Hunter vs Aurora: Fla 1st DCA Business Records Gets Tougher

Show me any other period in American history where banks lost so many cases.
https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.
 ================

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

—————-

see http://caselaw.findlaw.com/fl-district-court-of-appeal/1664754.html

The heat on the banks has been steadily increasing for the last three years and has increased at an increasing rate during the past 18 months. More and more banks are losing in what the bank lawyers call a “Simple, standard foreclosure action.” Show me any other period in American history where banks lost so many cases. There is obviously nothing simple and nothing standard about these foreclosures that have caused ruination of some 25 million people living in around 9 million homes.

If things were simple, we wouldn’t be looking at musical chairs in servicing, plaintiffs and “holders.” If things were standard, the creditor would come forth with clear proof that it paid for this loan. Nobody I know has EVER seen that. I have written about why. Suffice it to say, if there was a real creditor who could come forward and end the argument, they would have done so.

Two years ago the Hunter case was decided. The court was presented with a panoply of the usual smoke and mirrors. The court took on the issue of the business records exception as a guide to the trial judges in the 1st District and to the trial lawyers who defend homeowners in foreclosure. This is a sample of the part of the analysis we do. Here are some quotes and comments from the case:

Aurora alleged in its “Complaint to Foreclose Mortgage and to Enforce Lost Loan Documents” that it owned and held the promissory note and the mortgage, [note that the allegation is never made that Aurora was the owner of the debt or was the lender. Why not? Who is the actual creditor?]
 *
original owner of the note and mortgage was MortgageIT, and that MortgageIT subsequently assigned both to Aurora. A letter dated January 27, 2007, from Aurora to Mr. Hunter entitled, “Notice of Assignment, Sale, or Transfer of Servicing Rights,” directed him to remit mortgage payments to Aurora beginning February 1, 2007. The “Corporate Assignment of Mortgage” executed on June 11, 2007, and recorded on January 8, 2008, showed MortgageIT as the assignor and Aurora as the assignee. [MortgageIT was a thinly capitalized originator/ broker who could not have made all the loans it originated. Hence the presumption should be that it didn’t loan money to Hunter. Logically it follows that it never owned the debt and should not have had its name on the note or the mortgage. Nor did the source of funds ever convey ownership to MortgageIT. So what value or validity is there in looking at an assignment or endorsement or even delivery from Mortgage IT? And given that behavior (see below) do we not have circumstances in which the paperwork is suspect? Should that be enough to withhold the statutory presumptions attendant to “holding” a note?]
 *
To establish that it held and had the right to enforce the note as of April 3, 2007, Aurora sought to put in evidence certain computer-generated records: one, a printout entitled “Account Balance Report” dated “1/30/2007,” indicating Mr. Hunter’s loan was sold to Lehman Brothers—of which Aurora is a subsidiary and for which Aurora services loans—and payment in full was received on “12/20/2006;” the second, a “consolidated notes log” printout dated “7/18/2007” indicating the physical note and mortgage were sent—it is not readily clear to whom—via two-day UPS on April 18, 2007. Neither document reflects that it was generated by MortgageIT. -[Interesting that Aurora is identified as a subsidiary of Lehman who was in bankruptcy in October of 2008. Aurora usually represents itself as a stand-alone company which is obviously not true. Equally obvious (see discussion above) is that the reason why Mortgage IT was not identified on the printout is that it had nothing to do with the actual loan money — neither payment of the loan as a lender nor payment for the loan from the homeowner. Mortgage IT, for all intents and purposes, in the real world, was never part of this deal.]

Section 90.803(6) provides one such exception for business records, if the necessary foundation is established:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. (e.s.) – [THIS is the point of my article. Under current circumstances both in the Hunter case and in the public domain the court should have considered the fact that the parties were well known to have fabricated, forged and otherwise misrepresented documents, together with outright lying about the existence of underlying transactions that would track the paperwork upon which courts have heaping one presumption after another. My argument is that Aurora should not have been given the benefit of the doubt (i.e. a presumption) but rather should have been required to prove each part of its case. My further argument is that virtually none of the foreclosure cases should allow for presumptions in evidence after the massive and continuing settlements for fraud relating to these residential mortgages. If this doesn’t show lack of trustworthiness, then what would?]

