Sunday, April 19, 2015

Garfield Hullabaloo over Jesinoski and Rescission

I posted the below explanation at this site:



This Jesinoski opinion dealt only with the right to effect the rescission subsequent to 3 years after the borrower provided notice of TILA rescission within 3 years after receiving the loan.  We should all remember that in a rescission, both parties must return one another's money. 

No one should doubt the bank's ability to tender.  But everyone has reason to doubt the typical borrower's ability to tender. Any lender who believes the borrower will not tender has good reason to balk at returning the borrower's money, especially in the case of an underwater loan or failure to make timely mortgage payments.

Thus, mutual "TENDER" controls every rescission.  Lender can tender, but not hand off the money to the borrower till borrower tenders.  Once both have tendered, they hand off.  But borrowers seldom have that ability to tender. This borrower failure explains why lenders do nothing till the borrower sues or offers rescission as an affirmative defense in a foreclosure action.

I have made the point that the court has a duty to get to the bottom of the issue and do what's right, whether creditor forecloses or borrower sues for TILA rescission.  The court will NOT order rescission unless:

1.  The borrower proves creditor violations justify TILA rescission within the scope of the law.
2. The borrower can tender what the court's arithmetic shows necessary to settle the debt.

TILA rescision applies to only a minuscule percentage of borrowers because:

1.  They did not timely serve notice,
2.  They borrowed to purchase rather than to refinance,
3.  They cannot prove the lender violated TILA,
4.  They cannot tender payment according to court arithmetic.

So, here I provide the most important issue to readers:

The court will not exonerate the borrower from all or part of the debt the debt UNLESS the borrower can prove that one of these parties injured the borrower at the inception of the loan or during its term:

1.  lender,
2.  appraiser,
3.  mortgage broker,
4   title company,
5.  realtor,
6.  seller,
7.  lawyer,
8.  servicer, or
9.  some other party.

Once the reader comes to grips with the above realities, the reader becomes qualified to ignore the ravings of Garfield and his minions, and focus on attacking the loan and its perpetrators for injuries at the inception.


Because statistically, YOU CANNOT DEFEAT FORECLOSURE OF A VALID NOTE THE BORROWER BREACHED.  Nearly every dismissal for lack of standing results in refiling, appeal, and win for the creditor, nationwide. Courts do NOT like to give borrowers a free house because that would simply amount to government-assisted thievery.

The incessant effort of Garfield to focus on everything but the above list of injurors explains why his law firm and all of his club of lawyers who "get it" merely bilk their clients for the privilege of losing their realty to foreclosure, short sale, deed-in-lieu, or an onerous loan mod (which mostly end in foreclosure), and why they don't win damages for their foreclosure victim clients.

Visit to see proof of what works.


Bob Hurt            Blog 1 2   f  t  
2460 Persian Drive #70
Clearwater, FL 33763
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