About
This website is for Lance Cassino (Cassino) to coordinate his case on an ongoing basis with:
1. his attorney of record Jordan Porter www.JDPorterLaw.com,
2. his consulting attorney Neil Garfield www.LivingLies.wordpress.com,
3. his expert witness Gary Michaels www.ForgeryFraud.com
4. the Consumer Financial Protection Bureau (CFPB) www.ConsumerFinance.gov
5. Jefferson County Sheriff Jeff Shrader - 200 Jefferson County Parkway Golden, CO 80401 303-271-0211.
6. Jefferson County Clerk and Recorder Faye Griffin - 100 Jefferson County Parkway Golden, CO 80419 303-271-8186.
7. Jefferson County District Attorney Peter A. Weir - 500 Jefferson County Parkway Golden, CO 80401 303-271-6800.
8.Jefferson County Public Trustee Margaret T. Chapman - 100 Jefferson County Parkway Suite 2510/1540 Golden, CO 80419
9. Colorado Attorney General Cynthia H. Coffman - 1300 Broadway, 10th Floor, Denver, Colorado 80203, 720-508-6000
10. Congressman Jared Polis - 1433 Longworth House Office Building, Washington, D.C. 20515, (202) 225-2161
11. Congressman Alan Grayson - 5842 South Semoran Boulevard, Orlando, FL 32822, (407) 615-8889
12. Senator Michael Bennet - Senator Michael Bennet, 1200 S College Ave # 211, Fort Collins, CO 80524, (970) 224-2200.
13. Senator Elizabeth Warren - 317 Hart Senate Office Building, Washington, DC 20510 (202) 224-4543
14. Planned expert witness Marie McDonnell www.McDonnellAnalytics.com
15. Planned expert Witness Dave Krieger www.CloudedTitles.com www.CloudedTitlesBlog.com www.DKConsultants.US
for help to enforce Cassino's TILA rescission notice sent to JP Morgan Chase ("Chase") January 30, 2015 and received February 5, 2015 which Chase did not respond to in the required 20 days with a lawsuit to challenge or vacate the rescission which was effective by operation of law making the loan, note and deed void - not voidable.
After the CRASH of 2008-9 Cassino began his quest for a government sponsored "loan modification" via their HAMP and HARP through Chase due to damages by Defendant Chase's "mortgage fraud via securitization and derivatives" to the value of his property and the economy in general that diminished his income as a web site developer as costs of gas, utilities, food greatly increased. Chase being just one of the major banksters in the ponzi scheme that CRASHED the economy of the world 2008-9.
The quest from 2009 through 10/2/2013 included 4 loan modification applications and denials, 3 attorneys, 2 paralegals, and over $14,000 in legal fees, and another $8,000 in paralegal certification and 4 workshops on Chain of Title Assessment (COTA) and Quiet Title to defend a lawsuit in Colorado State Court - Jefferson County in Chase v. Cassino (Case Number 2011CV4858) filed in 2011 to reform the deed of trust and then foreclose.
The end result was a "partial" settlement with both Chase and Cassino dismissing the state case without prejudice and Chase paying Cassino $10,000 for attorney's fees. We should have pushed for quiet title included then and there, but did not per legal advice - to see result's of other upcoming related cases and more. My attorney of record, Steve Navaro, recommended doing this for the time being because Chase had no capacity or standing to enter into the contract for settlement making it worthless. He felt this would buy time until more case law decisions were available for citing in a quiet title action to get a FULL settlement. Those additional citations happened with:
1. Lawrence Nardi deposition on WaMu loans not going to Chase.
2. Chase admitting in FDIC v. Chase $13 billion settlement that Chase is not successor-in-interest to WaMu loans.
The "partial" settlement without the deserved quite title, left Cassino in a stalemate along with Chase. Cassino could not refinance to get on with his life financially and Chase could not foreclose because of not having jurisdictional standing which was shown in the state case.
Additionally, the Settlement Agreement could not move forward on paragraph 2(A) to do a subdivision of the land as both law firms involved in the Settlement Agreement with Cassino: Jeremy Peck www.KutakRock.com/jeremy-peck/ and Fred Gabler www.KarshFulton.com/attorney-profiles/fred-gabler withdrew from representing Chase, making it virtually impossible to do the subdivision as Chase was going to pay 1/2 the subdivision cost.