— If you want this kind of analysis done on your case —
See a description of our services  click here: https://wordpress.com/post/livinglies.wordpress.com/32498
===========================

RESCISSIONS AFTER 3 YEARS: THE FIGHT IS ON

Today a Federal Judge in South Florida granted motions to dismiss (with prejudice) filed by parties against whom a homeowner had filed suit claiming that those parties should be enjoined from using the notes and mortgages in his case. The claim was based upon allegations of a recent TILA rescission and that consummation of the loan contract was a question of fact. I am the attorney of record. No decisions have been made by the client as to the next steps of Rehearing and/or Appeal.

This decision underscores what I have been saying for months as judges across the country continue to resist the idea that rescission actually cancels the loan contract and voids the note and mortgage regardless of when or why it is sent. The various conditions for rescission are (a) questions of fact that should not be presumed and (b) can only be raised by a party who has legal standing without reference to the note and mortgage. The court in this case disagreed. Based upon what we are seeing across the country, most trial courts are looking at TILA rescission the same way. AND that means that relief will only come on appeal in most cases.

So the conclusion to be reached here is that those lawyers who reject this strategy are right most probably in a trial court. Whether they are right when we get to the appellate level is another story — but, as I have repeatedly said over the last ten years, the trial judges don’t like TILA and they hate TILA Rescission. It took about 10 years for the Jesinoski case to ripen into a decision favorable to borrowers. Trial judges are still resisting the direct instruction from the Supreme Court.

Even where rescissions are sent within the three years (starting from the date of signing, not necessarily the date of consummation), Judges are continuing to ignore TILA rescissions or enter orders that deny the homeowner’s claim for relief based upon a valid, legal rescission. Even though the statute specifically provides how rescission becomes effective and when, courts don’t like it and are refusing to use it even after Jesinoski v Countrywide was decided by SCOTUS.

So the long and short of this, for now, is that I want to repeat with emphasis that rescission ought to be the simple remedy that Congress passed in a very clear procedural administration of the disclosure requirements, but it still appears that the courts and the banks are going to make it as tough as they did before the Jesinoski decision.

My opinion remains the same as 10 years ago when I first looked at TILA rescission. This was meant to level the playing field. If Judges were not so intent on reading in “facts” and “law” into the TILA rescission statute, this remedy would have been extraordinarily effective at eliminating or curtailing the number of foreclosure sales. In the end, as I predicted ten years before when everyone was saying that my “theory” about rescission was completely wrong, my opinion will most likely be upheld — AGAIN.

This is why each case must be carefully reviewed with a report that details the possible strategies and likely outcomes at the trial level, at the appellate level and ultimately at the highest level of the court system. TILA Rescission was obviously intended to be a “magic bullet” to force compliance with lending disclosures on the banks. The law did not fail. It is clear on its face. But Courts are clearly resistant to entering an order that could put other mortgage loans in doubt.

90 Minute Group Consult Feedback

Success! Last week we piloted a new program that allows up to 10 people to participate in a 90 minute conference for $99. Each person gets to ask questions and follow up questions. It works out to about 10 minutes per person. In a survey at the end of the Group Consult last week, every participant agreed that this was a good format. 2 participants would have liked to see it go longer to answer even more questions.

This Friday at 3pm we are doing it again — 90 minutes for $99. Last week we were sold out in a few hours. So if you want to participate this week, it would be wise to click here immediately:

Group Session- 90 Minute Roundtable Discussion

I like the format too. It allows me to reach far more people than restricting myself to one on one conferences. It allows everyone to hear the questions of others and my answers. Obviously it is not a comprehensive review on each case, but it gives me and the participant an opportunity to have a short discussion about their case, and for me to provide some pointers and guidance without the burden of a half hour conference ($350) or an hour conference ($650).

Each person fills out our intake form and in one of the “comments” sections poses questions they want answered. I am able to cover more ground by having information and questions in advance of the Group Consult. I also take questions directly from the participants which allows for follow-up questions that makes the consult more meaningful. My answers are given as an expert witness in the field of securitization of debt, but of course I am an attorney practicing in Florida so you will hear some references to law as well.

The intake form can be found at

https://fs20.formsite.com/ngarfield/form271773666/index.html?1453992450583

After the conference is over an audio file of the entire conference is sent to each participant. There is no other fee nor any obligation as to how you use the conference. Obviously there is no attorney client privilege with other people on the line listening in and my responses are for general information, but not quite as general as on the radio show or on the blog.

Participants are cautioned that however I might answer their question, it should not be considered a definitive legal opinion on their case. Whatever you hear in this consultation is subject to review by an attorney who is licensed in the jurisdiction in which your property is located. Take no action without consulting with a licensed professional who know all the facts about your situation.

We have also successfully automated our scheduling system where you can schedule your own extended consultation for either 1/2 hour or a full hour. And we continue to provide our other services — like a comprehensive review of a specific loan or case. And of course we continue to directly represent clients in Florida, where I am a licensed attorney.

** If you wish to schedule a one on one conference —-

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.

We value your feedback as we continue to try new ways of getting the right information to the right people. Thank you all for your support in our 10th year doing this.

**

For a description of our services  click here:
===========================

 

Why We Developed the TILA Rescission Package

We start with the simple and irrefutable premise that if the parties are NOT in litigation, only a timely lawsuit filed by a party with legal standing could be considered to vacate the TILA rescission that is effective, as a matter of law, when it is mailed. The note and mortgage become void at that moment. Any claim of standing based upon the void note and void mortgage is by definition frivolous.

The banks want to place the burden on the homeowner to explain why this court should consider the rescission effective. But that is not the law. The burden is on the Banks to bring a timely action by a party with legal standing explaining why the rescission should be set aside or vacated.

Despite the simplicity of 15 USC §1635 it appears that the entire TILA rescission issue is being re-litigated even in the face of a unanimous Supreme Court decision that made it abundantly clear that what you read below is not theory, claim or defense: it is a fact.

For a description of our services  click here: https://wordpress.com/post/livinglies.wordpress.com/32498
===========================

We are offering a Rescission Package for those lawyers and homeowners who are considering rescission as a potential strategy in their fight against the banks.

The whole point of the TILA rescission statute was to enable homeowners to avoid lawyers and judges when they canceled their loan contracts. Most jurists think this is a ridiculous thing to do. But their job is to enforce the law not make the law or “interpret” a statute that is perfectly clear on its face — especially when the highest court in the land (the boss of bosses in the judicial system) says there is no right, power, or authority possessed by ANY judge on ANY level to interpret this particular statute. The Jesinoski court said unanimously that this statute is clear on its face. THAT is the law of the land and the final instruction to every judge dealing with TILA rescission.

It should not be necessary to offer such a Rescission package. And considering the wording of the statute and the Supreme Court, there ought not to be litigation on whether the TILA rescission was effective when mailed — but that is exactly what is happening anyway. Judges who don’t like this statute should take it up with the legislature; they cannot and should not attempt to over-rule their boss — SCOTUS.

It is also true that the parties who brought the foreclosure have neither the legal standing nor (in most cases) a timely claim to vacate the rescission. So it is important to know what is happening on the ground with trial judges and appellate cases in order to anticipate how and when you will be met with opposition to a rescission that was and remains effective when mailed, as a matter of law. Despite the simplicity of 15 USC §1635 it appears that the entire rescission issue is being re-litigated even in the face of a unanimous Supreme Court decision that made it abundantly clear that what you read below is not theory, claim or defense: it is a fact.

The banks clearly have a problem with legal standing as they are losing an increasing number of foreclosure cases on exactly that point. And they already lost the fight over what TILA rescission means, when it is effective and how it is accomplished (i.e., a letter). But they continue to litigate, filing improper motions without standing and making all sorts of arguments that have already been heard and rejected by SCOTUS. The problem is that no matter how empty the arguments of the banks, if you don’t vigorously oppose them, the judge will “go with his gut” rather than the law.

