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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
Based upon my own experience and what has been reported to me from around the country, most trial judges are making the mistake of confusing argument and facts when it comes to TILA Rescission. They are either expressly or tacitly ruling that at best, TILA Rescission is a claim or defense — which means that in order for Rescission to have any effect, it must be litigated. This is wrong and it has been expressly rejected by both the TILA Rescission Statute, and U. S. Supreme Court in the Jesinoski decision.
I offer the following, drafted by me, as a response to when Court’s essentially overrule the the highest and final court in the land. I suspect that the resistance by trial judges to the effects of rescission will not be resolved, in most instances, without an appellate court saying for the second time that Courts are wrong when they disregard or try to change the wording of the TILA Rescission statute.
Comments are welcome: email@example.com
Motion for Reconsideration on Defendant’’s Motion to Dismiss For Lack of Subject Matter Jurisdiction
- A trial Court has the inherent authority to control its own interlocutory orders prior to Final Judgment. North Shore Hospital Inc. v Barber 143 SO 2d 849, 850 (Fla 1962).
- While non-final orders were not subject to a motion for rehearing, a trial judge nevertheless had the discretion to choose to entertain such a motion precisely because it had jurisdiction to control its non-final orders prior to entry of Judgment. Commercial Garden Mall v Success Academy Inc. 57 So 3rd 982 (Fla 2nd DCA 2011).
- An order denying a Motion to Dismiss is interlocutory. See Nationwide Ins Co. of Florida v Demo 57 So 3d 982 (Fla 2nd DCA 2011.
- Here this Court heard Defendant’s Motion to Dismiss on March 10, 2016 and denied, apparently without prejudice to raise the issue of rescission as a defense, Defendant’s Motion to Dismiss for lack of subject matter jurisdiction.
- TILA Rescission is neither a claim nor a defense. It is a legal act that has legal effect when completed. The only factual issues are whether the rescission was sent, which in this case is undisputed. TILA Rescission is effective as a matter of law, when mailed. Its effect is to void the note and void the mortgage and trigger specific statutory duties of the “lender” under 15 U.S.C. §1635 et seq. Jesinoski v Countrywide 574 U.S. ___ (2015) and Regulation Z. C.F.R. (Federal Reserve as succeeded by Consumer Financial Protection Board).
- The gravamen of what was argued before the Court was that the note and mortgage, being void by operation of law, could not be the subject of any legal action.
- Since the Plaintiff’s entire case rested on the use of two void instruments — the note and mortgage — and there is no allegation in the Plaintiff’s complaint asserting legal standing of an creditor seeking to collect on a debt, the Court does not have any justiciable issue before it. There is no count in Plaintiff’s complaint that seeks to recover on a debt, naming as Plaintiff the owner of the debt. In this case Plaintiff admits the Creditor (owner of the debt) is not the Plaintiff. The complaint seeks solely to enforce the paper instruments — the note and/or mortgage — both of which are now void by operation of law.
- There is also no lawsuit by any real party in interest seeking to vacate the rescission that has indisputably been sent, received and recorded in the County records — and which has been indisputably ruled as legally effective by the U.S. Supreme Court.
- At the hearing it was admitted by that the owner of the debt was the “investor” who was distinguished from the Trust.
- The rescission that was indisputably mailed and received removes standing of the putative Plaintiff. Without the note and mortgage, only the debt remains. And the only party with standing to seek collection on the debt is the Investor, who is not party to the instant action. And according to the TILA Rescission statute such a “creditor” must either first FULLY comply with the TILA Rescission statutory duties or first file a lawsuit to vacate the rescission (which currently has the same force and effect as an order of any court of competent jurisdiction).
- No lawsuit demanding that the Court vacate the rescission has been filed by anyone. Yet this Court has effectively granted such relief without any real party in interest, without a lawsuit seeking to vacate the rescission sent by borrower, and without any pleading in which a [proper party seeks to remove the recorded rescission that was filed in the County records. This Court instead is ignoring the rescission as though it does not have any legal effect despite the clear pronouncements of the TILA Rescission Statute, Regulation Z, and the clear and final ruling by a unanimous Supreme Court of the United States.
