Confronting the “Motions” Filed Against Rescission

THIS ARTICLE IS FOR LAWYERS ONLY
===============================
WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation. In order to make it easier to serve you and get better results please take a moment to fill out our FREE registration form https://fs20.formsite.com/ngarfield/form271773666/index.html?1453992450583 
Our services consist mainly of the following:
  1. 30 minute Consult — expert for lay people, legal for attorneys
  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
  6. Expert witness declarations and testimony
  7. Consultant to attorneys representing homeowners
  8. Books and Manuals authored by Neil Garfield are also available, plus video seminars on DVD.
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
================================

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-

Several attorneys are sending me their motions or opposition to motions directed against the rescission. My observation is that they have not taken the time to think about what they are doing and the real reason they are pursuing rescission. The real reason is standing. What you cannot accomplish through the front door you can definitely accomplish by coming in through a side door. It isn’t enough to summarize your position, you must go for the jugular on this.

The motion filed is good although missing a key component that should be expressly stated.

*The court may not rule on anything unless it has jurisdiction.

*Rescission is effective as a matter of law on the day it was mailed. A party may only contest or dispute the rescission if they file a lawsuit seeking to vacate the rescission. The only party that can file such a suit is the actual creditor — the party at the end of the chain to whom the money is allegedly owed.

*All other parties are barred for lack of standing, to wit: an effective rescission voids the note and mortgage (see 15 USC 1635, Regulation Z, and Jesinoski v Countrywide). No party in any court can get relief based upon a void instrument.

*The only thing left after rescission is the debt; hence only the owner of the debt has standing. The banks want the court to presume that they own the debt since they had the paperwork. But if the last 8 years has taught us anything, we know that the paperwork does not reflect the actual transactions where money exchanged hands.

*The only jurisdiction this court had was based upon the allegations based upon the note and mortgage. The rescission removed the note and mortgage as valid instruments as of the date of mailing the rescission. Hence unless one or more of the parties allege that they are the owner of the debt and the end of the line in the “chain” (and then prove it) none of the existing parties have standing to dispute the rescission which, as Justice Scalia said on behalf of a unanimous US Supreme Court, was effective on mailing regardless of whether it was disputed or not.

*The only relevant statute of limitations at this point is the 20 day window in which the lawsuit disputing the rescission could have been filed. That has expired in most cases, but it doesn’t stop the owner of the debt from filing the lawsuit, since the statute of limitations is an affirmative defense unless it is clear on the face of the complaint and exhibits that the 20 day window has expired, in which case the homeowner may move to dismiss the challenge to the rescission as untimely.

*The same logic applies to the rescission itself. If the rescission itself states that the transaction was consummated on a certain date, THAT starts the clock counting off the three years. But in all events the rescission is effective — and whether or not the true owner of the debt can step forward and establish standing, sue to vacate the rescission is unknown.

*Although theoretically a lawsuit is still necessary and the party seeking to void the rescission probably doesn’t have standing, it is a tougher road to argue about forcing the other side to file a lawsuit that, assuming there is standing, you will lose. Any effort to contest the existence of consummation will be rejected if you have already admitted it. So while you definitely have the upper hand if you do not admit consummation and do not admit the date of consummation you still can stay in the game by demanding that the court not rule on something over which it has no current jurisdiction — because the rescission, disputed or not, is effective on the date of mailing, the note is void and the mortgage is void.

