Category: TILA rescission

Watch that modification agreement. You are being forced to accept a virtual creditor instead of a real one.

September 29, 2020

“Morality is an existential threat to commerce and politics. Although we legislate morality we refuse to enforce it. It is OK to lie to consumers or borrowers but not OK to lie to a financial institution who by the way is lying to you.” Neil F Garfield, October 2009 speech to regional bankruptcy conference in Phoenix Arizona. The proposed modification agreement is an attempt to force or coerce the borrower into accepting a NEW term of the loan agreement that any attorney would advise against, to wit: acceptance of a designated creditor instead of a real one. The transmission of

Rescission and Burden of Proof

September 25, 2019

There are winners and losers in every courtroom. When dealing with TILA Rescission under 15 USC §1635 you must go the extra mile in not merely showing the court why you should win, but also revealing that the opposition is not actually losing anything. The same logic applies to every foreclosure where securitization is either obvious or lurking in the background. The bottom line is that no payment of value has ever been paid or retained as a financial interest in the debt by the named claimant nor anyone in privity with the named claimant. Once you can show the

Finally a Judge Asks the right Questions about TILA Rescission and Invites Briefs

August 5, 2019

The time may now be coming where the court systems and Federal and State legislatures must come to terms with two inescapable legal facts: (1) That borrowers who sent TILA rescission notices — and particularly those who sent them within 3 years of consummation of the mortgage — still own the land that was deemed “lost” in foreclosure. (2) That such borrowers possess valid claims to recover title. possession and money damages. It was bound to happen and now it has. In one case, a judge is asking the following questions and inviting briefs on the following subjects: What is the effect of the failure to return

Tonight! How to Use TILA Rescission in Court! The Neil Garfield Show 6PM EDT

August 1, 2019

FORENSIC AUDITORS TAKE NOTE Thursdays LIVE! The Neil Garfield Show or prior episodes Or call in at (347) 850-1260, 6pm Eastern Thursdays ******************************* There are many potential claims arising out of attempted foreclosure after TILA rescission is effective. * But one of them is not a violation of your rescission rights. By pleading that you are putting into play the burden of proving the effectiveness of rescission which has already occurred by operation of law. * By pleading or arguing such a notion you are inviting interpretation form a court that is only too happy to reject your claim. In most cases

How to Frame TILA Rescission in Your Pleadings

July 31, 2019

In many cases it is the homeowner or their attorney that is confused about the effects of TILA rescission. It is much simpler than what I am seeing. It is an error to present it as a claim. The simple fact about TILA rescission is generally that you are still the owner of the property, free and clear of any legal encumbrance on the title. The debt still exists but the method of collection has changed because of 15 U.S.C. §1635. Foreclosure is impossible because foreclosure is the exercise of rights under a mortgage or deed of trust that no longer

No the Mortgages Are Not Securities, But the "Certificates" Do Not Qualify for Exemption As "Mortgaged Backed"

June 12, 2019

For those straining to find a way to categorize mortgage loans as securities I offer this based upon my licensing, training and experience as a Wall Street Broker and Investment Banker and as an attorney who has practiced law, including securities law for over 42 years. You are climbing the right tree but you are on the wrong branch, in my opinion. Despite possible legal and logical arguments for your point of view there is no way any court is going to take the common mortgage loan and say it is a security, and therefore was subject to regulation, registration,

TILA Rescission and Bankruptcy: What Happens When the Bankruptcy Court Gets it Wrong

March 1, 2019

When TILA rescission has occurred the encumbrance is eliminated and the debt converts from one arising from a promissory note to one arising from a statute — 15 USC §1635. The debt then becomes subject to the statute of limitations for claims under TILA because the debt now arises under TILA. If the statute has run the debt is barred. Thus when the court gets it wrong and ignores the TILA Rescission it is warping the value of the bankruptcy estate as well as allowing secured status to unsecured creditors. ============================== DONATE to LivingLies Let us help you plan for

The Facts Behind Smoke and Mirrors

January 24, 2019

Nearly everyone is confused as to the identity of the real holder in due course, or the “creditor,” or the owner of the debt. Nearly everyone thinks that ultimate it is investors who purchased certificates. In fact there is no holder in due course and there never will be in most instances. There was never any possibility for a holder in course claim because in most cases the origination of the loan took place in what is called a table funded loan, which is against public policy as a matter of law (as expressed in the Truth in Lending Act).