It has become necessary to inform the public of what options exist for those who have sent notices of rescission either long ago or in the present and the answers differ. It also is necessary to know what to do with the rescission whether foreclosure has been started or not.

We start with the simple and irrefutable premise that if the parties are NOT in litigation, only a timely lawsuit filed by a party with legal standing could be considered to vacate the TILA rescission that is effective, as a matter of law, when it is mailed. The note and mortgage become void at that moment. Any claim of standing based upon the void note and void mortgage is by definition frivolous.

The problem seems to be that most of the discussion and litigation regarding rescission occurs in the context of litigation already exists. In that context the rescission is attacked by motion by the same parties who are pursuing foreclosure allegedly on behalf of some unknown real creditor. They do not allege they own the debt or that they are holders in due course.

Instead they say they are “holders” or “possessors” of the note with rights to enforce. They are appearing in a Representative capacity using the note and mortgage, and assignments and endorsements and even powers of attorney upon which they rely to have the court infer the existence of a right to foreclose. But when rescission becomes effective (upon mailing) the note and mortgage are void — and no legal claim or relief or legal standing exists when it is based upon a void instrument.

Once we read the Statute (15 U.S.C. §1635) and Regulations and supplement that with the unanimous ruling of the Supreme Court of the United States (Jesinoski v Countrywide) there is and can be no doubt that the loan contract has been lawfully and non-judicially canceled, and the note and mortgage are void.

Hence the foreclosing parties lack legal standing to oppose the rescission not only because it is already effective but also because even if they had legal standing and they were bringing a proper lawsuit the time is over. And unless the foreclosing party forgot to mention that they own the debt and thus fulfill the definition of the word “creditor” or “lender” they don’t have legals standing either. This is counter-intuitive for those who have not studied and analyzed the procedural remedy of TILA rescission.

*

So we provide elaboration in our package that shows the lawyer options on how to argue the points in each particular case, where the facts always differ in some small way.

*
I seem to be getting the same questions. All of then are essentially the same — “The TILA Statute says that TILA rescission does not apply to [fill in the blank]. Why are you saying that rescission is still effective where there are potential claims that would result in the rescission being vacated or set aside.?” The answer is that all TILA rescissions are effective when mailed, regardless of whether they are disputed or whether they could be disputed. The questioners are assuming that the “facts” are true and that they would lose if the pretender lender goes to court and shows that the subject alleged loan contract was for a purchase money mortgage, or was more than 3 years ago etc.
*
Yes, my answer is that the rescission is effective and yes, it seems like a good strategy in many cases. In a nutshell the reasons are that (1) the actual creditor with standing has made no claim that the rescission should be set aside or vacated and (2) they have missed their opportunity to do so. (20 days from receipt of the notice of rescission). Third, there has never been such a lawsuit. And the reason for that lies deep within the analysis of “securitization fail” (see Adam Levitin) which produces an anomalous result that is nevertheless the consequence of bad actors on Wall Street, to wit: there appears no “party” who could meet the definition of an actual creditor to whom the money is actually owed (i.e., the party at the end of the line of the money train).
 *
And because this seems impossible, it is assumed to be untrue. Yet that is precisely what the Banks are counting on when they assert status as “holder”, or that they are possessed with rights to enforce even if they don’t disclose the identity of the creditor.
 *
The best analogy I can conceive is in contract law. If A makes an offer to B and B accepts the offer, they have an “executory” but not enforceable contract. But once A gives something of value to B and B gives something of value to A, pursuant to the terms of the oral or written contract, the contract becomes enforceable. All this occurs without any judge, and perhaps without any lawyer involved in the mix.
*
The contract (a) exists and (b) is effective as a matter of law without judicial intervention. If there is a lawsuit it is going to be about whether there was a breach of the contract, not about whether the contract exists or was legally effective (except for some rare exceptions).
*
Nearly all social and business contracts are meant to occur without court intervention and are valid and enforceable, as a matter of law, because the statutes and common law say they are. If you think that no contract shoudl be considered effective until a judge rules on it, then we would need to add about 1 million more judges.
 *
Here is the analogy to TILA Rescission: Add to our example above a VALID statute that is clear on its face that says that B can cancel the entire contract with a letter. Then add the Federal Regulation that states everything that was signed or done after the start of the enforceable contract (consummation) becomes VOID at the moment the letter is sent.
 *
Assume B sent the letter canceling the contract. What do you have? Answer — an unenforceable contract and a bunch of void instruments and acts that were performed pursuant to the enforceable contract. The issue of fair or not was taken up by the legislature and they decided that this is fair. Can a judge over-rule a valid statute? No. Now add SCOTUS saying that the statute is valid and clear and no interpretation is allowed. What can a Judge do about the letter canceling the contract. Nothing — unless A sues B, alleging that it is still the party to an actual transaction that occurred between A and B and alleges facts supporting a conclusion that B was wrong to cancel the contract, and A asks the court, in a timely lawsuit, to vacate the cancellation.
 *