- Plaintiff lacks standing even if Defendant’s defenses based upon an untimely fabricated assignment are over-ruled.
- Defendants assert that this Court misapprehended argument and facts.
- The undisputed facts are that the TILA rescission was sent and received. The fact remains now that the rescission is effective and remains effective as a matter of law. The undisputed facts, as a matter of law, remain that the note and mortgage were both rendered void by operation of law by the sending of a letter of rescission by the alleged “borrower.”
- The Court’s decision was that the issue of the effectiveness of the rescission was a defense and not the proper subject of a Motion to Dismiss for lack of jurisdiction.
- The error asserted by Defendants is that this Court’s ruling essentially “over-rules” the Supreme Court of the United States in Jesinoski v Countrywide, a copy of which was provided to the Court at the hearing. Defendants state the obvious: this court lacks authority to overrule the highest court in the land.
- To hold that rescission is a defense to be litigated flies in the face of the unanimous Supreme Court ruling that NO LITIGATION is required to make rescission effective. No Lawsuit is required. Jesinoski, Supra.
- Rescission is effective by operation of law. 15 U.S.C. §1635, Regulation Z. Jesinoski Supra — all of which state that rescission is effective as a matter of law when mailed and that no claim or lawsuit or ruling by any court is required by the borrower to make it effective.
- The effect of this Court’s ruling is to over-rule the Supreme Court of the United States and rewrite the TILA rescission statute that is a very clear and specific remedy WITHOUT THE NECESSITY OF THE BORROWER RAISING THE ISSUE IN LITIGATION. The entire point of the TILA Rescission statute was to prevent “lenders’ from stonewalling the effect of the rescission. The rescission is immediately effective as a matter of law, when mailed.
- By ruling otherwise, this Court is following a rule of law explicitly rejected by the U.S. Supreme Court.
- This Court is following a rule of law that has been expressly repudiated by the highest and final court in the land. The effect of this Court’s ruling is to make the rescission NOT EFFECTIVE until it is raised in defense of a foreclosure and then only after the effectiveness of there rescission is litigated in a lawsuit. The U.S. Supreme Court says otherwise in a unanimous decision penned by the late Antonin Scalia.
- In the Jesinoski decision it was stated clearly and unequivocally that the rescission, whether disputed or not, IS effective upon mailing, without any further action on the part of the borrower. The burden of disputing (pleading and proving standing and a cause of action to vacate the rescission) falls solely and squarely on the parties who received the notice of rescission.
- The Jesinoski Court further explicitly stated that hundreds of trial and appellate courts across the land were wrong when they had previously ruled, as this court has just done, that the rescission was subject to litigation and that the “borrower” must bring a legal claim or lawsuit seeking to make the TILA Rescission effective..
- The Defendants assert that this Court’s apparent unfamiliarity with the Jesinoski decision, the TILA Rescission Statute and Regulation Z, combined with the Court’s understanding of common law rescission resulted in an erroneous ruling that was expressly and explicitly ruled out by the Supreme Court of the Untied States. This court may not read in the rules of common law rescission to a specific statutory scheme that is clear on its face.
- It is clear that the the Supreme Court of the United States has decided, as the Final Authority, that the TILA rescission statute is clear and unambiguous on its face, thus eliminating any right, authority or jurisdiction to read into or interpret the TILA Rescission statute. It is equally clear from the express wording of the Jesinoski decision that reading in common law rules of rescission is erroneous, as such “interpretation” was rejected by a unanimous Supreme Court as unlawful and wrong.
- There is no escaping the fact that the rescission is effective by operation of law.
- Accordingly, Defendants assert that this court has no room for interpretation or authority or jurisdiction to change or interpret the TILA rescission statute such that the borrower must raise rescission as a defense — a requirement that unlawfully denies the effectiveness of the rescission when mailed.
- Accordingly Defendants assert that this Court committed error by ruling that rescission was a defense requiring pleading and proof in order for the rescission to be effective as a matter of law. Defendants thus request this Court revisit the issue and correct its prior ruling.