THREE DAY RESCISSION, THREE YEAR RESCISSION AND GENERAL RESCISSION

SEE foreclosure-defense-objecting-to-trustee-sale

NOTE: THERE ARE ACTUALLY THREE LETTERS OF OBJECTION AND RESCISSION THAT COULD BE SENT: (1) THREE DAY NOTICE OF RESCISSION, (2) THREE YEAR NOTICE OF RESCISSION AND (3) GENERAL CLAIMS NOTICE OF RESCISSION OR NULLIFICATION. IN ALL CASES, THE NOTICE SHOULD CONFORM TO STATE LAW AS TO FROM, SUBSTANCE AND METHOD OF MAILING. GENERALLY IT SHOULD BE SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED. IN ADDITION, A FILING OF LIS PENDENS OR NOTICE OF PENDENCY TOGETHER WITH YOUR NOTICES AS ATTACHMENTS WOULD GUM UP THE WORKS ON THE PROPOSED SALE AND PROBABLY FORCE THE ACTION TO CONVERSION FROM NON-JUDICIAL SALE TO JUDICIAL SALE. THE ADVANTAGE IN CONVERTING TO JUDICIAL SALE IS THAT THE TRUSTEE OR “LENDER” MUST FILE A COMPLAINT AND ALLEGE THINGS THAT WILL EXPOSE THEM TO LIABILITY BECAUSE THE ALLEGATIONS ARE NOT TRUE. IT KEEPS THE BURDEN WHERE IT BELONGS — ON THE “LENDER.”

The three day rescission letter should go out to everyone you know or think has anything to do with this loan. The pretender lender who is on the note, the mortgage broker, the trustee, any attorneys, any name you have for mortgage servicer, aggregator, investment bank, SPV, etc. Even if they respond with ‘we have nothing to do with this loan’ you have narrowed it down. More likely you will get a more tentative (we are looking into it) because they don’t know whether a specific loan is tied to a specific pool, SPV or mortgage backed security.

The point being that failure to disclose the real parties in interest at the loan closing and failure to disclose the fees paid to those real parties behind the curtain that the borrower didn’t even know was there, they deprived the borrower of the knowledge of who he should send his rescission letter or other claims and objections to.

They can argue that the rescission letter is effective if sent to the pretender lender. But is it? And if they do argue that, have they opened yet another door? How do we now that beyond them just saying it? At best they have placed the borrower in the untenable position, now having discovered that there was a real lender and that the lender he had at closing was a pretender lender paid a fee for pretending to be the lender in what is referred to in the industry as a table funded loan of not knowing who to pay, not knowing who has authority to communicate with him, and not knowing for sure to whom he should address objections and claims.

By having insurance contracts, credit default swaps, cross guarantees, and buyback provisions as the ‘note’ moved through the chain of securitization, combined with the right to replace one loan with another, all mixed in with the fact that the buyback/substitution requirement is rarely enforced, there is no way for them to know with certainty whether the specific loan, even if initially assigned to a specific pool, is still in that pool, or has been supplemented with another note, or has been satisfied by one of the third party guarantee contracts.

In addition, the overcollateralization and reserve pools, and the hierarchical pledges between divisions (tranches) of the SPV corporation means that contractually, hundreds (perhaps thousands) of people had their loan payment assigned to pay off your payments if they were in a tranche below the one to which you were assigned without your knowledge or consent.

And even if you did make payments, your payments might just as well have been allocated to other loans in tranches above the one your loan was assigned to. With the AIG Federal reserve bailout, there is no question that there is insurance coverage on a lot of these loans. Why should ANYONE get paid twice? Is AIG asserting the right to recover under the note and mortgage? No!

In a letters to all the same parties a general rescission letter should go out under the three year rule under TILA, and then a third rescission letter even more general should allege rescission or nullification, something along these lines:

General Claims rescission Letter TO ALL PARTIES

LETTERHEAD

DATE:

SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED

RE: BORROWER’S NAME AND ADDRESS
LOAN NUMBER(S)

Dear TRUSTEE (NOTE TO READER: SEPARATE LETTER TO EACH OF THE PARTIES AT CLOSING AND ANYONE ELSE YOU HAVE SUBSEQUENTLY DISCOVERED WAS IN THE SECURITIZATION CHAIN.

I HEREBY EXERCISE MY RIGHTS TO RESCIND THE LOAN TRANSACTION IN ITS ENTIRETY UNDER THE THREE DAY RULE, THE THREE YEAR LIMITATION, AND UNDER THE USURY AND GENERAL CLAIMS THEORIES AND CAUSES OF ACTION. BY FAILING TO DISCLOSE THE TRUE LENDER AND USING SUBTERFUGE TO HIDE THE FACT THAT THE “LENDER” AT CLOSING WAS PAID TO POSE AS THE LENDER WHEN IN FACT AN UNDISCLOSED UNREGISTERED THIRD PARTY HAD RENTED THE CHARTER OR LENDING LICENSE OF THE “LENDER “, THE LIMITATION ON MY RIGHT TO RESCIND WAS EXTENDED INDEFINITELY. UNDER STATE AND FEDERAL LAW, THE MORTGAGE IS NOW EXTINGUISHED AND YOUR RIGHTS UNDER THE TRUSTEE DEED HAVE TERMINATED. I hereby rescind the above referenced loan and/or declare it to be null and void and demand treble damages for the face value of the note, on the grounds set forth below:

1. Appraisal fraud: The original loan transaction and application were falsified by the ‘lender’ (the party named at closing as the beneficiary under the Trustee or the mortgagee, and the party named on the promissory note that was allegedly secured by the mortgage or terms of the need of trust), its agents, servants and employees as to fair market value of the property, the borrower’s ability to repay and the prospective terms and fees associated with the loan. At the behest and direction of the  ‘lender’ the property was appraised at a much higher amount that was warranted by good appraisal practices conforming with industry standards. All parties at the loan closing, other than the borrower(s), were aware of the appraisal fraud and directly and intentionally withheld this vital information from the borrower. The borrower reasonably relied upon this appraisal, believing that the ‘lender’ was at risk and had performed due diligence and conformed with underwriting practices conforming with industry standards, when in fact the ‘lender’ was not at risk, the loan was in essence ‘table funded’ and the real lender was hidden from the borrower. Not only did the borrower no know about the existence of the real lender, but the real lender’s identify and contact information were withheld at the loan closing so that the borrower was unaware of the any of the realities of the closing, nor that the ‘loan closing’ was in fact part of a scheme to issue a negotiable instrument that would be issued by the borrower (by trick and deception) and later converted to other uses and terms, including allocation of payments inconsistent with the original terms of the note and inconsistent with the reasonable expectations of the borrower. The over-appraisal conformed with an illegal scheme to defraud investors in certificates of asset backed securities that were similarly overvalued. In both instances — the appraisal of the property, and the appraisal of the securities, the true parties to the entire transaction paid and directed ‘independent’ third parties to lie about the quality and value of the ‘investment.’ For the borrower, the scheme shortened the expected life or duration of the loan transaction, and taking the appraisal fraud into consideration, along with the many undisclosed fees, resulted in an exponentially higher cost of the loan than what was estimated or disclosed prior to or at closing. Borrower was induced to pay more for the property and borrow more on the property than the property was worth.
2. Fraud in the inducement: Borrower reasonably relied to borrower’s detriment upon the representations and good faith estimates and the duty of the mortgage broker and “lender” to act within their duties as fiduciaries and representatives of the borrowers in executing a loan that was vastly different from the loan the borrower was promised or reasonably believed to be the case at the loan closing.
3. Fraud in the execution: Borrower reasonably relied upon the representations and good faith estimates of the parties at the loan closing and was tricked into issuing what became a negotiable security from which the participants received fees and profits far in excess of their normal remuneration. The participants at the loan closing knew that the borrower believed that the borrower was merely entering into a loan closing when the borrower, without his knowledge or consent was in fact issuing what would be used as a negotiable security to commit fraud upon other third parties.
4. Usury: The appraisal fraud resulted in an undisclosed cost of the loan, in addition to the loss of earnest money, costs of closing and after-purchase expenses and costs that raised the cost of the loan well above standards set in this state for usury. No exemptions apply because (1) the real lender was not a bank or other registered or chartered lender nor even a party registered to do business within this state and (2) the transaction was in fact a securities transaction in which the rights of rescission were ignored and undisclosed.
5. PAYMENT:  The “lender” was paid in full before, during or immediately following the loan closing by an agent of the real lender. To this was added a fee of approximately 2.5%. If there was or is a party that is a holder in due course of the note and who has not been paid by reserves, overcollateralization, credit default swaps, insurance, or cross guarantees, then demand is herewith made for the name(s) of such holder(s) in due course and their contact information.

PLEASE GOVERN YOURSELVES ACCORDINGLY!

SINCERELY.

BORROWER(S) SIGNATURES AND ADDRESSES
OR ATTORNEY FOR BORROWER

Tags: 3 day rescission, foreclosure defense, foreclosure offense, general claims rescission, three year recission
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