Tolling the Statute of Limitations by Initiating Administrative Processes

January 23, 2019

A recent case brought to mind a possible argument for tolling the applicable statute of limitations (SOL) on certain claims. By submission of complaints to the CFPB (TILA, RESPA, FDCPA etc) you are starting an administrative process. It might even be true that by submitting a QWR (under RESPA) or DVL (under FDCPA) you are starting an administrative process. One could argue that while you were in that process the statute of limitations on certain claims should be tolled. ============================== Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask

"True Lender" Lawsuits Causing Business and Legal Headaches for Banks

January 21, 2019

hat tip Bill Paatalo You can’t pick up one end of the stick without picking up the other end as well. Or, if you like, you can’t eat your cake and still have it. Banks used third party intermediaries all the time, and in non-mortgage loans they are considered as the real lender for purposes of being able to charge the interest rate stated in the consumer loan agreement. But the situation is quite different and maybe the reverse in most alleged mortgage loans for the past 20 years. Usually a non-bank funding source was using a third party intermediary

Solving the Puzzle: Settlements with Homeowners Are Rising

January 16, 2019

Hat tip Michael Bazemore It’s not easy to see but if you look at the court docket after a ruling against the parties designated as “foreclosing parties” you can see that these cases are often dismissed with reference to an agreement or settlement between the parties. The typical pleading asking the court to dismiss the case will read as follows: IT IS HEREBY STIPULATED by and between Plaintiff X and Defendant Y that pursuant to [Federal][State] Rule of Civil Procedure (41(a)(2) [Federal] this action and all causes of action contained therein shall be dismissed with prejudice. It is further Stipulated

Distilling the 20 Points of TILA Rescission: 9th Circuit Allows "Claim" for Rescission Under WA Statute of Limitations

January 14, 2019

I have distilled the legal points and procedure of TILA Rescission down to their essentials and specifics as you can see below. In the case presented the 9th Circuit ruled in favor of the homeowner but in so doing continued to violate the law of the land enunciated by the Supreme Court of the United States and Congress. Yes the homeowner should win but no, the homeowner should not be treated as having any burden of proof as to effectiveness of the TILA Rescission because the TILA Rescission statute is a self-executing statute that is effective by operation of law.

Using TILA Rescission as Jurisdictional Issue

December 19, 2018

I think TILA Rescission should be approached as a jurisdictional issue since it focuses on the procedural aspects of the TILA Rescission statute. In other words it should always be front and center. I think a problem with TILA Rescission is that not even borrowers understand that the rescission issue is over. By asking a court to make rescission effective you underline the correct premise that rescission has already occurred. All your pleadings after that should be based upon that premise or you undermine yourself. ============================== Let us help you plan for trial and draft your foreclosure defense strategy, discovery

How to Apply Federal TILA Rescission Rights

December 11, 2018

Bottom Line: TILA Rescission is looming as a major risk factor to banks and investors who were not informed about the risk of TILA Rescission. The oddity is that the investors were not purchasing the loans and in fact agreed to replace the income stream from borrowers with an income stream from a fake trust. Court decisions are inching closer to allowing the explicit language of the TILA Rescission Statute 15 U.S.C. §1635 to control situations like any other law passed by Congress and signed into law, with unanimous approval from the Supreme Court of the United States (SCOTUS). It

9th Circuit Creeps Up the Ladder in Hoang TILA Rescission Breakthrough

December 7, 2018

This case comes the closest yet to the truth about TILA Rescission. And it requires that TILA Rescission be applied — if there is an action to enforce within the statute of limitations covering contract actions in the state in which the property is located. The court’s conclusion that there must be a statute of limitations is derived from its erroneous assumption AGAIN that TILA rescission is a claim rather an event. Jill Smith has done an outstanding job of moving us toward the final step in TILA REscission, to wit: TILA Rescission is procedural and it is an event.

CURRENT STATUS OF TILA RESCISSION AND ITS APPLICATION TO PAST, PRESENT AND FUTURE FORECLOSURES

November 9, 2018

Ultimately there will be recognition that the courts are vetoing legislation passed by congress simply because the judges disagree or are afraid of the consequences if they were to apply the law. Congress wrote it, passed it, and it was signed into law. In a nation governed by the rule of law there can be no space for exceptions. This is a violation of the most basic tenet of the US Constitution — division of governance into three co-equal branches of government. The courts are required under law to follow the law. Eventually the chickens are going to come home.

