The foreclosure trustees are out of control in Washington State, and there has been little effort to reign them in.
Recently, we sought relief from judgement on an erroneous ruling stating our TILA Rescission was "time barred" when it was not. The United States Supreme Court recently confirmed in "JESINOSKI v. COUNTRYWIDE" (Read it here) that our rescission was done exactly as it should have been and that means our promissory note became VOID upon rescission in May, 2009. After 7 years of litigation and horrific suffering, we have finally been redeemed by the highest court in the land. Most of time has spent fighting our most arduous opponent: foreclosure trustee, who continues to fight to discredit our TILA Rescission, even in the face of the SCOTUS ruling. We filed a motion for relief from the erroneous judgement and were denied. We immediately appealed the obviously flawed ruling, and to our SHOCK, the trustee scheduled our home for sale at auction! DURING THE APPEAL! Our home was auctioned approximately 3 months AFTER we filed our appeal and we are now homeless.
In 2009, after extensive effort to reach an agreement with the corrupt mortgage broker (Paramount Equity Mortgage, who was suspended in Washington State for ONE YEAR for committing the same fraud in mortgage documents that they did in our documents) we had no alternative to access remedy other than to rescind our mortgage. I have documented fraud from TWO state agencies confirming the garbage that is in my loan documents. I did not take this decision lightly, it's a big deal to rescind your mortgage, it's expensive for the bank (or... it was DESIGNED to be, as a deterrent to fraud).
So, after exhausting every avenue of help I could to get money stolen from us at closing returned (including hours on the phone fighting with one of the owner's of Paramount Equity Mortgage, Matt Dawson-who laughed at me and said there was nothing I could do to him-and he was right), and my window of opportunity closing, I rescinded my mortgage. This was done with great care, with a lot of help from attorneys and other experts to make sure it was done correctly. Little did I know, until January of 2015 (the "Jesinoski" ruling), there was almost no possibility for any homeowner to use TILA Rescission as congress intended due to so many "add-ons" and caveats by the various circuit courts, creating their own interpretation of this very simple, logical statute. The banks saw to that as we were destined to find out over the next 7 years of unspeakable agony.
If there has been one consistency in our TILA Rescission case, it is the mind boggling ignorance of the Washington State courts to grasp the meaning of this very simple, straight-forward legal action: TILA Mortgage Rescission. It is as if you have to dice it up into ever-tinier pieces and feed it to them like small children. They simply refuse to get it. Or is it that they refuse to rule against the "lender" and "trustee"? We must now ask ourselves this very troubling question. After 7 years of trying to access justice in our very text-book rescission case, it's becoming the only feasible answer. Attorneys and experts around the country have commented on our case consistently: HOW can the court rule like that? Not one time in all of these years have we received criticism on our case. NEVER. Only incredulity.
By way of example of the lack of subject matter familiarity the lower court had; (this is in the verbatim report) Judge Barbara Johnson, with a perplexed look on her face, actually asked our attorney in oral arguments, "Why would they want to rescind their mortgage? Don't they want to KEEP their home?" This SHOCKING display of ignorance of what she was ruling on caused us to know the outcome before the ruling was handed down. There was no possibility of prevailing in the face of such incompetence from someone who is supposed to know the law, or at least ATTEMPT to understand it. TILA Rescission absolutely never culminates in a borrower giving up their home. She obviously hadn't even read our case when she came to the bench. After this hearing, our home of more than 20 years, that we built ourselves and raised our children in, and were never in default on, was handed unceremoniously to a servicer who admitted in court had no legal authority to take it. For seven years we have been struggling to decode the law to these judges, and our most voracious defender of the "lender", who worked to discredit our rescission for 7 years? The FORECLOSING TRUSTEE. Why would the trustee be so focused on this? There is a serious problem with foreclosure trustees in Washington State, and it's time to make it stop.
The unthinkable truth is starting to become unavoidable in Washington State: that they refuse to rule in favor of borrowers who are being unlawfully robbed of their homes. Borrower victories are extremely rare and sporadic in this state. They will NOT rule according to the law by some behind-the-curtain mandate that forbids them from hurting the trustees and servicers who are systematically pocketing the assets of homeowners in a team effort, denying due process of law in a routine and cavalier manner. We have doggedly re-approached the bench again and again to reiterate the indisputable truth that a wrong was committed here. Their response is to hand out a poorly-thought-out ruling, full of error and misapprehension, that addresses everything but the most obvious truth: We completed our rescission exactly according to the law, this was confirmed by the United States Supreme Court, and the court chose NOT to reverse an erroneous ruling (no reason given other than our case was not extraordinary), and our house would be sold at auction 3 months later in the face of our appeal.
It is important to remember that our house wasn't even scheduled for sale when we appeared before the trial court to ask her to reverse her erroneous ruling. All we were asking for was the opportunity to litigate the issues. No one could be harmed by allowing us to finally litigate the issues of our case (we had never even been allowed to do that either, by summary judgement). Not once has a court even heard our case, we have been dismissed by summary judgement by a judge with little to no subject matter familiarity by an erroneous precedent that occurred more than a YEAR AFTER I rescinded the mortgage. This is grossly inequitable.
Luckily for the "lender" the "trustee" (Northwest Trustee Services, by no surprise) fought voraciously against our rescission from the beginning, trying to convince the court that it was not valid.
QUESTION: Why would the "trustee" be concerned with the validity of our TILA Rescission? It was stated on multiple briefs and letters that the "trustee" attorneys had nothing to do with "matters of origination" when they were trying to convince the court of their innocence in this case. They made the lenders work easy in our case and wrote far more elaborate arguments against us than the "lender" did. They repeatedly told the court that we "got in over our heads", "were Orwellian", "there must be SOME good reason why a Deputy Sheriff doesn't pay his mortgage", laying shame at our feet over and over again. Listening to them tell the court we were losers and deadbeats and dishonest was excruciating. NONE of this was true. We NEVER defaulted on our mortgage. There is a name for this kind of behavior; it's called slander of character. The "trustee" convinced the court that we were deadbeats, quote:"trying to get a free house" (this particular trustee loves to say that in court, and I have stacks of instances about this with other borrowers-WHY IN THE WORLD would a trustee's attorney even utter such words?!) and that "his clients rights were being violated". What about the borrower's rights, which he is EQUALLY required to protect by Washington State law? I have binders full of this vitriol.
Example of misaligned "trustees": After we lost our motion for relief from judgement in front of Clark County Superior Court, I became a pro se litigant so that I could expediently communicate with my opponents. I was preparing to appeal the court's completely inadequate ruling, and reached out to the "trustee's" attorney who had been our attacker from the very beginning. I appealed to him to consider removing himself from the lawsuit by concurring that in the face of the Supreme Courts' ruling, our rescission had always been proper, and in exchange, we would DROP HIM from our lawsuit. After all, it is actually possible that a borrower is correct and the trustee made a mistake. I thought that was very generous considering the horror he had put us through. Keep in mind, THIS IS THE FORECLOSURE "TRUSTEE'S" COUNSEL-not the "lender". His response? Incredibly: NO. He would continue to discredit our TILA Rescission. Why would he do this? I had offered to exonerate him completely. He had no need to defend his client further, I offered to release them. No, he wanted our house and he wanted me to suffer. Can there be any other explanation? I would love to hear it. The "trustee" is supposed to be a neutral referee in non-judicial foreclosure, I can assure you they are far from that.
The opinion from the Washington State Court of Appeals Div II can be read CLICK HERE
NEW: Petition For Review to Washington Supreme Court: CLICK HERE
I can save you the time reading the 14 page opinion, which has all the appearances of being written by our opponents, the gist of it is this: Our TILA Rescission (which, in 2009 voided the promissory note ab initio by operation of law) is being ignored by the state court because they claim our attorney should have APPEALED the original motion for summary judgement because the foreclosure action was being brought by the wrong beneficiary in 2010... Got that? It's eye-popping insanity. It's circular logic. It's a dog chasing it's tail. We didn't even argue the fact that the wrong beneficiary was taking our home, because the mortgage was RESCINDED! THERE CANNOT BE A BENEFICIARY. Why would we appeal an argument that was not in the case?! In our recent appeal, we introduced this inequity because it was additional evidence that a great inequity had been committed against us, and inequity was part of the requirement of satisfying our claim of manifest injustice. Instead, the court said that we should have appealed this fact (even though it was not argued, no relevant) in our original motion for summary judgement. It's just impossible to relay the extent of circular logic this is. It has no place in a high court like the court of appeals.
If that is not enough, then ALL courts have a responsibility to rule SUA SPONTE when they can correct an injustice. CLEARLY the requisites of a non-judicial foreclosure had not been met on at least ONE count: There was never a default.
This is the story of a TILA Rescission that was executed perfectly, according to the law, rendering the promissory note null and void. The procedures we completed were confirmed correct by a unanimous supreme court of the United States, and STILL, the lower courts in Washington State say, sorry we made a mistake on ruling against you before, but we won't overturn it, because we already told the "servicer" (who acquired the voided note AFTER our rescission, a VOID transaction) they could take your house and they don't want to give up their windfall. Yes, that is exactly what happened.
Consider this analogy: If this were criminal law, and DNA evidence exonerated an innocent man serving a life sentence, he would be set free. The court would not say, "Well, you've been here for so long, and we hate to overturn ourselves so you will stay in prison so people will trust the judicial system." This is the finality argument that has lost us this case. It's inconceivable.
Please take a moment and share this story (there are links below). We cannot silently let these kinds of rulings go unquestioned. I am sorry our courts are so over-worked. I am sorry they have long dockets. But you know what? Maybe they should examine why there are so many home owners in court? Perhaps they should think about why the "trustees" litigation attorney is nearly dropping from exhaustion and appearing in court ALL THE TIME with the same claims-"these people are trying to get a FREE HOUSE!?" He chants this all the time in court. I have yet to meet someone losing their home who is trying to get a "free house". It's abhorrent, and in my opinion, slander.
You can listen to a lively discussion about our case on the Foreclosure Hour national radio show hosted by well known, experienced attorney Gary Victor Dubin who participated in the Jesinoski decision :
Foreclosure Workshop #13:
Baker v. Northwest Trustee Services: A Case Study in How To Retroactively Reverse a Foreclosure Judgment Based on a Subsequent Change in Governing Case Law
As the case law in several states appears to becoming increasingly friendlier to homeowners in foreclosure proceedings, old case precedents will gradually be overturned or substantially revised.
That raises the question how borrowers who have already been foreclosed on can use such supervening court decisions to reopen their closed foreclosure cases.
The Opinion in Baker v. Northwest Trustee Services, decided May 10, 2016 by the Washington State Court of Appeals, provides, in the context of a TILA rescission claim post-Jesinoski, a good lesson for homeowners on often completely unknown or commonly misunderstood options how to and how not to use a change in the law to retroactively vacate an earlier foreclosure judgment.
You can listen online here: The Foreclosure Hour
So stay tuned because it is our belief that the upper courts are going to have a much stronger understanding of what it means when the Supreme Court of The United States UNANIMOUSLY interprets law, it is to be heeded. The law requires lower courts to align themselves with the Supreme Court if at all possible. This is not happening.
For those of you who have been by our side from the beginning, those of you who have shared your journey and your expertise, you know who you are, we love you all, and thank you with all of our heart. The outpouring of support at this horrendous ruling has been humbling and has kept us breathing in and out when it got a little difficult at times. We have lost everything we own, and are living in a trailer, but we will not stop because this is not going to be tolerated. We want to believe in our justice system. Our entire lives are dedicated to the equity of our judicial system, and we doggedly, steadfastly continue to pursue justice.
AMICUS CURIAE will be requested as we move forward. Please help us reach these "busy courts" and share our story (because it is the story of many) and encourage support from organizations and agencies on the merits. These terrible rulings are hurting case law and legitimately wronged borrowers around the country.
I have never been "anti-foreclosure". There are often times when the rights of the lenders must be protected. I am anti-wrongful foreclosure. I do not march in front of banks, because this is not the banks fault: They have been PERMITTED to do what they do, and that will always be the case, as it is with all crime. If you allow criminals to commit crime then they will. No big epiphany there. If you don't issue speeding tickets, people will speed. I blame regulators and law enforcement and the foreclosure trustees for NOT DISTINGUISHING between legitimate borrower default and LENDER/TRUSTEE perpetuated default. In our case, there wasn't even a default and we have lost our home.
Until the trustees stop being compensated in the manner they are (paid for a completed foreclosure as expediently as possible) this WILL NOT CHANGE. Do trustees get paid the same if the foreclosure IS NOT completed? I think you should find out. Imagine if we allowed judges to own bail bonds companies?? How many times would the accused go to jail I wonder?
I propose that foreclosure trustees be public servants. Yes, I do.
Foreclosure should not be able to be initiated, facilitated, perpetuated or adjudicated by ANY entity who PROFITS from it. Period.
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