Like the Mortgages, Rescission is Counter-Intuitive

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

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There seems to be some miscommunication regarding rescission. The confusion seems to emanate from the assumption that the “borrower” would lose if there was a creditor with standing who filed a lawsuit to vacate the rescission. If so, that would be missing the point. The point is not whether the homeowner would lose if the lawsuit was filed. The point is that the lawsuit is never going to be filed. The rescission is effective as a matter of law, regardless of whether there exists an arguable or even valid defense.

Normally as lawyers we would anticipate the end result, but in this case the end result never happens because there is no creditor with standing, which is the whole point of understanding the false claims of securitization that have permeated the foreclosure marketplace. The answer, which I understand is completely counter-intuitive, is that there is no creditor — i.e., no party who could answer to the description of the owner of the debt (not the paper) — i.e. the party to whom the money is actually owed. The absence of a creditor is hard to fathom, but it is nonetheless true. AND THAT is why no bank, despite advice of counsel, has filed any action within the 20 day window to file, that seeks to vacate the rescission.

It may be true that we could expect to lose if there was a case filed and there was a trial. But if the case is never filed, the rescission stands. And since it is effective by operation of law, the loan contract (if it was ever consummated — which is doubtful) is canceled, the note is void and the mortgage is void. The only restriction I see is that in judicial states after judgment, it would appear that there is no loan contract that still exists after judgment and so there is nothing to cancel.

Looking at the date of documents is not the way to determine when a loan contract was consummated. We must return to basics, and that is what is presumed but the presumption is wrong. basic contract law X makes an offer to Y. Y accepts the offer. X and Y exchange consideration. In these loans, not only did X and Y NOT exchange consideration, but the very fact that they didn’t makes X a predatory lender as per REG Z. But more to the point, if X did not perform by loaning money to Y, there is no loan contract= no consummation= void note and void mortgage. If there was a consummation you need to know the date of funding, which is after the documents were signed and could be days, weeks or even months afterwards.

Check the Yvanova decision for more on this. Ownership of the debt, as per the Yvanova court, is what counts, not merely possession of paper that could and probably is fabricated.

Here are some quotes from recent articles or upcoming articles

“TILA rescission in which the notice of rescission alone (upon mailing) immediately cancels the loan contract, and voids the note and mortgage — even if the rescission is disputed on grounds of the 3 year limitations etc.

As Justice Scalia said, “the statute makes no distinction between disputed and undisputed rescission.” Thus the rescission is effective even if it APPEARS As though the right to rescind under TILA may not have existed on the date the notice of rescission was mailed.
NOTE TO LAWYERS: ANY OTHER INTERPRETATION WOULD REQUIRE THE “BORROWER” TO FILE SUIT TO MAKE THE RESCISSION EFFECTIVE WHICH IS THE OPPOSITE OF THE TILA RESCISSION STATUTE, REGULATION Z AND THE UNANIMOUS DECISION OF THE US SUPREME COURT IN JESINOSKI. THE STATUTE PUTS THE RESPONSIBILITY FOR PUTTING THE EFFECTIVENESS OF THE TILA RESCISSION IN ISSUE SQUARELY ON THE PARTIES PURPORTING TO BE THE LENDER AND THEY ONLY HAVE 20 DAYS FROM RECEIPT TO FILE A LAWSUIT SEEKING TO HAVE THE RESCISSION VACATED.”

12 Responses

  1. What happens if the lender does a declaratory action within the 20 days claiming that the 3 year statute of limitation has passed and they fully satisfied the disclosure requirement and the issue is raised in an adjustable rate mortgage of the disclosure requirement to state how much is the cost of the loan after it adjust which is never disclosed in the original loan documents?

    Shouldn’t that disclosure be made before the loan should be considered consummated?

    Does that extend the 3 year statute of limitation until the disclosure is made?

  2. BANKSTERS FURIOUS OVER JESINOSKI RESCISSION FILINGS
    http://foreclosuredefensenationwide.com/?p=665

    The battle here has just begun.
    Jeff Barnes, Esq.,

  3. Legisman is correct.

    “Regulation Z defines consummation as “the time that a consumer becomes contractually obligated on a credit transaction.” 12 C.F.R. § 226.2(a)(13). The United States Court of Appeals for the Second Circuit, in interpreting consummation under TILA, has held that a “transaction is consummated when the lender and borrower sign a contract obligating them…” Bank of New York v. Conway, 916 A.2d 130, 50 Conn.Sup. 189 (Conn. Super., 2006)

  4. @ legisman ,

    This has been covered many times and you are dead wrong ,, the statute does NOT say “within 3 years of signing closing documents” , it says consummation and you know it… My loan was never consummated with the lender because the lender was never on any doc. I am still ,, 9 years later AT DAY#1 .

