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So the court in 99% of cases, is forced to accept the notion that there is a debt, the homeowner owes it to the parties who are named as claimants, and that there has been a default. That being the case, the note is evidence of the transfer of the underlying implied debt, and the claimants are entitled to enforce the note.
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That being the case, the court is required to enforce the terms of the mortgage instrument allowing the forced sale of collateral. And that judgment is cloaked in a rigid presumption of validity since the goal of the judicial system is to end disputes with finality.
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But, in cases where the court is presented with a valid attack on the existence, ownership, and authority to enforce the underlying implied debt, that would put the matter in dispute. The court would be constrained to deny a motion to dismiss such an attack but free to enter summary judgment unless the homeowner can show that discovery has corroborated the attack. Or, in the alternative, the opposition is in violation of the rules by having not answered the basic question about the transaction and its current status.
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This is why I blame homeowners and lawyers for being too lazy or not being curious about the transaction. In criminal law, we question everything. In foreclosure defense, it seems we typically question nothing.
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There is one giant exception to what I am saying. As the Supreme Court asserted in Justice Scalia's ruling in January 2015 in the Jesinoski decision, the statute for TILA rescission applied the moment the notice of intention to rescind is mailed. (Bu the three-year limitation applies as well).
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As Scalia stated with considerable sarcasm about what the lower courts were doing, this does not create a claim. It creates an event. And that event is also established in statute 15 USC §1635 and it is described there.
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The statute says that the mortgage lien and note are immediately extinguished. It requires the next steps to be taken by any party holding the note and mortgage. The party who has title to the lien must file documents satisfying and releasing the lien so that it no longer impairs the homeowner's title. Such a party must also return the canceled note.
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Lastly, the statute requires, under Federal Law, that the said party pay the homeowner for all payments made in connection with the alleged "loan" transaction. Then and only then may a creditor seek to receive restitution for the implied unpaid debt. But the mortgage lien and note are still dead.
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Notwithstanding that unanimous Supreme Court decision and the "express and unambiguous" language in the enabling statute (see Scalia's opinion) both claimants and courts have universally allowed the forced sale of homes despite the lack of any legal mortgage lien which was extinguished "by operation of law." (see Scalia's opinion).
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Appeals to the Supreme Court have universally been denied certiorari. This is an abuse by the Supreme court for failing to enforce its own unanimous decision in Jesinoski and all the lower courts where Judges failed to dismiss any foreclosure action after a timely notice of rescission. So, in that case, the courts are acting wrongfully and willfully because they don't like homeowners given that power.
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Neil F Garfield, MBA, JD, 76, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
But challenging the "servicers" and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
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