26 Responses

  1. FBI
    FBT MORTGAGE L.L.C.
    FC Lending, Ltd
    FCI Lender Services, Inc.
    FDIC AS RECEIVER FOR OMNI NATIONAL BANK
    FDIC as Rec of Coastal Community Bank,Panama city, FL7/30/10
    FDIC as Receive of Home Savings of America (2/24/2012)
    FDIC as Receiver for AmTrust Bank
    FDIC as Receiver for Colonial Bank, effective 8/14/09
    FDIC as Receiver for First National Bank of Nevada
    FDIC As Receiver for Franklin Bank, S.S.B.
    FDIC as Receiver for IndyMac Federal Bank, FSB
    FDIC as Receiver for Statewide Bank (Crrspndt) AsOf 3/12/10
    FDIC as Receiver for Statewide Bank (Wholesale) AsOf 3/12/10
    FDIC as Receiver for The Bank of Union (1/24/2014)
    FDIC as Receiver for Vantage Point Bank (2/28/2014)
    FDIC as Receiver for WATERFIELD BANK 3/5/10
    FDIC AS RECEIVER OF PARK NATIONAL BANK, (10/30/2009)
    FDIC as Receiver of American National Bank (3/19/10)
    FDIC as Receiver of Bank of Illinois (3/5/2010)
    FDIC as Receiver of Bank of the Commonwealth (9/23/2011)
    FDIC AS RECEIVER OF BEACH FIRST NATIONAL BANK AS OF 4/9/2010
    FDIC AS RECEIVER OF COLONIAL BANK MONTGOMERY, AL(8/14/09)
    FDIC as Receiver of Community Capital Bank (10/21/2011)
    FDIC as Receiver of Desert Hills Bank, Phoenix, AZ, 3/26/10
    FDIC AS RECEIVER OF FIRST SOUTHERN BANK(AR), 12/17/2010
    FDIC as Receiver of Guaranty Bank, Austin, TX 8/21/09
    FDIC AS RECEIVER OF K BANK, OWINGS MILLS, MD (11/5/10)
    FDIC AS RECEIVER OF LYDIAN PRIVATE BANK
    FDIC as Receiver of Netbank
    FDIC AS RECEIVER OF PALOS BANK AND TRUST, IL (8/13/2010)
    FDIC as Receiver of Platinum Community Bank, as of 9/04/2009
    FDIC as Receiver of Platinum Community Bank, FSB of9/04/2009
    FDIC AS RECEIVER OF PUBLIC SAVINGS BANK
    FDIC as Receiver of Republic Federal Bank N.A. 12/11/2009
    FDIC as Receiver of Security Savings Bank, (2/27/09)
    FDIC as Receiver of Superior Bank,Birmingham,AL(4/15/2011)
    FDIC AS RECEIVER OF WOODLANDS BANK, BLUFFTON, SC (7/16/2010)
    FDIC as Reciever of New South Federal Savings Bank

  2. djabelanger, on February 5, 2016 at 10:25 am said:
    ok, lets try a simpler question, as it would be the same . bank sends you a letter to foreclose on you. you the borrower, have 20 days to defend that, by sending and filling a complaint with the courts. right. so what is the difference when a borrower sends in a rescission letter to a bank. that is the same as a court order. correct. so the banks would have to do the same as a borrower, to defend themselves against the rescission order. as i see it there is no difference , they would have to file suit to, defend it. in the 20 days, just as the borrower would have to answer it by filling in the 20 days. that is all am asking. that the banks do not have different laws that they most follow. the law is what the law is. no matter who you are.
    djabelanger, on February 5, 2016 at 9:49 am said:
    i thought it was a simple question, as i can see now, it wasn’t a simple question for a lawyer to answer. sorry.
    all am asking is . if you as my lawyer, received a letter from a bank, stating that they are rescinding the loan contract that your client sign, what would the next step that you and your client have to do, to preserve any defenses? just like a court order by a court, the same is when a borrower send a bank a rescission letter, it is a self serving court order, as congress wanted a statue that did not need a borrower and a bank to get a lawyer involved. that was congress intent , as they have stated, in congressional hearings, and the supreme court as stated it also. so the question i ask is simple. under a court order, aka, rescission letter, do i have to answer, in the 20 day window. to preserve my defenses. ?
    djabelanger, on February 5, 2016 at 8:11 am said:
    question to ask court judge, your lawyers. and ask them to explain to you why is there any difference. and were does it state , that there is a difference in the law for the banks V borrower?
    listen, ask your lawyer this question.
    the ( bank ) just sent us a tila rescission letter and ask us to comply to the statue. ? what would be the next step by law for us to do? your honor?

  3. dandiener1,

    Well thought out…why aren’t every foreclosure defense attorney STARTING from this defense instead of billing their clients and literally giving servicers and pretender lenders power they have absolutely no legal authority to execute.
    I would like to see if anyone has successfully prosecuted these imposters with criminal charges…
    Move from civil to criminal lawsuits.