The problem might best be expressed as procedural law versus substantive law. The rescission statute is a procedural law passed by Congress to administrate the substantive provisions of The truth in lending act.

*

As pointed out by the Supreme Court of United States, this statute expresses how TILA Rescission is initiated and when it is effective. This statute makes no distinction between disputed an undisputed rescissions. And that point was expressly stated by Justice Scalia when writing for a unanimous Supreme Court. All rescissions are effective on the day they are mailed regardless of whether the thinking of the borrower is ignorant, defective, or arguable.

*

The rescissions are effective by operation of law. By the express wording of the statute, the regulations, in the Supreme Court of United States, the mailing of a notice of rescission makes the rescission of effective as a matter of law.

*

The position staked out by Congress and the Supreme Court of United States does not limit access to the courts for an aggrieved creditor. Such a creditor may file a complaint against the borrower seeking to vacate the rescission which is now effective as a matter of law. Obviously such a complaint could only be filed by a party possessing legal standing to contest the statutory nonjudicial rescission.

*

Your questions are about how to deal with a prospective lawsuit that has not been filed. And your question presumes that the creditor would win that lawsuit based on the assumption that a court would interpret the consummation of the transaction to have been a purchase money mortgage.

*

But the procedural question is whether the creditor can actually bring such a claim not only because of the question of legal standing but also because more than 20 days has elapsed since the rescission was received.

*

The Creditor only has a 20 day window in which to file any contest of the rescission. We know this because of the wording in the rescission statute and the interpretation of that statute by the Supreme Court of the United States. That court overturned thousands of decisions from trial court and appellate courts that required a lawsuit to be filed by the borrower in order to make rescission effective. In The unanimous Court rejected that interpretation for two reasons, to wit:

*

(1) the statute was clear on its face and the TILA statute made it clear that the notice of rescission was effective when it was placed in the mail. Therefore no lawsuit was required to determine whether or not the rescission was effective. It was effective as per the express wording of the statute. The only time limit expressed in the statute for compliance by the”Lender” is 20 days from the date of receipt. The banks want to place the burden on the homeowner to explain why this court should consider the rescission effective. But that is not the law. The burden is on the Banks to bring a timely action by a party with legal standing explaining why the rescission should be set aside or vacated. 

*

By combining the first day of TILA rescission as being the date of mailing and the last day of TILA rescission being 20 days from the date of receipt by the “lender”, it is obvious that any attempt to extend that period of time would essentially translate as meaning that the notice of rescission was not considered effective until a judge ruled upon it. This is opposite to what Congress said, what the Supreme Court said, and what the Federal regulations say. Banks are attempting to re-litigate this despite the fact that the highest court in the land rejected their argument already.