    The banks will not be able to hide behind your fraudulent premise for long.

  5. @ ribrais …

    Try Theresa Edwards at edwardsclarkson.com 954-463-5266 , June Clarkson doesn’t do FC defense but Theresa does… good luck.

  6. Hi. I’ve been in touch with Sheri. She suggested I try to find out if WI has a statute for modifications, where the mod. has ASC and/or wells fargo bank listed as lender.I don’t think they can be lender, plus when I asked for lender’s name they said it’s US bank, but when I called them they have no record of us. BNC is listed on orig. loan docs. I called consumer financial agency (state I think), she could not find any statute about mods., said WI is behind the times with that. I called leg. hotline about federal statute, They could not find anything. I tried online, so much I don’t know where to look, typed it in search bar, other stuff came up. I need to know if there is either a WI or federal statute regarding mortgage loan mods. if they have to list the actual lender, or say they are signing on behalf of the lender. These mod. forms do not have either. There don’t seem to be any attys. who know about this stuff around here. I looked closely again at docs of mod., no question with mods addendums, our signatures are noticeably lighter ink and are poorly photocopied, and were probably attached to forms and then photocopied again, with the notary seal, etc. Oddly some have no seal. Also there is a notice of no oral agreements (was in with mod. papers) that we signed 1/11/11, but upper page typed portion is dated 2/1/11. How could we have signed a paper 1 month before it was typed? Does anyone know a good atty. that knows about mortgage fraud and does bankruptcy around Milwaukee, WI area? I think we need another bankruptcy atty. Ours does not answer my calls and thinks nothing about the robo signing and stuff. I also need to know, if we file rescission (it is past 3 years, but I just made discovery and I do not know if loan docs have been consummated.) if it is true we need to pay back all money that was lent to us except interest & taxes. Also how do I find out date of funding, after docs. were signed after consummation. Call me please 414-301-5940. thanks

  7. rlbrais, please contact me at bowen@equityintruth.org. I may, or may not, be able to help you in your situation. I am not an attorney, but know probably more than most foreclosure defense attorneys in Florida and, together, we may be able to find a resolution to your situation. I would like to try, whatever the end result in this abjectly corrupt judicial state.

  8. Purchase money mortgage allegedly closed in 2005, paid mortgage for four years, BONY Mellon filed suit to foreclose in 2009, voluntarily dismissed, filed again in 2011, voluntarily dismissed, filed again in 2013 still active. If I were to send rescission notice now, to whom should it be sent and what are the implications of TILA (in litigation) when such rescission is invalid against a purchase money mortgage?

  9. Does a notice of rescission under TILA still apply if it was sent (in ignorance of TILA law) on a home purchase, NOT a refi? We were in essence throwing darts at a board several years back in order to get a foreclosure stopped – within the 3 year time frame – and our “rescission” was sent and ever disputed. What are your thoughts on this? Is the rescission worthless because it was on a home purchase? Or is it still effective because it was never challenged?

  10. LISTEN, WHAT YOU HAVE TO DO IS GET THEM WHO EVER IS ON YOUR INSURANCE POLICY FOR HOME. ONCE YOU RESCIND, SEND IT TO INSURANCE COMPANY. THEN MAKE SURE THEY ARE NOT ON POLICY AT ALL. THAT WAY THERE IS NO BANK SERVICER SAYING THEY HOLD A MORTGAGE ON IT.

    THEN OH MY GOOD , THE HOUSE BURN DOWN. OH MY GOD.
    THEN PUT A TRAILER ON IT. AND TELL INSURANCE COMPANY YOU HAVENT MADE UP YOUR MIND WHAT TYPE OF HOME YET.

    HAHAHAHAHAHA

  11. I sent in a rescission about 3 years ago certified, received a letter indicating that I did not qualify. I recently sold the property and the so called lender took approximately $105,000. from closing to pay off the nonexistent loan. If this is really possible to call them on it, I would like to hear from an attorney that would be interested in taking the case. 816 405 2917.

  12. Could you please give me an attorney in Broward County FL that is familiar with what is being discussed.I am not getting any response from any of the phone numbers listed nor from filling out the form.My house goes up for auction 3-23-16.Thank you for your concern.rick954 257 2836

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