Distilling the 20 Points of TILA Rescission: 9th Circuit Allows “Claim” for Rescission Under WA Statute of Limitations

I have distilled the legal points and procedure of TILA Rescission down to their essentials and specifics as you can see below. In the case presented the 9th Circuit ruled in favor of the homeowner but in so doing continued to violate the law of the land enunciated by the Supreme Court of the United States and Congress.

Yes the homeowner should win but no, the homeowner should not be treated as having any burden of proof as to effectiveness of the TILA Rescission because the TILA Rescission statute is a self-executing statute that is effective by operation of law. It is not and never was a claim.

Astonishing. The 9th Circuit is drilling down on the premise that TILA Rescission is a claim rather than a self executing statutory event. This decision, favorable to the homeowner, not only engraves the “claim” theory in concrete, it applies a 6 year statute of limitations in Washington State.

The fact that the statute says the rescission is effective “by operation of law” is once again ignored. This may cause the Supreme Court of the United States (SCOTUS) to finally accept certiorari in cases involving TILA Rescission and to once again (See Jesinoski v Countrywide 135 S. Ct. 790, 792 (2015) scold all the lower courts for their excess in reading into the statute what is either not there at all or which is in direct contradiction to what the TILA rescission statute says. 15 U.S.C. §1635(f).

The message from SCOTUS should be clear: Just because you don’t like the result doesn’t mean you can reinvent the statute to say what you think it should have said. Both the trial court and the 9th Circuit were massively wrong, and eventually that will be made clear — but not until considerably more damage is done to American homeowners, the real estate market, our society, and the financial system generally. If you really want to see a correction to bad bank behavior this is the tool.

==============================
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
==========================

see 9th cir hoang v bank of america 17-35993

Had they accepted the simple wording of the statute and the wording of the SCOTUS decision in Jesinoski, the decision of the 9th Circuit would have been on target. As it is, they have muddied the waters even further.

They continue to regard TILA Rescission as a claim, thus applying the statute of limitations and avoiding the distasteful issues (for the courts) that would be raised by recognizing what SCOTUS and the TILA Rescission statute have already said: the TILA Rescission statute is procedural.

Upon sending the required notice the claim of the creditor is changed from the note and mortgage to a claim under the statute. The note and mortgage vanish just like the debt vanishes and when the note is executed (assuming the Payee is the same party to whom the debt is owed). The purpose both the TILA Rescission statute and the merger doctrine is to to bar two claims on the same debt.

The problem that the courts have manufactured is based upon the premise of “I don’t’ like that statute.” But if the statute is to be changed it MUST be done ONLY by Congress. SCOTUS (Jesinoski) has already pronounced the TILA Rescission statute clear and unambiguous permitting no interpretation based upon any perceived “ambiguity.” The courts hands are legally tied but they continue to operate in derogation of the statute and SCOTUS.

Here is the ONLY correct application of the statute — according to 15 USC §1635 and SCOTUS in Jesinoski v Countrywide 135 S. Ct. 790, 792 (2015):