So after lack of communications from attorneys above representing Chase on several solutions to the stalemate (7/11/2013 - 10/2/20113), Cassino filed suit 10/3/2013 in United States District Court District Court of Colorado at Denver with 10 causes of action including Quiet Title. After learning from Dave Krieger that he should be in state court, Cassino withdrew without prejudice the federal lawsuit April 7th, 2014.
Cassino further attempted settlement with a solution to the stalemate 12/2014 - 1/2015 in discussions via phone and email with employed by Chase attorney Joanna B. McCarty [email protected], who turned it down.
He then had a Chain Of Title Assessment (COTA) prepared by a professional in August 2014 to setup his next move of filing a complaint for quite title to cancel and expunge the counterfeit and fraudulent corporate assignment of deed of trust by MERS. That was the next move until out of the blue, ending the stalemate, came the Jesinoski v. Countrywide January 13th, 2015 unanimous Supreme Court decision on what TILA may allow damaged/injured borrowers to finally get justice….So, Cassino filed his Rescission of Loan Notice January 30th, 2015 and is now trying to pressure and shame Chase to follow the law with copies of his Protest filed 10/27/2015 provided to all his jurisdictional representatives responsible for law enforcement (the c.c. list). Hopefully this moves Chase into a settlement very soon out of court or Cassino will be forced to file a complaint at some time to enforce the TILA rescission with his local attorney, and an out-of-state consulting attorney and 2 expert witnesses if needed - including on TILA, Neil Garfield in Florida.
UPDATE with NEW VERSION ASAP > Cassino's Affidavit On TILA Rescission Enforcement Complaint and Quiet Title which will be below, and will provide the detailed time line of battling Chase in court the last 4 years and 10 months as follows:
December 2010 Cassino v. Chase when Cassino retained Mitchell J. Stein & Associates in California in his JPMorgan Chase mass joinder lawsuit for either a real loan mod if Chase is note holder in due course or if not, quiet title. The very next month, Chase refused taking payments from Cassino, wrongfully forcing an alleged "default" then filing on March 17, 2011 a Notice of Election and Demand For Sale even though Chase had no legal right as evidenced by the recording of a false instrument 6 months plus later on 9/28/2011, a self assigned to Chase, Corporate Assignment of Deed of Trust signed by an alleged robo-signer and witnessed by a robo-notary.
December 2011 - March 2013 Chase v. Cassino in Jefferson County District Court case to reform deed of trust and then foreclose "partially" settled in Cassino's favor.
October 2013 - April 2014 Cassino v. Chase in Federal Court in Denver - withdrawn by Cassino to better time filing for a Quiet Title in Jefferson County District Court with better cites from upcoming court decisions.
January 20, 2015 Cassino sends Chase rescission letter via U.S.P.S. certified received February 5, 2015.
10/19/2015 Cassino files a white collar criminal complaint with Jefferson County Sheriff - recording a false instrument - a Corporate Assignment of Deed of Trust by Chase on the Jefferson County land records which can be a class 5 felony including copies of assignment and statute 18-5-114. Offering a false instrument for recording.
2015-2016 ? full settlement discussions or back to court?
((( Update: Following is Congressman Alan Grayson's letter to US AG Loretta Lynch dated 10/6/2015 on the same problem Cassino has in Colorado regarding recording of false instruments in county land records. After that is http://osceolaclerk.com/Home/Content/forensic-examination-real
1. his attorney of record Jordan Porter www.JDPorterLaw.com,
2. his consulting attorney Neil Garfield www.LivingLies.wordpress.com,
3. his expert witness Gary Michaels www.ForgeryFraud.com
4. the Consumer Financial Protection Bureau (CFPB) www.ConsumerFinance.gov
5. Jefferson County Sheriff Jeff Shrader - 200 Jefferson County Parkway Golden, CO 80401 303-271-0211.
6. Jefferson County Clerk and Recorder Faye Griffin - 100 Jefferson County Parkway Golden, CO 80419 303-271-8186.
7. Jefferson County District Attorney Peter A. Weir - 500 Jefferson County Parkway Golden, CO 80401 303-271-6800.
8.Jefferson County Public Trustee Margaret T. Chapman - 100 Jefferson County Parkway Suite 2510/1540 Golden, CO 80419
9. Colorado Attorney General Cynthia H. Coffman - 1300 Broadway, 10th Floor, Denver, Colorado 80203, 720-508-6000
10. Congressman Jared Polis - 1433 Longworth House Office Building, Washington, D.C. 20515, (202) 225-2161
11. Congressman Alan Grayson - 5842 South Semoran Boulevard, Orlando, FL 32822, (407) 615-8889
12. Senator Michael Bennet - Senator Michael Bennet, 1200 S College Ave # 211, Fort Collins, CO 80524, (970) 224-2200.
13. Senator Elizabeth Warren - 317 Hart Senate Office Building, Washington, DC 20510 (202) 224-4543
14. Planned expert witness Marie McDonnell www.McDonnellAnalytics.com
15. Planned expert Witness Dave Krieger www.CloudedTitles.com www.CloudedTitlesBlog.com www.DKConsultants.US
for help to enforce Cassino's TILA rescission notice sent to JP Morgan Chase ("Chase") January 30, 2015 and received February 5, 2015 which Chase did not respond to in the required 20 days with a lawsuit to challenge or vacate the rescission which was effective by operation of law making the loan, note and deed void - not voidable.
After the CRASH of 2008-9 Cassino began his quest for a government sponsored "loan modification" via their HAMP and HARP through Chase due to damages by Defendant Chase's "mortgage fraud via securitization and derivatives" to the value of his property and the economy in general that diminished his income as a web site developer as costs of gas, utilities, food greatly increased. Chase being just one of the major banksters in the ponzi scheme that CRASHED the economy of the world 2008-9.
The quest from 2009 through 10/2/2013 included 4 loan modification applications and denials, 3 attorneys, 2 paralegals, and over $14,000 in legal fees, and another $8,000 in paralegal certification and 4 workshops on Chain of Title Assessment (COTA) and Quiet Title to defend a lawsuit in Colorado State Court - Jefferson County in Chase v. Cassino (Case Number 2011CV4858) filed in 2011 to reform the deed of trust and then foreclose.
The end result was a "partial" settlement with both Chase and Cassino dismissing the state case without prejudice and Chase paying Cassino $10,000 for attorney's fees. We should have pushed for quiet title included then and there, but did not per legal advice - to see result's of other upcoming related cases and more. My attorney of record, Steve Navaro, recommended doing this for the time being because Chase had no capacity or standing to enter into the contract for settlement making it worthless. He felt this would buy time until more case law decisions were available for citing in a quiet title action to get a FULL settlement. Those additional citations happened with:
1. Lawrence Nardi deposition on WaMu loans not going to Chase.
2. Chase admitting in FDIC v. Chase $13 billion settlement that Chase is not successor-in-interest to WaMu loans.
The "partial" settlement without the deserved quite title, left Cassino in a stalemate along with Chase. Cassino could not refinance to get on with his life financially and Chase could not foreclose because of not having jurisdictional standing which was shown in the state case.
Additionally, the Settlement Agreement could not move forward on paragraph 2(A) to do a subdivision of the land as both law firms involved in the Settlement Agreement with Cassino: Jeremy Peck www.KutakRock.com/jeremy-peck/ and Fred Gabler www.KarshFulton.com/attorney-profiles/fred-gabler withdrew from representing Chase, making it virtually impossible to do the subdivision as Chase was going to pay 1/2 the subdivision cost.
So after lack of communications from attorneys above representing Chase on several solutions to the stalemate (7/11/2013 - 10/2/20113), Cassino filed suit 10/3/2013 in United States District Court District Court of Colorado at Denver with 10 causes of action including Quiet Title. After learning from Dave Krieger that he should be in state court, Cassino withdrew without prejudice the federal lawsuit April 7th, 2014.
Cassino further attempted settlement with a solution to the stalemate 12/2014 - 1/2015 in discussions via phone and email with employed by Chase attorney Joanna B. McCarty [email protected], who turned it down.
