Why We Developed the TILA Rescission Package

We start with the simple and irrefutable premise that if the parties are NOT in litigation, only a timely lawsuit filed by a party with legal standing could be considered to vacate the TILA rescission that is effective, as a matter of law, when it is mailed. The note and mortgage become void at that moment. Any claim of standing based upon the void note and void mortgage is by definition frivolous.

The banks want to place the burden on the homeowner to explain why this court should consider the rescission effective. But that is not the law. The burden is on the Banks to bring a timely action by a party with legal standing explaining why the rescission should be set aside or vacated.

Despite the simplicity of 15 USC §1635 it appears that the entire TILA rescission issue is being re-litigated even in the face of a unanimous Supreme Court decision that made it abundantly clear that what you read below is not theory, claim or defense: it is a fact.

For a description of our services  click here: https://wordpress.com/post/livinglies.wordpress.com/32498
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We are offering a Rescission Package for those lawyers and homeowners who are considering rescission as a potential strategy in their fight against the banks.

The whole point of the TILA rescission statute was to enable homeowners to avoid lawyers and judges when they canceled their loan contracts. Most jurists think this is a ridiculous thing to do. But their job is to enforce the law not make the law or “interpret” a statute that is perfectly clear on its face — especially when the highest court in the land (the boss of bosses in the judicial system) says there is no right, power, or authority possessed by ANY judge on ANY level to interpret this particular statute. The Jesinoski court said unanimously that this statute is clear on its face. THAT is the law of the land and the final instruction to every judge dealing with TILA rescission.

It should not be necessary to offer such a Rescission package. And considering the wording of the statute and the Supreme Court, there ought not to be litigation on whether the TILA rescission was effective when mailed — but that is exactly what is happening anyway. Judges who don’t like this statute should take it up with the legislature; they cannot and should not attempt to over-rule their boss — SCOTUS.

It is also true that the parties who brought the foreclosure have neither the legal standing nor (in most cases) a timely claim to vacate the rescission. So it is important to know what is happening on the ground with trial judges and appellate cases in order to anticipate how and when you will be met with opposition to a rescission that was and remains effective when mailed, as a matter of law. Despite the simplicity of 15 USC §1635 it appears that the entire rescission issue is being re-litigated even in the face of a unanimous Supreme Court decision that made it abundantly clear that what you read below is not theory, claim or defense: it is a fact.

The banks clearly have a problem with legal standing as they are losing an increasing number of foreclosure cases on exactly that point. And they already lost the fight over what TILA rescission means, when it is effective and how it is accomplished (i.e., a letter). But they continue to litigate, filing improper motions without standing and making all sorts of arguments that have already been heard and rejected by SCOTUS. The problem is that no matter how empty the arguments of the banks, if you don’t vigorously oppose them, the judge will “go with his gut” rather than the law.

It has become necessary to inform the public of what options exist for those who have sent notices of rescission either long ago or in the present and the answers differ. It also is necessary to know what to do with the rescission whether foreclosure has been started or not.

We start with the simple and irrefutable premise that if the parties are NOT in litigation, only a timely lawsuit filed by a party with legal standing could be considered to vacate the TILA rescission that is effective, as a matter of law, when it is mailed. The note and mortgage become void at that moment. Any claim of standing based upon the void note and void mortgage is by definition frivolous.

The problem seems to be that most of the discussion and litigation regarding rescission occurs in the context of litigation already exists. In that context the rescission is attacked by motion by the same parties who are pursuing foreclosure allegedly on behalf of some unknown real creditor. They do not allege they own the debt or that they are holders in due course.

Instead they say they are “holders” or “possessors” of the note with rights to enforce. They are appearing in a Representative capacity using the note and mortgage, and assignments and endorsements and even powers of attorney upon which they rely to have the court infer the existence of a right to foreclose. But when rescission becomes effective (upon mailing) the note and mortgage are void — and no legal claim or relief or legal standing exists when it is based upon a void instrument.

Once we read the Statute (15 U.S.C. §1635) and Regulations and supplement that with the unanimous ruling of the Supreme Court of the United States (Jesinoski v Countrywide) there is and can be no doubt that the loan contract has been lawfully and non-judicially canceled, and the note and mortgage are void.

Hence the foreclosing parties lack legal standing to oppose the rescission not only because it is already effective but also because even if they had legal standing and they were bringing a proper lawsuit the time is over. And unless the foreclosing party forgot to mention that they own the debt and thus fulfill the definition of the word “creditor” or “lender” they don’t have legals standing either. This is counter-intuitive for those who have not studied and analyzed the procedural remedy of TILA rescission.

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So we provide elaboration in our package that shows the lawyer options on how to argue the points in each particular case, where the facts always differ in some small way.

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I seem to be getting the same questions. All of then are essentially the same — “The TILA Statute says that TILA rescission does not apply to [fill in the blank]. Why are you saying that rescission is still effective where there are potential claims that would result in the rescission being vacated or set aside.?” The answer is that all TILA rescissions are effective when mailed, regardless of whether they are disputed or whether they could be disputed. The questioners are assuming that the “facts” are true and that they would lose if the pretender lender goes to court and shows that the subject alleged loan contract was for a purchase money mortgage, or was more than 3 years ago etc.
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Yes, my answer is that the rescission is effective and yes, it seems like a good strategy in many cases. In a nutshell the reasons are that (1) the actual creditor with standing has made no claim that the rescission should be set aside or vacated and (2) they have missed their opportunity to do so. (20 days from receipt of the notice of rescission). Third, there has never been such a lawsuit. And the reason for that lies deep within the analysis of “securitization fail” (see Adam Levitin) which produces an anomalous result that is nevertheless the consequence of bad actors on Wall Street, to wit: there appears no “party” who could meet the definition of an actual creditor to whom the money is actually owed (i.e., the party at the end of the line of the money train).
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And because this seems impossible, it is assumed to be untrue. Yet that is precisely what the Banks are counting on when they assert status as “holder”, or that they are possessed with rights to enforce even if they don’t disclose the identity of the creditor.
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The best analogy I can conceive is in contract law. If A makes an offer to B and B accepts the offer, they have an “executory” but not enforceable contract. But once A gives something of value to B and B gives something of value to A, pursuant to the terms of the oral or written contract, the contract becomes enforceable. All this occurs without any judge, and perhaps without any lawyer involved in the mix.
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The contract (a) exists and (b) is effective as a matter of law without judicial intervention. If there is a lawsuit it is going to be about whether there was a breach of the contract, not about whether the contract exists or was legally effective (except for some rare exceptions).
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Nearly all social and business contracts are meant to occur without court intervention and are valid and enforceable, as a matter of law, because the statutes and common law say they are. If you think that no contract shoudl be considered effective until a judge rules on it, then we would need to add about 1 million more judges.
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Here is the analogy to TILA Rescission: Add to our example above a VALID statute that is clear on its face that says that B can cancel the entire contract with a letter. Then add the Federal Regulation that states everything that was signed or done after the start of the enforceable contract (consummation) becomes VOID at the moment the letter is sent.
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Assume B sent the letter canceling the contract. What do you have? Answer — an unenforceable contract and a bunch of void instruments and acts that were performed pursuant to the enforceable contract. The issue of fair or not was taken up by the legislature and they decided that this is fair. Can a judge over-rule a valid statute? No. Now add SCOTUS saying that the statute is valid and clear and no interpretation is allowed. What can a Judge do about the letter canceling the contract. Nothing — unless A sues B, alleging that it is still the party to an actual transaction that occurred between A and B and alleges facts supporting a conclusion that B was wrong to cancel the contract, and A asks the court, in a timely lawsuit, to vacate the cancellation.
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The problem might best be expressed as procedural law versus substantive law. The rescission statute is a procedural law passed by Congress to administrate the substantive provisions of The truth in lending act.

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As pointed out by the Supreme Court of United States, this statute expresses how TILA Rescission is initiated and when it is effective. This statute makes no distinction between disputed an undisputed rescissions. And that point was expressly stated by Justice Scalia when writing for a unanimous Supreme Court. All rescissions are effective on the day they are mailed regardless of whether the thinking of the borrower is ignorant, defective, or arguable.

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The rescissions are effective by operation of law. By the express wording of the statute, the regulations, in the Supreme Court of United States, the mailing of a notice of rescission makes the rescission of effective as a matter of law.

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The position staked out by Congress and the Supreme Court of United States does not limit access to the courts for an aggrieved creditor. Such a creditor may file a complaint against the borrower seeking to vacate the rescission which is now effective as a matter of law. Obviously such a complaint could only be filed by a party possessing legal standing to contest the statutory nonjudicial rescission.

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Your questions are about how to deal with a prospective lawsuit that has not been filed. And your question presumes that the creditor would win that lawsuit based on the assumption that a court would interpret the consummation of the transaction to have been a purchase money mortgage.

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But the procedural question is whether the creditor can actually bring such a claim not only because of the question of legal standing but also because more than 20 days has elapsed since the rescission was received.

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The Creditor only has a 20 day window in which to file any contest of the rescission. We know this because of the wording in the rescission statute and the interpretation of that statute by the Supreme Court of the United States. That court overturned thousands of decisions from trial court and appellate courts that required a lawsuit to be filed by the borrower in order to make rescission effective. In The unanimous Court rejected that interpretation for two reasons, to wit:

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(1) the statute was clear on its face and the TILA statute made it clear that the notice of rescission was effective when it was placed in the mail. Therefore no lawsuit was required to determine whether or not the rescission was effective. It was effective as per the express wording of the statute. The only time limit expressed in the statute for compliance by the”Lender” is 20 days from the date of receipt. The banks want to place the burden on the homeowner to explain why this court should consider the rescission effective. But that is not the law. The burden is on the Banks to bring a timely action by a party with legal standing explaining why the rescission should be set aside or vacated. 

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By combining the first day of TILA rescission as being the date of mailing and the last day of TILA rescission being 20 days from the date of receipt by the “lender”, it is obvious that any attempt to extend that period of time would essentially translate as meaning that the notice of rescission was not considered effective until a judge ruled upon it. This is opposite to what Congress said, what the Supreme Court said, and what the Federal regulations say. Banks are attempting to re-litigate this despite the fact that the highest court in the land rejected their argument already.

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(2) the Supreme Court of the United States (SCOTUS) has expressly ruled that this statute is clear on its face and is not subject to any interpretation of any kind. Specifically the court simply restated the content of the statute which provides that the notice of rescission is effective upon mailing, which means that there is no lawsuit required to make the rescission effective, and the court noted that the statute made no distinction between disputed an undisputed rescissions.

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Hence it is premature to attempt to resolve questions relating to prospective issues which might be alleged in a lawsuit directed at vacating the rescission.

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This is only counter-intuitive if you assume that borrower’s should not have such power to cause such a huge impact by merely writing a letter. But the law is filled with such examples, most notably the Power of Sale in nonjudicial states. In both instances a private action carries the force of law.

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In nonjudicial states the consequence is the most severe remedy allowed in civil litigation — loss of property and in most  cases, the homestead of the property owner. In the case of rescission, the borrower procedural removes any allowed use of the alleged loan contract, debt, note or mortgage. But it is entirely possible and even probable in many if not most cases that no loan contract was ever consummated in actuality by consideration from the payee on the note to the maker of the note.

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Consummation is another “fact” that can only be determined by a court after due process — pleading, defenses and a trial. Such a case is NOT about whether the rescission was effective. It is about whether the rescission should be vacated or enforced as to the three duties of the “lender” after receipt of the TILA Rescission.

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If that lawsuit is not currently pending and timely filed, there is no option for the creditor except compliance, to wit: (a) return canceled note (b) release encumbrance and (c) disgorgement and payment of of money to the homeowner. Only AFTER those duties are fully satisfied may a creditor make any demand for payment, and even then there is no collateral for the debt that the creditor says is due.

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.
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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.
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16 Responses

  1. I hate to Pop your Bubble Sweetie…. But could you Please show Proof of your Claim that I am a hater?

    Strike #1

  2. Shadowcat, E. Tolle, and Storm/Strom aka Bob Hurt or whoever you are should find your own sandbox. You guys are as “haters” who couldn’t carry Neil’s jockstrap on a good day!

  3. Not sure what program you’re referring to here that I would know anything about, I just toss peanuts into the stands.

    My hunch is that Storm is Rock, the very same Rock that was made into gravel during the original debate here post-Jesinoski.

    One thing I do know is that while I believe Neil is correct on the law as he has unpacked the Jesinoski ruling, that’s a far cry from believing that the courts across the land, yes those same courts that have been giving homes to banksters by the millions like it’s a business model…..will suddenly change their tune and rule against the Masters Of The Universe. Oligarchies don’t play like that. It will be a long time if ever before this gets settled out. And since when has this Supreme Court been a friend to the masses over their corporate owners? Since…oh say….never?

    I think NPV nailed it as to why there’s a rescission package for sale. With all deference to Neil, selling yet another packaged product with a debatable ‘use by date’ on a site like this is sort of like hawking grass-fed tenderloin tips smothered in a shiitake mushroom sauce in the slums of Calcutta. One’s last nickels and dimes might be better spent on a real all weather tent with a storm fly and double entry zippers for when Bank of America tires of their weak local counsel and sends in the white shoe boys to do the job. Then it’s a done deal in this climate.

    If the courts were following the law, there would be no issue; save for the larger problem of legislator’s willingly passing FIRE sector written bills for campaign cash. Payola rules. And if you’re awaiting the day that the courts suddenly come to their senses and decide that there are truly two parties to every mortgage, you might as well just ride off into the rainbow on your unicorn.

    I give this post ten minutes tops. Then – POOF!

  4. Storm states, He or She, is the only one that has won their TILA. So if this is the case, why not share it with everyone that is fighting. Its BS when people make those statements and don’t help each other. Neil’s site is made for everyone to help not brag that they win and then state how everyone else is a loser. In my opinion Storm would be a loser for not helping a fellow homeowner.
    E. Tolle, please tell Storm the program

  5. Storm says:

    I don’t make the laws, I just follow misinterpret them.

  6. LOL!! Spell Check!
    Rescission

  7. Agreed! Everyone has a Recession Remedy !

    This crap that you can file recession Without knowing Why & What Harm was caused to you is BS!

  8. Neil is my hero. That is all.

  9. Why we developed the TILA Rescission Package? Umm… because it is another product to sell. Please let me know if my answer was correct

  10. I disagree Storm, there are certain LIP lending facilities that can be rescinded. They are specific to construction loans, but they do have a rescission remedy.

  11. Dulpeck.,
    My Post? Strike #1
    Me critize Neil? Strike #2

    I Love a Good Debate!

    One More Strike & You’re Out!
    Be Warned. …

  12. Shadowcat,
    Instead of criticizing Neil at every turn as you’ve been doing over the past year, why don’t you offer free consultation to struggling homeowners as Neil is doing with this free blog? Especially after this paragraph cited below in your last post, I think you should hang it up and leave us alone to learn from a selfless man such as Neil.

    “Lastly, the homeowners that have used our methodologies and/or services have won dozens of multi-million dollar awards, dozens & dozens of free title to their property, and every conceivable settlement offer under the sun attacking the contract; those cases are their for review, but scammers and the suckers like you, don’t want homeowners to know about them.’

  13. i’ve been doing a lot of reading and getting up to speed Storm – i think you are both right and wrong – on the matter of a purchase loan – right – on the matter of a refi wrong… from what i gather, the supreme court decisions are not from judges – they are from Justices… they are the final interpretation of law or statute.. they are the one place from which you cannot appeal in America – and they said congress was clear on TILA reg Z… a non-judicial action… requiring a creditor 20 days to file a suit to overturn the rescission OR a creditor or homeowner to file a suit within one year for money damages… i know i’m old – but “get with the times” – otherwise you risk sounding as absurd as the trial court judges who play ostrich every day… no offense…

  14. Monday 25 April 2016

    Scam Warning… Storm Bradford is a shill for the status quo, just like
    judges who believe everyone defending their property does not deserve
    a “free house.” He will cite 50 cases that show how [incompetent or
    poorly presented] self-defenders lost or never stood a chance, based on
    their pleadings.

    He will offer a worthless $5,000 package that will show over 140% in
    errors, even though there cannot be more than 100%, and then come
    up with no remedy, no historic clients that won their cases because of
    his work, etc, etc, except for a photocopy of a news story where a couple
    won some money for an over-inflated property and received an
    over-their-heads loan as a result. Just a photo copy of a story, not even
    the case itself.

    Bradford points the finger at Garfield for not producing any winning
    cases, and Bradford himself produces none. Then he has the temerity
    to come onto this site and call Garfield stupid. Low-rent, Bradford,
    low-rent, just like you.

    Back to troll for more business? Want to use me as a reference?

    Most cases are lost to judges who create the desired results, irrespective
    of law of evidence. The tide is ever so slowly turning, case by case, but
    no thanks to the likes of you who shill for the status quo and themselves.

    Maybe bob hurt will return, too.

  15. I would like someone to please elaborate on the legal standing of someone who rescinds a purchase money mortgage, as the Code specifically exempts such a rescission. Does a “creditor with standing” need to allege that the rescission is ineffective, or does the Court have the authority to nullify the rescission based on that exemption alone?

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