  1. Upon sending a clear notice of a desire or intent to cancel the loan contract, and either its actual or presumed receipt (i.e. US Mail) by the owner of the debt or the owner’s authorized representative (or agent with apparent authority) the loan contract is canceled “by operation of law”.
  2. This renders the note and mortgage void. There is no “but”.
  3. The statute substitutes a different creditor claim for what was the note and mortgage, to wit:  a statutory obligation to pay the debt after the owner complies with three conditions: (a) payment of money to the borrower (b) cancellation of note and sending it to borrower and (c) satisfaction of mortgage filed in the county records.
  4. The three duties are conditions precedent to demanding tender of property or money to pay off the debt.
  5. The fact that the three duties MAY be subject to an enforcement action by the borrower does nothing to change the effect of the cancelation of the loan contract by notice of TILA Rescission.
  6. There is no claim for enforcement of the three duties if the TILA statute of limitations has run.
  7. There is no claim for TILA Rescission. Either it was mailed or it wasn’t. There is no case or prima facie case except in enforcement of the three duties.
  8. There is no lawsuit required or even applicable to demand a court declare that the Rescission was effective. It is already effective simply by mailing. It already happened by operation of law. All decisions by all courts to the contrary are wrong. SCOTUS already said that.
  9. If the owner of the debt fails to either sue to vacate the rescission and/or follow the statutory duties, the statute of limitations under TILA is running and they may lose their right to demand payment of the debt completely. Once the TILA SOL runs out the right to collect the debt is dead after TILA Rescission.
  10. If the borrower fails to sue to enforce the three creditor duties, he/she is gambling on the TILA SOL cutting off the debt. The same statute of limitations cuts off the right of the borrower to sue based upon TILA claims.
  11. If the borrower does sue to enforce the three statutory Rescission duties the ONLY thing he/she should be claiming is that the statutory duties exist by virtue of 15 USC §1735 and that the Defendants failed to comply. Such an action could be after the SOL has run out seeking a declaration that the debt is dead (depending upon how SOL is treated).
  12. Neither the borrower nor the owner of the debt can reverse the effect of the TILA Rescission law. It is effective by operation of law and self-executing.
  13. Whether the notice is sent within 3 years or outside of the 3 years could be grounds to vacate the rescission which was already effective by operation of law. But that creditor lawsuit must be brought within the 20 days due for compliance with the three statutory duties. Minutes of the congressional discussion on this statute are quite clear — there should be no possibility at all for the presumed creditor to stonewall the borrower. SCOTUS said as much in Jesinoski, when it declared that no further action is required from the borrower other than the sending of the notice.
  14. The notice of rescission is facially valid if it declares the intention or desire to cancel the loan contract. There are dozens of cases saying exactly that. But it might be facially invalid if it expressly states that the contract it seeks to eliminate is outside of the three year limitation of “Consummation” (otherwise the 3 year limitation requires parole or extrinsic facts and requires finding of facts). This admission on the face of the instrument used to declare TILA Rescission MIGHT enable the presumed creditor to ignore it and ask the court to ignore it, at their own peril.
  15. If the creditor’s claim is that the rescission should be vacated (especially if it is recorded) or ignored because of the three year limitation or for any other reason, that is a lawsuit or an affirmative defense requiring allegation and proof of facts that are parole or extrinsic to the fact of the notice of TILA Rescission.
  16. There is no statute of limitation on anything that is effective by operation of law. It is an event, not a claim. Hence notice of TILA Rescission cannot be subject to interpretation as a claim and therefore cannot be subject to any statute of limitations.
  17. Thus all claims upon which courts took action or are taking action or will take any action based upon a loan contract that was canceled are VOID and completely undermine judicial standing and jurisdiction of the court. Subject matter jurisdiction is absent because the loan contract no longer exists. The creditor may either sue to revoke the rescission and cancel the instrument of rescission if recorded or make a claim based upon the statutory debt created by 15 USC §1635.
  18. The ONLY thing that could make void “sales” (of title to real property) final is Adverse Possession which typically takes around 20 years to establish. Check state statutes. The elements of adverse possession include but are not limited to continuous, open, notorious, peaceful, hostile (to actual owner), actual, visible, exclusive, and adverse. This is the “reset” that I forecasted 12 years ago. State legislatures are being lobbied to make such sales final even though they are legally void.
  19. All attorneys for the financial industry are in agreement with this analysis. The industry rejects the analysis because they correctly believe that they can persuade judges to act and rule opposite to the express provisions of the statute. So far they are right — except for the the  Supreme Court of the United States who is the sole source of a final definition of the law in this country.
  20. Anyone who seeks a change from the the current statute or the Supreme Court decision must do so through efforts to have Congress change the law.  If the rule of law is to prevail, the above procedural analysis must be followed in every instance.

29 Responses

  1. And, Bob G — that’s where the problem lies. These “crisis” loans were funded only for “cash-out” by a warehouse lender. The rest was “recycled” Mortgage contract did not stay with the note — although courts have discarded this theory. The big problem is — the documents have largely been purged.

    Like

  2. @BOOTS…Both. It does not apply to Refi’s as long as the refi is from the same creditor secured by an interest in the same property; See 15 U.S. Code § 1635 (e)(2).

