Don’t Ignore That Request for return of Note At End of Case
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It is standard to request and receive the note at the end of trial. But there are two questions that should be answered.
- Why is the foreclosing party entitled to get the note?
- Why isn’t the homeowner entitled to get the note if they rescinded?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If the homeowner had rescinded, then the Federal Statute 15 USC § 1635 expressly says the homeowner is entitled to the note, not anyone else.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.