*

(2) the Supreme Court of the United States (SCOTUS) has expressly ruled that this statute is clear on its face and is not subject to any interpretation of any kind. Specifically the court simply restated the content of the statute which provides that the notice of rescission is effective upon mailing, which means that there is no lawsuit required to make the rescission effective, and the court noted that the statute made no distinction between disputed an undisputed rescissions.

*

Hence it is premature to attempt to resolve questions relating to prospective issues which might be alleged in a lawsuit directed at vacating the rescission.

*

This is only counter-intuitive if you assume that borrower’s should not have such power to cause such a huge impact by merely writing a letter. But the law is filled with such examples, most notably the Power of Sale in nonjudicial states. In both instances a private action carries the force of law.

*

In nonjudicial states the consequence is the most severe remedy allowed in civil litigation — loss of property and in most  cases, the homestead of the property owner. In the case of rescission, the borrower procedural removes any allowed use of the alleged loan contract, debt, note or mortgage. But it is entirely possible and even probable in many if not most cases that no loan contract was ever consummated in actuality by consideration from the payee on the note to the maker of the note.

*

Consummation is another “fact” that can only be determined by a court after due process — pleading, defenses and a trial. Such a case is NOT about whether the rescission was effective. It is about whether the rescission should be vacated or enforced as to the three duties of the “lender” after receipt of the TILA Rescission.

*

If that lawsuit is not currently pending and timely filed, there is no option for the creditor except compliance, to wit: (a) return canceled note (b) release encumbrance and (c) disgorgement and payment of of money to the homeowner. Only AFTER those duties are fully satisfied may a creditor make any demand for payment, and even then there is no collateral for the debt that the creditor says is due.

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.
WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation. In order to make it easier to serve you and get better results please take a moment to fill out our FREE registration form https://fs20.formsite.com/ngarfield/form271773666/index.html?1453992450583 
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
================================

Back by Popular Demand! Small Group Consultations with Neil Garfield

118700869_1Small Group Consultation by Phone- Back by Popular Demand! 

Friday, April 29, 2016 at 3:00 pm EST.

Over the past year, Neil Garfield has been inundated with requests for him to create a service that allows homeowner’s to ask two or three questions at a lower price point than his 1/2 an hour consultations ($350/hour). Recognizing that homeowner’s in foreclosure are financially strapped- Neil held his first Small Group Discussion last Wednesday to provide guidance to homeowners who had questions about a foreclosure issue (Neil does not provide legal advice, but can provide insight regarding foreclosure issues).

Last week’s discussion was a huge success!  Not only did participants have their own questions answered personally by Neil- they learned as Neil addressed the concerns of other participants.  Therefore, Neil will be hosting another Small Group Consultation on Friday, April 29th at 3 pm EST.  The Discussion is 90 minutes long and allows 10 participants to ask 2 or 3 questions each.  The cost is $99 per person.

In order to register please go to: http://www.vcita.com/v/lendinglies, scroll down the menu until you see the “Small Group Consultation” registration option (end of menu).

Registration is on a first come, first serve basis. Registration is online only and payment is required at time of registration.  Participants who sign up without payment will have their registration cancelled by the system. Register NOW- this is an introductory price and will increase after this session.

Once registered, you will receive an email from Lending Lies in which to pose your questions as well as a call in number and directions.  Please provide 2 or 3 concise questions.  Neil does not have the option of reading a lengthy history of your case, so questions must be specific.  For example:

  1. The bank filed a Motion for Summary Judgment but doesn’t have an assignment, can I challenge standing?
  2.  The County recorder refuses to accept my Notice of Rescission- what can I do?

If your question is highly complex, this consultation will likely not serve your needs and it is recommended that you obtain at least a 1/2 hour consultation with Neil Garfield. You may self-register for this service also at: http://www.vcita.com/v/lendinglies

All participants will receive a recorded copy of the session within several business days.

If you agree to participate, you waive your right to confidentiality and you agree that the consultation will be recorded.  For this reason, we will use first names only.

 

 

Rescission- 20 Days and Done.