    Like

  3. Bob –
    error
    TILA ONLY applies to refi’s – it does NOT apply to purchase loans…
    i’m sure it is late and that was just a result of you spending 24 hours without sleep rebutting everything you can (LMAO)
    hugs!
    greg

    Like

  4. @Boots…no, your car refi example doesn’t make sense. first, you don’t need to communicate anything to the original lender…he doesn’t care where the money comes from…you just need to pay him off. . second, the original lender can hire an agent to do the repo and auction the car off. third, you’re still entitled to surplus money proceeds from the sale of the $12K car. fourth, you can always sue your neighbor for breach of contract consequential damages, if you had a written contract. lastly, and what’s being discussed here, TILA doesn’t apply to refis. so no, your argument/logic doesn’t make sense, at least not to me, and I’m constantly in court litigating, and have been for the last 27 years, on and off.

    Like

  5. Refi Consummation Example:

    Scenario- You own a car that is under a finance agreement and you still owe $500 on the original note with repo rights to the seller, but the transmission goes out after warranty expires. You explain this to your neighbor and he agrees to loan you $1,000 (in writing) to both pay off the note and fix your transmission, conditional on the fact that if he pays off your old note you shall grant him, neighbor, a first lien position on your title to your car until you pay him off. You both sign it and communicate this to the original seller. Your neighbor (new lender) then gives you $500 to fix your transmission. Then, unknown to you, prior to your neighbor timely paying the seller his $500, your neighbor gets into a financial thicket which precludes him from timely paying you or the seller the remaining $500 on the original note. Your new deal is not consummated until all parties perform as agreed and all are made whole. But, because you are now in default, the seller comes, under a third party designate, and repossesses your car, including the new transmission. Your new lender (neighbor) failed in his duties but is only out $500 of his $1000 liability and you lose a car worth $12,000 because the new lender failed to “perform under the duties of the contract”.

    Does that make sense?

    Like

  6. Consummation remains an issue to be decided in courts between what local statutes say (as a presumption) and the actual events exhibited by parole or extrinsic evidence showing that all promises of the contract have been fulfilled to one another by and within the terms of the contracting parties.

    Like

  7. Marriages of convenience are frequently annulled ab initio (not divorce) for misrepresentation or failure to “consummate” the marriage subsequent to the issuance of a license or the ceremony. Consummation requires delivery of the promise.

    Like

  8. Consummation Example: If you agreed to borrow $1,000 (in writing) from your neighbor 1 to buy a used car from your other neighbor 2 (in writing-conditional on neighbor 1’s funding), and neighbor 2 accepted your extension of the promise from neighbor 1 (you all being pals) to fund the purchase, and neighbor 2 delivered you the car prior to being paid by neighbor 1 and then neighbor 1 gets into a financial thicket which precludes him from timely paying you or neighbor 2 – the deal is not consummated until all parties perform as agreed and all are made whole.

    Like

  9. Charles – nice summary –

    However the one thing most people miss is that under TILA, all parties with a recorded or significant interest in the property to be used as collateral must be served the same TILA notices as the named borrower (e.g. spouses, partners, Land Trust Trustees, etc.) It is the duty of the prospective lender to identify these parties and serve them. It is not the duty of the borrower.

    This was established as law in Illinois under case Financial Freedom Acquisition LLC v. Standard Bank & Trust Co., 2015 IL 117950

    Failure to serve all essential interested parties is a failure of the Originator’s (so called Lender) duties and allows the clock to tick for 3 years from consummation.

    Like

  10. @ANON…Here’s the point. NG is looking for a silver bullet to take down the whole corrupt RMBS foreclosure system. That is not going to happen. The powers that be, a/k/a The Deep Political and Financial State, are just not going to allow that. That’s the reality, whether one wants to believe it or not. So…..we have to win these cases one at a time with admissible evidence and other tricks of the trade. That, they will allow, because the win would be case specific, not systematic.

    Like

  11. Bob G — was not intended for you to personally call. Point is — without a creditor there can be no rescission. And, who is going to tell us who is the “ghost” creditor?.

    Like

  12. hello?

    Liked by 1 person

  13. i don’t call anyone. i just plug away with my special sauce and defeat their motions for summary judgment.

