Rescission- 20 Days and Done.

By William Hudson

Thousands of TILA rescissions have now been filed nationwide. As these cases wind through the judicial system new things are being learned from cases that fail. First of all, if you have ever admitted consummation occurred- you are finished before you get out of the starting gate. In your rescission letter it is best not to refer to the loan as a loan unless you are positive it was.   Opposing counsel will attempt to get the homeowner to admit there was consummation by asking, “When did you receive your loan?” Homeowner, “In February 2009”. End of story. The homeowner just admitted that they received a loan when they have no idea that the loan was consummated.  Do not admit to things you don’t know.
When enforcing a TILA rescission you don’t ask for permission from the court. Why would you ask for permission to do something that is already done by operation of law?

 
Next, don’t allow the “lender” to influence the court by trying to get a court to order that the rescission was not effective. Rescission must be presented as FACT. According to Jesinoski the rescission once filed, wrong or right, is complete UNLESS the true creditor challenges the rescission within 20 days.
Rescission must be presented with confidence, with conviction and with the understanding that the highest court in the land made the rules and it is the court’s job to enforce the law.

 

1. TILA Rescission is an event. It is not a theory, claim or defense. It is a nonjudicial procedural remedy. It is accomplished by mailing a letter. In most cases it is an event that has indisputably already occurred. The effect of TILA Rescission is, as a matter of law and by operation of law, to cancel the loan contract, and to render the note and mortgage void. In a Motion to Dismiss, only the true “lender” can file a lawsuit in FEDERAL court to challenge that the rescission exists but is not effective, despite all law to the contrary. The matter is well settled, to wit: if the rescission exists, it is effective as a matter of law.
2. The effectiveness of a TILA Rescission is not predicated upon any judicial analysis of the likelihood of the borrower’s success if a lawsuit to vacate the rescission is filed by a party with legal standing. Any such interpretation would be opposite to the holding in Jesinoski that the rescission is effective upon mailing, whether disputed or not.

 
3. Lenders (Servicers) typically will not dispute that rescission has occurred but will instead seek to invoke issues in a case that is not and cannot be heard before any Court, to wit: whether the rescission is effective. Servicers seek to do so through motions in which they deftly avoid the requirement of pleading and proving facts in a proper lawsuit to vacate the rescission, thus depriving the homeowner of their right to raise appropriate defenses to the non-existent lawsuit seeking to vacate the rescission.

 
4. The “lenders/servicers” are attempting to manipulate the courts into entering an order that would attempt to vacate the rescission when the rescission is already done.  Therefore, the lender seeks to have the wrong court assume facts about the consummation of the alleged loan including the date or dates when consummation occurred and the source of funding for the alleged loan. The banks even attempt to persuade the court to assume that disclosures were adequate without evidence that they were. These are questions of fact requiring a lawsuit, discovery and trial. They seek to have courts adopt the premise that the rescission is not effective upon mailing if there are potential defects in the reasoning or actions of the borrower.

 
The SCOTUS has expressly rejected that argument that rescission is a negotiable action (Jesinoski v Countrywide). SCOTUS clearly stated that the rescission is complete upon mailing, regardless of whether it is disputed or not. Therefore only the TRUE lender with skin in the game can contest or challenge the rescission- but must do so within 20 days. A servicer with no standing at NO POINT can challenge a rescission.

18 Responses

  1. Neidermeir- good point about the note. None of Storm Bradford’s case cites bring”nemo dat…..” Into the equation. Quite simply, if the person from whom you received/purchased/stole the note didn’t have any right to sell/give the note, then the sale/ assignment/transfer is vioid.
    One cannot give that which one does not own. There goes his case cite standing claims. Probably some judge who thought another of the unwashed masses was trying to get a free house.
    So the judge took amother swig of his metamucil&viagra tonic, amd let fly another improperly adjudicated ruling.

  2. @ Storm Bradford ,

    Surely you saw in Ians post where he specified that the true parties were not named on the note,, and yet you claim that signing an intentionally deceptive and fraudulent document binds the parties??

    This is an EXTREMELY common occurance …. and something you should be familiar with.

