TILA RESCISSION Made Simple Despite Judges Attempting to Overule SCOTUS

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.

—————-
It is astonishing to me how many lawyers and judges are ignoring the obvious about TILA Rescission. Let me put it this way: The Jesinoski Court as the the boss of bosses in the Judicial system has issued a final unanimous decision on TILA Rescission. They have spoken. AND they said the era of interpretation was OVER.

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.

The note and mortgage are void even if the notice of rescission is disputed or could be subject to some attack based upon the three years SOL, or other factors. It is still effective and it remains effective for all time if the creditor with standing fails to file a lawsuit seeking to vacate the rescission. Any “motion” filed is calling for interpretation that the unanimous Supreme Court of the United States will not allow.

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.

TILA rescission is a nonjudicial remedy same as nonjudicial foreclosure. They are both done with letters and are effective by operation of law. The banks ignore the Rescission letter at their peril, they fail to file a lawsuit on the behalf of a real creditor with standing at their peril, and they fail to act within 20 days at their peril. Any other ruling would not only violate the law of the land, it would open the door to borrowers being able to “ignore” the notice of default and notice of substitution of trustee, and notice of sale despite a finite time limit to challenge the actions which by a specific statutory scheme require action by the borrower within a narrow time window. The rules are the same.

16 Responses

  1. The problem is two-fold; 1.) Judges are very well aware that the binding Supreme Court rule requires the court to uphold a TILA rescission, but also aware that now that the precedent has been set, the Supreme Court is not required to review any more TILA cases. As the purpose of the Supreme Court is to clarify conflicting laws, not to correct errors in lower court rulings; 2.) judges are for the most part politicians entirely controlled by those who appoint them and or elect them e.g. controlled by persuasive banking industry interests.

    This is the basic flaw of our politically controlled judicial system, where the majority of judges tend to be primarily motivated by their own financial interests, and thus can find excuses to rule as they please instead of in accordance with the law.
    THE ANSWER; We must Impeach all corrupt judges and also hold accountable, the politicians who appointed them and/or elected them. This process would be akin to weeding a garden completely overrun with crab grass. But until we do this, there will be no justice.

  2. It is my personal lay opinion that if you are in federal court regarding your rescission which was properly executed , and an order of sale of your property has been issued by any state court, you can do a motion to vacate to Order of sale under FRCP 60 (b) (4) as void ab initio because of lack of subject-matter jurisdiction.

  3. IF THE ALLEGED LENDER CANT PROVE THEY ARE THE LENDERS WITHOUT THE VOID NOTE ETC… THERE WAS NEVER CONSUMATION

    NEVER AGAIN

  4. TO ALL THE DOUBTERS. THE JESINOSKI’S WON THIS ARGUEMENT

    Justice Alito was similarly skeptical. His particular concern was what would happen if the lender complied with the notice and returned the property, but “the obligor says at that point, I don’t have it, I’ve spent it. Then what happens? So the rescission is rescinded?” When Frederick explained that the statute included a procedure for protecting the lender, Justice Alito seemed to be satisfied. Indeed, at that point, the Justices largely sat back and generally allowed Frederick (and Elaine Goldenberg, an assistant to the Solicitor General) to give long speeches for much of their argument time, interrupted only by the occasional clarifying question.

    The most important thing about Goldenberg’s argument was her clarification of what seems to be a difference between the government’s position and that of the Jesinoskis. The government agrees with the Jesinoskis that the rescission occurs at the time of the notice. But the government’s view is that the notice effects rescission only if the borrower’s complaint is legitimate – if the borrower in fact did not receive the requisite disclosures. The Jesinoskis’ view seemed to be that rescission occurred immediately at the time of the notice, and that if the lender thought the rescission was improper it should file suit to have the rescission overturned.

    http://www.scotusblog.com/2014/11/argument-analysis-it-may-take-houdini-himself-for-lenders-to-escape-with-victory-in-tila-rescission-dispute/

    NEVER AGAIN

  5. In Colorado, their is still a complete lack of understanding by the federal magistrates of the affects of a rescission on the foreclosure proceedings and a lack of understanding of the 2015 Supreme Court Case, Jesinoski vs Countrywide to the point that Judge Watanabe from the district court decided not to mention the case hoping to avoid discussion.
    He did say that the plaintiff failed to mention the rescission defense and therefore it was barred by Res Judicata and/or Collateral estoppel.

    I perceive it differently.

    The act of rescission, which was properly in effect after -( The Bank )failed to respond within the 20 days, separates the deed of Trust from the Promissory note rendering the Bank without “standing to foreclose”, and the foreclosing court without subject-matter jurisdiction because in order to have subject-matter jurisdiction the promissory note must be collateralize by the deed of trust which is effectively nullified by the act of rescission.

    Any order of sale issued from the Colorado rule 120 court is void for lack of subject-matter jurisdiction.

    Neither Res judicata or collateral estoppel apply when the court is without subject-matter jurisdiction.

    The “modern rule . . . gives finality to even void orders if the issue of subject matter jurisdiction has been litigated and decided in the proceedings leading to the questioned judgment.” Restatement (Second) of Judgments. (See also People in Interest of E.E.A. v. J.M., 854 P.2d 1346 (Colo. App. 1992). The issue of subject-matter jurisdiction was never litigated in the Rule 120 foreclosure.