    Like

  14. Yes – Bob G. And, the question remains — WHO IS THE CREDITOR??????

    Who are you going to call? Ghost Busters?

    Like

  15. EDDIECAP…See 15 USC 1635 (b)…creditor must comply within 20 days of date of rescission.

    Like

  16. Here is what the WA decision said :

    “The panel further held that because TILA did not include a statute of limitations outlining when an action to enforce such a rescission must be brought, courts must borrow the most analogous state law statute of limitations and apply that limitation period to TILA rescission enforcement claims. “

    Mr. Neil, isn’t that EXACTLY what Jesinoski said NOT to do?

    It seems to me that Jesinoski is mis-read and mis-placed.

    Lower U. S. Courts are routinely asserting their interpretive right to BORROW, (a thinly-disguised word for LEGISLATE out of thin air) certain State and Federal laws as a nearby “analogy”…not exact, but close enough to decide a case in a lender’s favor) regarding the solution for issues that do not have a direct statute of limitation on actions (such as the UNWINDING of a loan obligation under rescission.

    TENDER by a borrower who has timely rescinded a loan is NOT required.

    With rescission, it appears that the borrower MUST rescind within 3 years, but there is no time limit imposed on lender compliance. So in a specific case of a timely rescission in which the lender has done nothing in response, and neither one has filed an enforcement action within 3 years, the borrower then is free to quiet his title and the lender loses everything. No money would be exchanged either way, so the borrower loses whatever he may have paid in house payments and the lender goes away without further recourse.

    Such high court behavior is the EXACT temptation prohibited in Jesinoski. Jesinoski requires observance of its own direct statute as opposed to borrowing any nearby SOL.

    What am I missing here? Are the U S District Courts blind or just biased? I am more than 10 years beyond my own default. I still have a problem re Florida SOL, but my unenforced timely rescission seems ripe for action. Ed Caplinger

    >

    Like

  17. Charles —

    I tend to agree with Bob G here. It is very difficult to succeed on rescission. Further, although the borrower is the party to “rescind” there must be someone to recognize the rescission – or the obligation remains. We don’t know who that party would be — so spinning wheels until we get that information.

    Yes. Purchase Money mortgages cannot be rescinded. But, as has been pointed out, these loans in these trusts were NOT securitized according the law and standard accounting practices. Thus, as Java has pointed out – the loans are unsecured. The result – the financial crisis. All the documents from A to Z are bogus. In that case, all loans should be rescinded with proper entity – not only under TILA but also under Breach of Contract which does have a statute of limitations. Had the government immediately come in and disclosed this instead of bailing out the banks, and purchasing the bogus securities, most would know the proper way to execute rescission under TILA or Breach of Contract. Borrowers continue to be in the dark. Instead, media and government decided to blame the homeowner – “homeowners bought too much house” (though 98% in the bogus trusts were refinances) or “homeowners used their homes as ATMs.” The courts have relied on this propaganda. It is nearly impossible to get discovery in courts.

    Even if one did not ever default, if the loan is claimed to be in these bogus trusts, the loan is treated the same way — as a distressed debt default. There is no escape.

    As I recall, Barney Frank, I assume in a moment of regret, urged bankruptcy reform so the borrowers might have a way to get some relief by what happened. It was voted down. . .

    Please leave your email so I can contact you. Much more I cannot say here. Thanks.

    Like

  18. Charles…you and I have fundamental disagreements on these issues. SCOTUS takes less than 5% of the cases certioried to it. Are you saying that they agreed to hear YOUR case? Furthermore, even if SCOTUS rules as NG says it should rule on a clarification case, what’s your enforcement mechanism if the lower courts–especially the state courts–refuse to adhere to that decision?

    As regards fraud, there are a number of elements that need to be proven, such as a material omission of existing fact, or a false statement of an existing material fact that the defendant knowingly and willfully made, with intent to deceive the plaintiff, that the plaintiff justifiably relied upon, resulting in damages to the plaintiff (homeowner/mortgagor). You must be able to prove with great specificity every one of those elements of the COA. I don’t see that here.