By William Hudson

Thousands of TILA rescissions have now been filed nationwide. As these cases wind through the judicial system new things are being learned from cases that fail. First of all, if you have ever admitted consummation occurred- you are finished before you get out of the starting gate. In your rescission letter it is best not to refer to the loan as a loan unless you are positive it was.   Opposing counsel will attempt to get the homeowner to admit there was consummation by asking, “When did you receive your loan?” Homeowner, “In February 2009”. End of story. The homeowner just admitted that they received a loan when they have no idea that the loan was consummated.  Do not admit to things you don’t know.
When enforcing a TILA rescission you don’t ask for permission from the court. Why would you ask for permission to do something that is already done by operation of law?

 
Next, don’t allow the “lender” to influence the court by trying to get a court to order that the rescission was not effective. Rescission must be presented as FACT. According to Jesinoski the rescission once filed, wrong or right, is complete UNLESS the true creditor challenges the rescission within 20 days.
Rescission must be presented with confidence, with conviction and with the understanding that the highest court in the land made the rules and it is the court’s job to enforce the law.

 

1. TILA Rescission is an event. It is not a theory, claim or defense. It is a nonjudicial procedural remedy. It is accomplished by mailing a letter. In most cases it is an event that has indisputably already occurred. The effect of TILA Rescission is, as a matter of law and by operation of law, to cancel the loan contract, and to render the note and mortgage void. In a Motion to Dismiss, only the true “lender” can file a lawsuit in FEDERAL court to challenge that the rescission exists but is not effective, despite all law to the contrary. The matter is well settled, to wit: if the rescission exists, it is effective as a matter of law.
2. The effectiveness of a TILA Rescission is not predicated upon any judicial analysis of the likelihood of the borrower’s success if a lawsuit to vacate the rescission is filed by a party with legal standing. Any such interpretation would be opposite to the holding in Jesinoski that the rescission is effective upon mailing, whether disputed or not.

 
3. Lenders (Servicers) typically will not dispute that rescission has occurred but will instead seek to invoke issues in a case that is not and cannot be heard before any Court, to wit: whether the rescission is effective. Servicers seek to do so through motions in which they deftly avoid the requirement of pleading and proving facts in a proper lawsuit to vacate the rescission, thus depriving the homeowner of their right to raise appropriate defenses to the non-existent lawsuit seeking to vacate the rescission.

 
4. The “lenders/servicers” are attempting to manipulate the courts into entering an order that would attempt to vacate the rescission when the rescission is already done.  Therefore, the lender seeks to have the wrong court assume facts about the consummation of the alleged loan including the date or dates when consummation occurred and the source of funding for the alleged loan. The banks even attempt to persuade the court to assume that disclosures were adequate without evidence that they were. These are questions of fact requiring a lawsuit, discovery and trial. They seek to have courts adopt the premise that the rescission is not effective upon mailing if there are potential defects in the reasoning or actions of the borrower.

 
The SCOTUS has expressly rejected that argument that rescission is a negotiable action (Jesinoski v Countrywide). SCOTUS clearly stated that the rescission is complete upon mailing, regardless of whether it is disputed or not. Therefore only the TRUE lender with skin in the game can contest or challenge the rescission- but must do so within 20 days. A servicer with no standing at NO POINT can challenge a rescission.

Charles Marshall, Esq. Northern CA Attny Tonight on the Neil Garfield Show

Click in to tune in at The Neil Garfield Show

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

More than 40,000 people listen to the Neil Garfield Show. Maybe you should too.
===============================

Charles Marshall, Esq. attorney in Northern California joins us again as the featured attorney. Charles has been a long time supporter of the livinglies blog and has contributed to the analysis and strategies that are reported on the blog. He has exceptional critical thinking skills and the ability to understand the strategic winds that are blowing. Things are changing rapidly. We’ll be talking about Yvanova, Keshtgar, Lundy, TILA Rescission and current trends.

Charles Marshall

Law Offices of Charles T. Marshall

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.723.7071

Fax 866.575.7413

Follow

Get every new post delivered to your Inbox.

Join 4,385 other followers

%d bloggers like this: