Dear Neil Garfield:
I write in answer to your Jesinoski Revisited article (see below). I’ll post my comment and yours in my Mortgage Attack and LivingLiesTheTruth blogs because I know you lack the courage to post them at LivingLies blog.
To refresh everyone’s memory, SCOTUS wrote this holding in the Jesinoski opinion:
“The Jesinoskis mailed respondents written notice of their intention to rescind within three years of their loan’s consummation. Because this is all that a borrower must do in order to exercise his right to rescind under the Act, the court below erred in dismissing the complaint.”
Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 – Supreme Court 2015
Remember the nature of the dispute. Jesinoskis had mailed his notice of rescission exactly 3 years after loan consummation, but the district and circuit denied the rescission because Jesinoskis sued AFTER mailing the notice. So the only issue before the SCOTUS was the question of whether Jesinoskis had to sue within the three year period of repose. SCOTUS said no because TILA does not require that.
The sole principle that Jesinoski clarified was that the three year limitation on notice did not extend to the filing of a lawsuit. 135 S.Ct. at 793
The SCOTUS opinion did not question whether a TILA violation had occurred. SCOTUS granted certiorari merely to quell differences of opinion between the circuits as to when a borrower may sue to enforce rescission. The trial judge explained it this way:
“In April 2012, the Court issued an order granting Defendants’ motion, finding that TILA required a plaintiff to file a lawsuit within the 3-year repose period, and that Plaintiffs had filed this lawsuit outside of that period. (Doc. No. 23 at 6.) The Eighth Circuit affirmed. Jesinoski v. Countrywide Home Loans, Inc., 729 F.3d 1092 (8th Cir.2013). The United States Supreme Court reversed, holding that a borrower exercising a right to TILA rescission need only provide his lender written notice, rather than file suit, within the 3-year period. Jesinoski v. Countrywide Home Loans, Inc., ___ U.S. ___, 135 S.Ct. 790, 792, 190 L.Ed.2d 650 (2015). The Eighth Circuit then reversed and remanded the case for further proceedings. (Doc. No. 38.) After engaging in discovery, Defendants 959*959 now move for summary judgment.”
Jesinoski v. Countrywide Home Loans, Inc., 196 F. Supp. 3d 956 – Dist. Court, Minnesota 2016
The Elephant in the Room – NO TILA VIOLATION OCCURRED.
You blindly fail to see this gargantuan elephant:
ONLY A TILA VIOLATION TRIGGERS THE RIGHT TO RESCIND… No violation, no rescission.
If no TILA violation occurred, then an effort to invoke TILA rescission should (and always does) fail. That explains why the trial court wholeheartedly ruled against Jesinoski.
Furthermore, if the borrower timely mails the notice of rescission and then waits till after the TILA statute of limitations has tolled (1 year and 20 days after mailing notice to rescind), the borrower’s lawsuit should and will fail. Then the borrower will have only a defensive remedy available, such as in foreclosure or bankruptcy.
In any case, the trial judge explained that Jesinoskis had signed an acknowledgement of receipt of the roper TILA notices of right to cancel. He believed that written acknowledgement rather than their contrary claim. Thus, the lack of a TILA violation made irrelevant their inability to tender.
A reading of the trial opinion makes it clear that the Jesinoskis were scammers trying to trick the system into giving them an undeserved windfall. They had used their house as an ATM, borrowing to pay other debts and live large. The trial court gave a well-deserved comeuppance to them and many others like them. The judge wrote:
“Here, it is undisputed that Plaintiffs left with copies of their closing documents. (L. Jesinoski Dep. at 94-95.) In addition, Plaintiffs did not testify unequivocally that they did not each receive two copies of the rescission notice. Instead, they have testified that they do not know what they received… Based on the evidence in the record, the Court determines that the facts of this case are more line with cases that have found that self-serving assertions of non-delivery do not defeat the presumption”
The Court rightly denied the Jesinoskis any and all damages:
“For the reasons discussed above, Plaintiffs’ TILA claim fails as a matter of law. Without a TILA violation, Plaintiffs cannot recover statutory damages based Defendants refusal to rescind the loan.”
Clearly Neil Garfield Does NOT Understand TILA Rescission
In spite of KNOWING how the courts have ruled in numerous post-Jesinoski cases, you keep insisting on a nonsensical interpretation of TILA rescission. You wrote the following in denial of reality:
“The ultimate decision in the Jesinoski case was against the rescission. This was wrong and in flagrant disregard of the Jesinoski decision rendered by the SCOTUS. The decision simply stated that the rescission WAS effective the moment it was dropped in the mail (or delivered.)”
