The reason why the decision is flat out wrong and in conflict with SCOTUS is that the statutes, 15 U.S.C §1635 and the Jesinoski decision make it irrefutably clear that TILA rescission is an event, not a claim. The statute is procedural. SCOTUS in Jesinoski unanimously said it is an event (which is what the statute says) while the 10th Circuit says it is a claim. The only “claim” is whether or not the rescission notice was sent. In this case, like all others, there is no dispute over the mailing and delivery of the notice of rescission.
This Court has made up a new doctrine out of thin air that brings them into direct conflict with the Jesinoski decision, in which the court stated that the homeowner need take no further legal action to effectuate rescission after notice is sent.
This Court states that if the bank disagrees, the event becomes a claim that is subject to res judicata and preclusion because the homeowner did not raise the issue in prior proceeding. Since TILA rescission is an event, effective upon mailing, there is no “Claim.” Hence there can be no preclusion.
As an example, if a trial judge were to enter an order, even if wrongly based like this decision from the 10th Circuit, it is effective and binding on all who are served with the order. Nobody needs to bring a lawsuit or defense in which they have the burden of proof on whether the the order was effective. It is effective because the statutes say it is effective. End of story.
TILA Rescission and a court order are identical because they derive their power from the same source — legislation. Courts may not rewrite legislation nor ignore legislation when it suits the bias of the Judge. If anyone has a problem with a court order it is their burden to try to bring the issue to court, not the person who benefited. IN the meanwhile the court order is effective, until and unless a new order is entered changing the original order.
If the bank thinks the notice of rescission was wrongful, the burden does not shift to the homeowner just because the bank says so — that would negate the entire premise of the TILA Rescission statute and the Supreme court decision in Jesinoski. The entire premise of the TILA Rescission statute was that Congress decided to load ALL burdens on the bank and NO burdens on the homeowner after notice is given.
This was a calculated decision by Congress to create an absolute bar to any stonewalling from the bank that would render the TILA Rescission notice pointless or useless — since all parties who were asserting “lender” positions would “disagree.” The committee notes clearly show that the intent was to absolutely bar banks from stonewalling or delaying the effectiveness — a fact clearly and expressly recognized by a unanimous decision of the US Supreme Court.
Courts don’t like it because of its draconian effect on banks. But the entire reason for the draconian effect on banks was to avoid the necessity of creating a new agency or division in Federal government that would be required to review all loan closings. Congress was forcing the banks into policing themselves to avoid falling through this trap door.
Assuming the loan contract was real, the bank could easily fulfill the three duties imposed by TILA Rescission. Or, they could challenge the rescission in court. If they believe the rescission notice was wrongful then they could allege their standing and allege the defects in the sending of the rescission. If they comply within 20 days then the homeowner is obligated to pay them their principal in the loan.
If the homeowner doesn’t pay the principal on the now unsecured debt there is absolutely nothing to prevent the banks from suing for disgorgement under equitable doctrines that are firmly established in common law and under statutes. If they are truly the creditor or truly represent the party who is the creditor according to valid powers set forth in written instruments, in which the creditor grants such power.
Of course this grant must come from a “real” creditor and not by some “facially valid” based upon the note and mortgage which are now void instantly upon mailing of the TILA Rescission notice. Under these facts they would get a judgment entitling them to receive all moneys allowed under the TILA Rescission statute, and if the judgment remains unsatisfied, the banks could foreclosure their judgment lien except for homestead exemptions, which vary from state to state.
According to the TILA Rescission statute and the unanimous decision of the U.S. Supreme Court there is NOTHING required of the homeowner after a simple letter giving notice of TILA Rescission is mailed. The homeowner is NOT required to see a lawyer, send another letter, file a lawsuit or another lawsuit in order to make TILA Rescission effective.
The reason why the decision is flat out wrong and in conflict with SCOTUS is that the statutes, 15 U.S.C §1635 and the Jesinoski decision make it irrefutably clear that TILA rescission is an event, not a claim. The statute is procedural. SCOTUS in Jesinoski unanimously said it is an event (which is what the statute says) while the 10th Circuit says it is a claim. The only “claim” is whether or not the rescission notice was sent. In this case, like all others, there is no dispute over the mailing and delivery of the notice of rescission.
This Court has made up a new doctrine out of thin air that brings them into direct conflict with the Jesinoski decision, in which the court stated that the homeowner need take no further legal action to effectuate rescission after notice is sent.
This Court states that if the bank disagrees, the event becomes a claim that is subject to res judicata and preclusion because the homeowner did not raise the issue in prior proceeding. Since TILA rescission is an event, effective upon mailing, there is no “Claim.” Hence there can be no preclusion.
As an example, if a trial judge were to enter an order, even if wrongly based like this decision from the 10th Circuit, it is effective and binding on all who are served with the order. Nobody needs to bring a lawsuit or defense in which they have the burden of proof on whether the the order was effective. It is effective because the statutes say it is effective. End of story.
TILA Rescission and a court order are identical because they derive their power from the same source — legislation. Courts may not rewrite legislation nor ignore legislation when it suits the bias of the Judge. If anyone has a problem with a court order it is their burden to try to bring the issue to court, not the person who benefited. IN the meanwhile the court order is effective, until and unless a new order is entered changing the original order.
If the bank thinks the notice of rescission was wrongful, the burden does not shift to the homeowner just because the bank says so — that would negate the entire premise of the TILA Rescission statute and the Supreme court decision in Jesinoski. The entire premise of the TILA Rescission statute was that Congress decided to load ALL burdens on the bank and NO burdens on the homeowner after notice is given.
This was a calculated decision by Congress to create an absolute bar to any stonewalling from the bank that would render the TILA Rescission notice pointless or useless — since all parties who were asserting “lender” positions would “disagree.” The committee notes clearly show that the intent was to absolutely bar banks from stonewalling or delaying the effectiveness — a fact clearly and expressly recognized by a unanimous decision of the US Supreme Court.
Courts don’t like it because of its draconian effect on banks. But the entire reason for the draconian effect on banks was to avoid the necessity of creating a new agency or division in Federal government that would be required to review all loan closings. Congress was forcing the banks into policing themselves to avoid falling through this trap door.
Assuming the loan contract was real, the bank could easily fulfill the three duties imposed by TILA Rescission. Or, they could challenge the rescission in court. If they believe the rescission notice was wrongful then they could allege their standing and allege the defects in the sending of the rescission. If they comply within 20 days then the homeowner is obligated to pay them their principal in the loan.
If the homeowner doesn’t pay the principal on the now unsecured debt there is absolutely nothing to prevent the banks from suing for disgorgement under equitable doctrines that are firmly established in common law and under statutes. If they are truly the creditor or truly represent the party who is the creditor according to valid powers set forth in written instruments, in which the creditor grants such power.
Of course this grant must come from a “real” creditor and not by some “facially valid” based upon the note and mortgage which are now void instantly upon mailing of the TILA Rescission notice. Under these facts they would get a judgment entitling them to receive all moneys allowed under the TILA Rescission statute, and if the judgment remains unsatisfied, the banks could foreclosure their judgment lien except for homestead exemptions, which vary from state to state.
According to the TILA Rescission statute and the unanimous decision of the U.S. Supreme Court there is NOTHING required of the homeowner after a simple letter giving notice of TILA Rescission is mailed. The homeowner is NOT required to see a lawyer, send another letter, file a lawsuit or another lawsuit in order to make TILA Rescission effective.
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