RESCISSION IS A FACT — NOT A THEORY OR CLAIM

The Eighth Circuit’s affirmance in the present case rested upon its holding in Keiran v. Home Capital, Inc., 720 F. 3d 721, 727-728 (2013) that, unless a borrower has filed a suit for rescission within three years of the transaction’s consummation, §1635(f) extinguishes the right to rescind and bars relief.

That was error. Section 1635(a) explains in unequivocal terms how the right to rescind is to be exercised: It provides that a borrower “shall have the right to rescind . . . by notifying the creditor, in accordance with regulations of the Board, of his intention to do so” (emphasis added). The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. It follows that, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely. The statute does not also require him to sue within three years.

..Section 1635(a) nowhere suggests a distinction between disputed and undisputed rescissions, much less that a lawsuit would be required for the latter.

The above quotes are from  Jesinoski v Countrywide

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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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The above quote was penned by Justice Scalia writing for a unanimous Supreme Court of the Untied States, the highest court in the land. It is the boss of bosses, ruling over all appellate and trial courts in every U.S. Jurisdiction. It leaves ZERO room for interpretation and in fact the opinion prohibits any interpretation by anyone, including judges on trial or appellate courts:

Nothing in our jurisprudence, and no tool of statutory interpretation, requires that a congressional Act must be construed as implementing its closest common-law analogue. Cf. Astoria Fed. Sav. & Loan Assn. v. Solimino,501 U. S. 104, 108-109 (1991). The clear import of §1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind. Jesinoski v Countrywide

I think the key error made by homeowners, their lawyers and judges is buying into the bank argument that rescission is a claim. If it is a claim it must be litigated. Once notice of rescission is given, rescission becomes a fact or an event, not a claim. The clear meaning of the opinion in Jesinoski is that no interpretation is required or allowed AND no stonewalling the rescission can be accomplished by merely announcing a dispute with statutory TILA rescission on ANY grounds.

Statutory (TILA) rescission is different, then, from common law rescission in one huge way, to wit: statutory TILA rescission puts the burden of PLEADING and PROOF on the “banks”. If they file a lawsuit on behalf of a Plaintiff with legal standing and  presenting their claims as to why the rescission should be vacated, then a court has jurisdiction to hear the claims providing that the right to file such claims has not already expired. No such lawsuit has EVER been filed in any case.

Further errors occur when homeowners file suit to “confirm”: or “declare” the validity of the rescission, as it creates a false issue — just like the Jesinoski case. No such lawsuit is necessary and any order entered upon such a claim would be void for lack of subject matter jurisdiction — there is no claim recognizable at law before the court to be decided. The analogy would be filing suit to declare that the sun rises and sets. The failure to recognize rescission as a fact and the continuing impulse to treat it as a claim is responsible for many unfortunate rulings and decisions.

Just as a creditor with legal standing could file suit within 20 days to vacate the rescission, the “borrower” can file an action to enforce the duties of the parties who received the notice of rescission within one year. This should not be a suit to enforce the rescission because that fact has already occurred and forms the basis of your pleading, to wit: “rescission was effected on the above date and the Defendants continue to ignore the that fact and prosecute claims under a canceled loan contract and void note and mortgage.”

If neither the creditor with standing nor the homeowner file suit, then certain claims arising under TILA expire. Specifically, the borrower cannot, outside of the time limits imposed by TILA, seek to force the recipients to disgorge the money required to satisfy the duties under TILA rescission and cannot force the recipients to file a release of the encumbrance nor force anyone to return the original canceled note.

BUT, the rescission is still a fact. It is history. It is or was an event. So a quiet title action would be completely appropriate since the mortgage or deed of trust were rendered void by operation of law — back when rescission was “effected” (i.e., when it was delivered.) Damages and disgorgement could also be sought for violation of the duty to comply with law and the willful pursuit of false claims — i.e., fraud and maybe even unconscionability.

As a fact instead of a claim, the predisposition of the courts to simply ignore it means that they are issuing void orders and judgments. Such courts lack jurisdiction to determine the rights and obligations under the loan contract, the note or the mortgage, because those instruments no longer exist. Such order then are void. And as with all real property interests, there is no statute of limitations on clearing your chain of title, canceling and removing an encumbrance which, by operation of law, no longer exists.

But in the period outside the time limits imposed by TILA, the only claims a homeowner can bring are those permitted by other statutory law or common law.

But that also holds true for the “banks.” Having failed to satisfy the duties imposed by statutory TILA rescission their right to obtain or enforce a judgment for the “refund” or “tender” has also expired. Their only right to that money, after rescission, comes from the TILA rescission statute. Having failed to comply or file suit within the 20 day period, there is no permissible claim for money against the homeowner and obviously no permissible claim for foreclosure of the void encumbrance appearing on the county records.

Most lawyers for the “banks” have already published nearly identical opinions regarding rescission. The banks have chosen to steamroll the courts and homeowners because that seems to work, even though they are wrong. Keep it simple and the courts will be required to change, no matter how much they hate statutory TILA rescission.

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