Don’t Ignore That Request for return of Note At End of Case

Don’t Ignore That Request for return of Note At End of Case

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

 

It is standard to request and receive the note at the end of trial. But there are two questions that should be answered.

  1. Why is the foreclosing party entitled to get the note?
  2. Why isn’t the homeowner entitled to get the note if they rescinded?

If the alleged plaintiff foreclosing party lost the case on the basis that they didn’t have standing and did not get a specific ruling from the court that they acquired standing after suit was filed, then the law of the case, in my opinion, is that they failed to show any right to possess the note. The note should not have been “returned” to the attorneys for whoever was named as Plaintiff in the foreclosure suit because they never had any legal right to it in the first place.

If the homeowner had rescinded, then the Federal Statute 15 USC § 1635 expressly says the homeowner is entitled to the note, not anyone else. The note is void and the homeowner is expressly named as the party entitled to receive it. Giving it to the Plaintiff would violate Federal law and violate the express pronouncement of the US Supreme Court in Jesinoski v Countrywide. The very first duty triggered by mailing the notice of rescission is the duty to return the canceled note. On what basis could a court give the note to anyone else?

These are questions that should be addressed.

5 Responses

  1. Joyce gets it!

    Double liabilities for borrower named on the note and the Grantors Mortgage.

    Ah Yes… note can not exist..no lone be a recorded lien (their not) as a parallel filing …upon the filing of the Grantors Mortgage
    (The Mortgage Note)

    How did KC become a borrower ?

  2. One attorneys successful Motion for stay pending appeal ….http://www.stayinmyhome.com/stay-pending-appeal-cancellation-of-a-foreclosure-sale/

  3. TILA mandates that the Creditor take steps within 20 days of the rescission notice …one of those required steps is to cancel and return the note to the consumer ….and to remove the mortgage lien from the land records …and to return any payments made. … 3 steps required of the Creditor in order to comply with the statute.

  4. IRC 1031 Exchange and Revised UCC9 regarding Liens on Real Property w/ Damion Emholtz, by law, they CAN NOT do both, which makes the mtg null and VOID!!

  5. My Appeal was filed last week ..it could take 6 months to 1 year before the Appellate Division decides my Appeal. The Trial Court granted the servicer Wells Fargo Summary Judgment , stating that my timely TILA Rescission did not mention that I was offering to pay Tender . the Plaintiff had never raised that argument, they simply stated that we did not have a right to rescind ..but they never produced any evidence such as the signed acknowledgments ..they said that after 3 years you can’t raise that you rescinded ..the court agreed …then I motioned for the Court to reconsider in light of Jesinoski …the court denied my motion and said I had never offered the tender in my Rescission letter.
    So my Appeal is filed …. My other argument was based on the fact that Wells Fargo lacks standing due to several different issues …1) that they fabricated an Assignment to themselves AFTER we had already rescinded under TILA….2) that the last party to have claimed to be the holder in due course was Washington Mutual who went out of business in 2008 …3) that according to Fannie Mae website, their customer service agents , the loan information statement and MERS website , all claim that Fannie Mae owns the loan and still does , that Wells Fargo is only the servicer … But Wells Fargo sent the notice of Intent naming themselves as the lender … This is the basis of the Appeal …that we rescinded under TILA within the 3 years in 2007 …the creditor failed to comply or act in 20 days …and now in 2014 Wells Fargo files a foreclosure complaint against void instruments ..they attempt to establish their standing by using the void instruments and a fraudulent assignment that they fabricated to show that they aquired the loan .. And that we had rescinded within the 3 years to do so in 2007…

    But today the Sheriffs Sale date was placed on my front door … March 21, 2017
    I am allowed 2 statutory stays ..each stay is for 2 weeks
    What should I do next?
    If I motion for the trial court to stay pending appeal they will most likely deny the motion… Then I can ask the Appeal Court to stay ..but not sure if they would without me putting up money or bond ..
    Should we consider filing a Bankruptcy with adversarial pleading against Wells Fargo as an unsecured creditor?
    Hate to lose the house while my TILA Rescission is under appeal

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