20 Points of TILA Rescission: 9th Circuit Court Allows “Claim” for Rescission Under WA Statute of Limitations
Originally posted by Neil Garfield 20180114
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I have distilled the legal points and procedure of TILA Rescission down to their essentials and specifics as you can see below. In the case presented the 9th Circuit ruled in favor of the homeowner but in so doing continued to violate the law of the land enunciated by the Supreme Court of the United States and Congress.
Yes the homeowner should win but no, the homeowner should not be treated as having any burden of proof as to effectiveness of the TILA Rescission because the TILA Rescission statute is a self-executing statute that is effective by operation of law. It is not and never was a claim.
Astonishing. The 9th Circuit is drilling down on the premise that TILA Rescission is a claim rather than a self executing statutory event. This decision, favorable to the homeowner, not only engraves the “claim” theory in concrete, it applies a 6 year statute of limitations in Washington State.
The fact that the statute says the rescission is effective “by operation of law” is once again ignored. This may cause the Supreme Court of the United States (SCOTUS) to finally accept certiorari in cases involving TILA Rescission and to once again (See Jesinoski v Countrywide 135 S. Ct. 790, 792 (2015) scold all the lower courts for their excess in reading into the statute what is either not there at all or which is in direct contradiction to what the TILA rescission statute says. 15 U.S.C. §1635(f).
The message from SCOTUS should be clear: Just because you don’t like the result doesn’t mean you can reinvent the statute to say what you think it should have said. Both the trial court and the 9th Circuit were massively wrong, and eventually that will be made clear — but not until considerably more damage is done to American homeowners, the real estate market, our society, and the financial system generally. If you really want to see a correction to bad bank behavior this is the tool.
Had they accepted the simple wording of the statute and the wording of the SCOTUS decision in Jesinoski, the decision of the 9th Circuit would have been on target. As it is, they have muddied the waters even further.
They continue to regard TILA Rescission as a claim, thus applying the statute of limitations and avoiding the distasteful issues (for the courts) that would be raised by recognizing what SCOTUS and the TILA Rescission statute have already said: the TILA Rescission statute is procedural.
Upon sending the required notice the claim of the creditor is changed from the note and mortgage to a claim under the statute. The note and mortgage vanish just like the debt vanishes and when the note is executed (assuming the Payee is the same party to whom the debt is owed). The purpose both the TILA Rescission statute and the merger doctrine is to to bar two claims on the same debt.
The problem that the courts have manufactured is based upon the premise of “I don’t’ like that statute.” But if the statute is to be changed it MUST be done ONLY by Congress. SCOTUS (Jesinoski) has already pronounced the TILA Rescission statute clear and unambiguous permitting no interpretation based upon any perceived “ambiguity.” The courts hands are legally tied but they continue to operate in derogation of the statute and SCOTUS.
Here is the ONLY correct application of the statute — according to 15 USC §1635 and SCOTUS in Jesinoski v Countrywide 135 S. Ct. 790, 792 (2015):
- Upon sending a clear notice of a desire or intent to cancel the loan contract, and either its actual or presumed receipt (i.e. US Mail) by the owner of the debt or the owner’s authorized representative (or agent with apparent authority) the loan contract is canceled “by operation of law”.
- This renders the note and mortgage void. There is no “but”.
- The statute substitutes a different creditor claim for what was the note and mortgage, to wit: a statutory obligation to pay the debt after the owner complies with three conditions: (a) payment of money to the borrower (b) cancellation of note and sending it to borrower and (c) satisfaction of mortgage filed in the county records.
- The three duties are conditions precedent to demanding tender of property or money to pay off the debt.
- The fact that the three duties MAY be subject to an enforcement action by the borrower does nothing to change the effect of the cancelation of the loan contract by notice of TILA Rescission.
- There is no claim for enforcement of the three duties if the TILA statute of limitations has run.