    If I were to walk into my local Chevy dealer and sign a loan doc for a new Corvette with GMAC but the actual lender was “Bobs Loan Sharks” would you still say that I owed GMAC money or would you say the contract was void at inception due to fraud? We both know that GMAC has no standing (they don’t even know about the sale) and neither does Bob…

  3. Contract Law 101
    Your Complaints & Harm can be Settled under Contract Law..
    By Attacking the Contract!

  4. UKG. .. CORRECT!
    No Trusts
    Abandoned Assets

    Storm, Play Nice!
    You are to Valuable to get Time Out!

  5. annonymous: It is very difficult indeed. If you’re making a living, start making calls and interviewing attorneys. Let me know what state you’re in and I can maybe make a referral. Edge Trader (mn) has been in the thick of things for awhile, as have I. We’re not a “club”, we’re just way past most attorneys on this. I started with Garfield, and learned the MBS market, PSA’s, and securitization on my own. I chased down the swaps, the holders, the sellers, and then went looking for state law to support my case. SURPRISE! There wasn’t any.
    First, deny the holder or owner and holder status. It’s the servicer working under the name of a faux plaintiff. They can’t be owner or holder with rights to enforce without proof of agency (documentation).
    Second, admit NO default. You, like everyone else, probably paid in excess of six months after the date of alleged default. You didn’t stop paying, they stopped accepting and properly posting your payments.
    And pay attention to the identity of the alleged claimant. Retrieve your closing documents. Study them. And understand there is no MODIFICATION without LITIGATION. Their only goal is to take the free house, not collect on the loan. The loan is extinguished, paid off, and the trust certificates are defaulted. There is no XYZ trust with status as holder and owner. It’s all a charade. Go find your credit default swaps in Maiden Lane. Find out who the counterparties are in your PSA.

    And don’t think that just any lawyer can do this. They can’t. It takes one with experience in the field, Real estate lawyers are a good start, but it’s contract law you’re fighting.
    Don’t be afraid to fight it out in BK court, either. Some of these judges are going out of their way to protect homeowners. Not many, but some.

  6. Or you could Attack the Contract, …….
    Those who hold claims of beneficial interests belong in Probate Court,
    Not Chancery Court .

  7. I just HAD to make sure you saw these Garfield rescission arguments which he so succinctly listed. This is crux of my appeal? Barbara

    On Fri, Apr 22, 2016 at 2:49 PM, Livingliess Weblog wrote:

    > Neil Garfield posted: “By William Hudson Thousands of TILA rescissions > have now been filed nationwide. As these cases wind through the judicial > system new things are being learned from cases that fail. First of all, if > you have ever admitted consummation occurred- you are fini” >

  8. Hi. I sent a qualified written request to ASC/wells fargo, because we have been trying to get a mod. since 2012. They filed foreclosure, we tried mediation but their atty. said no more after 2nd meeting, We filed bankruptcy. Thanks to this blog, I learned about some things to look for, found payments not applied, some sitting in suspense, an allonge to note that is signed by an assistant secretary, but is not dated, has no terms or anything else, doesn’t even have loan #, our last name misspelled and part of it and address handwritten in. Note itself doesn’t mention allonge and there is clearly room at bottom of note for the allonge, did not need to put it on separate paper. Also in latest docs for a modification, which we did not ask for, and does not change payments or anything like that, there is a notice of no oral agreements that we signed 1/1/2011. But the date typed at top is 2/1/2011.How could we have signed something a month before it was typed? Our signatures on that page and others of the mod. all are lighter and grainy, like they may have been cut off something else and pasted in. The interest rate doesn’t make sense, 1st mortgage we had by ameriquest has recorded date 9/2005 for satisfaction of mortgage, while BNC acquired mortgage and that is recorded 7/2005. I asked about the fact it appears 2 entities had interest in property at same time for a few months.Also is issue about persons signing things stating w/notary they are VP loan doc., I called exec. office, found those people do not have that position. I also found our income was greatly inflated, so was value of home, and our house was built in 1916, they put in 1970’s. We also were charged for drive by inspections of 8 to 11 a year in last 3 years, and the amount owed has gone way up instead of down. There is more, but i don’t want to write to novel.In QWR I asked for chain of title from time of loan origination, copies of original note, mortgage, assignment, deed of trust, an accounting and proof of what they did with our money, incl. wire transfers, computerized, etc., proof of real lender, trusts and trustees. Also a list of their VP loan documentation from 2006 to present. and listed reasons for wanting that info, some of which is described above. Someone from the president’s office called the day they received it, asking why I want this info, I told him same stuff mentioned in letter. He said they will get right to work on it. Have not heard anything yet. I am continuing to dig, it takes quite a while as I don’t have anyone helping except you people, I would encourage others to write a QWR, but I heard you should state what information you want, and a good solid reason for wanting them. Don’t make unreasonable demands or go into telling them they are scumbags (even though it’s tempting), just stick to the truth.I sent it return/certified receipt, made a copy too. I may (I hope) actually get some informaton out of them that is useful, at any rate I think the man seemed to be “taken aback” by what I was asking for, and my reasons for wanting them. Maybe if they get other such letters they will begin to realize their time for “scams” is going away, and they have to start beiing reasonable and truthful. This seemed to be best way to start the “ball rolling”, our next steps depend on what information they give us, and what they offer as a resolution. I am pretty tired of dealing with all this since 2012, and would just like it to be resolved, but I by no means intend to give up the fight to get justice.

