Breaking news
Rescission The Ins and Outs Posted on May 28, 2015 by Neil Garfield
So due to scheduling conflicts I can’t do the radio show tonight. Sorry. But here is what I will cover next week along with some late breaking news regarding MERS and damage cases against the banks, servicers and their lawyers.
RESCISSION: I have received hundreds of requests and questions. It boils down to one thing — the rescission IS EFFECTIVE the moment it is dropped in the mail. People, lawyers and even Judges seem not to understand what that means despite a very terse snip from Justice Scalia speaking for an unusually unanimous Supreme Court in Jesinowksi. What it means is that the deal is done, canceled, rescinded (stick a fork in it). And what it also means is that the time starts to run on the duties of the “lender(s)” to comply with that cancellation/rescission. Telling you in a letter that you had no right to send it is NOTHING, as a matter of law.
So whether you were right or wrong when you sent the notice of rescission the deal was canceled. Anyone who interprets it differently is doing two things that are wrong: (1) interpreting that which is clear and ruled upon by the highest court in the land and (2) getting it exactly wrong.
There is no other interpretation of “effective” because the Supreme Court under the annoyed pen of Justice Scalia has said there is nothing to interpret. When the rescission was mailed it was effective BY OPERATION OF LAW.
During the 20 days, the duties of the “lender” or “creditor” are clear: (1) return the canceled note (2) file a satisfaction of mortgage and (3) return all money paid by borrower. If the banks fail to do that they have violated the statute. If anyone takes issue with whether the rescission should be effective this way, they would need to file a lawsuit within the 20 days allowed for performing the duties under TILA (see above). If they want to say the statute of limitations has run, they must do it in a lawsuit filed within the 20 days. Otherwise the window closes. If they want to say it was a purchase money mortgage and that the borrower rescinded a loan that could not be rescinded under TILA, they must do it in lawsuit filed within the 20 days. There are questions of fact in all these “defenses” as to whether it was really beyond the statute of limitations or really a purchase money mortgage (when coupled with a HELOC etc).
Everyone is having trouble with this after years of incorrect rulings from thousands of courts “interpreting” the statute (which was clear and thus not subject to interpretation). So here it is:
IF NOTICE OF RESCISSION IS SENT THE LOAN IS OVER AND THE NOTE AND MORTGAGE ARE VOID BY OPERATION OF LAW — NO LAWSUIT OR TENDER OF MONEY OR PROPERTY REQUIRED. PERIOD.
It apparently seems too simple, too powerful for people to accept. In one punch they could flatten a trillion dollar giant? The answer is yes. Stop over thinking this. Our rescission package analyzes your loan and gives you options and ways to utilize rescission and related actions to enforce rescission and quiet title. After 20 days the deal is over and no longer subject to attacking the rescission. But we know the Banks, servicers etc. are going to try to “defend” after the 20 days. So you need to know how the effects of rescission can be jammed down their throats and how it automatically frees your property from the encumbrance of the mortgage —regardless of whether or not anyone actually filed the satisfaction of mortgage. In fact, the statute bars any action by the “lender”until they have complied totally with the three duties outlined above.
Get it? If not, tune into the Neil Garfield Show next week.
For more information please call 954-495-9867 or 520-405-1688.
My administrative assistant is Susan Rose. She speaks for me but she is not a lawyer and cannot answer legal questions. This blog and the included articles are not legal opinions on any specific case and should never be used as a substitute for advice from a knowledgeable attorney who is licensed in the jurisdiction in which the property is located.
============================ Spread the word ========================================================
Recent United States Supreme Ccourt opinion on TILA 3 year statute of limitations: New post on Livinglies's Weblog
Banks Brace for Pain: Statute of Limitations on TILA Rescission and TILA Claims
Posted on January 23, 2015 by Neil Garfield For further information please call 954-495-9867 or 520-405-1688
TILA remedies and requirements actually address the "free house" complaint head on: If banks misbehave in material and important ways (as defined by statute and not in the minds of a judge or lawyer) then yes, the homeowner should get a free house. That is what all three branches of the Federal government have said and no re-interpretation of TILA rescission or TILA remedies will be allowed since last week when the Supreme Court unanimously decided that TILA meant what it says. Any Judge or lawyer who thinks otherwise is in fairyland. The fact that a Judge doesn't "like" the result of a "free house" (as the Judge perceives it) means nothing. The Judge is required to apply the law as decided by the United States Supreme Court.