  4. CONCLUSION
    Although compliance with all HAMP rules is important, problems with servicers
    failing to comply with rules relating to homeowners redefaulting (falling out) of
    HAMP are particularly critical for homeowners because this failure could be the
    first step in a homeowner losing his or her home. Treasury has designed HAMP
    so that mortgage servicers are the program’s gatekeepers, responsible for making
    decisions that greatly impact homeowners. That Treasury has partially implemented
    SIGTARP’s recommendation to see if servicer misconduct is contributing to
    homeowner redefaults brings good insight, but Treasury must act on what it is
    seeing.
    Treasury’s findings show clear harm from servicers to homeowners that require
    a strong response. Treasury should not assume that this is not a severe problem or
    that the servicers’ wrongful terminations of homeowners from HAMP are limited to
    the instances that Treasury found. Given the risk that, after a redefault, the servicer
    could move the homeowner into the foreclosure process, the risk of harm to the
    homeowner is too great for Treasury to let any homeowner be wrongfully forced out
    of HAMP.

  5. https://www.gpo.gov/fdsys/pkg/PLAW-111publ22/html/PLAW-111publ22.htm

    TITLE IV–FORECLOSURE MORATORIUM PROVISIONS

    SEC. 401. SENSE OF THE CONGRESS ON FORECLOSURES.

    (a) In General.–It is the sense of the Congress that mortgage
    holders, institutions, and mortgage servicers should not initiate a
    foreclosure proceeding or a foreclosure sale on any homeowner until the
    foreclosure mitigation provisions, like the Hope for Homeowners program,
    as required under title II, and the President’s “Homeowner
    Affordability and Stability Plan” have been implemented and determined
    to be operational by the Secretary of Housing and Urban Development and
    the Secretary of the Treasury.
    (b) Scope of Moratorium.–The foreclosure moratorium referred to in
    subsection (a) should apply only for first mortgages secured by the
    owner’s principal dwelling.
    (c) FHA-Regulated Loan Modification Agreements.–If a mortgage
    holder, institution, or mortgage servicer to which subsection (a)
    applies reaches a loan modification agreement with a homeowner under the
    auspices of the Federal Housing Administration before any plan referred
    to in such subsection takes effect,

  6. Does anyone here personally know someone who succeeded in rescinding their fraudulent loan?Has anyone ever known any homeowner who had proof of the fraud and did well in the courts?I gotta say nay,no,and if in Cali a even bigger no.The courts,the judges,our elected officials have all been bought and paid for by those very banks so talking theory about what works or might work please give some real life examples because I dont even know anyone who got a mod.

  7. Steve Robinson:

    I am not a lawyer. What I would recommend is that you investigate and file a motion for a “Rule 2004 Examination” which is provided for in the BK code. If the motion is granted, you will then have the ability to demand documents and/or a deposition of your ‘pretender lender’ and get relevant facts from them. This takes the form of a subpoena and is a serious issue if your ‘table funder’ ignores it and he/she will know it.

    I’d recommend you research this well and if your stay of relief hearing has already been had, perhaps you might seek a stay of the order granting relief from the stay (30 days? 60?) until you can file the motion and serve the Rule 2004 exam on the pretender lender.

    Good luck.

  8. Dandenier1- the 2008 TILA revisions state that the servicer is never the creditor. That is straight from the
    Federal Reserve Board.
    Also review the FRB definition of “covered person” .
    And for crying out loud, whenever anyone , especially an attorney, refers to a servicer as a bank, a trust as a bank, an originator as a bank, and everyone collectively as lenders, please correct them. And check every entity on the relevant state’s Secy of State licensing division to see that they are, or were, licensed at the time in question. Unlicensed or defunct entities cannot bring suit or conduct business.

  9. I understand that you cannot give advice, but I’m interested in knowing what your thoughts are about the response from Jones Walker to my letter rescinding the loan.  The loan was rescinded one day prior to the lifting of the automatic Stay in my bankruptcy.  I filed a copy in the Bankruptcy Court, but I did not bring up the fact that I had rescinded the note and mortgage during the hearing for “Motion to Lift Automatic Stay”.  Please see attached documents.  I’m not sure, but I do believe that this is a table funded loan. Steve Robinson

  10. So…

    We may not know who the real Creditor is, but *we know for sure* the Creditor’s mortgage servicer is *not* the Creditor.

    It follows then, that any party claiming to be “the mortgage servicer” is, in fact, *not even* the mortgage servicer *unless* they can *prove* they’ve been given that agency authority by the *actual owner* of all mortgages they service.

