11th Circuit Rebels Against SCOTUS on TILA Rescission!

This shows beyond a shadow of doubt that the courts are not going to “allow” claims or defenses based upon the effectiveness of TILA Rescission. Despite the clear wording of the TILA Rescission federal statute and the clear and unanimous and FINAL decision in the SCOTUS Jesinsoki decision, judges think they can disagree with a statute, disobey the boss (SCOTUS) and rewrite the law, thus violating the U.S. Constitution which is the highest highest law of the land. Eventually this decision will be struck down, just as before, when the courts tried to avoid TILA Rescission.

This appears to be flat out wrong and in direct conflict with SCOTUS. They are sticking with the nonexistent need to prove your grounds for rescinding which Jesinoski said was wrong because that is NOT what the statute said.

Jesinoski stands for the proposition, as stated in that opinion from SCOTUS, that if a statute is clear on its face and otherwise passes constitutional muster no court has the authority, discretion or even jurisdiction to (a) interpret the statute because there is no ambiguity in the TILA Rescission statute (that is final now) or (b) apply standards for enforcement or recognition that are contrary to the express terms of the statute.

This is a direct rebellion by the 11th Circuit against SCOTUS. The 11th Circuit is essentially disobeying its boss and the U.S. Constitution. Only SCOTUS has the last word. When SCOTUS speaks the matter is over — not subject to lower courts issuing orders that contradict the TILA Rescission statute and certainly not issuing orders that are in direct conflict with SCOTUS.

PRACTICE NOTE:

The only possible legal issue remaining of TILA Rescission is WHEN a creditor can challenge the rescission. Like a court order, they can file a lawsuit (something no borrower needs to do) and like every lawsuit, they must allege the following:

1. Plaintiff/Petitioner is the creditor in a loan transaction in which the Defendant was loaned money by XYZ and then purchased for value by Plaintiff.
2. Defendants have sent a Notice of Rescission under 15 USC §1635 et seq.
3. As a result, the note and mortgage have been rendered void and hence unenforceable.
4. Federal Statute 15 USC §1635 provides for rescission only in the event that the disclosure rules are violated under the Federal Truth in Lending Act.
5. Federal Statute 15 USC §1635 allows rescission only up to 3 years from the date of consummation of the loan transaction with the lender.
6. The lender (XYZ) complied with all required disclosures under Federal law.
7. The date of consummation of the loan transaction with the Lender (XYZ) was August 1, 2002. More than 3 years have expired.
8. The sending of the Notice of Rescission was wrongful in that all required disclosures were made and their right to rescind expired in 2005.
9. As a direct and proximate result of the above, the Plaintiff has been financially damaged, its security interest in the property has been diminished or eliminated, and the promissory note has been rendered void and therefore unenforceable leaving the Plaintiff with an unsecured unpaid claim in equity.
10. In order to seek legal redress, the Plaintiff has been obligated to seek the services of legal counsel and ahs incurred large amounts of internal costs to determine that the required disclosures were made and that the right to rescind had expired, all of which the Defendant should be liable.
11. Defendants’ actions were willful, intentional and the recording of the improper Notice of Rescission was the utterance of a false instrument for the sole purpose of gaining leverage to reduce a legitimate debt by abusing the process of law, for which the Defendant should be sanctioned and required to pay punitive damages.

WHEREFORE, Plaintiff prays this honorable court will

1. Take jurisdiction over the subject matter and the parties.
2. Enter an order declaring the Notice of Rescission void, ab initio.
3. Enter an order canceling the instrument recorded at Book ___ Page___ (Notice of Interest in Real Property)
4. Enter an order awarding Plaintiff compensatory damages in excess of $75,000
5. Enter an Order of sanctions against Defendant as the court may deem just and proper
6. Enter an Order awarding exemplary and punitive damages to Plaintiff in an amount likely to discourage others from attempting to copy the illegal behavior of the Defendant and to punish the Defendant and thwart any other plan the Defendant might have to misuse the TILA RESCISSION STATUTE
7. Enter an order awarding Plaintiff costs of this action, including attorney fees and all associated expenses
8. Grant such other and further relief as the Court may deem just and proper

A quick look at the above easily reveals that such a lawsuit would be irresistible to banks if they thought they could win. A few lawsuits like that and TILA Rescissions would be crushed. But their main problem is that it becomes a matter of PROOF as the allegations contained in Paragraph 1 and Paragraph 6 and Paragraph 7 and especially Paragraph 9.

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