Practically everyone is asking questions about whether the statute of limitations starts running from the date the documents were signed on the alleged loan or if it could start at a later time. The answer is a grey area, but as pointed out by James Macklin last night on the Neil Garfield show, there is a legal doctrine called equitable tolling that could suspend the start of the running of the statute of limitations for TILA rescission and TILA claims.
"The equitable tolling principles are to be read into every Federal Statute of Limitations unless Congress expressly provides to the contrary in clear and unambiguous language, see: Rotella v. Wood 528, 549, 560-61,120 S. Ct. 1075, 145 L. Ed. 2d 1047(2000). Since TILA does not evidence a contrary Congressional intent, it’s statute of limitations must be read to be subject to equitable tolling, particularly since the Act is to be construed liberally in favor of consumers."
Basically the doctrine says that the statute starts to run, unless otherwise provided in the statute, when the claimant knew or should have known or most have known of the grounds for, in this case, TILA Rescission or TILA claims. The basis of that is obvious to anyone involved with these fake mortgages and fraudulent foreclosures for 8 years like I have. The very facts that give rise to TILA rescission and other TILA claims, are intentionally withheld by the parties at the fake closing where the borrower signs settlements documents, the note and the mortgage.
The strategy of the banks has been to wait out three years and then pursue foreclosure and when the borrower raises TILA defenses, the answer is that the statute of limitations has run. With the recent unanimous Supreme Court decision that effectively smacked thousands of lawyers and judges in the face for re-interpreting basic law and the specific and express provisions of TILA, this bank strategy should no longer work.
So now if you gave notice of rescission within three years of the date of the fake closing, your mortgage is null and void "by operation of law" and the "lender(s)" are required to give you (a) a satisfaction of mortgage for county records (b) a canceled original note (c) refund all the money you paid at closing for points, fees, costs etc. and (d) refund all the money you ever paid for interest and principal on the loan. Your debt becomes unsecured and there is no requirement for you to offer them any money at all in order to have the TILA rescission ("I hereby rescind my loan") be effective. If you EVER sent such a notice within the three year period then your mortgage was void by operation of law at that time --- unless the "lender(s)" filed a lawsuit (within 20 days of receipt of your notice of rescission) seeking declaratory relief saying your rescission was not based on any mistakes, errors, omissions or misbehavior on their part.
So all those hundreds of thousands of letters sent back to borrowers saying their letter of rescission was not effective were wrong. Dead wrong. And all those foreclosures that happened anyway were wrongful and void. And THAT means that what I said in 2008 is now true --- that hundreds of thousands of homeowners who sent notices of rescission still own their homes even though on paper their homes were sold to third parties. The only thing that could interfere with that conclusion would be a state statute that existed at the time of the fraudulent sale that said that you have 1 year or some other length of time to challenge the title.
So now that we know that nearly all the loans were table funded and therefore "predatory per se" (REG Z) the question becomes when did the three year statute of limitations begin to run.
There are two schools of thought on this. The first one is simple, as one caller on the Neil Garfield Show pointed out last night. If the disclosures were intentionally withheld, then even the three day rescission might still be available because the deal never actually closed and because the disclosures were fraudulent.
But in any event the statute would start to run as soon as the "borrower" found out that there were multiple people involved in his fake closing that were never disclosed --- all of which undisclosed parties were involved in serving as conduits or aggregators and all of whom were paid an undisclosed amount of money arising out of the "closing." So it is possible that even though your loan was the subject of a faked closing in 2005, you might still have a right to rescind and should send the notice of rescission since it forced the burden of proof onto the pretender lenders. This is especially important in nonjudicial states where the borrower must sue to prevent foreclosure and there is confusion over the alignment of parties.
Incidentally to drill in the point that this statute has teeth, the "lender" must pay the borrower all money paid including what was paid to third party vendors. The loss falls on the "lender" for misbehaving. If ti didn't both the US Government (Congress, President and Supreme Court) when it passed TILA that the borrower would get a "free house" why should it bother anyone else?
Neil Garfield | January 23, 2015 at 10:29 am | Tags: AMGAR, BURDEN OF PROOF, disgorge ment of all money by lender, fake closings, free house, mortgage void by operation of law, statute of limitations, TILA Claims, TILA rescission | Categories: foreclosure | URL: http://wp.me/p7SnH-6Pv
So due to scheduling conflicts I can’t do the radio show tonight. Sorry. But here is what I will cover next week along with some late breaking news regarding MERS and damage cases against the banks, servicers and their lawyers.
