Since it appears that Judges around the country are finding wiggle room where none exists, it may be wise to add the fraud charges to the initial complaint seeking enforcement of rescission, injunction, and quiet title.
THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
Just a short note on why people should have us analyze their situation before they get into rescission litigation. It is true that there should not be any litigation where the rescission was sent, received and the “creditor” did nothing for more than 20 days and frequently more than 1 year and even several years. But Judges are continuing to resist the application of the procedure clearly set forth in TILA rescission slamming the door, where they can, based upon a presumptive finding of fact that the loan contract was consummated, and presuming it was consummated when the documents were apparently signed. Once again we are dealing with presumed facts that are most likely untrue.
And once again, despite Jesinoski, the courts are reading into the statute on procedure and saying that various conditions apply when the statute and the Supreme Court say otherwise. All rescissions are effective when mailed regardless of whether or not they are disputed.
So after due consideration I am inclined to say that even though it goes against what I think is correct procedure, it might be wise to consider filling the complaint with your allegations of fraudulent concealment etc that might equitably toll the 3 year expiration of rescission, and might convince the judge that there are questions of fact that need to be raised and just possibly might force the defendants to answer instead of relying on their motion to dismiss.
And this would enable the filer to argue against the use of common legal presumptions because the documents are not trustworthy when they are backdated, fabricated, forged, robo-signed etc. If the Judge agrees with that proposition then there is no basis on which the Judge can say the three year expired, the loan was purchase money, etc. It’s all thrown back on the “lending” side to allege the facts and prove them with legal standing — i.e., without the use of the note and mortgage.
Their singular problem might be revealed — that they don’t have an identified creditor and they have no way of finding the creditor because the money for the loans actually came from a dynamic dark pool.