Garfield Wrong - Jesinoskis Lose, Big Time
See full 21 July 2016 Trial Court Opinion below
Summary of Jesinoskis' TILA Rescission Effort
Jesinoskis used their house as an ATM, refinancing for an interest-only ARM, used the money to pay off other debts, signed acknowledgement of receipt of notice of right to cancel and to rescind, wasted $3K on a fake loan mod, then 3 years to the day after consummation sent the lender a notice of TILA rescission which the creditor promptly denied, then filed suit March 2011 within the statutory perior of a year and 20 days after sending notice to force rescission. The court opined against him, saying he should have sued within the 3 year repose period. Jesinoskis appealed to the Supreme Court and won that point. Back in trial, the court just ruled against the notion that Jesinoskis had not received the proper number of Right to Cancel notices. The court stomped flat Garfield's notion that the SCOTUS opinion in Jesinoski had made borrower tender unnecessary; it pointed out that Jesinoskis must tender, but never could, thus showing another reason to deny rescission. Jesinoskis wasted $800,000, mostly on litigation, and frivolously argued that the waste offset the tender amount (ignoring the fact that the creditor did not get that money), so the judge denied that argument. The court denied Jesinoskis any and all damages.
CommentaryNeil Garfield and his minions and fellow incompetent "Lawyers who get it" across America have ballyhooed the January 2015 SCOTUS decision that Larry and Cheryle Jesinoski did not have to sue for TILA rescission within the 3 year period of repose after loan consummation for violation of the Truth In Lending Act by failing to give the necessary disclosures of the right to rescind. Well, the case went back to the US 8th Circuit Court of Appeals and thence back to the Minnesota District Court for trial of the question of rescission for the Jesinoskis. A few days ago Judge Donovan Frank issued the below Order dashing Jesinoskis' ill-founded hopes. The order granted summary judgment to the creditor because Jesinoskis had signed an acknowledgment of receipt of the disclosures, and because they did not have the money to tender as required by TILA for a rescission. It also denied statutory damages because no TILA violations occurred, even thought Jesinoskis claimed they spent $800,000, mostly in lawyer fees, prosecuting their case all the way up to the US Supreme Court and back.
It looks to me like they stupidly heeded some nonsense Garfield or one of his foreclosure pretense defense attorney buddies "who get it" had written. Ever since the 2015 SCOTUS Jesinoski opinon, Garfield has insisted that every mortgage loan borrower should send a notice of TILA rescission to the creditor. He has insisted that the creditor must terminate the lien immediately upon receipt of notice of rescission, AND tender return of what the borrower paid. The Jesinoski opinion shows with crystal clarity why Garfield was dead wrong - many borrowers have no just reason to rescind, and creditors would be idiots to go through the rescission trouble without just cause.
WARNING to Home Loan Borrowers:Listen to foreclosure pretense defense lawyers at your peril. Most will not diligently look for injuries you have suffered in your loan (TILA violations is one kind, but many other kinds are typical), and most litigate ONLY to delay the ultimate loss of your home. Both delay and non-diligence violate bar rules, so you should file a bar complaint against your attorney if he did that. And you should get a competent professional to examine your loan transaction comprehensively to dig out the valid causes of action you have against the appraiser, mortgage broker, loan officer, title company, lender, servicer, creditor, or other scalawag involved in your loan process. The mortgage exam will give you the evidence of your injuries to show the judge, AND it will give you the basis for suing your incompetent, negligent, scamming attorney for legal malpractice.
Note to Borrowers Hoping for a Favorable Yvanova Decision
TRENDING: Creditors make Foreclosed Borrowers Pay Legal FeesI have seen several cases recently where the foreclosing creditor has asked the court to award legal fees, which the borrower must pay, for litigation related to the foreclosure. Most borrowers do not put up a fight. But look at the Jesinoski and Yvanova cases. They have dragged on for years, stupidly. Creditors have grown sick and tired of the frivolous efforts by borrowers to challenge righteous foreclosures. Jesinoski said he spent nearly $800,000 on his legal fees. I imagine he padded the bill, but I imagine the creditor padded theirs even more. Maybe they will ask the court to award legal fees and costs. In my opinion, they should.
I shudder to contemplate the damage Neil Garfield has done to borrowers across America by encouraging them to fight pointless battles (hiring him as a consultant or attorney, of course) to defeat foreclosure. You cannot win with his ridiculous methods.
If you want to win, and I mean win MONEY or its equivalent, get your mortgage examined (call me for a recommendation), and go on the attack.
Get more info at http://mortgageattack.com.
Bob Hurt Signature