Excuse me, Neil, but didn’t the Jesinoski trial court SHRED your legal theory? The judge and the creditor knew full well that Jesinoskis LIED about not receiving their TILA notices, and that no TILA violation occurred. What kind of bozo thinks a court should enforce a TILA rescission notice when no TILA violation occurred to justify it?
Recall again that the SCOTUS opinion presumed a VALID TILA rescission, one preceded by a TILA violation. It did not presume a rescission notice without a justifying TILA violation. The trial court made that crystal clear.
Now, Neil, you allege that ” It is uncontested that rescission caused the note and mortgage to immediately become void – not conditionally but actually.”
Well, that’s dead wrong too. Even a valid TILA rescission has certain procedural requirements. If the creditor does not sue to prevent rescission, and yet does not tender or release the lien, then the borrower must sue and ask the court to void the security instrument. And try not to forget that the creditor need not tender if he knows the borrower cannot or will not tender. Only a court can sort out those issues.
“The bankruptcy court did not err in finding that Brown never effectively rescinded the loan because she ignored her tender obligation to restore the lender to the same position it was in before the transaction. Brown, 538 B.R. at 720.”
“In the Fourth Circuit, “unilateral notification of cancellation does not automatically void the loan contract,” Am. Mortgage Network, Inc. v. Shelton, 486 F.3d 815, 821 (4th Cir. 2007), because courts “must not conflate the issue of whether a borrower has exercised her right to rescind with the issue of whether the rescission has, in fact, been completed and the contract voided.” Gilbert v. Residential Funding LLC, 678 F.3d 271, 277 (4th Cir. 2012).”
To accomplish rescission, rather than merely initiating the process, “[e]ither the creditor must acknowledge[ ] that the right of rescission is available and the parties must unwind the transaction amongst themselves, or the borrower must file a lawsuit so that the court may enforce the right to rescind.”
Neil, you seemed to allege that Countrywide, not Jesinoski, bore the onus to sue for relief in the rescission question. The above rulings should disabuse you of that fallacious thinking. But just in case they didn’t, I’ll explain it to you.
In the matter at hand, Jesinoskis sued Countrywide in 2011 for TILA rescission and related damages, and lost. JESINOSKI v. Countrywide Home Loans, Inc., Dist. Court, Minnesota 2012.
Somehow this matter wound its way up and back through the Minnesota District Court to the 8th Circuit and the US Supreme Court, and NOBODY (not even Jesinoskis) exhibited the stupidity of suggesting that Countrywide should have sue Jesinoski in order to buck against Jesinoskis’ specious claim for rescission.
You see, Jesinoskis DID sue to enforce the rescission, and Jesinoskis LOST because of their flimsy and transparently FALSE evidence: their word that they didn’t remember receiving TILA notices just could not stack up against proof, in the form of their own written acknowledgement, that they had received them.
You seem to think that Jesinoskis had some better evidence at hand. They didn’t. AND even if they had better evidence, they couldn’t tender. That made it THEIR obligation to sue in order to work out some means of tendering, as courts across the land have allowed.
Why Does Neil Garfield Insist on Being Wrong?
Look, Neil, I have proven you wrong repeatedly, and as you pointed out, I AM NOT EVEN A LAWYER.
You definitely have a way with words. I don’t know of any practicing attorney who whiles away more hours at the keyboard than you do. And sometimes, even I, in spite of my ignorance, will admit that you raise some thought-provoking, if not worthy, points.
But I see you as a Pied Piper leading hapless, feckless, desperate foreclosure victims with the music of your words that “THE COURTS ARE ALL WRONG” and “BOB HURT IS A SHILL FOR THE BANKS”… you lead them inexorably right into the jaws of foreclosure with irrational POPPYCOCK about the meaning of fairly simple laws like TILA.
I think I recall a time (correct me if I’m wrong) when you pronounced that everybody with a mortgage loan should file a notice of rescission (or something similarly nonsensical), even though every other attorney seemed to know the law makes TILA rescission available ONLY to those with refinance or HELOC loans.
Eventually I concluded that, even though I am not an attorney, I am a good enough student to read court opinions that say unequivocally and repeatedly that some of the legal theories you most vehemently espouse are nothing more than COW PLOP.
And I decided that I would try just a little to break the mesmerizing spell you cast on desperate foreclosure victims, by telling them the truth, such as about the really simple meaning of Jesinoski.