He then had a Chain Of Title Assessment (COTA) prepared by a professional in August 2014 to setup his next move of filing a complaint for quite title to cancel and expunge the counterfeit and fraudulent corporate assignment of deed of trust by MERS. That was the next move until out of the blue, ending the stalemate, came the Jesinoski v. Countrywide January 13th, 2015 unanimous Supreme Court decision on what TILA may allow damaged/injured borrowers to finally get justice….So, Cassino filed his Rescission of Loan Notice January 30th, 2015 and is now trying to pressure and shame Chase to follow the law with copies of his Protest filed 10/27/2015 provided to all his jurisdictional representatives responsible for law enforcement (the c.c. list). Hopefully this moves Chase into a settlement very soon out of court or Cassino will be forced to file a complaint at some time to enforce the TILA rescission with his local attorney, and an out-of-state consulting attorney and 2 expert witnesses if needed - including on TILA, Neil Garfield in Florida.
UPDATE with NEW VERSION ASAP > Cassino's Affidavit On TILA Rescission Enforcement Complaint and Quiet Title which will be below, and will provide the detailed time line of battling Chase in court the last 4 years and 10 months as follows:
December 2010 Cassino v. Chase when Cassino retained Mitchell J. Stein & Associates in California in his JPMorgan Chase mass joinder lawsuit for either a real loan mod if Chase is note holder in due course or if not, quiet title. The very next month, Chase refused taking payments from Cassino, wrongfully forcing an alleged "default" then filing on March 17, 2011 a Notice of Election and Demand For Sale even though Chase had no legal right as evidenced by the recording of a false instrument 6 months plus later on 9/28/2011, a self assigned to Chase, Corporate Assignment of Deed of Trust signed by an alleged robo-signer and witnessed by a robo-notary.
December 2011 - March 2013 Chase v. Cassino in Jefferson County District Court case to reform deed of trust and then foreclose "partially" settled in Cassino's favor.
October 2013 - April 2014 Cassino v. Chase in Federal Court in Denver - withdrawn by Cassino to better time filing for a Quiet Title in Jefferson County District Court with better cites from upcoming court decisions.
January 20, 2015 Cassino sends Chase rescission letter via U.S.P.S. certified received February 5, 2015.
10/19/2015 Cassino files a white collar criminal complaint with Jefferson County Sheriff - recording a false instrument - a Corporate Assignment of Deed of Trust by Chase on the Jefferson County land records which can be a class 5 felony including copies of assignment and statute 18-5-114. Offering a false instrument for recording.
2015-2016 ? full settlement discussions or back to court?
((( Update: Following is Congressman Alan Grayson's letter to US AG Loretta Lynch dated 10/6/2015 on the same problem Cassino has in Colorado regarding recording of false instruments in county land records. After that is http://osceolaclerk.com/Home/Content/forensic-examination-real
http://osceolaclerk.com/Home/Content/forensic-examination-real-property-osceola-county
FORENSIC EXAMINATION
OF THE REAL PROPERTY RECORDS AND THE CIRCUIT COURT RECORDS OSCEOLA COUNTY, FLORIDA
Attorney Opinion Statement of Jennifer Englert, The Orlando Law Group, P.A.
December 28, 2014
Armando Ramirez
Clerk of the Circuit Court Osceola County, Florida
2 Courthouse Square Kissimmee, Florida 34741
Dear Mr. Ramirez:
I have been a member of the Florida Bar since 1999. I have defended over one hundred home owners in foreclosure matters and I have seen first-hand how the banks and their servicers have harmed home owners in Florida. I have taken foreclosure cases to trial in Osceola County.
I have been following the actions of Attorneys General of other states with interest to see if they will take any action against those taking homes without the proper paperwork in place. Further, I have been following any cases that address foreclosures to see if there is any relief for homeowners.
While there has not been much in Florida in the way of legislation to assist homeowners in foreclosure matters there are indications and the Legislature does want foreclosures to be done honestly.
Rule 1.110(b), Florida Rule of Civil procedures was amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purpose of this amendment is clearly to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note and the ability to foreclose on it. It also shows the need to conserve judicial resources that are currently being wasted on inappropriate foreclosures and to avoid harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note.
Rule 1.110(b) requires a clean, plain statement of accuracy by the person who actually verifies the truth of the claims made, and who is identified as being in a position to actually do so. It would seem that the investigation set forth in the report illustrates many cases in Osceola County alone where the individuals who verified Complaints and supporting affidavits were not qualified to do so or lacked the pertinent knowledge to do so. This alone warrants further investigation.