    Further, here the mortgagor received the benefit of the bargain, thus barring common law rescission. Leaving us with the TILA statutory rescission remedy. But that has to be executed within three years of the consummation of the loan. Consummation of the loan transaction occurred at the closing table, whether you or NG think otherwise. Show me a different definition of consummation of a financial transaction.

    Trial courts do not like to make new law. They leave that to the appellate courts. Life is much easier for them that way. These foreclosure cases where I am (NY) are all equity cases, meaning no jury trial. If you can get a jury trial, that’s where you can get a settlement. This TILA rescission stuff just is not going to work, because the banks, like casinos, have the House Edge.

    Like

  19. Bob G –

    You might want to look up that “banks” cannot lend “credit.” but I digress. Loan is consummated per statute upon becoming “obligated.”

    “Money to pay for the house” is irrelevant because purchase funding is not covered under TILA.

    Possession of the house was never turned over, a security or debt instrument does not evidence that whatsoever.

    The “transaction” IS VERY COMPLICATED because it is NEVER as presented in the transaction documents (particularly the mortgage or deed of trust). It is all fabricated BS…. your analogy is simple and inapposite.

    Making the first payment has nothing to do with these facts especially when the contractual transaction was fraud and misrepresented.

    Executing a Note (not “promissory note” which is a misnomer) is not “sign[ing] for the funds… the executed application and loan agreements provide that effect and the not is merely evidence of a purported debt (which was fraudulently represented in the deed of trust or mortgage).

    You are not obligated under TILA until at least 3 business-days after signing certain documents and receiving the requisite disclosures; however therein lies one issue related to the consummation argument which I won’t get into.

    “Normal folks” say you own the money? Now THAT’s a ridiculous argument. And from whom did you really “borrow the money?” GFL finding that out.

    Moreover, there is no legal argument related to a “post 3 years from loan consummation” here.

    The only thing you are correct on, is that legal arguments with merit are ignored… they routinely are.

    The arguments are not nearly as nonsensical as the rulings are which ignore the rule of law, due process and typically, also the facts of the case.

    If a pro se litigant lacks credibility, that shows the courts’ bias. Obtaining justice for fraudulent acts should not be a professional game or vocation merely for lying lawyers and corrupt judges.

    And BTW Bob, there have been dozens if not hundreds of cases in which post Jesinoski, the courts ruled against the homeowner who timely noticed a TILA rescission. It happens all the time. Our own case now headed to SCOTUS is one of them. Look what ultimately happened to the Jesinoskis too, even after obtaining the SCOTUS opinion in their favor.

    ANON-

    The rescinding party is designated in TILA and Reg. Z as the “obligor” or the borrower. This is fact in law.

    The refinance loans were not necessarily just “restructured” since a number of them are used for other additional purposes including “cash out” or debt payments along with restructuring the amount owed on previous financing. I’ve been involved with a number of these kinds of transactions as a licensed mortgage broker. Debt buyers and “warehouse lenders” are not the only “cash out” refinance sources (and a debt buyer is not a resource).

    The “stated” lenders in the transactional documents are seldom the source of the funding. They are not all gone but most never even existed as named and pursuant to TILA and Reg. Z, the creditor responsible to cancel the security or object to the rescission pursuant to the mandatory provisions of 1635(b) s designated by definition as ONLY the party named in the security instrument (see, e.g. 15 USC 1602(g))… successor in this regard is irrelevant.

    A rescission is effected by operation of law by the “obligor” timely noticing it to the “creditor” BY THE OBLIGOR period. That is the simple fact of TILA, Reg. Z and Jesinoski that these so-called “courts” fail to recognize contrary to the SCOTUS.

    The missing piece is obtaining another SCOTUS decision how the mandatory provisions of 1625(b) are to be dealt with since that was left open in Jesinoski and the idiotic lower courts continue to take advantage of that by now, as the 9th Circus has ruled in Hoang, requiring a lawsuit to enforce an already effected and completed rescission (citations omitted on the automatic effect of acquiescence to the rescission by failing to respond which are available).

    The “right party” is designated in TILA and Reg. Z as stated above; is ONLY the party (“creditor”) named in the security instrument. Rescission is effected by timely noticing that entity or individual, end of story.