RESCISSION: I have received hundreds of requests and questions. It boils down to one thing — the rescission IS EFFECTIVE the moment it is dropped in the mail. People, lawyers and even Judges seem not to understand what that means despite a very terse snip from Justice Scalia speaking for an unusually unanimous Supreme Court in Jesinowksi. What it means is that the deal is done, canceled, rescinded (stick a fork in it). And what it also means is that the time starts to run on the duties of the “lender(s)” to comply with that cancellation/rescission. Telling you in a letter that you had no right to send it is NOTHING, as a matter of law.
So whether you were right or wrong when you sent the notice of rescission the deal was canceled. Anyone who interprets it differently is doing two things that are wrong: (1) interpreting that which is clear and ruled upon by the highest court in the land and (2) getting it exactly wrong.
There is no other interpretation of “effective” because the Supreme Court under the annoyed pen of Justice Scalia has said there is nothing to interpret. When the rescission was mailed it was effective BY OPERATION OF LAW.
During the 20 days, the duties of the “lender” or “creditor” are clear: (1) return the canceled note (2) file a satisfaction of mortgage and (3) return all money paid by borrower. If the banks fail to do that they have violated the statute. If anyone takes issue with whether the rescission should be effective this way, they would need to file a lawsuit within the 20 days allowed for performing the duties under TILA (see above). If they want to say the statute of limitations has run, they must do it in a lawsuit filed within the 20 days. Otherwise the window closes. If they want to say it was a purchase money mortgage and that the borrower rescinded a loan that could not be rescinded under TILA, they must do it in lawsuit filed within the 20 days. There are questions of fact in all these “defenses” as to whether it was really beyond the statute of limitations or really a purchase money mortgage (when coupled with a HELOC etc).
Everyone is having trouble with this after years of incorrect rulings from thousands of courts “interpreting” the statute (which was clear and thus not subject to interpretation). So here it is:
IF NOTICE OF RESCISSION IS SENT THE LOAN IS OVER AND THE NOTE AND MORTGAGE ARE VOID BY OPERATION OF LAW — NO LAWSUIT OR TENDER OF MONEY OR PROPERTY REQUIRED. PERIOD.
It apparently seems too simple, too powerful for people to accept. In one punch they could flatten a trillion dollar giant? The answer is yes. Stop over thinking this. Our rescission package analyzes your loan and gives you options and ways to utilize rescission and related actions to enforce rescission and quiet title. After 20 days the deal is over and no longer subject to attacking the rescission. But we know the Banks, servicers etc. are going to try to “defend” after the 20 days. So you need to know how the effects of rescission can be jammed down their throats and how it automatically frees your property from the encumbrance of the mortgage —regardless of whether or not anyone actually filed the satisfaction of mortgage. In fact, the statute bars any action by the “lender”until they have complied totally with the three duties outlined above.
Get it? If not, tune into the Neil Garfield Show next week.
For more information please call 954-495-9867 or 520-405-1688.
My administrative assistant is Susan Rose. She speaks for me but she is not a lawyer and cannot answer legal questions. This blog and the included articles are not legal opinions on any specific case and should never be used as a substitute for advice from a knowledgeable attorney who is licensed in the jurisdiction in which the property is located.
============================ Spread the word ========================================================
Recent United States Supreme Ccourt opinion on TILA 3 year statute of limitations: New post on Livinglies's Weblog
Banks Brace for Pain: Statute of Limitations on TILA Rescission and TILA Claims
Posted on January 23, 2015 by Neil Garfield For further information please call 954-495-9867 or 520-405-1688
TILA remedies and requirements actually address the "free house" complaint head on: If banks misbehave in material and important ways (as defined by statute and not in the minds of a judge or lawyer) then yes, the homeowner should get a free house. That is what all three branches of the Federal government have said and no re-interpretation of TILA rescission or TILA remedies will be allowed since last week when the Supreme Court unanimously decided that TILA meant what it says. Any Judge or lawyer who thinks otherwise is in fairyland. The fact that a Judge doesn't "like" the result of a "free house" (as the Judge perceives it) means nothing. The Judge is required to apply the law as decided by the United States Supreme Court.
