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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
Yet Judges are refusing to follow the statute, Reg Z, and the unanimous Supreme Court.
Procedurally, there is NO PRECONDITION TO TILA RESCISSION — AND IT DOES NOT NEED TO BE RIGHT TO BE EFFECTIVE. THAT IS WHY SCALIA SAID THAT THERE WAS NO DISTINCTION BETWEEN DISPUTED AND UNDISPUTED RESCISSIONS — THEY ARE ALL EFFECTIVE. THE BORROWER DOES NOT NEED TO PROVE ANYTHING EXCEPT THAT THE NOTICE OF RESCISSION WAS SENT.
In one case just sent in for my review, the Judge says the borrower must establish grounds for the rescission before the rescission can be considered effective. This judge is overruling her boss — SCOTUS. She is explicitly requiring the borrower to prove the case for rescission — something that was completely eliminated by the Jesinoski decision. The remedy is not to “Object” and the Judge has no right or even jurisdiction to rule on the “objection.” The Judge’s ruling essentially establishes that she has no jurisdiction since she is aware of the rescission and there doesn’t seem to be any dispute as to whether it was sent and received.
Jurisdiction fails because once the note and mortgage become void (which is automatic under TILA Rescission, as a matter of law) there is nothing left to enforce, except the debt. And the debt can ONLY be enforced by the creditor to whom the debt is owed. TILA Rescission intentionally removes the “paperwork” as any basis upon which any party can seek relief. In no state that I am aware of, can one obtain any ruling or relief based upon a void instrument.
Anything that throws the burden onto the borrower to prove something about the rescission (other than mailing) is wrong and contrary to the unanimous ruling in Jesinoski, the TILA Rescission statute (deemed clear on its face and not subject to interpretation — Jesinoski) and Regulation Z. It couldn’t be more clear.