- There is no claim for TILA Rescission. Either it was mailed or it wasn’t. There is no case or prima facie case except in enforcement of the three duties.
- There is no lawsuit required or even applicable to demand a court declare that the Rescission was effective. It is already effective simply by mailing. It already happened by operation of law. All decisions by all courts to the contrary are wrong. SCOTUS already said that.
- If the owner of the debt fails to either sue to vacate the rescission and/or follow the statutory duties, the statute of limitations under TILA is running and they may lose their right to demand payment of the debt completely. Once the TILA SOL runs out the right to collect the debt is dead after TILA Rescission.
- If the borrower fails to sue to enforce the three creditor duties, he/she is gambling on the TILA SOL cutting off the debt. The same statute of limitations cuts off the right of the borrower to sue based upon TILA claims.
- If the borrower does sue to enforce the three statutory Rescission duties the ONLY thing he/she should be claiming is that the statutory duties exist by virtue of 15 USC §1735 and that the Defendants failed to comply. Such an action could be after the SOL has run out seeking a declaration that the debt is dead (depending upon how SOL is treated).
- Neither the borrower nor the owner of the debt can reverse the effect of the TILA Rescission law. It is effective by operation of law and self-executing.
- Whether the notice is sent within 3 years or outside of the 3 years could be grounds to vacate the rescission which was already effective by operation of law. But that creditor lawsuit must be brought within the 20 days due for compliance with the three statutory duties. Minutes of the congressional discussion on this statute are quite clear — there should be no possibility at all for the presumed creditor to stonewall the borrower. SCOTUS said as much in Jesinoski, when it declared that no further action is required from the borrower other than the sending of the notice.
- The notice of rescission is facially valid if it declares the intention or desire to cancel the loan contract. There are dozens of cases saying exactly that. But it might be facially invalid if it expressly states that the contract it seeks to eliminate is outside of the three year limitation of “Consummation” (otherwise the 3 year limitation requires parole or extrinsic facts and requires finding of facts). This admission on the face of the instrument used to declare TILA Rescission MIGHT enable the presumed creditor to ignore it and ask the court to ignore it, at their own peril.
- If the creditor’s claim is that the rescission should be vacated (especially if it is recorded) or ignored because of the three year limitation or for any other reason, that is a lawsuit or an affirmative defense requiring allegation and proof of facts that are parole or extrinsic to the fact of the notice of TILA Rescission.
- There is no statute of limitation on anything that is effective by operation of law. It is an event, not a claim. Hence notice of TILA Rescission cannot be subject to interpretation as a claim and therefore cannot be subject to any statute of limitations.
- Thus all claims upon which courts took action or are taking action or will take any action based upon a loan contract that was canceled are VOID and completely undermine judicial standing and jurisdiction of the court. Subject matter jurisdiction is absent because the loan contract no longer exists. The creditor may either sue to revoke the rescission and cancel the instrument of rescission if recorded or make a claim based upon the statutory debt created by 15 USC §1635.
- The ONLY thing that could make void “sales” (of title to real property) final is Adverse Possession which typically takes around 20 years to establish. Check state statutes. The elements of adverse possession include but are not limited to continuous, open, notorious, peaceful, hostile (to actual owner), actual, visible, exclusive, and adverse. This is the “reset” that I forecasted 12 years ago. State legislatures are being lobbied to make such sales final even though they are legally void.
- All attorneys for the financial industry are in agreement with this analysis. The industry rejects the analysis because they correctly believe that they can persuade judges to act and rule opposite to the express provisions of the statute. So far they are right — except for the Supreme Court of the United States who is the sole source of a final definition of the law in this country.
- Anyone who seeks a change from the the current statute, or the Supreme Court decision must do so through efforts to have Congress change the law. If the rule of law is to prevail, the above procedural analysis must be followed in every instance.
Another Hat Tip to Mr. Garfield for this information and his work on TILA Rescission.
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