11th Circuit Rebels Against SCOTUS on TILA Rescission!

This shows beyond a shadow of doubt that the courts are not going to “allow” claims or defenses based upon the effectiveness of TILA Rescission. Despite the clear wording of the TILA Rescission federal statute and the clear and unanimous and FINAL decision in the SCOTUS Jesinsoki decision, judges think they can disagree with a statute, disobey the boss (SCOTUS) and rewrite the law, thus violating the U.S. Constitution which is the highest highest law of the land. Eventually this decision will be struck down, just as before, when the courts tried to avoid TILA Rescission.

Get a consult and Chain of Title Analysis! 202-838-6345
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-
Hat Tip to Michael Bazemore — Fight on!

This appears to be flat out wrong and in direct conflict with SCOTUS. They are sticking with the nonexistent need to prove your grounds for rescinding which Jesinoski said was wrong because that is NOT what the statute said.

Jesinoski stands for the proposition, as stated in that opinion from SCOTUS, that if a statute is clear on its face and otherwise passes constitutional muster no court has the authority, discretion or even jurisdiction to (a) interpret the statute because there is no ambiguity in the TILA Rescission statute (that is final now) or (b) apply standards for enforcement or recognition that are contrary to the express terms of the statute.

This is a direct rebellion by the 11th Circuit against SCOTUS. The 11th Circuit is essentially disobeying its boss and the U.S. Constitution. Only SCOTUS has the last word. When SCOTUS speaks the matter is over — not subject to lower courts issuing orders that contradict the TILA Rescission statute and certainly not issuing orders that are in direct conflict with SCOTUS.

PRACTICE NOTE:

Make sure you do not recommit the error of pressing the court “to enforce” the rescission. There is nothing to enforce. The rescission is already effective. Your goal is to stop anyone acting as though the rescission is not effective. And THAT is a claim for injunctive relief NOT predicated on whether or not the rescission is effective or was correctly sent for the right reasons. Your claim is based upon the fact that the rescission was effective upon mailing and is still effective.

The best analogy to use is a court order. Whether it was right or wrong you still have to do what it says unless and until some aggrieved party establishes that they are injured by the order (i.e., establishes standing), then alleges why the order should not have been entered and the Court issues another order that vacates the “wrong” order.

The trick being played on the courts here is that the banks are essentially saying that judicial economy requires the use of legal presumptions and that TILA Rescission is nothing more than a possibility or legal presumption that can be rebutted. If a judge enters an order it isn’t raising a possibility or even a presumption. It is stating, with the force of law, what happens next.

Why is an order from a court of competent jurisdiction effective on the day of rendition as a matter of law? Simple, there is a statute in every state that says so.

Why is TILA Rescission effective on the day of mailing as a matter of law? Simple, there is a Federal Statute, Federal Regulations and a decision from the highest court in the land that says so.

The only possible legal issue remaining of TILA Rescission is WHEN a creditor can challenge the rescission. Like a court order, they can file a lawsuit (something no borrower needs to do) and like every lawsuit, they must allege the following:

  1. Plaintiff/Petitioner is the creditor in a loan transaction in which the Defendant was loaned money by XYZ and then purchased for value by Plaintiff.
  2. Defendants have sent a Notice of Rescission under 15 USC §1635 et seq.
  3. As a result, the note and mortgage have been rendered void and hence unenforceable.
  4. Federal Statute 15 USC §1635 provides for rescission only in the event that the disclosure rules are violated under the Federal Truth in Lending Act.
  5. Federal Statute 15 USC §1635 allows rescission only up to 3 years from the date of consummation of the loan transaction with the lender.
  6. The lender (XYZ) complied with all required disclosures under Federal law.
  7. The date of consummation of the loan transaction with the Lender (XYZ) was August 1, 2002. More than 3 years have expired.
  8. The sending of the Notice of Rescission was wrongful in that all required disclosures were made and their right to rescind expired in 2005.
  9. As a direct and proximate result of the above, the Plaintiff has been financially damaged, its security interest in the property has been diminished or eliminated, and the promissory note has been rendered void and therefore unenforceable leaving the Plaintiff with an unsecured unpaid claim in equity.
  10. In order to seek legal redress, the Plaintiff has been obligated to seek the services of legal counsel and ahs incurred large amounts of internal costs to determine that the required disclosures were made and that the right to rescind had expired, all of which the Defendant should be liable.
  11. Defendants’ actions were willful, intentional and the recording of the improper Notice of Rescission was the utterance of a false instrument for the sole purpose of gaining leverage to reduce a legitimate debt by abusing the process of law, for which the Defendant should be sanctioned and required to pay punitive damages.

