”

    UGH!!!!

    Yvanova…

  66. louise

    the article you cite is from 2006
    we’ve moved on…
    greg

  67. Dwight, You will have a better chance in appellate court. Do not give up.

  68. I filed my answer to the complaint in June 2014, about 7 months before Jesinoski was ruled on … We had no idea at the time how to properly state that we had already rescinded in 2007, so we used a template from Legal Services of New Jersey website, which of course was created years before Jesinoski , and they had the template fashioned as a “counterclaim” ..

    So basically what Neil is talking about above is exactly what is going on in my case, if and when the pretender lender tries to argue later that we had invoked the jurisdiction of the court by filing our counterclaim with our answer. But as Neil says, it’s a tricky fight and will take some clear, convincing arguments backed by case law pertaining to the issues of standing, beyond 20 days bars the creditor, etc.

    So now that I look back at my answer and counterclaim, this is what I see … One of my affirmative defenses mentions TILA Violations, but does not go into detail or mention that I had rescinded. The Legal Services website had me following their lead and putting it into the counterclaim…but like I said, this was all pre-Jesinoski in 2014.

    One of my Affirmative Defenses – >>> TILA Violations

    Counterclaim – >>>> (here is where I am in deep and will need to fight my way out due to the legal services website not being completely on-point …none of us knew what we all know now after Jesinoski.)
    In my second count .. I am basically demanding that the court recognize that I had rescinded in 2007 and that it should dismiss the complaint with prejudice….

    SECOND COUNT
    >>> Basically explained that they or their assignor had violated the TILA Statute by failing to provide the disclosures and copies of the notices of right to cancel, among other things, and that ..

    We had exercised our right to rescind on or about July 1, 2007 … by mailing our notice of rescission of the mortgage to the plaintiff….

    And that Plaintiff failed to comply with its obligations under TILA …

    By virtue of the foregoing, the mortgage which is the basis of plaintiffs complaint is rescinded, and plaintiffs alleged security interest in Defendants primary residence is void by operation of law.

    WHEREFORE, Defendant demands judgment Dismissing the Complaint with Prejudice and awarding actual and statutory damages, attorneys fees and costs pursuant 15 U.S.C. $1640(a)(2)(A)(iii).

    (Here’s the screw-up below that I hope I can overcome if it presents problems later .. I’m asking the court to both void the mortgage and enforce the rescission … but this was the thinking pre-Jesinoski right? This should not be a case-killer to my rescission right? I was asking the court to enforce and to make a declaration that says my mortgage is void. But now Jesinoski cleared this up..my mortgage was already void and I did not need to ask this court to do anything .. now if they try and say that I invoked the courts jurisdiction to rule whether I had a valid reason to rescind?? Neil is saying “no way” ..they are too late, the court was not invoked by my counterclaim, the plaintiff was assigned the void mortgage after we had already rescinded, no standing, even if someone does have standing they are way too late …

    FOURTH COUNT:

    Basically asserting all of the same facts as above in the second count but in this fourth count the language switches into acting like I am asking the court to enforce my rescission .. yikes

    WHEREFORE, Defendant seeks a judgment as follows :

    1 – 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

    2 – Declaratory and injunctive relief voiding the mortgage,

    3 – Awarding actual damages,

    4 – Awarding statutory damages,

    5 – Awarding attorneys fees and costs,

    Hopefully this Fourth Count isn’t fatal to my case …

    I was way out of time to be trying to enforce for damages ..

    and regardless of my counterclaim, the rescission was already effected by operation of law .. my counterclaim is a moot point

    The real issue ..is how and why the servicer pretender lender is deemed as having standing to file a FC 7 years after I rescinded.

    They were assigned the void mortgage AFTER we rescinded.

    They filed this complaint in 2014

    We had already rescinded in 2007

    The Judge is asking me if I tendered …

    The plaintiffs attorney is disputing the disclosure violations …

    In the meantime ..nobody is paying attention to the Supreme Court,

    nobody is looking at the issue of standing

    nobody cares about the 20 days to comply

    After all of this … Judge ORDERS .. Summary Judgment for Plaintiff GRANTED .

    I’m not giving up … there is no way they win this fight.

  69. Hey, here is a link to what is happening with regard to TILA and refinancing. https://jenner.com/system/assets/publications/7680/original/TILA_Article_RealEstateFinance.pdf?1323207035

  70. i am tender

  71. while you are all thinking about contracts… ponder this: shall/will/may/must…
    http://www.adamsdrafting.com/how-a-court-determines-whether-something-is-an-obligation-or-a-condition/

  72. Thanks, Hammertime.

  73. There are some good posts in other threads or Garfield posts of case law.

  74. Well, now we need to get the case law and post it.

  75. Friday 6 November 2015

    A pretty good road map. All that is needed are supporting case law to
    buttress the handling of any plaintiff response, being one step ahead.

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