Now I see you intend to deliver this oratorial offal to people (victims) in a seminar:
“Countrywide was not a lender or even an aggregator. It was a conduit for an aggregator and far removed from the actual transfer of funds attendant to the apparent loan.”
I recall your claim that table funded loans aren’t really loans because the borrower doesn’t know the lender, or that the borrower should demand a TILA rescission because the loan was never consummated.
“The Fannons theory that the loan was not consummated has been overwhelmingly rejected by other courts. See, e.g., Schiano v. MBNA, 2016 WL 4257761, at *9-*10 (D.N.J. Aug. 10, 2016); Johnson v. Bank of N.Y. Mellon, 2016 WL 4211529, at *4 (W.D. Wash. Aug. 10, 2016); Wilder v. Ogden Ragland Mortg., 2016 WL 4440487, at *4-*5 (N.D. Tex. July 29, 2016)(“Plaintiff’s claim that the three years period to rescind the loan remains open, because Defendants failed to identify the true lender and the loan was never consummated, is nonsensical.”); Almutarreb v. Nationstar Mortg. Holdings, 2016 WL 3384067, at *5 (N.D. Cal. June 20, 2016); Tyshkevich v. Wells Fargo Bank, N.A., 2016 WL 3077580, at *4 (E.D. Cal. May 31, 2016); Smith v. Wells Fargo Bank, N.A., ___ F. Supp. 3d ___, 2016 WL 370697, at *4 (D. Conn. Jan. 29, 2016).”
Don’t you, a lawyer, know that rescission is a contract remedy, and so if the loan was not consummated, NO CONTRACT EXISTS, and so the purported borrower is not a borrower and therefore cannot rescind anything?
Further, if, as the Fannons assert, the loan had never been consummated, then TILA would not apply because there would be no loan to rescind. See, e.g., Wilder, 2016 WL 4440487, at *4-*5; Samuelson v. Wells Fargo Bank, N.A., 2016 WL 1222222, at *2 (N.D. Ind. Mar. 29, 2016).
Don’t you know that the borrower’s agreement with the terms, signature on the note and security instrument, along with delivery of the funds, constitute “consummation” of the loan?
” “A valid enforceable contract requires offer, acceptance, consideration, and a meeting of the minds.” Tessier v. Rockefeller, 162 N.H. 324, 339 (2011). A meeting of the minds occurs when there is agreement on all essential terms of the contract. Syncom Indus., Inc. v. Wood, 155 N.H. 73, 82 (2007).”
See more proof of the folly of your consummation theories, practiced by your followers, I presume:
Here’s my fundamental trouble with your writings, Neil. For years you have propounded legal theories that courts have disdained with adverse rulings. And then you have used the puffery of false erudition to trick unsuspecting innocents into believing your theories will allow them to prevail in court, if only they attend your seminar or buy your “TILA Rescission Package,” or hire you as a consultant.
Of course you cannot show them where your legal theories won in court because those theories always LOSE. Or you trick them into believing that a dismissal without prejudice is a win and not a dilatory tactic forbidden by the Bar’s Rules of Professional Conduct.
Neil Garfield’s Path to Righteousness
Neil I don’t like “crossing swords” with you because I’m no match for you. And I should go easy on you because statistically, a man who writes as much about the law and litigation as you do is BOUND to err from time to time.
And unfortunately, some of your errors, such as those in the Maslanka case, in which you tried to drown the court in balderdash, have become stuck in court archives, and you will never live them down, particularly if you never admit you were wrong. Let’s face it. You deserved the spanking the trial and appellate courts gave you in that case, and poor Maslanka had to pay his adversaries’ legal fees as well as yours.
And it’s hard to get over the spanking the Florida Supreme Court Justices gave you in its August 2016 public reprimand:
“Neil Franklin Garfield, Parkland, to be publicly reprimanded. (admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. in other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request, and failed to timely respond to Bar inquiries.”
But if you put forth a wee bit of effort, you can stop propounding the dreck that courts have denounced repeatedly, and give your clients some honest service instead, such as by using some of your ridiculously high fees to purchase a comprehensive mortgage examination for them from Mortgage Fraud Examiners. You’ll actually have fun hammering the bank, broker, appraiser, and title company with cogent causes of action in which they really did injure the client. You’ll become a hero instead of a heel because you’ll actually start winning money and beneficial settlements for your clients instead of earning their scorn and bar complaints.