Throughout the report the Examiner found a clear pattern where “users” of the MERS® System used it to benefit corresponding (originating) lenders, interim funding lenders and warehouse aggregate lenders, who make use of investor money through the pass-through exchange without perfecting the transactions in a timely fashion. Borrowers as well as the applicable government regulatory agencies were unaware notes and mortgages would be converted into image files, to be manipulated and traded within the MERS® System so that no one would know their ultimate path (or whether the loans were fractionalized over multiple trust pools in deviation of GAAP) in the securitization system. MERS appears to have been utilized in RICO-style fashion to coverup the chain of title to make it “fit” into a pattern where the real property records were used to show the path of the mortgage, while the bearer paper (manufactured and manipulated by computer) has been used as evidence in court time after time to foreclose on homeowners. In no other litigation scenario has such unreliable evidence been used on such a regular basis.
Unfortunately members of the bar have been complicit in the efforts of MERS and its users. I am sure the reader is aware of the several attorneys and law firms which have been disciplined and closed due to their behavior in foreclosure litigation as well as the abatement of foreclosure cases due to their behavior. In my fifteen years as a bar member this is unprecedented.
As someone who has dealt with these firms for the past five years I can say that many do their best to hide discovery document, sell notes prior to trial and do whatever else they can to keep defense attorneys from being able to talk to needed witnesses and review the pertinent documents until trial. As Judges have mandates to move these cases along, continuances to get the needed information are virtually non-existent.
The attached report exists to bring light to the abuses of MERS and the court system to improperly foreclose on homeowners.
The Examiner found evidence of several statutory violations which will be outlines in the remainder of my letter.
First, in order to perpetuate the scheme of robo-signing and the creation of false affidavits, Florida Statute § 817.15 was violated in that false entries were made to add corporate officers to the books of banks and services with intent to defraud which is a felony of the third degree. These false entries were to create new officers so that they could sign assignments and other documents to allow foreclosures to sail through. Creating false officers also violates Florida Statutes §817.155 and §817.16.
These statutory violations are minor compared to the actions the “fraudulent officers” perpetrated. A highlight of the report is violations of § 817.535 of the Florida Statutes which prohibits filing of false documents or records against real or personal property. A person who files or directs a filer to file false documents with the intent to defraud or harass another commits a felony of the third degree. Repeating this act is a felony of the second degree.
There are also obvious civil penalties which could be addressed with the findings of any criminal investigation which would be a further deterrent to this type of behavior.
The report includes many examples of fraudulent documents which purport to claim under oath that the signor had personal knowledge of the facts attested therein which contained false and misrepresentative information with the intent to deprive the property owner of their property in violation. The “MERS® System” then utilized fraudulent documents to manipulate data in third-party computer software platforms generated and utilized by document manufacturing plants and foreclosure mill law firms to create, manufacture and file documents containing questionable and potentially false and misrepresentative information under the direction of the servicers and title companies to bring fraud on the court.
These actions also consist of forgery in violation of Florida Statutes § 831.01 as MERS, the banks and servicing companies falsely made, altered and counterfeited thousands of public records, in matter wherein such certificate, return or attestation was received as legal proof; with intent to injure or defraud any person, which is a felony of the third degree. By publishing the forged instruments including false deeds, instruments or other writings mentioned in § 831.01knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud employees of MERS, its users and the applicable law firms were guilty of a felony of the third degree in violation of § 831.02.
The report also outlined statutory violations pursuant to § 117.105 for all the evidence of false and fraudulent notary work based on false acknowledgment on the written instrument which are each felonies of the third degree.
It is clear in the report there is vast evidence of violations of several Florida criminal statutes by MERS, its users and some law firm personnel. From there it is easy to establish under RICO, Florida Statute § 895, an “Enterprise” (a corporation, business trust, or other legal entity)engaged in a “pattern of racketeering activity,” (at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents.)The Examiner has documented several hundred pages of incidents where documents were falsely created in order to foreclose on homeowners which is a clear pattern of activity. The sole purpose of generating the documents was to have “evidence” to use in a Court of law at summary judgment and trial.
It is practically impossible to poke holes in these documents as they are verified by witnesses who clearly had no role in creating them who simply testify that according to a computer system they can see in their office the documents are genuine.
