Fla 4th DCA Slams Door on “another Ditech loan” in foreclosure claims

The trial court erred (i.e., it was wrong) when it accepted unfounded hearsay testimony over Defendant’s timely objections.

Kudos to Mark Stopa, Esq.

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Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

GO TO WWW.LENDINGLIES.COM OR https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

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

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Spencer v Ditech involving Everhome

We are seeing a paradigm shift reflecting changes in consensus of appellate courts. Contrary to thousands of decisions over the years, the courts are now applying the laws and rules of evidence in court proceedings and motions for summary judgment. I spy a suspicious attitude towards the banks and servicers that is long overdue.

Just because the bank or servicer says a fact is true doesn’t make it so. Applied to homeowners that would mean if they said they made a payment it would be automatically true. The informal rule allowing representations to be made in court and then treating it as evidence seems to be finally coming to an end.

Here we have the usual musical chairs of companies claiming to be servicers and in this case claiming that they sent a notice of default. The denial by the homeowner that they received the notice of default has nearly always been taken with a grain of salt, thus giving an insurmountable edge to the servicer or bank who filed the action.

The fact that the servicer had no way to prove the notice of default had been sent combined with the denial, in the pleadings, that the notice of default ahd ever been received should, under existing law, be sufficient to involuntarily dismissing the foreclosure lawsuit.

The  foreclosure complaint said they had complied with all conditions precedent. BUT then they had to prove it. They could not prove it. The trial judge allowed testimony and exhibits that were patently without foundation, testimony that was obviously without foundation and which fell apart in cross examination.

And THIS TIME the 4th DCA said it had enough of the ‘refiling” of cases after banks and servicers lost the first round of litigation to the homeowner. The 4th DCA specifically instructed that the case could NOT be refiled. In short, the case was over. However it is possible, although highly unlikely, that the banks will come up with a whole new string of fabricated documents providing the basis by a new lawsuit by a new foreclosing party.

As you will see, hearsay and personal knowledge was the basis of this opinion from the appellate court. Pressed for how the witness came into knowledge she acknowledged that it came from other co-workers. Textbook hearsay.

Interesting quotes from case:

EverHome, Ditech’s predecessor in interest, failed to establish as a condition precedent to filing suit that the Spencers were given notice of default as required by paragraph 22 of the mortgage.

EverHome filed a foreclosure complaint against the Spencers. EverHome alleged that it was the servicer of the loan and the holder of the note. EverHome also alleged generally that all conditions precedent to the acceleration of the note and mortgage and the filing of the foreclosure suit had been fulfilled.

In addition to the default letter itself, Ms. Knight’s testimony was the only evidence that EverHome provided to show that the letter had been sent to the Spencers. Throughout Ms. Knight’s testimony, Spencer repeatedly objected based on hearsay, arguing that Ms. Knight lacked personal knowledge to testify about EverHome’s routine business practices because she was not an employee of EverHome. The court overruled Spencer’s objections, and Ms. Knight testified that pursuant to EverHome’s procedure and policy, once a letter is generated it is mailed. But she explained that her knowledge of these procedures and policies was based on “training.” And when pressed, she admitted that this “training” consisted of informally discussing EverHome’s policies and procedures with coworkers who currently worked for Ditech but had previously worked for EverHome.

Ms. Knight admitted that no such discussions about this loan or any other loan had taken place prior to 2014, when the service transfer occurred—years after the default letter, dated June 17, 2010, had been generated by EverHome.

Testimony regarding a company’s routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (citing § 90.406, Fla. Stat. (2014) ). But the witness must have personal knowledge of the company’s general mailing practice—meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company’s routine practice for mailing letters. See id.; Edmonds, 215 So.3d at 630; see also CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) (holding that there was sufficient evidence to establish mailing based on routine business practices where witness testified that she had personally observed coworkers generate breach letters and deliver them to the mail room to be collected by the postal service). Here, Ms. Knight admitted that she was never employed by EverHome and did not have firsthand knowledge of EverHome’s mailing practices as of the date the default letter was generated. Therefore, her testimony was insufficient to establish that the default letter was mailed.

 

Tonight — Silent Roles of Fannie Mae and Freddie Mac — Hiding Behind the Obtuse

How to Withhold Vital Information from Homeowners

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Charles Marshall, Attorney and Bill Paatalo, licensed investigator discuss the moral hazard created by the Government Sponsored Entities (GSEs) banks, the courts and the regulators in allowing “presumptions” to be used even when the actual facts are different from the presumed facts.