What is the effect of TILA Rescission on My title? Can I sue for damages?

August 6, 2018

I have been getting the same questions from multiple attorneys and homeowners. One of them is preparing a brief to the U.S. Supreme Court on rescission, but is wondering, as things stand whether she has any right to sue for damages. When our team prepares a complaint or other pleading for a lawyer or homeowner we concentrate on the elements of what needs to be present and the logic of what we are presenting. It must be very compelling or the judge will regard it as just another attempt to get out of justly due debt. Let us help you

GARFIELD PREMISES

July 11, 2018

Most people really don’t completely understand our premise when we investigate, research, examine and analyze a case or case documents. We have several premises with which we start and check to to see if they apply. While the answer is short the work behind it is long and complicated. Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 844.478.6774 Ask for a Consult. Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil

Why Everyone (except SCOTUS) is Wrong About TILA Rescission

June 26, 2018

All contrary arguments are erroneous since they would insert a contingency where the statute contains no room for any contingency. The language of the statute bars any such contingency when it says that the TILA Rescission is effective upon delivery, by operation of law. If anyone wants the statute to say or mean anything different they must get their remedy from the legislature, not the courts, who have no authority whatsoever to interpret the statute otherwise. The status of any case involving foreclosure is that it does not exist. Hence the court is left ONLY with the power to perform

Why Borrowers Have the Right to Rescind under the Truth In Lending Act

April 5, 2018

In my opinion any foreclosure judgment or foreclosure sale that took place after a notice of rescission was sent and delivered is completely void and should be treated the same as a wild deed. This is particularly true in cases where courts have ignored the rescission completely and failed to issue an order effectively vacating the rescission. And it is particularly true where the rescission notice was sent within three years of consummation (assuming there was consummation). As with any wild deed, the actions and events subsequent to the void foreclosure judgment and/or void sale are also void. The effect

Securitization and Standing

April 2, 2018

Like other decisions establishing the law of the land, the decisions of SCOTUS are often taken as advisory or optional. Nevertheless TILA Rescission and Article III standing have been affirmed by the Court of last resort. Reluctant judges in trial and appellate courts will get their hands slapped one more time but all the bad prior decisions and their consequences are neither reversed nor redressed. Standing is pretty easy — it must be alleged in facts that will be proven at trial. If it isn’t alleged or isn’t proven at trial, the Court lacks jurisdiction to do anything other than

TILA RESCISSION: The war is NOT over contrary to bank disinformation

March 26, 2018

The banks have not asked for an order vacating a TILA RESCISSION because they know that following standard procedure would block them from challenging TILA RESCISSION. This is PROCEDURE vs SUBSTANCE. That is what this has always been about. As more courts continue to “rule” on TILA RESCISSION, getting it wrong every time, the effort to discredit TILA RESCISSION is picking up steam. Here is the bottom line: I never said that the borrower would always prevail if challenged. I only said that the borrower must be challenged if a creditor wants to avoid the consequences of rescission. And failing to

TILA RESCISSION: The Bottom Line for Now

February 14, 2018

Probably the main fallacy of the people who say that TILA Rescission is not possible or viable is that they project the outcome of a lawsuit to vacate rescission. Based upon their conjecture, they assume that Rescission is no more than a technicality. Congress, and SCOTUS beg to differ. It was enacted into law 50 years ago in an effort to prevent unscrupulous banks from screwing consumer borrowers. Let us help you plan your TILA RESCISSION narrative and strategy: 202-838-6345. Ask for a Consult. Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar. Get a Consult

Even the Bank Attorneys Admit that NO Tender or lawsuit is Required in TILA Rescission. Burden is on the "lender" side.

February 6, 2018

It appears that I have struck a nerve with many of the people who seek to prove me wrong in my “theories.” They are facts, not theories. And as explained by yet another attorney writing an article for the banks and bank attorneys, it is up to the “bank” side of the equation to do anything about rescission. The borrower need do nothing except send the notice. If the “bank” side does nothing they do so at their own peril — not the homeowner’s peril. READ THE STATUTE and the unanimous decision by SCOTUS in Jesinoski v Countrywide. Although trial