WHEREFORE, Plaintiff prays this honorable court will

  1. Take jurisdiction over the subject matter and the parties.
  2. Enter an order declaring the Notice of Rescission void, ab initio.
  3. Enter an order canceling the instrument recorded at Book ___ Page___ (Notice of Interest in Real Property)
  4. Enter an order awarding Plaintiff compensatory damages in excess of $75,000
  5. Enter an Order of sanctions against Defendant as the court may deem just and proper
  6. Enter an Order awarding exemplary and punitive damages to Plaintiff in an amount likely to discourage others from attempting to copy the illegal behavior of the Defendant and to punish the Defendant and thwart any other plan the Defendant might have to misuse the TILA RESCISSION STATUTE
  7. Enter an order awarding Plaintiff costs of this action, including attorney fees and all associated expenses
  8. Grant such other and further relief as the Court may deem just and proper

A quick look at the above easily reveals that such a lawsuit would be irresistible to banks if they thought they could win. A few lawsuits like that and TILA Rescissions would be crushed. But their main problem is that it becomes a matter of PROOF as the allegations contained in Paragraph 1 and Paragraph 6 and Paragraph 7 and especially Paragraph 9.

15 Responses

  1. Here is the link to the recording of the Oral Argument at the 11th COA on June 29, 2017. Remarkably the panel issued their ruling less than 10 days later. What was the hasty ruling meant to convey?

    Decide for yourself whether justice was served:

    http://www.ca11.uscourts.gov/system/files_force/oral_argument_recordings/16-14868.mp3?download=1

  2. Seems like time for revolution ! It just keep goin and going is there an end to all this treacherous blatant theft of property ,equity ,any savings you HAD to retire on but spent on attorneys before you were aware it wouldn’t stop the flow of shite that is choking us out ?i for one am rather tired of all this .house stolen by deutsche bank indymac And a cpl no good att.

  3. AnonNJ Sounds like another case where judge is on another planet. Here’s NJs own robosigning report robosigningadministrativeorder.doc-169037672 Google it or title “The Matter of Residential Mortgage Foreclosure Pleading and Document Irregularities” Their may be older or more complete version. Did u reference or maybe can use on appeal as judge going against public policy.

  4. @MB on the B

    Gads, friend, you’ve got to be feeling low. That’s just too much crap to take. Hoping you find an avenue to rectify this terrible injustice.

    Once rescinded, the note no longer exists. Any judgment after that point would have some difficulty coming up with a cause. That note cannot be used to state a claim. Void document.

    I’m no lawyer, just beginning to act like one in real life.

  5. I had to look it up , the 11th is Alabama , Georgia and Florida … The banks case rests on a double handful of outdated pre-Jesinoski cases and whining that the defendant didn’t state a reason for them to rebut (not necessary as we know) … The SC needs to bitch slap these ass-clowns hard.

  6. If the rescission was valid, as would be the case per the SC, this court jumped the shark by insisting plaintiff provide proof of claim when none is required. If defendant failed to contest the rescission within the 20 days it’s allowed to do so, the rescission stands. Period, and right or wrong. This court should have directly addressed the rescission, but didn’t. The lower courts’ decision should have been rejected/overturned, with prejudice.

  7. https://drive.google.com/file/d/0B2y3lrI44JZtUlRuZm1TTmZLZU0/view

    Brief filed by opposition to Michael Bazemore’s pleading in appellate court.

  8. We are working on a Hearing for Reconsideration. I welcome all the constructive insight you can offer! The Writ of Mandamus makes sense to me! Thanks!

    Are you aware of any cases were it was invoked with a favorable result.

    Keep Fighting Everybody!!

  9. No justice for homeowners and Americans. Two tiers of justice, one for the banks and the wealthy and another one for you and me.

  10. “Gresham’s dynamic” on legal side? Dishonest “lemon” market dynamic taking over courts.
    http://neweconomicperspectives.org/2017/07/cfpb-arbitration-rule-pro-honest-businesses.html

  11. HOLY BATCRAP BATMAN!!!!

  12. My case is under appeal in New Jersey ….the trial court judge threw everything he had at my TILA Rescission including the following arguments made by him as he rejected my rescission and granted summary judgment to servicer Wells Fargo …

    1- I did not tender …he cited prior case law that was in effect prior to Jesinoski.

    2- He said that Jesinoski was not about tender, if was only about whether a borrower needed to file suit .

    3- When I pointed out Justice Scalia’s statements in the decision regarding tender ..the judge said that it was mere “dicta” and that he was not required to follow what Scalia wrote about tender.

    4- Although Fannie Mae records still show that they own the loan, he rejected that lack of standing argument and said that Wells Fargo has an assignment and note …both are fabricated frauds.

    5- he rejected my fraud arguments by stating on the record that the mortgage industry and economy rely on these documents and we’ll…that’s just the way things are ..in refusing to delve deeper into the forged assignment and fake copy of the note they had …7

  13. Here we are: Judges who think that they can rewrite the law of the land! Who knew?

  14. It seems the 11th simply took prior case history to concede conclusion, rather than directly establishing new disagreement with the SC. And, did not seem to address directly the rescission at all, instead attacking plaintiff’s lack of proper claim.

    I’m not sure I can disagree with their decision as it was made, though does seem to avoid rescission altogether, which it maybe should not have.

  15. Why doesn’t Bazemore bring a Writ of Mandamus to SCOTUS directing the 11th Circuit to do its job and reverse itself?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: