May 17, 2016
As many of you know, the host of the popular foreclosure radio show "The Foreclosure Hour" attorney Gary Victor Dubin (who shepherded one of the cases heard in the JESINOSKI decision heard by the US Supreme Court, and is VERY affluent in TILA Rescission) featured our case on his radio show yesterday. Below is the link to the archived show for those who wanted to listen and could not and a link to download the appellate courts' ruling.
For those of you that are contemplating or currently pursuing a case like this, you may gain valuable insight on the circular, twisted logic of our courts. I don't like to think that justice is unattainable, but one must wonder reading a ruling like this. Gary does a good job of explaining, far better than I could. I encourage you to learn from what we have endured.
NOTE: While the entire hour was spent discussing our case and the surrounding case law and our legal strategy, there were a couple of notable things that stood out:
1. They discussed one of the MAIN issues regarding reason the appellate court would not reverse, and it stands out. The appellate court opined that they could not disturb an already completed foreclosure and that they concurred with the trial courts' logic. This is error, there was NOT a scheduled foreclosure sale when this 60(b) motion was before judge Johnson at the trial court. This is an important distinction. The parties were in the same position they were in when the litigation started 7 years ago. Finality is NOT affected, and she should have put things right. It would have hurt no one.
2. The reason the trial court ruled we were time barred was that we did not file a lawsuit to enforce our rescission within 3 years of consummation. There was no dispute that we rescinded properly. This is the essence of our motion: We properly rescinded, thus voiding our promissory note. The trial court effectively resurrected the voided note (which, obviously, is not possible). This fact has been consistent throughout our 7 years of litigation and the court has bent backwards to resist it.
3. They discuss the unfortunate fact that Justice Scalia did not state that the ruling in Jesinoski was "retroactive" but that is not at issue. He stated clearly that the law has always been as it is written, that means it was then as it is now. That means we rescinded properly and our promissory note is VOID, and follows that it was void before the trial court when she ruled on it. She had no discretion to rule on it.
We are currently requesting review by the State Supreme Court. I welcome and appreciate all of your comments, support, advice and fellowship. It has been a terrible journey. Thank you so very much for all of the support we have received so far. We will never forget.
Please share this with anyone you know who is fighting a similar case. It is vital that they understand how vigorously the court will resist the obvious. Only the most tenacious, expert attorneys can fight this shockingly slanted issue. BE CAREFUL.
theresa @ theresabaker.com
The appellate courts ruling (PDF)
The Foreclosure Hour Show Segment (mp3)
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager
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