  9. Saturday 23 April 2016

    anononymous:

    You ask legitimate questions and make presumptions without any basis.
    First of all, I am not an arm-chair legal expert. What I have been doing
    is actively engaging against unauthorized plaintiff’s, and, more importantly,
    fighting against prejudiced judges who remain the largest obstacle for
    anyone choosing to defend themselves in foreclosure.

    Whatever experience/knowledge I have accumulated in the process comes
    from determination and spending countless hours in the law library,
    spending even more time every evening on the internet doing expanded
    research, reading case after case after case about why people have
    failed.

    How many people here in the imagined category you surmise have taken
    the time to learn about local court rules, procedures, to know what is
    expected for anyone defending themselves? I have stumbled and
    failed so many times, but I took each failure as a learning opportunity.

    I did not have access to so much information available on this site, and
    others. I sought people who posted about cases and procedures to see
    if I could learn from them to help myself. Some helped, many did not.

    “Your group…” First of all, I do not belong to any group, nor do I have it
    all figured out. I have never filed a federal case in my life, until last month,
    and my first filing was dismissed, procedurally. I saw the comments from
    the judge and made changes where necessary and improved upon my
    initial attempt. You think this has not been a daunting task for me, or
    anyone else? You are dead wrong.

    In my first case, I lost to 4 different judges, all playing games with me,
    figuring I would give up. I lost in appeals. I lost to the state supreme
    court, but, oddly enough, I did not lose my house. After 5+ years, the
    opposing counsel simply walked away from the case EVEN AFTER the
    sale had occurred but not confirmed. By refusing to give up against
    those who were wrong, they knew I knew where they were wrong and
    they gave up.

    Yes, I had some help, but trust me, no one has a greater interest in my
    case than me, and in the end, I had to do it by myself.

    The point in commenting about not making an objection was just that.
    How can anyone decide to defend themselves without doing some
    homework and expect to succeed against lawyers trained in law and
    against judges who have no regard for individual defenders?

    One of your comments:
    >in totality the articles and comments do raise great points , but they
    >have never been picked apart and consolidated into a template or a
    >simplified outline strategy that would be useful to most readers.

    And exactly who do you expect to do that for you? I disagree with your
    premise, because the articles have a flow that facilitates developing a
    strategy. All you have to do is take the time to do it. I took the time. I
    have read and reread what has been said about rescission. I have listened
    to every radio show Garfield made on rescission, each at least a few
    times, and taking extensive notes in the process. No one is doing this
    for me. I have chosen to do whatever it takes to get the job done.

    If you cannot see or comprehend how Garfield has laid out rescission,
    if you have not read the Jesinoski case repeatedly, and in addition, looked
    up other cases cited, and those also lead to more cases that enable one
    to build a solid framework, then what else would you expect? That takes
    time and effort. Have you done any of these things, all of these things? I have, and I am not a legal expert, but I am pretty knowledgeable about
    rescission and rescission-related cases, more than may lawyers…but
    only because I put in the time and energy.