Practically everyone is asking questions about whether the statute of limitations starts running from the date the documents were signed on the alleged loan or if it could start at a later time. The answer is a grey area, but as pointed out by James Macklin last night on the Neil Garfield show, there is a legal doctrine called equitable tolling that could suspend the start of the running of the statute of limitations for TILA rescission and TILA claims.
"The equitable tolling principles are to be read into every Federal Statute of Limitations unless Congress expressly provides to the contrary in clear and unambiguous language, see: Rotella v. Wood 528, 549, 560-61,120 S. Ct. 1075, 145 L. Ed. 2d 1047(2000). Since TILA does not evidence a contrary Congressional intent, it’s statute of limitations must be read to be subject to equitable tolling, particularly since the Act is to be construed liberally in favor of consumers."
Basically the doctrine says that the statute starts to run, unless otherwise provided in the statute, when the claimant knew or should have known or most have known of the grounds for, in this case, TILA Rescission or TILA claims. The basis of that is obvious to anyone involved with these fake mortgages and fraudulent foreclosures for 8 years like I have. The very facts that give rise to TILA rescission and other TILA claims, are intentionally withheld by the parties at the fake closing where the borrower signs settlements documents, the note and the mortgage.
The strategy of the banks has been to wait out three years and then pursue foreclosure and when the borrower raises TILA defenses, the answer is that the statute of limitations has run. With the recent unanimous Supreme Court decision that effectively smacked thousands of lawyers and judges in the face for re-interpreting basic law and the specific and express provisions of TILA, this bank strategy should no longer work.
So now if you gave notice of rescission within three years of the date of the fake closing, your mortgage is null and void "by operation of law" and the "lender(s)" are required to give you (a) a satisfaction of mortgage for county records (b) a canceled original note (c) refund all the money you paid at closing for points, fees, costs etc. and (d) refund all the money you ever paid for interest and principal on the loan. Your debt becomes unsecured and there is no requirement for you to offer them any money at all in order to have the TILA rescission ("I hereby rescind my loan") be effective. If you EVER sent such a notice within the three year period then your mortgage was void by operation of law at that time --- unless the "lender(s)" filed a lawsuit (within 20 days of receipt of your notice of rescission) seeking declaratory relief saying your rescission was not based on any mistakes, errors, omissions or misbehavior on their part.
So all those hundreds of thousands of letters sent back to borrowers saying their letter of rescission was not effective were wrong. Dead wrong. And all those foreclosures that happened anyway were wrongful and void. And THAT means that what I said in 2008 is now true --- that hundreds of thousands of homeowners who sent notices of rescission still own their homes even though on paper their homes were sold to third parties. The only thing that could interfere with that conclusion would be a state statute that existed at the time of the fraudulent sale that said that you have 1 year or some other length of time to challenge the title.
So now that we know that nearly all the loans were table funded and therefore "predatory per se" (REG Z) the question becomes when did the three year statute of limitations begin to run.
There are two schools of thought on this. The first one is simple, as one caller on the Neil Garfield Show pointed out last night. If the disclosures were intentionally withheld, then even the three day rescission might still be available because the deal never actually closed and because the disclosures were fraudulent.
But in any event the statute would start to run as soon as the "borrower" found out that there were multiple people involved in his fake closing that were never disclosed --- all of which undisclosed parties were involved in serving as conduits or aggregators and all of whom were paid an undisclosed amount of money arising out of the "closing." So it is possible that even though your loan was the subject of a faked closing in 2005, you might still have a right to rescind and should send the notice of rescission since it forced the burden of proof onto the pretender lenders. This is especially important in nonjudicial states where the borrower must sue to prevent foreclosure and there is confusion over the alignment of parties.
Incidentally to drill in the point that this statute has teeth, the "lender" must pay the borrower all money paid including what was paid to third party vendors. The loss falls on the "lender" for misbehaving. If ti didn't both the US Government (Congress, President and Supreme Court) when it passed TILA that the borrower would get a "free house" why should it bother anyone else?
Neil Garfield | January 23, 2015 at 10:29 am | Tags: AMGAR, BURDEN OF PROOF, disgorge ment of all money by lender, fake closings, free house, mortgage void by operation of law, statute of limitations, TILA Claims, TILA rescission | Categories: foreclosure | URL: http://wp.me/p7SnH-6Pv