Fannie and Freddie have long been a mystery wrapped in an enigma.

Before false claims of securitization, before fabrication and forgery of documents, the GSEs had fairly clear role in the origination, servicing and enforcement of mortgages. Now they are used as cover to hide lack of ownership where the banks and servicers make the homeowner travel and endless loop leading nowhere.

Now, as to any specific loan, we don’t know which of the following applies:

  1.  GSE is the guarantor of the loan (basically like a third party insurer with government backing)
  2. GSE is Master Trustee of a REMIC Trust in which there is a named Trustee who has the same powers, rights and obligations as the Master Trustee — i.e., no powers to actively administer the active affairs of the trust because there is no business or assets in the trust.
  3. GSE is or was a purchaser for cash.
  4. GSE is or was a purchaser using MBS issued by a named trust that either exists or doesn’t exist.
  5. GSE, using Trust A MBS paid Trust A for loans owned by the Trust or for loans not owned by the trust.
  6. GSE was a seller of the subject debt, note or mortgage.
  7. GSE claimed ownership when it didn’t own the subject debt, note or mortgage.
  8. GSE showed subject loan on its website but had no interest in the subject debt, note or mortgage (or foreclosure).
  9. Third parties claimed that GSE owned the subject debt, note and/or mortgage and it was true.
  10. Third parties claimed that GSE owned the subject debt, note and/or mortgage and it was false.

Securitization and Standing

Like other decisions establishing  the law of the land, the decisions of SCOTUS are often taken as advisory or optional. Nevertheless TILA Rescission and Article III standing have been affirmed by the Court of last resort. Reluctant judges in trial and appellate courts will get their hands slapped one more time but all the bad prior decisions and their consequences  are neither reversed nor redressed.

Standing is pretty easy — it must be alleged in facts that will be proven at trial. If it isn’t alleged or isn’t proven at trial, the Court lacks jurisdiction to do anything other than to dismiss the claims of any party seeking satisfaction because they have no claim for redress.

Let us help you plan your defense strategy, discovery requests and defense narrative: Dial 954-451-1230 or 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

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

See 2017 US Supreme Court case defining burden of PLEADING legal standing: Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650-1651 (2017)

There are three elements of standing:

  1. The party claiming the ultimate relief (like the party seeking foreclosure) MUST have already suffered an injury in fact — one that is “concrete and particularized.” This means that alleging a default is not enough. The presumption that the pleading party suffered economic loss only arises if they plead and prove that they had a right to payment which was not received, thus constituting a default. Nobody alleges that because it isn’t true. Nobody is entitled to any satisfaction in court without pleading and proving facts that the alleged default actually caused financial loss (injury) to the party seeking relief (or the disclosed principal in an agency relationship with the party seeking foreclosure). This feature is particularly twisted in nonjudicial states where the party makes no claim for foreclosure; instead they merely file papers in the county records and put the home up for sale. Standing is nonetheless required in both judicial and nonjudicial states — a fact often ignored in most courtrooms.
  2. The injury must be traceable to conduct of the party alleged to be in default or breach. Hence the party seeking satisfaction through foreclosure must establish that they had a legal right to receive the payments that were specified in the note and mortgage (deed of trust) either because they own the debt or because they represent someone else who owns the debt. Failure to reveal the party who owns the debt leaves the court without any pleading or proof as to who, if anyone, was financially injured when the homeowner stopped making payments to a party that could possibly be the authorized representative to receive such payments and also could possibly not be the authorized party to receive payments. The presumption of injury only arises  when the right to receive payments is both alleged and proven. Once again, courts have twisted this element beyond recognition. The missing creditor is presumed to exist, without a name or any other identifying characteristics.
  3. The injury, once established, must be likely to be redressed by a favorable judicial decision. So if the foreclosure occurs and the sale is made, what will be the ultimate result of liquidation of the property. The answer is that unrelated parties will enjoy the fruits of foreclosure, which is why servicers are under strict instructions not to reveal the recipient of funds paid by putative borrowers. The proceeds from the sale of the property must be claimed by the party seeking foreclosure or claimed by the party on whose behalf the foreclosure was pursued (assuming that party is the owner of the debt and not another conduit). The trusts are all conduits if they claim REMIC status. That is why there are never allegations that the trust owns the debt or is anything other than other than a “holder.” The right to enforce appears to be presumed but is inaccurate since the Trustee and the Trust were absent from any transaction involving the subject loan. So if the proceeds are not going to the party who loaned money and are not going to anyone who bought the debt, there is no subject matter jurisdiction. Here again the courts are twisting laws beyond comprehension by presuming everything that is not susceptible to proof.

