Neither God nor Rescission are Dead.

Although there are numerous actions and decisions that call into question whether TILA Rescission is effective and if so, when, the answer is clear even in the 9th Circuit where there are some decisions and even disciplinary actions against those lawyers who promote the interests of their clients by using the direct and clear wording of the Statute, The Regulations, the Appellate decisions and the US Supreme Court, to wit:

(1) Rescission is effective the moment it is mailed. The blowback from the servicer or bank is not a legal response. It can only be a lawsuit that vacates that which legally exists — a cancellation of the note and mortgage, leaving the debt unsecured and the bargaining table leveled almost in favor of the borrower. While this throws those bogus mortgage bonds into turmoil that is not the subject matter for concern in any foreclosure case or case in which rescission duties are sought to be enforced.

(2) The creditor — if there is one —- has several options. First it can acquiesce. That means it delivers the canceled note back to the borrower (hard to do when you have destroyed it), files a release of the encumbrance and pays back all the money the borrower ever paid in conenction with the loan. THEN it can make a claim for repayment but not before. Thus the note and mortgage are canceled forever and the debt is off the table until all of the three statutory duties are met. OR, the creditor can contest by filing a lawsuit stating what is wrong with the rescission and why it should be vacated. Notice that such a alwsuit has never been brought even when the rescission notice has been recorded. And that brings us to the third problem — no party has standing to bring such an action to vacate the rescission except the actual creditor. Nobody can rely upon instruments that are “void” (as per Regs) and claim standing or anything else. It is only the owner of the debt that can make a claim to vacate the rescission. And it is only the creditor who is responsible for paying the disgorgement of all money paid by the borrower. It appears that nobody wants to claim that honor. So the creditors either don’t know what is going on at ground level or don’t care or have other reasons for not producing themselves as the creditors.

(3) Simple logic dictates that the creditor could accept the rescission no matter when it was filed or the reasons for serving the notice of rescission. But in order to have that option the rescission must be effective. Otherwise there would be nothing to greet with acquiescence. Should the creditor wish to vacate the rescission, they must do so within 20 days or lose their right to demand revocation of the rescission. Hence in all cases and at all times the notice of rescission is effective, subject to the creditor’s right to seek revocation. Otherwise rescission doesn’t work at all and the banks could forever stonewall, which is precisely the what the committee notes show was intended to be impossible when the Truth in Lending Act was passed. To treat the situation any other way would mean that the rescision is effective but it isn’t.

Listen to the Last Neil Garfield Show at http://www.blogtalkradio.com/neilgarfield/2017/08/10/us-bank-trustee-loses-uncontested-foreclosure

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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Hat tip to Dan Edstrom

see Barnes v Chase 9th Circuit RESCINDED and Remanded NOT for Publication 13-35716

Causey v US Bank 9th Circuit RESCINDED and Remanded NOT for Publication 10-56021

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