TONIGHT! Neil Garfield on the "FREE House" Myth and TILA Rescission — How to deal with bias from the bench.

Sep 13, 2018

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Contrary to popular belief bias is neither grounds for recusal nor a basis for appeal in and of itself. But if you can show that the judge prejudged the case (i.e., made a decision before he/she heard any evidence, then you have some red flags — but still probably nothing on which to hang your hat.

STOP COMPLAINING AND ATTACK HEAD ON

If bias were the basis for challenging a decision there would be no final decisions. The losing party would always shout bias and the decision would go into limbo. Our judicial system recognizes that judges are human beings and that all human beings have biases and preferences. The question is not whether the bias exists; it is whether the bias caused the judge to prejudge the case.

The backdrop of all judicial decisions is that judges refuse to give homeowners a free house. I tend address this head-on and state the obvious bias. Bias is not grounds for recusal in and of itself. Having stated the common bias, I then attack the notion of a free house.

Under 15 U.S.C. §1635 the loan contract is canceled but the debt remains and is completely enforceable. The fact that the paperwork (note and mortgage/DOT) is now void by operation of law does not extinguish the debt.

A creditor who relies on his payment for ownership of the debt can still sue for judgment and foreclose on that judgment along with other property and money of the borrower. However if the creditor with legal standing (i.e., the owner of the receivable created by the debt) fails to comply with the TILA Rescission statute it is precluded from collecting the debt.

But the creditor still has options. It can avoid both compliance with the statute and avoid the loss of enforcement of the debt and can reinstate the note and mortgage (or DOT) by filing a lawsuit to vacate the TILA (statutory) rescission.

In this case no creditor was named as owning the receivable i.e, ownership of the debt regardless of whether or not the paperwork (note and mortgage) are valid and enforceable.

The would-be foreclosing parties are relying on the paper which is now void by operation of law. They decided, despite strong advice and articles from their own lawyers (readily viewed on the internet), that they would ignore the notice of rescission and would attempt to steamroll their way through court, inventing various restrictions that conflicted with the express unambiguous words of the TILA rescission federal statute.

In short, there is only one way that a creditor can lose the debt altogether and a borrower can get a free house, to wit: noncompliance with 15 U.S.C. §1635

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