    Without proof of that specific legal relationship with the actual owner, they are an illegal, unlawful “interloper” and have no lawful “participant standing” to be involved in the legal issues before the court!

    What can be done to “enjoin the court” to remove this illegal party from the courtroom? And to remove from the court records all of their associated legal trash?

    With these distractions to justice “cleared out if the courtroom,” the judge and the real parties at interest (“Lender” and “Borrower “) remain, the court can now be called to order.

    If the real owner or the owner’s attorney is not present, must the docketed matter be dismissed? With or without prejudice?

    Can financial sanctions be awarded against the “illegal interloper” to the homeowner as a form of Contempt of Court?

    Once that “disinterested party” is expelled from the courtroom (along with all the “smoke and mirrors” brought by them into the courtroom), is the court required to supoena an actual owner?

    Do we wait until an owner shows up? Or does the homeowner simply proceed to seek a Quiet Title in a Federal courtroom where the laws of our nation seem to be better understood and executed?

  11. Dbelanger- creditor: ” the servicer is never the creditor”. FRB 2008 TILA revisions. ( now codified law)

  12. no one know who is a creditor or who is a lender. that is the big question.

    thid is all i have found on occ site,federal reserve ,cfpb

    A lender includes financial institutions either regulated by, or
    whose deposits or accounts are insured by, any agency of the
    federal government.

  13. AFR, 36 Organizations Oppose HR 766, Urge Congress Not to Give Banks a Free Pass on Fraud

  14. Per Dodd-Frank, notice to one is notice to all. None of us know who the real creditor is.

  15. >hi neil – thank you for all you share to help us homeowners. love your blog! = )
    >my goal is to record my rescission letter in the county records and stand from there, but i’m not sure if i sent it to the correct entities after all! i need clarification.. can anyone help?
    >i bought my home in 2001. north american mortgage company was the lender and beneficiary. sonoma conveyancing company was the trustee. no mers yet.
    >i joined my 1st and 2nd in 2003 and the lender stated on the new deed of trust became metrociti mortgage llc, dba red tape home loan. trustee was fidelity national loan portfolio solutions, a california corporation and MERS is now acting solely as nominee for lender as the beneficiary.
    >in 2005 i refinanced when the home prices were up and my last and current deed of trust has ctx mortgage company, llc as the lender and trustee and MERS is the beneficiary.
    >in 2011 i tried to get a mha loan modification as offered by bank of america, and have since set up camp in the banksta rabbit hole. i am going into my 5th year battling the bankstas for my home. this whole process has woken me the hell up to what’s really going on under the surface in all aspects of our world and humanity. for that i am thankful and as a result i have bloomed into an activist and advocate to help get the word out and activate people to protect their interests. we need to change the mindset of the willfully blind and turn this around from the inside out! these ongoing crimes are being perpetuated by we the people who work on the inside of the offices of the county, judiciary, abc government agencies, banks, title companies, law firms, etc. if we all drop the push-me-pull-you rope, and stand together to say NO.. we could stop the insanity.
    >in 2011 the ADOT assignment deed of trust was signed by alice rowe, assistant secretary for MERS, INC. assigning the beneficial interest to the bank of new york mellon sami II trust 2005-ar8. BOA and Nationstar say they are the owner of the note.. but have in previous correspondence told me jp morgan chase and wells fargo. go figure.
    >on july 22, 2015 i sent my rescission letter to nationstar (current servicer) and ctx mortgage company (deed of trust lender 2005).. but didn’t sent it to bank of new york mellon trust!
    >question: do i send in a brand new rescission letter just to bank of new york mellon or otherwise?
    thank you for any insights!

  16. Wednesday 3 February 2016

    Have to disagree with your conclusion[s] scot. The plaintiff, by not
    contesting the rescission notice within the 20 window provided, loses
    standing to challenge without having to prove standing. It does not mean
    that plaintiff/lender has waived any/all defenses, at all. Those defenses
    are still available. However, to make any of those defenses, plaintiff
    now must prove standing as owner of the debt remaining because the
    note/mortgage instruments are now void, as a matter of law, and still
    subject of court determination, depending upon how defendant who
    rescinded frames his/her/their rescission defense.