    And… the courts will never “open the records” because it would expose the fraud. I do not know of even one case in which statutory discovery responses have been enforced by a court. We have even been sanctioned in one of our cases for seeking it. They know what the results would be.

    Liked by 1 person

  20. boots…a court will say, and justifiably so, that the loan was consummated when the borrower got credit for the funds at the closing table. you got the money to pay for the house. you turned over the money for the deed and possession of the house. you made a first payment. that’s all she wrote. don’t try and over-complicate the transaction. it’s not complicated. you borrowed money, you signed for the funds by executing the promissory note. if someone borrowed money from you, and signed a promissory note, you wouldn’t be agreeing with them that the loan wasn’t consummated until some future event occurred. you guys are trying to deploy the most ridiculous legal arguments, and then scream foul when normal folks say you owe the money that you borrowed, and a court agrees.

    there are ways to defeat banksters, but this rescission argument notice post 3 years from loan consummation is not one of them. it’s absurd, and once you are deemed to be advancing one absurd legal argument with no basis in law, all your other legal arguments that may have merit, will be ignored.

    judges have hundreds of open cases on their dockets and they’re not going to get bogged down with nonsensical arguments from pro se litigants. you’re a pro se litigant, not some major white shoe law firm. you lack credibility in the eyes of courts, right out of the starting gate. and rightly so.

    Like

  21. Bob:
    thanks.
    IMHO – the last thing to identify is the moment of actual consummation, as shown by parole or extrinsic evidence – not the date of signing docs.

    In our Illinois case, 09-CH-49823 the first evidence of consummation of our 2004 refi occurred 4 years after signing when – a total stranger, using robosigner DTC, recorded a satisfaction of mortgage of our underlying purchase loan on the county records in 2008 – notably, just ahead of the foreclosure filing.

    We claim that as first evidence that the alleged refi lender finally completed their duties – e.g. consummation.
    greg

    Like

  22. I’d love to see Trump “reform” the 9th Circus by splitting it into at least 3 pieces and assign nothing but constitutionalists to fill out the new spots..

    Like

  23. Neil seems to be going at this with the fervor that Ahab went after the white whale.

    The rescission may be self executing, but the statute says that it must be self executed in three years or less. Does anyone here REALLY think that SCOTUS unanimously held that there was no time limit to the statute of repose (not a SOL)?

    Get real, folks. SCOTUS never intended for its decision to bring down the entire mortgage financing system, which is what it would do if Neil’s analysis were correct. The Jesinoski’s rescinded within three years of the the origination of the loan. I doubt that SCOTUS would have ever agreed to hear the case if the rescission had occurred after the three year expiration period. That’s why J’s counsel brought the case in the first place. Counsel read the statute and correctly perceived the three year period and that the rescission had been noticed per the statutory required within that period, and noticed as provided in the statute, i.e., via regular mail. Period. The End.

    In order for Neil to be right, hundreds of other judges and their law clerks have to be wrong. And that is very unlikely. Show me one post Jesinoski case where the notice occurred as provided in the statute, and within the required statutory time period, where the court ruled against the homeowner and in opposition to the SCOTUS ruling.

    Like

  24. Charles Cox, — Who should be the rescinding party? These were just “restructured” loans masquerading as a “refinance” or valid purchase (Most were refinances). We have debt buyers and warehouse lenders for cash out only. So who rescinds?? Original defunct “stated” lenders are gone. Some don’t even have a successor. And, for those that claim they do — have to go purchase agreement as to liability. This may also involve alter egos. So — trustee? servicer? trust who has nobody at the door – no door to even knock on? WHO??? Oh — and/or the government by bail out?? Who?? Who is even capable to rescind? Should not court know that first? Before they allow enforcement? Courts are dramatically missing pieces.

    I am sure the only party that COULD rescind is hiding behind the curtain wall. And, if you don’t have the right party — you can have no rescission.

    So — let the court open the records. Finally. Not that I do not agree with rescission — I do. But, without the details — in limbo.

    Like

  25. Javagold,

    There is no “next step” needed except for the statutorily defined “creditor” (see e.g., 15 USC 1602(g)) to comply with the mandatory provisions of 1635(b) or file their own lawsuit to challenge the rescission… if it weren’t for the likes of the 9th anyway.

    Greg,

    What you’re missing is that the entire Hoang issue revolved around having to file a lawsuit to ENFORCE a TILA rescission which is completely contrary to Jesinoski and TILA. Any enforcement action has a statutory 1 year SOL after the 20-day mandatory requirement for the “creditor” to comply, period. The 9th was totally wrong.

    These morons do anything they can to get around the fact they were reversed by the SCOTUS and a lawsuit is NOT required to effect a TILA rescission or needed to enforce it. This has nothing to do with equitable relief. As stated in Jesinoski:

    “Finally, respondents invoke the common law. It is true that rescission traditionally required either that the rescinding party return what he received before a rescission could be effected (rescission at law), or else that a court affirmatively decree rescission (rescission in equity). 2 D. Dobbs, Law of Remedies §9.3(3), pp. 585-586 (2d ed. 1993). It is also true that the Act disclaims the common-law condition precedent to rescission at law that [***8] the borrower tender the proceeds received under the transaction. 15 U. S. C. §1635(b). But the negation of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity. Nothing in our jurisprudence, and no tool of statutory interpretation, requires that a congressional Act must be construed as implementing its closest common-law analogue. Cf. Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U. S. 104, 108-109, 111 S. Ct. 2166, 115 L. Ed. 2d 96 (1991). The clear import of §1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind. To the extent §1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.”

    As usual, the 9th Circus attempts to wrongfully legislate from the bench.

    Liked by 1 person

  26. Courts continue to try to find a way out. Rescission should be clear cut, agreed. The bogus foreclosure case law started in 9Th Circuit and spread across the country.

    While all focus is good, I am asking that Neil focus on representation. Somehow, servicers come in and claim to represent the trust, rather than the trustee, legal holder by law, representing itself. Somehow, the servicers rename the trust to include the trustee name, and claim authority to represent the “trust” with the trustee name attached as – thereby changing the name of the trust. Somehow, the servicers came to have all authority — and do not have to account to investors. How did that happen? Was ii caused by the reaction of the government to the financial crisis? Was it caused by Courts incompetence to even ascertain that the trustee and trust are two separate and distinct entities – and, that the servicer is not the legal holder for either the trust or trustee?? And, what about the warehouse lenders? Only cash-out was funded. New purchases, in any of these crisis trusts, was carried forward by prior owner’s status.

    The question remains — what happened to the money flow, who is representing who, and who can grant rescission – as most stated fake lenders are defunct. Who do you request rescission from? Without answers — it is unknown. .

    Liked by 2 people

  27. P.S. The court also explicitly stated they completely agree with Jesinoski!

    Liked by 1 person

  28. Hi Neil-

    I know you get a”bee in your bonnet” on the use of the word “claim” but in fact this federal Appeals Court decision is filled with powerful rationale and citations in support of homeowners suing for “equitable relief” not “legal relief” beyond TILA’s 1 year SOL to sue.

    They decided TILA only limits suits for “legal relief” to 1 year and is silent on suits for “equitable relief”.

    The federal Appeals Court cited that a borrower can still sue for “equitable relief” beyond the point of TILA’s 1 year SOL to sue – especially when basing the suit on a State law (not TILA). While the violation of TILA by the bank was certainly the trigger event (cause of action) the Court decided that equitable damages my persist and even be ongoing, and equity remained an open door, but not an unlimited open door.

    The court found no applicable federal statute to apply to the equitable SOL. Therefore, they then applied the closest state law regarding contracts and its Statute of Limitations to the window in which the borrower could sue, which in Washington was determined to be 6 years.

    This is excellent news for homeowners. While the 9th circuit may only be persuasive not controlling around the rest of the country, the arguments are logical and compelling to any jurist that reads them.

    So putting aside the court’s use of the word “claim” at several points, this is a big winner!

    -greg / cementboots

    Liked by 1 person

  29. If the courts actually followed the law. What would be the next step in this TILA Rescission process ????

    Like

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 )

Google+ photo

You are commenting using your Google+ 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 )

Connecting to %s

%d bloggers like this: