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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
The Court of Appeals found it was a “continuing offense” for which the “limitations clock” did not begin until December 2009, when, presumably, the illegal storage ceased. As stated by the Court of Appeals, “Congress, in enacting RCRA, employed language indicating that it understood [illegal] storage to be a continuing offense.”
The issue of the TILA right of rescission being barred by a statute of limitations may soon be resolved in favor of the borrower. However, the courts might carve out an exception in rescission cases as to “when the right of rescission expires.” AND all of this dovetails with equitable tolling and the fact that no lawsuit is required to make a rescission effective.
The fact that the notice of rescission was “mailed” is, in and of itself, all the evidence you need, without any need for a lawyer, judge, hearing or order stating that it is effective. All of that has already been done for the borrower by the TILA rescission statute 15 USC §1635 et seq, Regulation Z, and the U.S. Supreme Court — all three branches of government being in complete and unanimous agreement on that point.
Courts that attempt to ignore this basic fact, as a matter of law, are explicitly denying the boss — the US Supreme Court.
In short, what some courts are doing is wrestling with a problem that does not exist — whether the rescission is effective.
And, compounding the judicial error, is that if they wish to “rule” against the borrower and proclaim some defect with the rescission the Court is committing errors —
The court is ruling AS THOUGH THE RESCISSION HAD BEEN VACATED without a lawsuit,the opportunity of the borrower to cross examine and present a defense (including the statute of limitations for filing a lawsuit demanding that the rescission be vacated). The statute is very clear that if the “lender” or creditor wants it any different they can apply to a court of law — not the US Mail or a motion that skips the due process of filing a claim for the express purpose of asking the court to vacate the rescission.
The statute is quite clear that the creditor or lender must apply to the court to change anything about the rescission — within 20 days from receipt of rescission and thus incorporates normal procedural law — establishing jurisdiction and standing, alleging that the rescission was mailed and is effective, stating why it should be vacated (not why the rescission is ineffective).
Any “interpretation” of the statute violates the directive of their boss — the U.S. Supreme Court. Justice Scalia said that (1) the statute is perfectly clear and thus does not allow room for interpretation of anything (the express wording of the statute controls) and (2) the statute obviously does NOT make any distinction between disputed and undisputed claims — hence that ALL rescissions are effective even if they were defective or even wrong.
The court is ruling as though such a claim had been brought and is treating the rescission as though it was vacated. This ignores the key issue of standing. There is a body of law, using presumptions at law, that the “holder” of a note has the right to sue for foreclosure or collection; BUT there is no body of law supporting the granting of relief or accepting standing based upon the claimant’s reliance on a void instrument. It is clearly erroneous to accept the assumption by trial judges that the court has jurisdiction to hear a claim that has never been alleged, no defense has been presented, no evidence hearing and no judgment.
Which brings us back to the so-called statute of limitations on sending a rescission. The statute says the right to send that rescission end three years after the consummation of the contract. If the borrower is alleging that the actual consummation date is unknown and might never have occurred with ANYONE in the chain relied upon by the foreclosing parties, THEN THE ISSUE OF THE DATE OF CONSUMMATION IS A FACT IN ISSUE THAT MUST GO TO TRIAL AND NOT RULED UPON BY A COURT WHO SAYS “IT IS OBVIOUS.” The only exception to this is the age-old problem of lawyers filing papers that admit that the date of consummation was on a certain date — which is admitting a non-existent fact, about which neither the lawyer nor the borrower have any knowledge.
There is also the problem of table-funded loans where the actual party who actually loaned the money or whose money was used to fund the loan or fund the acquisition of the loan. It would appear that this IS the creditor. And it follows that only the real creditor can file the lawsuit asking that rescission be vacated (same general procedure as vacating a court order — which leads to an evidentiary hearing). The issue remember is that parties relying upon the void note and the void mortgage have no standing, and thus the court lacks subject matter jurisdiction to enter a ruling on anything about the notice of rescission.
In the case of table funded loans, it is nearly always the case that the actual creditor is not disclosed, so the violation of TILA is continuing and the discovery of the problem usually only is revealed in litigation. It follows that if the violation is continuing and the revelation was recent and the borrower had no other reasonable way to get the real disclosure, that the statute would only start to run when the banks (1) stopped the continuing violation by (2) revealing the identity of the actual creditor.
The presence of this continuing violation is obvious — in most cases the REMIC Trust is alleged to be the holder of the note and mortgage, which by definition means that they have left something out — either (1) the name of the creditor for whom they are attempting to collect or foreclose or (2) allege (and prove) that they are the owner, which would require proof of payment in discovery and at trial.
Filed under: foreclosure |