The side note is that it does not appear that the REMIC trusts actually exist or were involved in any financial transaction relating to the loans that lawyers claim it owns. SO the claimant does not exist leaving the court without any semblance of jurisdiction if the pleadings are scrutinized for allegations that the “Trust” is a REMIC business trust organized and existing under the laws of the State of New York, for example. They don’t make that allegation — common to all other pleadings in other civil cases — because the trust is merely a graphic image having no significance except for the purposes of foreclosure.

 

Subpoena Compliance Officer at the time the loan was made

Last night on the Neil Garfield Show, Charles Marshall brought up the idea of the use of the subpoena power of the court. I agree that this is a way of lawfully penetrating into the inner recesses of the alleged loan process. People ask me to whom should they issue a subpoena? Opinions vary. But I would say the person who served as compliance officer at the time was being “underwritten.” You’ll probably find out that loan was not underwritten by the originator. But more than that you will find that there exists a witness who can say what really happened at the alleged “loan closing.”

See below for a short list of questions that might be posed at the deposition of such a witness.

Let us help you plan your discovery requests and defense narrative: 202-838-6345. Ask for a Consult.
Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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SeePAPER CHASE AND MONEY CHASE — THE CASE AGAINST CHASE

There are dozens of questions to ask. But I think the following list is a guide toward strategically posing the right questions:

  1. Do you review all prospective loans?
  2. What risks are you looking for? Define them.
  3. What are the primary risks of loss in closing a loan in today’s marketplace?
  4. Does the prospect of “sale” of the debt, note or mortgage affect your risk analysis?
  5. Is the bank using a warehouse lender?
  6. Is the bank making the loan or playing the role of originator?
  7. Is the bank the intended ultimate secured party on the mortgage?
  8. Is the bank the intended ultimate recipient of monthly payments as described in the note?
  9. What is the annual rate of mortgage originations in principal dollars for the bank.
  10. Does the bank have buy-back exposure on its loan originations?

Deloitte and Touche Pays $149.5 Million Settling Claims of Audit Failure of Taylor Bean and Whittaker

One of the first cases I ever handled involved TBW in 2008. As usual they filed a lost note count in their foreclosure complaint. And as is required, they offered to indemnify the homeowner if someone else showed up with the original note. With financial firms dropping left and right, my position was two fold: (1) that an indemnification from a firm that was clearly in trouble as reported in the news was of dubious value and (2) that even if that wasn’t the case neither their complaint  nor their affidavit recited any facts about when the loss occurred, who was in possession of the note, whether the possessor had rights to enforce when the note was “lost” etc. TBW folded, went into bankruptcy shortly thereafter and its principals went to prison.

But throwing TBW under the bus, as much as they deserved it, takes nothing away from the fact that everyone was doing what they did. The only difference was they got caught and could not effectively indemnify the homeowner in the event they were lying about the possession of the original note — something that as proven beyond a reasonable doubt in the criminal trial of the execs..

Let us help you plan your discovery requests and defense narrative: 202-838-6345. Ask for a Consult.
Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Hat tip to Dan Edstrom

see  Multiple Sales of Same Loans Force Auditor to Cough Up $149.5 Million

PR shows like this one became one of the ways that the banks were able to throw a curtain over the real customs and practices of the industry — most of which were virtually identical to TBW. The impression from the collapse and prosecution of TBW and its executives implies that this was an unusual event — selling the same “loan” multiple times.

But close examination of the many claims of securitization of debt shows that exactly the same thing was happening in the rest of the industry. In fact, that is where the enormous “profits” came from as reported from their “trading desks.” The only difference is that TBW was blatant about it by using copies of notes that were repeatedly sold, not once, but multiple times.

The leverage of making multiple sales went to ridiculous heights — 42 times in the case of Bear Stearns mortgage related activities. Yes you read that right. That $200,000 loan produced around $8 million in “profit.” Of course none of this was disclosed to the borrower whose name and financial reputation would be used directly or indirectly to accomplish these “sales.” They did it by hiding behind “derivative” documents rather than the actual loan documents, but they also did what TBW did. But while TBW was exclusively faking sales, investment banks mixed up the process such that, if caught, they would be able to say that some of these things happened because of a failure of controls and that they will now correct it.