    The subsequent purchase of the property should be vacated because the Bank as trustee or the Trust were not holders in due course because they both knew of the infirmities in the transaction, either actual or imputed under the Close Relationship Doctrine where there “…is such a significant ongoing interconnected business relationship” between the Trust and US bank as the trustee, that trustee’s conduct is imputable to the Trust. Stotler v. Geibank Indus. Bank, 827 P.2d 608, 611 (Colo. App. 1992)

    Further, the court has held that, if the judgment sought to be vacated is void because the court lacked subject matter jurisdiction, any time limit established by C.R.C.P. 60(b) is inapplicable. Mathews v. Urban, 645 P.2d 290 (Colo. App. 1982)
    In Deutsche Bank Trust Company Americas v. Samora, 2013 COA 81 the court said:
    ¶ 47 Because the warranty deed is not void, in order for Samora to defeat Deutsche Bank’s claim to quiet title in the Trust, she must show that Deutsche Bank as trustee is not advancing a claim by the Trust as a holder in due course of the Note and Deed of Trust.

    As in Samora, to defeat the Trustee’s claim, the plaintiff must show that the Trustee is not advancing a claim for the Trust as a holder in due course of the Note and Deed of Trust. The argument of holder in due course goes to the Trust’s right to foreclose ,and is consistent with the reasoning in Samora. The lack of the court’s subject-matter jurisdiction due to the rescission, also goes to the right of the court to foreclose.

    Also, there is the matter of ELECTION OF REMEDIES

    If the lender elects to foreclose and is denied, he cannot just sue on the note subsequently.

    Colorado follows that rule.

    The doctrine of election of remedies requires that a plaintiff choose between inconsistent remedies available on the same set of facts and prevents the plaintiff from recovering twice for the same wrong. Elliott v. Aston Brokers, Ltd., 825 F. Supp. 268, 269 (D. Colo. 1993). “Election is necessary whenever the theories of recovery are inconsistent.” Trimble v. City & County of Denver, 697 P.2d 716, 723 (Colo. 1985) (en banc)

    Another argument that judge Watanabe made was that the failure to disclose the causes of action to the bankruptcy trustee deprived the debtor of standing to sue on the rescission which the Rule 105 foreclosure occurred years later.

    There is a circuit split as to when the causes of action belong to the debtor and when the causes of action belong to the bankruptcy trustee.

    Some courts require that there be a pre-bankruptcy petition injury before it can be sufficiently rooted to be an asset of the bankruptcy estate. Others hold that even unripe claims are sufficiently rooted in the bankruptcy past to be an asset of the bankruptcy estate citing the Supreme Court case of Segal vs Rochell (1966)

    The “sufficiently rooted” language in Segal referred to an “inchoate” carry-back refund “claim” not involving an injury which was validly vested pre-bankruptcy for payment post-bankruptcy, and is distinguishable from a “cause of action”

    An Article III court requires an injury before it is ripe for a court to acquire subject-matter jurisdiction.

    While all “causes of action” may be considered “claims”, not all “claims” can be considered “causes of action”. Thus, the federal court’s reliance on Segal was misplaced to determine Debtor Brumfiel’s “standing” since the Supreme Court in Segal was only presented with a claim that did not require an injury to be validly vested pre-bankruptcy.

  6. My judge is “considering” a motion for summary judgment filed by Bank of America. Yesterday I argued the rescission notice mailed 3 years ago with certified mailed receipt and filed in the county property records. When the judge ignores the rescission as he has done previously. What alternative do I have??

  7. so Jim , please explain the difference in both of these. then. ?

    TILA rescission is a nonjudicial remedy same as nonjudicial foreclosure. They are both done with letters and are effective by operation of law. The banks ignore the Rescission letter at their peril, they fail to file a lawsuit on the behalf of a real creditor with standing at their peril, and they fail to act within 20 days at their peril. Any other ruling would not only violate the law of the land, it would open the door to borrowers being able to “ignore” the notice of default and notice of substitution of trustee, and notice of sale despite a finite time limit to challenge the actions which by a specific statutory scheme require action by the borrower within a narrow time window. The rules are the same.

  8. I have a death in family. Next week I will contact you. Keep up the good work. I desire a Securitization Schedule for my property.

    Sent from Yahoo Mail on Android

  9. Relief will only be found. When Judges will be held accountable.

    Chapter 11 is just another bottomless pit

  10. Isnt the ” consummation” another argument, if you rescind you are assuming consummation yes, in there lies the fraud and the burden is on them, 20 days

  11. Lazarus.

    Are you saying this goes for purchase mortgages. As well as modifications. And finally outside the 3 year window everyone seems to talk about ???

  12. Rescission is absolutely effective upon notice … period.

    However … relief will only be found in the bankruptcy court. (preferably a chapter-11) It’s the only way to automatically force an automatic-mini-discovery (by Rule) of the alleged creditors claim, without objection being allowed.

    Set the trap … and pull the lever.

  13. Jesinoski makes it clear that only a verified creditor can challenge a rescission within 20 days.

    If you’re not the creditor then F you

  14. Jim,
    Again that is not what Jesinoski stated, Notice sent within 3 years of consummation, not signing paperwork! Read TILA and Jesinoski again.

    Knowledgeable attys. know this

  15. I sure don’t see it the way Neil is. This recission seems like a Hail Mary , imo.
    There must be stronger arguments and defense strategy against the obvious corruption and fraud of foreclosures. This is going on way way way too long at this point.

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: