Neil Garfield continues to advocate rescission, but in light of the state courts resistance to apply the procedure clearly set forth in TILA rescission- homeowners must plan accordingly when pursuing rescission litigation.

It is true that there should not be any litigation where the rescission was sent, received and the “creditor” did nothing for more than 20 days and frequently more than 1 year and even several years. Unfortunately judges are making decisions based upon a presumptive finding of fact that the loan contract was consummated on the date the documents were apparently signed (closing). Once again we are dealing with presumed facts that are most likely untrue.

Despite the Jesinoski decision, the courts are reading into the statute on procedure and saying that various conditions apply when the statute and the Supreme Court say otherwise. All rescissions are effective when mailed regardless of whether or not they are disputed- but it may be some time before the courts fall in line.

Attorney “Randy” Ackley is one of south Florida’s finest foreclosure defense attorneys who has a 5-star ratings at Martindale.com.

If you are in Florida and are looking for help with your foreclosure, especially your foreclosure trial, call the Law offices of James R. Ackley at 833-352-2889 for a FREE CONSULTATION.

In the last show, we talked generally about how the promissory note morphs from a promise to pay a debt into a security that is simply an agreement between someone who does not own the debt and someone who will get paid because of a securities scheme.

As James tells it the note is transformed into a security that is essentially irrelevant in any current foreclosure case because that certificate is not and cannot be secured by a mortgage --- at least not one from a homeowner. I would add that current law requires, as a condition precedent, that the claimant has paid value for the underlying obligation, assuming there is one. See Article 9 §203 UCC, adopted in all U.S. jurisdictions verbatim.

I asked James to come back tonight because he is on the front line of litigation and as a competent trial attorney, he knows a lot about the frustrating pitched battles in foreclosure cases. Welcome back James and thanks for coming back.

So just to get started, I will ask James why should everyone understand the elements of a prima facie case first, before they do anything?