As a member of the Bar I do hope that action is taken against the manufacturers of false documents as they have been so extensively used to the detriment of so many citizens in our Courts. Had these documents not been so easily available then there would not have been nearly as many foreclosure cases which cluttered dockets and prevented so many from getting a fair trial. All of this is incongruous with our legal system.
Sincerely,
Jennifer A. Englert, Esq.
www.TheOrlandoLawGroup.com
The Forensic Examination Report issued 12/29/2014 and documents are at:
http://www.osceolaclerk.com/Content/UploadedContent/Examination/OC_Forensic_Examination.pdf
========================================================================================================================================
Timely article by Neil Garfield that applies directly to this case Cassino v. Chase:
Rescission Litigation: What to do With that Motion to Dismiss
Posted on October 29, 2015 by Neil Garfield
For more information, please call 954-495-9867 or 520-405-1688
This is for general information only. It is not an opinion upon which you can rely in your case. Get a lawyer. But get one that has really studied this issue because the knee jerk reaction by most lawyers is that rescission cannot be real. Don’t act on anything you read here without consulting an attorney who is licensed in the jurisdiction in which your property is located.
=====================================
I have been receiving requests from pro se litigants and lawyers alike who are now faced with the prospects of early settlements where the rescission “card” has been played — i.e., the “borrower” has filed an action seeking to enforce TILA rescission duties. For the moment, the only thing the banks have come up with to escape the standing problem is to file a motion to dismiss where their standing is presumed since they were sued. But upon closer examination, any motion to dismiss raising defects in the notice of rescission is not properly filed unless the one party in the lawsuit that is actually a creditor, CAN raise the issue. And they can’t raise the issue on a motion to dismiss because the motion is raising facts (like date of consummation) that outside the four corners of the complaint. They cannot even raise the issue in an answer or affirmative defense unless they have real standing (injured party) unless they themselves already filed a lawsuit seeking to vacate the rescission.
We know that the bank lawyers are panicked about rescission. They have put on seminars for each other basically concluding that every point I have been making about rescission is correct and that they are ultimately going to lose unless someone comes up with a credible strategy. The essential problem is that they will not and can not come up with a party who has standing to challenge the the rescission and seek to vacate it through a judicial action (i.e., a lawsuit). And while they have been somewhat successful in the trial courts on some of their efforts to raise issues on motion by raising statute of limitations or other issues, they understand that on appeal, they will lose.
By the way, to the extent their motion to dismiss attacks the rescission, the answer is that the rescission was effective when mailed, by operation of law and that therefore at this moment the note and mortgage are void. And, since they did not file to change anything within the 20 days for compliance, they can’t attack the rescission, so it is permanent. And more importantly they no longer have standing to challenge the rescission because their standing WAS based upon the note and mortgage which are now void instruments. They would need to file an action (lawsuit) seeking to vacate the rescission BEFORE the expiration of 20 days from receipt of rescission (not a motion to dismiss that takes the four corners of the complaint as true). And the party upon whose behalf the action is filed MUST be a CREDITOR in the true sense of the word — not some party holding void instruments, like the note and mortgage.
In my opinion, the proper course of action is to attack the motion to dismiss as an improper use of court procedure to avoid the requirements of pleading. A motion to strike the motion to dismiss would be appropriate. If you accompany that with a memo of law, you will have perfected the record. They want to try to skate by the standing requirement and the small window of opportunity to challenge the rescission and still have the old party who was merely holding paper that is now void file a motion and get rid of the rescission that way.
Judges would like to grant their motion because most of them still believe this is a gimmick by borrowers instead of seeing it for what it is — fraud by intermediaries who have no privity with either borrowers or the investors whose money was used improperly for origination and acquisition of loans (i.e., the REMIC Trust was ignored). The Judges don’t like the result either — the borrower gets a “free house” in their perception and the bank loses out on the loan. Neither assumption is true.
In virtually all cases, the borrower has heavily invested in the property and made many payments and has suffered through years of litigation and opposition to illegal acts by the players who pretend to be lenders or pretend to represent lenders.
Blaming the borrower is completely wrong. The borrower was an unwitting pawn in a game of fraudulent conversion by the banks. And “the bank” loses only some of their investment if they actually paid for the loan or they represent a party who has actually paid for the loan. If they are not creditors and they don’t represent the creditors, where is the harm? If the loan contract actually exists and has been consummated in the legal sense (offer, acceptance and consideration) and if the rescission is valid — they get paid back all the principal they loaned less the fees paid to third parties for origination of an illegal table-funded loan. Where is the harm in that?
