In “Continuing offense” may extend statute of limitations, Posted on January 21, 2016 by Neil Garfield, Garfield wrote more baloney about TILA rescission.
The fact that the notice of rescission was “mailed” is, in and of itself, all the evidence you need, without any need for a lawyer, judge, hearing or order stating that it is effective. All of that has already been done for the borrower by the TILA rescission statute 15 USC §1635 et seq, Regulation Z, and the U.S. Supreme Court — all three branches of government being in complete and unanimous agreement on that point.
Courts that attempt to ignore this basic fact, as a matter of law, are explicitly denying the boss — the US Supreme Court.
If the borrower is alleging that the actual consummation date is unknown and might never have occurred with ANYONE in the chain relied upon by the foreclosing parties, THEN THE ISSUE OF THE DATE OF CONSUMMATION IS A FACT IN ISSUE THAT MUST GO TO TRIAL AND NOT RULED UPON BY A COURT WHO SAYS “IT IS OBVIOUS.”
In the case of table funded loans, it is nearly always the case that the actual creditor is not disclosed, so the violation of TILA is continuing and the discovery of the problem usually only is revealed in litigation.The presence of this continuing violation is obvious — in most cases the REMIC Trust is alleged to be the holder of the note and mortgage, which by definition means that they have left something out — either (1) the name of the creditor for whom they are attempting to collect or foreclose or (2) allege (and prove) that they are the owner, which would require proof of payment in discovery and at trial.
Garfield, you obviously don’t understand the law. You keep saying the rescission is always effective when in fact the courts have ruled it is not, UNLESS a TILA breach actually occurred, the borrower sends notice of rescission timely and the creditor actually receives it, AND the borrower can tender. If the creditor believes any of these are not in order, then the creditor can refuse to tender or remove the lien. And in fact that is what happens. Borrowers can bring up tila rescission as affirmative defense in judicial foreclosure, provided they do it within a year after service of the complaint. Borrowers can sue for the breach and failure to honor the notice of rescission, provided they do it within a year after timely sending valid notice of rescission, and then the award is peanuts unless the borrower can prove actual damages. The borrower can file tila rescission counterclaim in foreclosure proceedings or declaratory judgment, but must do it timely. And courts have said they allow rescission without borrower tender ONLY when the lender deceived or cheated the borrower. Good luck proving that. Also, tila rescission does not apply to purchase money loans.
You keep bringing up the nonsense of table funded loans, The borrower estops himself from protesting about who made the loan when he signs the note that names the lender, saying “for a loan I have received.”
And you keep bringing up the REMIC trust which has NO NEXUS to the borrower except as a creditor with the right to foreclose for breach of the note or security instrument. The borrower is not a party to, beneficiary of, or injuree of the PSA or any assignment of the note, and therefore has no standing to enforce or dispute either, or any REMIC violations, in court.
Your bringing up these DEAD issues merely misleads people into thinking they have some reason to litigate, even though they are deadbeat borrowers. Why don’t you ever bring up things like appraisal fraud and mortgage fraud that give borrowers a real chance at winning money and/or loan balance reduction?