    The supreme court, in Jesinoski, only confirmed that rescission is
    effective upon mailing and the filing of a suit to enforce the rescission
    is not required, as some/many? federal courts have erroneously
    required. No court is required to file a summary judgment, and I doubt
    any court will/would.

    Anyone who filed a rescission notice and waltzes into court expecting
    a summary judgment or automatic decision against the lender will be
    in for a rude awakening.

    One has to know how to “force” a judge to rule favorable by presenting
    federal cases precedent to decisions made. This is probably the most
    important part. Second most important. Requiring the lender to now
    prove financial harm in order to have any standing to challenge any
    aspect of the rescission is key, as Neil aptly points out.

  17. Lauren, you can still file a TILA rescission with a judgment. The statutes state you can file a rescission if you have not sold the property or refinanced the note you are rescinding.

  18. This is likely one of the best and most concise recitations of the operation of Rescission. I would comment that the problem Neil identifies, that if the transaction is recited as consummated as of a certain date inside the letter of rescission, it starts the clock ticking, then the way to avoid this entirely is not to recite that the transaction was consummated. Instead, say very little, only that certain papers were dated on XXXX and a copy of the writing is attached for easy identification by the reader. You simply avoid stating or inferring that a “transaction was consummated.” Also avoid calling the documents a “note” or a “mortgage;” instead, I would use some more non-committal language such as “a paper dated XXX and which has the header saying “Note”. Something like that. Indeed, even avoid calling them “documents”! No benefit in placing a mantle of respectability on those papers.

    Unfortunately, the typical State-court judge has no clue, utterly no clue, about Rescission under 15 USC 1635, and has no clue about Jesinowski v. Countrywide. The net result is that these state judges are still stubbornly making their own results with total disregard of the Federal Statute. I see that as a continuing problem. And you are likely only going to get around that by filing suit in the USDC.

    I foresee that more States are going to go the Way of Massachusetts, and legislate a cleansing of title in favor of the “bank” after foreclosure. So, file your lawsuits now, while you still can.

  19. Sent in rescission notice to Ocwen, and, of course, received nothing back in the 20 day window. Will be calendaring this for the one year period to sue.

  20. Can you file a rescission while you have a judgment of foreclosure and you are in appeals court. The defenses are all about standing! I just figured out section 404 states that when your mtge is transferred, you have 30 days to contest and they have to provide all TILA notices and let you know within 30 days. It was 33 days when they sent in the letter. Is this a window of opportunity? Thanks!

  21. After the 20 days the game is over for the pretender lender. The title is clear by operation of law. The debt is clear after the uncontested 20 days

    Because it is by operation of law the owner can then apply for a new loan.

    This is why a Judge who delays this is just like a county recorder who does not allow a Gay Marriage be recorded.

    The one year is only for the ex borrower to sue. Otherwise how can the consumer refinance.

    Great article Neil thank you

    The above is My humble layman opinion

  22. If the banks have not file motion to vacate the TILA rescission within the 20 days the rescission was mailed wouldn’t the next step be to file a motion to compel the court to enforce all aspects of the TILA rescission stating that the banks by not filing the proper legal response to your TILA rescission has forfeited any and all defenses they may or may not have had and that by not filing a defense in court it could be argued that the banks have agreed to your TILA rescission.

    The US Supreme Court ruled that a TILA rescission is by law effective upon mailing. This is the same as a court ordered judgment. Treat it as such. After 20 days have passed and the banks have not filed any motions stating their defenses in court you need to file a motion to compel the courts to order the banks to follow the letter of the statutes.

    I know this goes against everything you lawyers have learned in law school that one cannot obtain a judgment without first filing a complaint in court. But TILA rescission clearly states that a borrower can do just that and the the US Supreme Court unanimously confirmed this.

    In a judicial state if a homeowner if sued for foreclosure by a bank and does not file a response stating their defenses within 20 days of being served the court has no choice but to rule for a summary judgment in favor of the the banks.

    TILA rescission is no different. If a borrower mails a TILA rescission to the banks and the banks do not file a response in court stating their defenses within 20 days of the mailing the court has no choice but to order a summary judgment in favor of the borrower.

    No disrespect intended. But the sooner the lawyers for the borrowers grasp this the better. Because the lawyers for the banks have already grasped this and are running scared.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: