Rescission is One Strategy — But Don’t Abandon Your Other Defenses

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Just a short notice to everyone who has been following my blog. I may have over-emphasized Rescission as a strategy to the point where people are getting the impression that they don’t need to raise traditional defenses of standing, ownership, rights to enforce, authority, balance compliance with the contract in issuing notice of default etc.

Rescission is only one of the strategies to be employed in the right circumstances. We analyze the entire case and search for discrepancies, inconsistencies, lack of standing and many other defenses that have been successfully employed by us and others in foreclosure defense work.

The reason I am writing this is that in the last couple of weeks people have been calling saying that they have gotten nowhere with the traditional defenses and now want to try rescission. The problem is that most of those are coming after a final judgment of foreclosure and even after sale — at which point there is no loan contract to cancel and no note to render void.

The other problem that I have tried to emphasize is that rescission, especially if it is recorded, WILL result in further litigation that in most cases will require an appeal to have a likelihood of success. As simple as it is in the statute and in what the Supreme Court said, the banks are trying every angle to escape from it except compliance with 15 USC §1635.

So whether you are coming to us or going to any other law firm or forensic people, you need a thorough analysis of everything that happened with your alleged loan and a careful examination of the pleadings if you are already in court. We readily understand the reluctance to spend more money on what has been a frustrating experience, but the ONLY way you can select a strategy that will or might get traction is by having an experienced eye do a thorough review and report.

There is no magic bullet here. The attitude of the courts are changing but the deck is still stacked against the borrowers. The borrowers who are winning their cases are doing so because their attorney has carefully analyzed every piece of paper and selected not a shotgun but a rifle with a handful of bullets on which he or she will seek to focus the court’s attention.

Since 2006 I have maintained that TILA Rescission is the great leveler. But it means nothing if courts won’t apply it. The trial courts are clearly dodging and weaving around rescission. So if you are using this strategy, you can expect litigation on alternative theories in many cases, to wit: either the loan contract was never consummated or it was canceled by rescission. Either way the mortgage is gone — but not until you can get a judge to say that. Relying solely upon rescission without aggressively defending the foreclosure is fighting with one arm tied around your back.

Get an analysis from someone who understands what they are looking at. And if your lawyer chooses not to use rescission he or she is only looking out for your best interests since the litigation over TILA rescission can be expensive and lengthy. It doesn’t matter if I am right about it. What matters is what can work.

As I said yesterday despite a clear announcement from the Supreme Court bank lawyers and trial judges are nevertheless litigating the same issues as though the statute, the regulations and the Supreme Court are irrelevant.

We have seen hundreds of thousands of rescissions over the years and most of them did in fact cancel the loan contract and void the note and mortgage, as a matter of law.

Thousands of judges on the trial bench and the appellate bench got it totally wrong. Apparently they are still rebelling and seeking to get it wrong again. In effect these courts are over-ruling the Supreme Court of the United States which is impossible under our constitution. Right or wrong, that means that extra effort must be put into more traditional defenses, which are in fact getting increasing traction.

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27 Responses

  1. Thursday 28 April 2016

    Apologies, Anon… I just noticed in a re-read that your mention of the
    assignment was two months after your rescission. I missed that last world.
    If you raised the issue of rescission in your state case, ignore my
    response, entirely.

  2. Thursday 28 April 2016

    Anon NE…

    I am not a lawyer, and the following is based on my limited experience.

    >So is it true that a holder does not have to prove the purchased and
    >own the debt in order to foreclose?

    Yes. Holder status is prima facie evidence sufficient to initiate a
    foreclosure proceeding. It can be challenged, [rebutted] but only
    immediately in one’s response, as a defense, and if not raised then
    is waived.

    >The have a forged fabricated assignment that I feel should be void.

    Deal only with facts, not feelings.

    >The assignment is dated more than 2 months after my rescission.

    Courts consider assignments a memorializing of the actual transfer.
    The more pertinent question is, when was any transfer alleged and
    under what conditions? Trying to win a case on a faulty assignment
    does not work. Too slippery a slope. If there are questionable
    circumstances in how the holder became a holder, that can be attacked
    in any reconsideration.

