Tyschkevich loses “Loan wasn’t Consummated” Argument

TYSHKEVICH v. WELLS FARGO BANK, NA, No. 2: 15-cv-2010 JAM AC (PS) (E.D. Cal. Nov. 13, 2015).

Klingon photo
Garfield Clingon

Svetlana Tyschkevich sued for TRO (Temporary Restraining Order) to stop the foreclosure sale of her house on which she took out a $1.36 million dollar loan on which she had not made a payment for 7 years.

She claimed that she had rescinded under TILA (Truth in Lending Act) validly, though 6 years after the loan date, because she had never consummated the loan because the loan docs didn’t identify the real parties, a favorite failing legal theory of Neil Garfield’s “Clingon” minions.

She also claimed the foreclosure was a debt collection activity that violated the FDCPA (Fair Debt Collection Practices Act) because of her rescission.

The magistrate pointed to the loan docs she had signed and the formal status of her lender, and to the TILA statute of repose that limited her right to rescind to 3 years, and to the fact that a foreclosure is not a debt collecting activity subject to the FDCPA.  TRO denied.

Another Garfield Klingon bites the dust.

To make matters worse, the foolish woman never bothered hiring a competent professional to examine her loan-related documents.  Had she done that, she probably would have learned of numerous legitimate causes of action against those who injured her, such as appraisal fraud and mortgage fraud, for which she might have won huge punitive damages.

If you find yourself in a situation like Svetlana’s, contact me for more info on a path to salvation. 727 669 5511.

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Bob Hurt, Writer

SCOTUS: Borrower Lacks Standing to Challenge PSA Violations

By Bob Hurt, 4 November 2015

Introduction

The 2 November 2015 US Supreme Court denial of certiorari in Tran v Bank of New York settled once-and-for-all the spurious assertion that borrowers can challenge putative violations of the Pooling and Servicing Agreement (PSA) creating a securitization trust. Borrowers, encouraged by Glaski v BOA, a California appellate win for the borrower, have claimed that because New York Law voids assignment of a note into a trust after its closing date in the PSA, the assignee has no authority to enforce the note in a foreclosure effort.

This argument boils down to nothing more than a borrower’s effort to use quirks in the law to get a “free house” by preventing foreclosure because the borrower did not make timely payments. Bottom line the courts will not allow a borrower to get a free house unless the lender team injured the borrower sufficiently to justify it.

Numerous California courts have deprecated the Glaski opinion, as have other courts across the land.   Now the US Supreme Court has flicked its chin at it, and in doing so has buried it for good.

The US 2nd Circuit supported the NY Southern District in its reliance upon the 2nd Circuit’s Rajamin v Deutsche Bank opinion that borrowers lack standing to challenge the PSA or any assignment of the note because they

  1. Never became a party to the PSA or assignment
  2. Did not get injured by the PSA violation or assignment, and
  3. Receive no 3rd party benefits from the PSA or assignment.

Now, the SCOTUS has put the KIBOSH forever on the frivolous argument that the borrower can cite irregularities in obeying the PSA and assigning the note as a basis for stymieing a foreclosure. I have presented full opinions of the relevant cases. READ THEM.

If you want to know how to prove the lender team injured the borrower, and how the borrower can use that proof to win millions in compensatory and punitive damages, visit http://MortgageAttack.com.

Court Opinion Links:

  1. Tran v. Bank of New York, Supreme Court of the United States 2 Nov 2015
    http://www.supremecourt.gov/search.aspx?filename=/docketfiles/15-260.htm
  2. Tran v. Bank of New York, Court of Appeals, 2nd Circuit 2015
    https://scholar.google.com/scholar_case?case=13250751688791686592
  3. Tran v. Bank of New York, Dist. Court, SD New York 2014
    https://scholar.google.com/scholar_case?case=8421089202998856475
  4. RAJAMIN v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Court of Appeals, 2nd Circuit 2014
    https://scholar.google.com/scholar_case?case=13230459673637581146
  5. Glaski v. Bank of America, 218 Cal. App. 4th 1079 – Cal: Court of Appeal, 5th Appellate Dist. 2013
    https://scholar.google.com/scholar_case?case=8535344425094007526

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Bob Hurt, Writer