If you ever bothered to do your job right, Neil, you’d forsake the scams of the foreclosure defense business in favor of attacking the validity of the loan transaction. I quit the foreclosure defense racket in 2009. The time for you to make the switch to mortgage attack is long overdue.
*********** Neil Garfield’s Blog Article ************
On 2018-01-23 10:35, Livinglies’s Weblog wrote:
[Garfield’s service promo excised]
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
The ultimate decision in the Jesinoski case was against the rescission. This was wrong and in flagrant disregard of the Jesinoski decision rendered by the SCOTUS. The decision simply stated that the rescission WAS effective the moment it was dropped in the mail (or delivered.) You can read the attack on me in Bob Hurt’s blog in the above link.
Rescission was effective starting with the mailing and uncontested delivery of the notice of rescission, if someone wants to challenge it they must do so in a lawsuit to vacate the effective instrument. This is the most basic procedural law — you don’t get relief without asking for it and the way you ask for it is by filing an pleading in court and getting a decision vacating the rescission notice. This trial court never vacated the rescission probably because it knew it had no power to do so.
You can’t get relief unless you first establish legal standing. SCOTUS said that the rescission was effective in this case and all others like it. It is uncontested that rescission caused the note and mortgage to immediately become void – not conditionally but actually.
So in order to bring a claim you would need to file a claim stating that you are being injured by a wrongfully delivered notice of rescission. That is called standing. The only party who could do that is the owner of the debt, since the ownership of the note and mortgage (void instruments now) is irrelevant. And THAT is where the trial court got it wrong (again). In the absence of a pleading from the owner of the debt, the trial court was devoid of jurisdiction to render any decision in which there rescission was ignored.
Hurt, a non lawyer, is apparently attempting to discredit a Federal law. But he is voicing the party line of the banks. The trial court was twice in error when it entered judgment against Jesinoski and if Jesinoski had the resources to appeal again they MIGHT well have won. It does appear that the “issue” in the trial court was whether the rescission stands. Clearly the opposition did not follow the requirements of statute.
BUT it is possible for the appellate courts to see this as harmless error since the factual finding of the trial court was that proper disclosure was given to Jesinoski. While that finding is also appealable, appellate courts are not likely to intervene in a finding of fact unless there was absolutely nothing in the court record to justify that finding.
So in the end this is about evidence and the failure to present it.
Since rescission is all about proper disclosure and since Jesinoski failed to show that required disclosure was not given at the “closing” of the loan, it may be assumed that they would have lost in an action brought by Countrywide or its successor to vacate the rescission. But that is an advisory decision prohibited to any court.
The assumption is improper. That is why we have rules of procedure. If you want relief you must plead for it not simply argue about it. Countrywide never filed a pleading to vacate the rescission, as far as I know. And the rescission was never vacated even by this decision.
The trial court decided instead to accept the challenge from a party without standing (CW did not own the debt and their standing was entirely based upon the void note and mortgage). Inherent in the trial court’s erroneous decision was the presumption that was used to allow Countrywide to oppose the rescission — i.e., that because it supposedly had the original note and mortgage, it therefore owned the debt. The rest is history.
This decision assumes that Countrywide had standing apart from the note and mortgage, i.e., ownership of the debt. And it also assumes that there was an action filed by Countrywide to vacate the rescission. Neither of these was addressed, much less the 20 day requirement for filing such an action. Instead the trial court simply continued its error by ignoring the rescission because of its factual finding that disclosures had been properly given. But the disclosures were given by people who withheld basic information that is required under the statute, to wit: the identity the lender and the identity of the creditor (i..e., owner of the debt).
So this case went down because Jesinoski did not stick with the requirements of burden of proof, and the requirement that a party with standing make the challenge to the rescission within 20 days. Ignoring the 20 day limitation period results in placing a condition to the effectiveness of there rescission in contradiction to the express wording of Federal Statute and SCOTUS. There are no conditions. Jesinoski failed to press the rules of evidence, based upon the written opinion, which could have landed a victory.
Virtually everyone is ignoring the elephant in the living room, to wit: Countrywide was not a lender or even an aggregator. It was a conduit for an aggregator and far removed from the actual transfer of funds attendant to the apparent loan.
This is why I am offering a seminar on evidence [excised]. The devil is in the details. And too many foreclosure defense lawyers do not properly prepare to attack the details. The trial court decision is basically a political decision, not a legal one. So it continues to be true that the statute is clear, the rules of procedure are clear, and the rules of evidence are clear — yet trial courts are adamantly opposed to allowing homeowners to use the power granted to them by Congress.
[Garfield’s services promo excised]