It was the borrower who came to the table in good faith, not the banks.
Spread the word
Rescission Litigation: What to do With that Motion to Dismiss
Posted on October 29, 2015 by Neil Garfield
For more information, please call 954-495-9867 or 520-405-1688
This is for general information only. It is not an opinion upon which you can rely in your case. Get a lawyer. But get one that has really studied this issue because the knee jerk reaction by most lawyers is that rescission cannot be real. Don’t act on anything you read here without consulting an attorney who is licensed in the jurisdiction in which your property is located.
=====================================
I have been receiving requests from pro se litigants and lawyers alike who are now faced with the prospects of early settlements where the rescission “card” has been played — i.e., the “borrower” has filed an action seeking to enforce TILA rescission duties. For the moment, the only thing the banks have come up with to escape the standing problem is to file a motion to dismiss where their standing is presumed since they were sued. But upon closer examination, any motion to dismiss raising defects in the notice of rescission is not properly filed unless the one party in the lawsuit that is actually a creditor, CAN raise the issue. And they can’t raise the issue on a motion to dismiss because the motion is raising facts (like date of consummation) that outside the four corners of the complaint. They cannot even raise the issue in an answer or affirmative defense unless they have real standing (injured party) unless they themselves already filed a lawsuit seeking to vacate the rescission.
We know that the bank lawyers are panicked about rescission. They have put on seminars for each other basically concluding that every point I have been making about rescission is correct and that they are ultimately going to lose unless someone comes up with a credible strategy. The essential problem is that they will not and can not come up with a party who has standing to challenge the the rescission and seek to vacate it through a judicial action (i.e., a lawsuit). And while they have been somewhat successful in the trial courts on some of their efforts to raise issues on motion by raising statute of limitations or other issues, they understand that on appeal, they will lose.
By the way, to the extent their motion to dismiss attacks the rescission, the answer is that the rescission was effective when mailed, by operation of law and that therefore at this moment the note and mortgage are void. And, since they did not file to change anything within the 20 days for compliance, they can’t attack the rescission, so it is permanent. And more importantly they no longer have standing to challenge the rescission because their standing WAS based upon the note and mortgage which are now void instruments. They would need to file an action (lawsuit) seeking to vacate the rescission BEFORE the expiration of 20 days from receipt of rescission (not a motion to dismiss that takes the four corners of the complaint as true). And the party upon whose behalf the action is filed MUST be a CREDITOR in the true sense of the word — not some party holding void instruments, like the note and mortgage.
In my opinion, the proper course of action is to attack the motion to dismiss as an improper use of court procedure to avoid the requirements of pleading. A motion to strike the motion to dismiss would be appropriate. If you accompany that with a memo of law, you will have perfected the record. They want to try to skate by the standing requirement and the small window of opportunity to challenge the rescission and still have the old party who was merely holding paper that is now void file a motion and get rid of the rescission that way.
Judges would like to grant their motion because most of them still believe this is a gimmick by borrowers instead of seeing it for what it is — fraud by intermediaries who have no privity with either borrowers or the investors whose money was used improperly for origination and acquisition of loans (i.e., the REMIC Trust was ignored). The Judges don’t like the result either — the borrower gets a “free house” in their perception and the bank loses out on the loan. Neither assumption is true.
In virtually all cases, the borrower has heavily invested in the property and made many payments and has suffered through years of litigation and opposition to illegal acts by the players who pretend to be lenders or pretend to represent lenders.
Blaming the borrower is completely wrong. The borrower was an unwitting pawn in a game of fraudulent conversion by the banks. And “the bank” loses only some of their investment if they actually paid for the loan or they represent a party who has actually paid for the loan. If they are not creditors and they don’t represent the creditors, where is the harm? If the loan contract actually exists and has been consummated in the legal sense (offer, acceptance and consideration) and if the rescission is valid — they get paid back all the principal they loaned less the fees paid to third parties for origination of an illegal table-funded loan. Where is the harm in that?
It was the borrower who came to the table in good faith, not the banks.
Spread the word