(Links to download the briefs for this upcoming case in Washington State Court of Appeals, Div II. follow )
Consistency in application of the law would go a long way to bring equity and justice into what is left of the expectation of "consumer protections". When a consumer is ripped off, they are encouraged to turn to consumer protection laws to access justice. This is a hit-and-miss proposition, unfortunately.
The thrust of this case is an appeal of denial of a Motion for Relief from Judgement under Rule 60(b)(...) in Clark County Superior Court under Judge Barbara Johnson immediately following the UNANIMOUS ruling by the United States Supreme Court (USSC) in Jesinoski v. Countrywide which confirmed in strong language that TILA Rescission is effected upon the borrower's notice of his desire to rescind, and the mortgage NOTE becomes automatically VOID upon notice to the creditor. Applying the explicit instructions of Justice Scalia, who said that the TILA means exactly what it says: That the note and mortgage become void automatically upon the borrower's notification to his lender of his intention to rescind by operation of law, the Bakers should still have a home, but they do not.
If you are unfamiliar with this landmark case, you can read it here: Jesinoski v. Countrywide
This case is extraordinary because the material facts of the Baker's case are identical to the Supreme Court case, and yet their home has been taken from them, though they were never in default on their mortgage.
The Baker's properly rescinded their mortgage in 2009, which was not in default, and their notice of rescission was ignored and their house was subsequently foreclosed upon in June 2015, in the face of this pending appeal.
The principle matter in this case is that the USSC, in January of 2015 mandated that the TILA never required a borrower to sue the creditor for ignoring the notice of rescission in order for the note to become void by operation of law. They further declared that TILA is unambiguous on it's face, and because of this, NO court has the discretion to interpret it. This means that all transfers and court rulings on the material issues of this case are VOID because the court was ruling on VOID MATERIAL FACTS AND DOCUMENTS and the trial court should have vacated the ruling.
The Baker's TILA rescission was done properly, exactly as specified in the TILA, invoked for egregious misrepresentation of finance charges at loan closing by Paramount Equity Mortgage that they discovered and for which they were seeking redress. When the lender refused to correct the errors, the Baker's exercised the legal right of TILA Rescission as a last result. Prior to the rescission, they obtained pre-approval of a new mortgage to tender the proceeds of the rescinded mortgage as outlined in the TILA.
The creditor ignored their rescission and then SOLD the (now voided) promissory note to another lender immediately after the rescission. the new "creditor" repeatedly told the Bakers that their TILA Rescission was nothing to do with them, which of course, was a blatant untruth.
***There could not be a transfer of a voided note!***
Nonetheless, the new "creditor" proceeded to foreclose on their home after months of litigation. What followed was 6 years of tortuous, costly litigation and humiliation for the Bakers, culminating in the loss of their home of more than 20 years. TILA Rescission was designed specifically by Congress to be conducted OUTSIDE of judicial supervision, yet nothing could be more judicial than to try and rescind a mortgage, because lenders NEVER complied with them. It was much more profitable to ignore the rescission, they were rewarded for doing so.
The Baker's continue to fight this gross miscarriage of justice. Their case exemplifies that there is NO WAY for borrower's to do what the law outlines and succeed. It is doubly tragic that even when the borrower follows the letter of the law precisely, it is met with incompetence at the bench. Sadly, most trial court judges have very limited understanding of this important consumer protection law, and the rulings bear this out. Example: In the Baker's motion hearing for relief, Judge Barbara Johnson asked the Baker's counsel, "Why would the Baker's want to rescind their mortgage? Don't they want to keep their home?" If a person were to construct a more succinct illustration of why it is impossible to do anything right as a consumer, this should illuminate the problem. Not only was the judge completely uninformed of the mechanism of TILA Rescission, she was clearly attempting to rule NOT according to the law, but to effect a "desired outcome". Unfazed by the United States Supreme Court's explicit unanimous ruling outlining that she had ruled erroneously, she ordered the foreclosure to proceed, and the Baker's home was sold at auction.
This is happening every day, and consumers are being mowed over by this amateur justice, and losing their homes.
Let's hope that the Court of Appeals looks carefully at the INTENTIONS of all parties involved and at the extent to which the "Trustee" (Northwest Trustee Services) in this case endeavored to aid the creditor in discrediting the Baker's TILA Rescission (for which they stress has nothing to do with them) and portrayed them repeatedly as "deadbeats" when in fact, they were never in default on their mortgage. The Court record shows that in oral arguments NWTS attorney Joshua Schaer emphasized with great emotion, that his client should prevail because, among other things, "the Baker's haven't made a house payment in over 3 years!" and, incredibly, "...the Baker's got in over their heads!" Statements such as these can only be characterized as an attempt to slander the reputation of the borrower to the Court as a "slacker who doesn't pay their bills". As if they weren't paying huge court bond and attorney fees to gain access to justice.
Even the trustee displays incompetence about what TILA Rescission is: He repeatedly declared that the Baker's attempts to "get a free house" were going to fail, and made many other comments on record in this regard. Educated people know that Rescission does NOT offer a free house to anyone, rather it attempts to restore the parties to the position they were in before the mortgage was established, and that includes the borrower tendering back the funds borrowed. The Baker's were prepared and able to do this, but this fact is always downplayed in court. You see, that would taint the whole "deadbeat debtor" thing they were pushing.
It is important to emphasize that these comments are from the "impartial TRUSTEE", not the "Creditor". Do these sound like "impartial" opinions to you? Do you think it's possible that the "Trustee" gave any credence to the Baker's pleas to the ONLY examiner of the proper execution of the foreclosure to alert him to the defects in the proceeding?
It is of note that the attorney for the alleged "Creditor" and the attorney for the "TRUSTEE" were the same guy: Joshua Schaer. Later, he resigned as the bank attorney, presumably because the Baker's attorney pointed out that it was unlikely that the "Trustee" was capable of being "impartial" (as the law dictates) if the same attorney represented BOTH the bank and the trustee! Unfortunately, in Washington State, this is business as usual.
Here are the appellate briefs:
Please take a moment and SHARE this case with colleagues.
Your feedback is welcome and appreciated.
Recent Comments