I believe Neil Garfield misleads borrowers with his diatribe in the article Rescission Confusion Persists. He must have become desperate to sell his useless rescission packages. He keeps hammering his readers to file a notice of rescission, no matter what, implying that they have a ghost of a chance of success. He ignores reality, like all kool-aid-drinkers do. Here’s the reality.
Many court opinions, revealed on previous TILA rescission threads attest to how rescission works. That has not changed at all. TILA and Regulation Z require an unwinding of the transaction with tender first by the lender then by the borrower, and that typically happens when the borrower files an answer to the foreclosure complaint or when the borrower sues to enforce the rescission. The court will determine the following:
1. Did a TILA violation warranting rescission actually occur?
2. Did the borrower send notice of rescission to the creditor within 3 years after loan consummation?
3. Did the creditor receive that notice?
4. Can the creditor tender?
5. Can the borrower tender or will the lender accept an alternative?
A NO answer to any of the above can justify defeat of the rescission, and the court will not order it.
The borrower has one year after expiry of the 20 days following sending of notice of rescission to the creditor in which to sue the creditor for failing to respond within 20 days.
Jesinoski opinion changed nothing in the US Circuits that allowed suit after 3 years. It merely requires all courts to allow the borrower to sue for rescission later than 3 years after consummation of the loan, provided 1, 2, and 3 above occurred.
The creditor has no legal duty to sue the borrower to force a TILA rescission.
Garfield doesn’t want to tell readers the hard core truth that very few people qualify for a TILA rescission because most who sent the notice stopped paying and face foreclosure, and they cannot tender. Therefore, the court will not order the rescission and they will lose the house. They would be totally stupid to pay Garfield for a rescission package.
To understand the proper way to beat the bank, visit the Mortgage Attack web site.
Read my discussion of TILA rescission and related case law at Scalia, Jesinoski, and the Process of TILA Rescission/
9 thoughts on “Garfield Fruit Loopy Over Tila Rescission”
So what, the court makes clear the Jesinoski holding. Furthermore, as previously stated, the penalty for not responding in 20 days, even IF there’s a TILA violation is barely negligible.
What if within 20 calendar days after receipt of a valid notice of rescission, the creditor fails to return any money or property that has been given to anyone in connection with the transaction and fails to take any action necessary to reflect the termination of the security interest, does not the consumer get to retain indefinitely, possession of any money or property the creditor has delivered to him?
It appears to me that the creditor must take certain actions within the 20 day window or subsequently forever forfeit the triggering of the consumers’ statutory obligation to tender. What do you think?
Not factually or legally correct. Moreover, not one homeowner has won post Jesinoski.
Can you elaborate?
You might want to read this case https://scholar.google.com/scholar_case?case=12859442104241941661&q=jesinoski&hl=en&as_sdt=6,47#r%5B7%5D
This is the court slamming the scammer who provides worthless securitization audits for Garfield.
Okay, I’ve read it.
What does this case have to do with you explaining your response to my questions or the slamming of a scammer who provides worthless securitization audits for Garfield?
The case is pretty clear explaining the holding of Jesinoski:
“In Jesinoski, the Supreme Court was presented with a VERY NARROW ISSUE to address — whether a borrower was required to commence suit to enforce a rescission under 15 U.S.C. § 1635 within three years of the transaction, or provide notice of the election to rescind within the three-year period.”
Therefore, all holdings by the federal circuits regarding rescission is still good law.
Moreover, there’s a penalty for not beginning the unwinding process, IF there actually is a TILA violation. It is not “forever forfeiting the triggering of the consumers’ statutory obligation to tender.”
I think you have mistakenly provided the readers with the wrong information. Please click on the link that you’ve provided, so that you may see that you are referring the readers to a banruptcy case.
Here it is for convenience:
I would venture to say that things are moving in the right direction for homeowners.
Garfield’s new followers have thinned down a lot. Old Garfield cult followers, who lost eons ago, after having played all of Garfield’s cards, including buying his inadmissible and costly securitization/combo reports to fight foreclosure, and who used and abused our bankruptcy laws on his advice and still can’t come to grips with having lost their poorly planned case(s), may take some time to adjust to reality. LL may be the group therapy they need for want of affordable medical help.
People are actually waking up and Garfield is very concerned about it. When he was ignoring for so long legitimate questions from his followers, he has now decided to simply kick out anyone asking about his results, in and out of court. Telltale sign of someone having lost his audience and running scared. Not a minute too soon either.
Case law is what matters. Garfield’s pro se have made very little case law helping homeowners. In fact, they have created case law to help banks and servicers. Many Garfield’s attorneys played so badly that… they helped servicers too.
Slowly and steadily, we are seeing a reversal. As Garfield becomes more and more incoherent in his editorials, we’ll see an increasing thinning down of his intelligent followers and more and more attorneys inclined to take cases properly developed (the one thing Garfield had the ability to teach and failed miserably at).
Things are moving. I’m optimistic.