As the MBS marketplace slowed down and had some hiccups many of the contracts or derivatives came due and Bear Stearns simply didn’t have the money to honor them despite the enormous “profits” earned earlier. This also is a possible indicator that leverage was even higher than what has been reported. As the buying frenzy slowed down and investors suddenly became aware that they were holding certificates issued by entities that didn’t exist and were never active, the buying stopped — and like any Ponzi scheme, the entire infrastructure came crashing down.

Practice Note: So what all of this means is that questions should be posed to parties who file foreclosure actions. But you need to wade through the multiple servicers and multiple “assignees” and multiple “endorsees” and multiple “Underwriters of bogus RMBS to ask the simple question: how many contracts or securities have been issued with the respect to the subject loan? It’s relevant because it is asking whether the foreclosing party has sold its rights to an undisclosed third party. In 99% of all cases, the “REMIC Trust” was never used and the underwriter has already entered into various contracts, sales, and issued “derivatives” in which the PAPER was sold but the underlying debt, if it still exists, was never subject to any transfer, contract or derivative.

Fla. Supreme Court Takes Jurisdiction Over Attorney Fees Controversy

Under current doctrine, banks can continually file baseless claims against homeowners until they win — mostly because the homeowner does not have infinite resources. In the meanwhile each time the banks lose they are not liable for attorney fees. But if they win they get attorney fees under F.S. §57.105. If the homeowner prevails on the theory that the named Plaintiff is an imposter having nothing to do with the loan, then, according to current doctrine, the basis for recovery of attorney fees (as set forth in the mortgage and note) does not apply.

The basic injustice of this doctrine has attracted the attention of the Florida Supremes. The logic should apply both for the homeowner and for the bank. That is what we mean by blind justice. If someone takes a position in court and ultimately prevails then they are entitled to fees if the contract provides for fees. The appellate courts have erroneously concluded that this can only be applied for the banks, not the borrower.

Let us help you plan your case narrative and strategy: 202-838-6345. Ask for a Consult.
Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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See Fla. Supreme Court Weighs in on Homeowner’s right to Recover Attorney

The current doctrine is that once you have prevailed on the issue of standing you have also disproved your right to recover attorney fees. The problem is that the decisions have focused on the wrong thing: the contract exists regardless of who is asserting rights for or against the contract. If the finding of the court was that no contract ever existed, then it would make sense that neither party could claim any benefit from a contract that never existed.

But that is not what is happening. The courts have gone off the tracks and hopefully the Florida Supremes will fix the problem. The current doctrine assumes that for purposes of the case the contract does not apply to the party who filed the case seeking relief pursuant to the contract (the note and mortgage). The current process requires a homeowner to defend a baseless action. But having asserted rights under the contract, the banks should die by their own sword. Otherwise the banks can keep coming into court under the same named Plaintiff forcing the homeowner to defend the same action repeatedly — until they run out of money.

Failure to award fees to the homeowners presents a clear strategy to the banks. Since there is no risk of loss, they will keep filing actions in which their named Plaintiff has no standing until they win by default because the homeowner simply can’t afford to litigate forever.

If fees were awarded, as they always were until the courts  invented a doctrine to deny the fees, then the banks would have risk of loss and would therefore be inclined to file only file actions that had merit.

TILA RESCISSION: The Bottom Line for Now

Probably the main fallacy of the people who say that TILA Rescission is not possible or viable is that they project the outcome of a lawsuit to vacate rescission. Based upon their conjecture, they assume that Rescission is no more than a technicality. Congress, and SCOTUS beg to differ. It was enacted into law 50 years ago in an effort to prevent unscrupulous banks from screwing consumer borrowers.

Let us help you plan your TILA RESCISSION narrative and strategy: 202-838-6345. Ask for a Consult.

Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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I keep getting emails from non lawyers who have a “legal opinion” that not only differs from mine, but also the opinion of hundreds of lawyers who represent the banks and servicers. They say that because disclosures were probably made that rescission is nothing more than a gimmick that will never succeed and they point to the many case decisions in which courts have ruled erroneously in favor of the banks despite a rescission that eliminated the subject matter jurisdiction of the court, since the loan contract, note and mortgage no longer exist. The debt, however, continues to exist even if it is unclear as to the identity of the party to whom it is owed.