    You make no mention if your plaintiff is a securitized trust. If so, how the
    trust acquired the note is important. If you do not know why, you are
    not putting enough effort into your case. It ain’t easy.

    >I cannot file an appeal until WF files for and is granted a final judgment

    In judicial states, an appeal cannot be filed until the judge makes a
    determination that the case is final and now appealable. I do not know
    about non-judicial states, but I would think they are similar if not the same.

    >…should I submit another motion showing that he failed to address the
    > issues raised in the motion ??

    I would, but based on local rules of procedure and backed by case cites
    supportive of your position. You are being given the runaround by the
    judge because [my belief] you are no match for him/her. Any issues you
    raise had best be substantive, have merit.

    >Can I file a federal lawsuit right now since a final judgment has not yet
    >been entered?

    You can file a federal law suit anytime, but you cannot relitigate your
    state court action. There is the Rooker-Feldman doctrine which is a
    legal principle that federal courts do not have jurisdiction to review
    decisions from a state court. [Rooker v Fidelity Trust, 263 US 413]

    >What would my lawsuit be based on?

    It would have to be based on issues not raised in your state court action. As a tactic, if you have not had your house sold, yet, I would
    send a notice of rescission to your plaintiff, [actually in c/o the atty],
    and file in with your county recorder, and do nothing more, at that point.

    Should you lose, you can initiate your appeal, if you have any basis for
    doing so, but I would focus on taking up the rescission issue in federal
    court, assuming the plaintiff/atty in your present case does not timely
    respond within the 20 day window.

    The reason why I mention that as a tactic is because Rooker-Feldman
    does not apply because this is an issue you are raising for the first time,
    which is why I said do nothing after sending and recording it. If the atty
    brings it up in court, refuse to discuss it, telling the judge it is not an
    issue.

    Now you can go after the current plaintiff as a defendant in your own case
    where you are plaintiff. This requires some judicial guts, if you will, and
    you will have to know how to present your case. Fortunately, Garfield
    does that for you with all the articles and radio programs available here.

    Everything by a self-defender [I never, ever admit to being pro se], is an
    uphill battle, but there is evidence, however small, that recession is
    gaining traction, certainly in argument form, and for me, that is all I need
    to fight the bastards.

    Remember, I am not an attorney and am merely expressing my opinion,
    not legal advice. You have to make your own decisions based on what
    it best for you.

    Never give up, and learn as much as you can, in the process…

    Cheers…

  3. That’s the intellectual and legal arrogance where these theories end up being ignored by 99.9% of people and banksters use to make us look like internet crazies. I’ve got piles of information and been through the whole cycle and still fighting after illegal eviction by bankster WITH local government. That is real and many of us are fighting against this outright theft in the now. Basic right and wrong and defense of our rights. Still no example of successful birth certificate, administrative approach although I have used to some extent since lawyers act like bankster employees and IGNORE LAW. Scalia’s decision showed we do have a Constitution and rule of law were now finding out how far the corruption goes. I agree we need to work together and hold officials, courts and lawyers accountable and demand the relief mandated. If your in a court that is hostile to homeowners and pro se your better off calling out ur officials then figuring out some theory or use Garfield’s info to stay in ur home until u can count on a level playing field.

  4. MN… In my judicial state the court granted SJ in favor of the servicer WF… Fannie Mae allegedly sent them the note to foreclose as holders.

    So is it true that a holder does not have to prove the purchased and own the debt in order to foreclose?

    The have a forged fabricated assignment that I feel should be void.

    The assignment is dated more than 2 months after my rescission.

    I cannot file an appeal until WF files for and is granted a final judgment

    I am considering filing a motion for reconsideration, but have already had one denied …but he did not address the issues raised in my motion in his order denying …he simply denied with a vague paragraph saying prio hearings have already addressed the issues. But I raised new issues in my motion…should I submit another motion showing that he failed to address the issues raised in the motion ??

    Can I file a federal lawsuit right now since a final judgment has not yet been entered?

    What would my lawsuit be based on? Why federal and what am I alleging in my lawsuit?

    Thank you.

  5. Hammertime, mn is correct.
    You have to go back into history and learn about the Federal Land Trust.
    The Land used to collaterize Nations National debt.

    Have you ever heard the Legal Joke….Free Rent?
    Hello…
    Life Tenancy ?

  6. Thursday 28 April 2016

    Hammertime:
    >We still believe in a democracy…

    You really do not have a clue. I am feeding you bits of information from
    which you could launch further inquiry and perhaps learn something you
    never knew before.

    This country was founded as a Republic, but it has been corrupted into
    a democracy. Do a research comparison between the two words to
    better understand how your way of [non]thinking plays right into the
    hands of the elites who want the inhabitants of this land perpetually
    dumbed down.

    You think you do not need to know about the past?

    “Those who do not know history are doomed to repeat it. – Edmund Burke

    Hammertime:
    >For all WE know…

    There you go again with the “WE, now capitalized apparently for added
    emphasis. You fail to identify who “WE” are? Apparently just a small
    group who thinks as you do?

    It is “people” like you I fear the most.

  7. We still believe in a democracy no matter what the corrupt leadership does. We don’t need to figure out what happened 200 yrs ago to know weve been screwed and homes stolen. For all WE know part of the scam is to have us get caught up in theories and keep giving lawyers, judges a pass to finally “get it”. All we have to is look at all the derivative bets on our homes and country. And now they’re doubling down selling the “debt” and homes to the same bastards that created this mess in this decade.

  8. mn, … Exactly! 💫🌟💫
    Good Work!!!

    So Why beat a dead horse?

  9. If you live in a State that was among the 26 that filed the amicus brief in the Jesinoski case, we should start campaigns to inform the attorneys general of these states of what the judges are doing in their respective states.

  10. Annonymous Northeast,
    I like your thinking as a group of homeowners we are being denied equal protection under law. So now how to go about it? There is enough smart and educated people hear, everyone put on your thinking caps and lets figure it out. There has to be common ground and that may be the way.

    Start commenting, EVERYONE, THINK

  11. Wednesday 27 April 2016

    One can lead a horse to water…as the expression goes. Good luck with
    your beliefs, hammertime. I suggested due diligence for a reason. FYI,
    there is no nation, as you incorrectly seem to believe. Your time reference
    to fraud and corruption speaks to your ignorance on the issue. It goes
    back well over two centuries. You have done no discovery here.

    You speak in banal generalities. Who are “We?” I know for a fact I am
    not a part of “We.” Who are the “people?” I also know for a fact I am
    not one of the “people.” Are you a part of either, and if so, based on
    what authority? Do you actually know to whom the reference is made in
    both instances?

    I will repeat for the last time on this topic: do your own due diligence.

  12. $300 mil+ in CA alone some of which was to go to legal aid and training of lawyers. Instead non profits and lawyers repeat the same bank script. Billions nation wide. We need to demand this money and our homes back with no lawyer or lender “help” by ENFORCING LAW.

  13. MN We the People make the Constitution or there is no nation. We can’t go down rabbit holes. There is no comparison to the fraud and corruption of the past 15 – 20 years.

  14. I agree. In CA there is a grand jury process from the settlements that could be organized as well.

  15. Why does an appeal cost 25,000 ?

    Too bad we as a group of citizens cannot find young, liberal, bank hating lawyers who would be interested in filing a federal lawsuit on behalf of us ..its clear we are being denied equal protection of the law, being denied equal access, being denied due process, being denied our federal TILA statute protections that are law, and we’re confirmed and validated as law by the Supreme Court in Jesinoski.

    We have failed to get the word out …we have failed to bring attention to this travesty of justice.

    Neil has done his part in educating us …he has identified the facts of how this Ponzi scheme has operated under layers of deceit and lies. The fraud involved is criminal …and the government and courts have deemed it acceptable …we the victims are collateral damage . Our own government and judiciary has deemed us expendable. Public policy. It is now public policy for them to bury the victims of wrongful foreclosures in the deep pits of the barren watelands that we call the courts. The courts are the killing fields …where the the dirty deeds are done dirt cheap …where the persecuted group are scorned and spit on.

    This calls for a federal investigation and lawsuit filed on our behalf. This is a blatant denial of rights and laws to a specific group of people, which is a major crime.

  16. Wednesday 27 April 2016

    Clarification: The Erie RR v Tompkins supreme court case was in 1938.
    It was when Law was blended with Equity.

  17. Usedkarguy,
    Good to hear from you. We need the old timers like us to chime in. I agree with what you say, but how in the hell is a homeowner going to afford to beat them. Also how did Wendy turn out.

  18. Melissa, we all have to become lawyers.
    And don’t think for a minute that these judges aren’t getting paid off with principle reductions on their MERS mortgages to keep the banks on top.Corruption takes many forms in the way of bribery and graft. What better way to pay off a judge than to reduce his mortgage balance unbeknownst to anyone. These guys are loaded with bank stocks and don’t think twice about protecting their own interests. That is evident. Carry on, girl.

  19. Wednesday 27 April 2016

    Hammertime:
    >These judges and lawyers have made their allegiance to criminal
    >banks.

    No. The US went into bankruptcy in 1933. That is when FDR declared
    a bank holiday. Why? Shut the banking system down an reopen them
    all under the foreign-owned federal reserve system. The US has been
    totally owned by the globalist creditors, since. This is why the organic
    united States and the organic constitution no longer exist under the
    existing de facto legal system.

    Everything in court is contract based. Everything.

    The judicial system went from common law, [public law,] to public policy,
    starting with the Erie RR decision, around 1937,as I recall, and the entire
    judicial system is Admiralty jurisdiction, based on international contract
    law, the Law Merchant, now codified by UCC. All judges are sworn to
    uphold the BK system owed to creditors, and they are required to
    collect money from people to satisfy the creditors.

    Courts will not recognize any decisions prior to 1937, and every decision
    is based on stare decisis, those cases decided solely upon public policy.

    This is way beyond this site, and even Neil Garfield gets it wrong when
    he says there are two parties to a contract. Not under Admiralty, but
    the courts cannot and will not admit they operate under Admiralty
    Jurisdiction. The only remedy is UCC 1-308, reservation of rights.

    So when you get screwed in court, you only think it is from judges that
    are unfair and ignoring the law. They are operating under a law different
    from what you think or know.

    Do your own due diligence.

  20. People are still missing the point. The only to win is to have money, a good attorney, experts, and then you will still have to go thru the appeals process. I am not discouraging anyone, I what to beat the bastards, but add up the cot. Just go to this site and add up, the title report, securazation report, expert witness, hourly rate, tila package, etc. Then find a attorney in your state to be the voice and work with the Garfield team, that alone is difficult. Add it up, a appeal alone is 25,000.
    There has to be a way that people can afford to win with out giving up everything they have.

  21. Bologna TILA decision made it clear the purpose of the law rules. These judges and lawyers have made their allegiance to criminal banks.

  22. Wednesday 27 april 2016

    Judges in chancery can rule however they want, and most are home
    owner adverse, regardless of the merits of any case. That is the reality.
    Rescission is a federal staute, and it is only my opinion that I keep saying
    it belongs in federal court.

    It costs $400 to file a case in federal court. Even federal judges will rule
    in favor of lenders, irrespective of a borrowers case, and for the same
    reason, because they can and do get away with it.

    That is the judicial terrain everyone confronts, and it will not change in
    the foreseeable future.

    Neil has provided great information, and he does not sound like a
    salesman to me. He has to be careful in what he says because he is a
    laywer and still an officer of the court.

    It ain’t easy, and I am about to find out if I can do it.

    Cheers…

  23. What recourse do we have when the lower courts disregard the Supreme Court ? How is this even possible?

    There should be a mechanism in place that prevents this from taking place, one that does not require a citizen to keep paying for more legal representation over and over again. This is insanity and sounds more like a third world bannana republic dictatorship …not America.

    Who the hell is in charge of keeping defiant judges in line?

  24. I agree, but right now I have been following this blog and fighting for 7 years. I am still in my home and in the last few weeks Neil sounds like a sales man and not the advocate for homeowners.

  25. Unacceptable. If we were talking about a gun rights or gay rights decision the courts would be called out by the media and every advocate or any ordinary citizen.

  26. Neil,
    You are correct, but now you sound like all other attorney’s. It is going to be expensive and homeowners do not have 50,000.00 to fight. So in a round about way they lose even with your blog. Not good news.

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