Jesinoski v. Countrywide 1/13/2015
Whether the borrower is right or wrong for their reasons rescinding the loan - the lender must file a lawsuit within 20 days to reverse or vacate the rescission period - as by operation of law - upon mailing the note and deed of trust/mortgage are null and void.
Even if rescission was done beyond TILA 3 year statute of limitations = from closing date = due to fraud (concealment, non-disclosure, lender not who funded loan, MERS/securitization not fully disclosed) at closing - fraud thereby tolling TILA 3day/3years time frame to rescind the loan. No tinder needed.
Even if rescission was done beyond TILA 3 year statute of limitations = from closing date = due to fraud (concealment, non-disclosure, lender not who funded loan, MERS/securitization not fully disclosed) at closing - fraud thereby tolling TILA 3day/3years time frame to rescind the loan. No tinder needed.
The Chronology of TILA Rescission
by Neil Garfield 8/7/2018
SIMPLE LOGIC, NO DEBATE
I said it before and the Supreme Court said I was right. I said it again and the Supreme Court will again issue a ruling that conforms with my statements about TILA Rescission. The longer the rebellion (by the courts) goes on, the more title, rights, obligations and certainty will be undermined.
It's not up for debate, which many people have tried to promote. The statute is clear and the Jesinoski decision drills home the point --- the chronology of TILA rescission starts with delivery or mailing the notice of cancelation. It is THEN that rescission is effective by operation of law. It is a "done deal."
This is NOT an "interpretation" or "theory". I am only quoting the final decision from the Supreme Court that makes final decisions that may not be appealed. And the reason why SCOTUS was unanimous 9-0, Justice Scalia said, is that the statute could not be more clear and unambiguous.
All other arguments are policy arguments that should be taken up with the legislative branch of government. The debate is over.
Any contrary ruling, motion, decision or judgment is void. A new Supreme Court ruling is expected in which it considers what to do with lower courts that refuse to follow orders from their boss (SCOTUS).
The legal effect is that the loan agreement is over and the note and mortgage are void. The debt survives but (1) is now conditioned on compliance with the lender's obligations under the statutory scheme that replaced the loan agreement and (2) enforcement in all events is barred by the one year statute of limitations even if the lender did comply with the statute.
In some states the statute of limitations extinguishes the debt. In others it must be raised as an affirmative defense and is subject to possible renewal as with payments made after the SOL expires.
In any TILA rescission brief, I think the emphasis should be on chronology, subject matter jurisdiction and due process. I.e., that rescission removed the note, mortgage and loan agreement from legal consideration and therefore subject matter jurisdiction was lacking thereafter --- a point that can be brought up anytime, even on appeal or even later.
by Neil Garfield 8/7/2018
SIMPLE LOGIC, NO DEBATE
I said it before and the Supreme Court said I was right. I said it again and the Supreme Court will again issue a ruling that conforms with my statements about TILA Rescission. The longer the rebellion (by the courts) goes on, the more title, rights, obligations and certainty will be undermined.
It's not up for debate, which many people have tried to promote. The statute is clear and the Jesinoski decision drills home the point --- the chronology of TILA rescission starts with delivery or mailing the notice of cancelation. It is THEN that rescission is effective by operation of law. It is a "done deal."
This is NOT an "interpretation" or "theory". I am only quoting the final decision from the Supreme Court that makes final decisions that may not be appealed. And the reason why SCOTUS was unanimous 9-0, Justice Scalia said, is that the statute could not be more clear and unambiguous.
All other arguments are policy arguments that should be taken up with the legislative branch of government. The debate is over.
Any contrary ruling, motion, decision or judgment is void. A new Supreme Court ruling is expected in which it considers what to do with lower courts that refuse to follow orders from their boss (SCOTUS).
The legal effect is that the loan agreement is over and the note and mortgage are void. The debt survives but (1) is now conditioned on compliance with the lender's obligations under the statutory scheme that replaced the loan agreement and (2) enforcement in all events is barred by the one year statute of limitations even if the lender did comply with the statute.
In some states the statute of limitations extinguishes the debt. In others it must be raised as an affirmative defense and is subject to possible renewal as with payments made after the SOL expires.
In any TILA rescission brief, I think the emphasis should be on chronology, subject matter jurisdiction and due process. I.e., that rescission removed the note, mortgage and loan agreement from legal consideration and therefore subject matter jurisdiction was lacking thereafter --- a point that can be brought up anytime, even on appeal or even later.
- AND that imposing a remedy based upon void documents violates due process rights of the borrower.
- AND that any ruling denying the application of TILA rescission is void in the absence of a party with legal standing seeking a remedy (vacating the rescission) asserting (1) legal standing (injury) and (2) grounds upon which the rescission could be vacated.
- Any contrary ruling (ignoring the TILA rescission) is itself void on both jurisdiction and due process grounds.
The fundamental facts must be clearly stated and must be based upon chronology. The rescission caused the loan agreement, the note and the mortgage to be void by operation of law at the moment of mailing or delivery. That is exactly what the statute says and exactly what Jesinoski says with emphasis on the word "when."
If that remains true, then it is fundamental error for a trial court or appellate court to treat the loan agreement, note and mortgage to be in existence after receiving notice of the existence of the rescission, whether recorded or not. It therefore follows that it is fundamental error, without jurisdiction and a deprivation of fundamental and natural rights of the borrower to due process if a court grants relief or a remedy based upon the void documents.
There is no basis for a motion or ruling (from any court other than SCOTUS) that starts with the premise that rescission is effective upon delivery or mailing "IF". There is no "IF." There is no "provided." There is no "However." There are no conditions other than delivery or mailing.
Everything that attempts to impose conditional statements on the TILA rescission statute is wrong and void. Each such attempt assumes grounds for vacating the rescission have been proven by a party with standing. Due process requires the party who is directly injured by the "wrongful" rescission to initiate a lawsuit that begins with legal standing, asserts the rescission is effective, and the grounds for why the rescission notice should be vacated.
Neil Garfield | August 7, 2018 at 10:53 am | Categories: foreclosure | URL: https://wp.me/p7SnH-esS