    I doubt you and I are any different in terms in having a legal background.
    I have none. But I made the determination to learn and do whatever it
    takes to defend for myself, and in this area, you and I seem to differ
    dramatically.

    >”……you would be doing a huge favor if you could just expand on your
    >thoughts, and write them out to a more complete way where a reader
    >could actually learn something from you.”

    I do share occasional thoughts, and many times get attacked by those
    who need information the most. There are too many people on this blog,
    each with different needs, questions, circumstances, yet all very similar
    at core. I do not see a lot of thoughtful questions being asked. I see
    more venting by people who think judges should read their case and
    take their side because they are getting screwed. Most often, the judge
    is doing the most damage. So people piss and moan about the inherent
    unfairness in court. Do you not think I have been subjected to the
    same thing? More than most have experienced, but I prepare for the
    worst and build my case based on those expectations because they are
    a given.

    I cannot rectify other people’s inadequacies, and I stopped sympathizing with this who do little more than lament their own plight
    without taking more responsibility for themselves, and then point an
    accusatory finger at anyone who opposes them.

    >We have had awesome contributions over the yrs ..many are buried in
    > the comments sections … Neil has done more than anyone to try and
    > help …this site is a virtual gold mine of knowledge … but
    >unfortunately not to everyone is suited to be a miner.

    You acknowledge there is a treasure of information here. If you are not
    suited to be a “miner” to defend your own property, then do not attempt
    to defend it on your own. It appears you are ultimately saying that I, or
    others like me, should be your sherpa.

    I trust that is not your intent, but you must appreciate how what you said
    can and will be interpreted.

    That said, did you have a specific question you wanted addressed? You
    have already taken a pass on the not-so-general information available
    to you, and anyone else who reads this blog.

    I am happy to address some problem, but it is impossible to provide a
    few comments without addressing the core issue because there is little
    room for error.

    Cheers…

    mn

  10. The judge in our case is a rubber stamper from Broward county. We are putting everything about him on ripoff report because that is the only way it will get out. We sent info to senator and nothing. Are you where that lawsuit has been filed in Superior Court in Florida as to why all senior judges were brought out every time into work only on foreclosures. He’s retired judges don’t have to put up their financial statements and if they rubberstamp everything so what they’re retired it’s like outsourcing judges. I urged each and everyone of you to demand the financial statement of every single judge that is involved with your foreclosure and reported on ripoff report.

  11. Jim … You’re spinning it and attempting to add more confusion to the banks smoke and mirrors deception act. Blaming the victims of a Ponzi scam because you feel the Ponzi scam is so confusing and hard to understand isn’t the correct reaction. You should be asking the tough questions to the banks who created the corrupt and deceptive scam.

  12. mn … It might be clear to you, but it is not so simple for the majority of pro se defendants who come here seeking info as they desperately scramble to file an answer to the foreclosure complaint.

    I notice this site has two groups of people ..the arm-chair legal experts like you who know exactly what to do procedurally, when and how to object to issues perfectly and flawlessly , how to answer the complaint perfectly and also file an action in Federal Court as a plaintiff, how to preserve all your rights to appeal while doing these things pro se ..

    Your group has it all figured out, its all so very simple e and easy in your minds …and you come off as condensending towards non-legal type victims who are forced to act pro se due to the lack of competent or willing lawyers who will argue these issues.

    Yes Neil has done an outstanding job here, but for most blue-collar working class people who come here it is a daunting task to go back thru years of blog articles and take notes to quickly formulate and understand the strategy and proper way to answer, object, etc. The people who are here looking AND trying to understand are typically not legal types who have not spent years reading this complex foreclosure defense strategy information. Its absurd to even think most people can show up here looking for a template to guide them and that they would easily navigate their way through thousands of pages of articles and comments by readers.

    Hopefully someday yourself or others might help consolidate and simplify the strategy for the common folks who drop in here looking to understand , but who don’t have the luxury of time to research and read thru vast amounts of articles.

    In totality the articles and comments do raise great points , but they have never been picked apart and consolidated into a template or a simplified outline strategy that would be useful to most readers.

    mn … you for instance replied to a poster below telling him he should have known when to object in order to preserve his right to appeal, and that most of us lose on procedure and not law … Well this is exactly what I’m talking about …you would be doing a huge favor if you could just expand on your thoughts, and write them out to a more complete way where a reader could actually learn something from you. You might have a greater understanding of certain things that are very clear in your mind…and that’s great …but can you break it down and share your knowledge in a brief and simplified way? Nobody is asking you or the others to take up all your time explaining, but since you’re here often and you’re reading this blog and being critical of uninformed victims who are losing their cases in court over procedural issues ..well come on …let’s all try and help correct this pitfall …all of us ..offering what parts of the puzzle we understand ..by breaking it down in more easy to understand steps …consolidated and placed into a template ..for all people and victims to be able to get a brief outline and understanding of the overall strategy and procedural steps .

    Now understood ..the template is not going to be concise to each individual ..it is only a frame-work and general outline .. but it would be an incredible help to everyone visiting this blog ..and for pro se victims who are here trying to understand how to draft a strategy .

    We have had awesome contributions over the yrs ..many are buried in the comments sections … Neil has done more than anyone to try and help …this site is a virtual gold mine of knowledge … but unfortunately not to everyone is suited to be a miner.

    Let’s try and see if together we can solve this problem ..losing cases on procedure, losing in your answer, when and why to object, etc , etc.

    Let’s start bringing it all together …so that we can get more cases to survive these pitfalls ..for the good of all of us .

  13. How can you ask to rescind the loan without admitting there was a loan? The alleged or purported loan?

  14. This guy Hudson is another scammer. If the loan was never cosummated, than you can’t have a TILA violation. What a moron!

  15. I am confused about the TILA rescission law, because it reads as if it can only be done a short time after the closing–like three days or sometime to that effect. it does indicate that it can be done as many as three years after the closing if it is learned by the alleged borrower that full disclosure had never occurred. What confuses me, is that some alleged borrowers may believe there was a loan, for 20 years or more, before finding out that there may not have been. And, full disclosure never comes from the banks. When an alleged borrower is not in foreclosure and not have any difficulty with making the payments, there is not likely to be any reason to research the issue. When my friend took out his alleged loan, it was back in 1997, and there was no internet, or any way really for him to research and find out any information which would lead him to believe that there may have been no loan in the first place. So, he basically had to rely on what he was told by the bank. He is learning a great deal now, but even four years ago, when he first started having problems, there was not as much information out there about this issue, as there is now. So, should he be penalized for letting so much time go by, when it was not his fault that he did not know?

  16. “the system is rigged”. The judges rule in the favor of banksters.

  17. Friday 22 April 2016

    Why thanks to Peter Dernier for the overview when it has been Neil
    Garfield that has presented this information so extensively?

    Dr David: Judges in courts of chancery can do and say whatever they
    want. I will not even ask if you made immediate objections to preserve
    your position on appeal. The odds of rescission succeeding in chancery
    has to be extremely low, mostly because the plaintiff’s already have the
    benefit of standing and do not have to prove consummation. The
    response from the judge in your case is probably highly typical. You
    lost on procedures, not on the law.

    This system is rigged, yes, but not for the reasons people believe.

    Rescission is a federal statute, and while I have said this before and
    acknowledged it as just my opinion, rescission is a federal statute, and
    it belongs in federal court filed by the individual[s] as plaintiffs, no longer defendants.

    Garfield has laid out the entire process of what rescission is, what it
    entails, and how to present/argue it in court. Judges may or may not
    be reading this blog. That is irrelevant. What matters is those who
    choose to employ rescission should be reading this blog and taking
    notes on everything.

  18. Rescission was filed in property records and in two cases in the chancery court. Judge ignored them and granted summary judgment to Wells and BA to have my claims dismissed and my filings expunged from the property records and an injunction to keep me from further filings. He based his judgment on copies of alleged notes and ignored the papers in front of him. He did not even read the filings that were requested to be expunged because half of them were for another property. In the words of Donald Trump: “the system is rigged”. Evidently the court is not reading your blog Neil. I have for so many years. Thanks for your work.

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