First the courts ruled erroneously when they said that tender had to be made before rescission was effective. Then the courts said that no rescission could be effective without a court saying it was effective. That one put the burden on proving the figure to make proper disclosure on the homeowner. The Supreme Court of the United States, (SCOTUS — see Jesinoski v Countrywide) after thousands of decisions by trial and appellate courts, told them they were wrong. As of this date, no court has ever ruled that the rescission was vacated — the only thing that could stop it.

The lay naysayers keep harping on how wrong I am about rescission. Unfortunately many people believe what they read just because it is in writing. In my case I simply instruct the lawyers and homeowners to simply read the TILA Rescission statute and the unanimous SCOTUS decision in Jesinoski. What they will discover is that I am only repeating what they said — not making it up as some would have you believe.

To the naysayers and  all persons in doubt, i say the following:

As I have repeatedly said, in practice you are right, for the time being.
But the legal decision from SCOTUS will undoubtedly change the practice. The law is obvious and clear. SCOTUS already said that. So no interpretation is required or even permissible. SCOTUS said that too. TILA Rescission is mainly a procedural statute, not a substantive one. SCOTUS said that too. On the issue of when rescission is effective, it is upon mailing (USPS) or delivery. SCOTUS said that too. On the issue of what else a borrower needs to do to make TILA rescission effective, the answer is nothing. SCOTUS said that too.

Hence the current argument that you keep making is true “in practice” but only for the moment. SCOTUS will soon issue another scathing attack on the presumptuous courts who defied its ruling in Jesinoski. There can be no doubt that SCOTUS will rule that any “interpretation” that contradicts the following will be void, for lack of jurisdiction, because the loan contract is canceled and the note and mortgage are void:

  1. No court may change the meaning of the words of the TILA Rescission statute.
  2. Rescission is law when it is mailed or delivered.
  3. Other than delivery no action is required by the borrower. That means the loan contract is canceled and the note and mortgage are void. They do not exist by operation of law.
  4. Rescission remains effective even in the absence of a pleading filed by the borrower to enforce it.
  5. Due process is required to vacate the rescission. That means pleading standing and that proper disclosure was made, an opportunity for the borrower to respond, and then proof that the pleader has standing and that proper disclosures were made.
  6. Pleading against the rescission must be filed within 20 days or it is waived.
  7. At the end of one year both parties waive any remedies. That means the borrower can no longer enforce the duties imposed on the debt holder and the debt holder may no longer claim repayment.
  8. The only claim for repayment that exists after rescission is via the TILA Rescission statute — not the note and mortgage. This is based upon the actual debt, not the loan contract or closing documents.
  9. Any claim for repayment after rescission is predicated on full compliance with the three duties imposed by statute.
  10. A court may — upon proper notice, pleading and hearing — change the order of creditor compliance with the three duties imposed upon the debt holder. This does not mean that the court can remove any of the duties of the debt holder nor summarily ignore the rescission without issuing an order — upon proper notice, pleading and proof — that the rescission is vacated because the proper disclosures were made or for any other valid legal reason that does not change the wording of the statute.
  11. The three duties, which may not be ignored, include payment of money to the borrower, satisfaction of the lien (so that the borrower might have an opportunity to refinance), and delivery of the original canceled note.

Virtually 100% of lawyers for the banks and servicers agree with the above. They have advised their clients to file a lawsuit challenging the TILA Rescission because such a lawsuit could be easily won and would serve as a deterrent to people attempting to use TILA rescission as a defense to collection or foreclosure efforts. Yet their clients have failed to follow legal advice because they know that they have no debt holder to whom funds can be traced. If they did identify the debt holder(s) they would be showing that they played just as fast and loose with investor money as they have done with the paperwork in foreclosures.

Does this mean a free house to homeowners? Maybe. Considering how many times the loans were sold directly and indirectly, and how many times the banks received insurance, bailout and purchases from the Federal Reserve, that wouldn’t be a bad result. But the truth is that everyone knows that won’t happen unless the courts continue their decisions with blinders on.

In the end, the homeowners do owe money to the investors whose money was used too fund the loans, directly and indirectly. Whether it is secured or not may depend upon state law, but as a practical matter very few borrowers would withhold their signature from a valid mortgage and note based upon economic reality.

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