REMINDER: Sunday Broadcast on The Foreclosure Hour

Posted on August 8, 2015 by Deadly Clear

2 thoughts on “REMINDER: Sunday Broadcast on The Foreclosure Hour”

david belanger (@revolutionnow1) on August 9, 2015 at 12:36 am said:

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david belanger (@revolutionnow1), on August 5, 2015 at 9:59 am said:
CASE LAW ABOUT RESCISSION
It is not necessary for rescission of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though misrepresentation is innocently made, because it would be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis. 2d 166, 168 N.W.2d 201 (1969).
“A bank is not the holder in due course upon merely crediting the depositors account.” Bankers Trust v. Nagler, 23 A.D.2d 645, 257 N.Y.S.2d 298 (1965).
“Any conduct capable of being turned into a statement of fact is representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts.” (The seller or lender) “He is liable, not upon any idea of benefit to himself, but because of his wrongful act and the consequent injury to the other party.” Leonard v. Springer, 197 Ill 532. 64 NE 299 (1902).
“If any part of the consideration for a promise be illegal, or if there are several considerations for an un-severable promise one of which is illegal, the promise, whether written or oral, is wholly void, as it is impossible to say what part or which one of the considerations induced the promise.” Menominee River Co. v. Augustus Spies L & C Co.,147 Wis. 559 at p. 572; 132 NW 1118 (1912).
“The contract is void if it is only in part connected with the illegal transaction and the promise single or entire.” Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis. 550, 279 NW 79 (1938).
“It is not necessary for rescission of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though misrepresentation is innocently made, because it would be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis.2d 166, 279 N.W. 79 (1938).
In a Debtor’s RICO action against its creditor, alleging that the creditor had collected an unlawful debt, an interest rate (where all loan charges were added together) that exceeded, in the language of the RICO Statute, “twice the enforceable rate.” The Court found no reason to impose a requirement that the Plaintiff show that the Defendant had been convicted of collecting an unlawful debt, running a “loan sharking” operation. The debt included the fact that exaction of a usurious interest rate rendered the debt unlawful and that is all that is necessary to support the Civil RICO action. Durante Bros. & Sons, Inc. v. Flushing Nat ‘l Bank, 755 F.2d 239 (1985). Cert. denied, 473 U.S. 906 (1985).
The Supreme Court found that the Plaintiff in a civil RICO action need establish only a criminal “violation” and not a criminal conviction. Further, the Court held that the Defendant need only have caused harm to the Plaintiff by the commission of a predicate offense in such a way as to constitute a “pattern of Racketeering activity.” That is, the Plaintiff need not demonstrate that the Defendant is an organized crime figure, a mobster in the popular sense, or that the Plaintiff has suffered some type of special Racketeering injury; all that the Plaintiff must show is what the Statute specifically requires. The RICO Statute and the civil remedies for its violation are to be liberally construed to affect the congressional purpose as broadly formulated in the Statute. Sedima, SPRL v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
A violation such as not responding to the TILA rescission letter, no matter how technical, it has no discretion with respect to liability. Holding that creditor failed to make material disclosures in connection with loan. Title 15 USCS §1605(c) Wright v. Mid-Penn Consumer Discount Co., 133 B.R. 704 (Pa. 1991).
Moore v. Mid-Penn Consumer Discount Co., Civil Action No. 90-6452 U.S. Dist. LEXIS 10324 (Pa. 1991).
The court held that, under TILA’s Regulation Z, 12 CFR §226.4 (a), a lender had to expressly notify a
borrower that he had a choice of insurer.
Marshall v. Security State Bank of Hamilton, 121 B.R. 814 (Ill. 1990) violation of Federal Truth in Lending
15 USCS §1638(a)(9), and Regulation Z. The bank took a security interest in the vehicle without
disclosing the security interest.
Steinbrecher v. Mid-Penn Consumer Discount Co., 110 B.R. 155 (Pa. 1990). Mid-Penn violated TILA by not
including in a finance charge the debtors’ purchase of fire insurance on their home. The purchase of
such insurance was a condition imposed by the company. The cost of the insurance was added to the
amount financed and not to the finance charge.
Nichols v. Mid-Penn Consumer Discount Co., 1989 WL 46682 (Pa. 1989). Mid-Penn misinformed Nichols in
the Notice of Right to Cancel Mortgage.
McElvany v. Household Finance Realty Corp., 98 B.R. 237 (Pa. 1989). debtor filed an application to remove the
mortgage foreclosure proceedings to the United States District Court pursuant to 28 USCS §1409. It is strict
liability in the sense that absolute compliance is required and even technical violations will form the basis for
liability. Lauletta v. Valley Buick Inc., 421 F. Supp. 1036 at 1040 (Pa. 1976).
Johnson-Allen v. Lomas and Nettleton Co., 67 B.R. 968 (Pa. 1986). Violation of Truth-in-Lending Act
requirements, 15 USCS §1638(a)(10), required mortgagee to provide a statement containing a
description of any security interest held or to be retained or acquired. Failure to disclose.
Cervantes v. General Electric Mortgage Co., 67 B.R. 816 (Pa. 1986). creditor failed to meet disclosure
requirements under the Truth in Lending Act, 15 U.S.C.S. § 1601-1667c and Regulation Z of the
Federal Reserve Board, 12 CFR §226.1
McCausland v. GMAC Mortgage Co., 63 B.R. 665, (Pa. 1986). GMAC failed to provide information which
must be disclosed as defined in the TILA and Regulation Z, 12 CFR §226.1
Perry v. Federal National Mortgage Corp., 59 B.R. 947 (Pa. 1986) the disclosure statement was deficient
under the Truth In Lending Act, 15 U.S.C.S. § 1638(a)(9). Defendant Mortgage Co. failed to reveal
clearly what security interest was retained.
Schultz v. Central Mortgage Co., 58 B.R. 945 (Pa. 1986). The court determined creditor mortgagor violated
the Truth In Lending Act, 15 U.S.C.S. § 1638(a)(3), by its failure to include the cost of mortgage
insurance in calculating the finance charge. The court found creditor failed to meet any of the
conditions for excluding such costs and was liable for twice the amount of the true finance charge.
Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (Pa. 1986). Any misgivings creditors may have about the
technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not the
courts. Disclosure requirements for credit sales are governed by 15 U.S.C.S. § 1638 12 CFR § 226.8(b), (c).
Disclosure requirements for consumer loans are governed by 15 U.S.C.S. § 1639 12 CFR § 226.8(b), (d). A
violator of the disclosure requirements is held to a standard of strict liability. Therefore, a plaintiff need not
show that the creditor in fact deceived him by making substandard disclosures. Since Transworld Systems Inc.
have not cancelled the security interest and return all monies paid by Ms. Sherrie I. LaForce within the 20 days
of receipt of the letter of rescission of October 7, 2009, the lenders named above are responsible for actual and
statutory damages pursuant to 15 U.S.C. 1640(a).
Lewis v. Dodge, 620 F.Supp. 135, 138 (D. Conn. 1985);
Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066 (3rd Cir. 1992). Porter filed an adversary proceeding against appellant under 15 U.S.C. §1635, for failure to honor her request to rescind a loan secured by a mortgage on her home.
Rowland v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (1992) Even technical violations will form the basis for liability. The mortgagors had a right to rescind the contract in accordance with 15 U.S.C. §1635(c).
New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (1992). The court held that defendants were entitled to rescind loan under strict liability terms of TILA because plaintiff violated TILA’s provisions.
Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567 (1990); TILA is a remedial statute, and, hence, is liberally construed in favor of borrowers. The remedial objectives of TILA are achieved by imposing a system of strict liability in favor of consumers when mandated disclosures have not been made. Thus, liability will flow from even minute deviations from the requirements of the statute and the regulations promulgated under it.
Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (1990) There was no dispute as to the material facts that established that the debt collector violated the FDCPA. The court granted the debtors’ motion for summary judgment and held that (1) under 15 U.S.C. §1692(e), a debt collector could not use any false, deceptive, or misleading representation or means in connection with the collection of any debt; Unfair Debt Collection Practices Act.
Jenkins v. Landmark Mortg. Corp. of Virginia, 696 F.Supp. 1089 (W.D. Va. 1988). Plaintiff was also misinformed regarding the effects of a rescission. The pertinent regulation states that “when a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.” 12 CFR §226.23(d) (1)..
Laubach v. Fidelity Consumer Discount Co., 686 F.Supp. 504 (E.D. Pa. 1988). monetary damages for the plaintiffs pursuant to the Racketeer Influenced and Corrupt Organization Act, 18 USC §1961. (Count I); the Truth-in-Lending Act, 15 USC §1601.
Searles v. Clarion Mortg. Co., 1987 WL 61932 (E.D. Pa. 1987); Liability will flow from even minute deviations from requirements of the statute and Regulation Z. failure to accurately disclose the property in which a security interest was taken in connection with a consumer credit transaction involving the purchase of residential real estate in violation of 15 USCs §1638(a)(9). and 12 CFR §226.18(m).
Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567, 1570 (S.D. Ga. 1990). Congress’s purpose in passing the Truth in Lending Act (TILA), 15 USCs §1601(a). was to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him. 15 USCs §1601(a). TILA is a remedial statute, and, hence, is liberally construed in favor of borrowers.;
Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984). disclosure statement violated 12 CFR §226.6(a).,
Wright v. Mid-Penn Consumer Discount Co., 133 B.R. 704 (E.D. Pa. 1991) Holding that creditor failed to make material disclosures in connection with one loan;
Cervantes v. General Electric Mortgage Co., 67 B.R. 816 (E.D. Pa. 1986). The court found that the TILA violations were governed by a strict liability standard, and defendant’s failure to reveal in the disclosure
statement the exact nature of the security interest violated the TILA.
Perry v. Federal National Mortgage, 59 B.R. 947 (E.D. Pa. 1986). Defendant failed to accurately disclose the security interest taken to secure the loan.
Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066 (3rd Cir. 1992). Adversary proceeding against appellant under 15 U.S.C. §1635, for failure to honor her request to rescind a loan secured by a mortgage on her home. She was entitled to the equitable relief of rescission and the statutory remedies under 15 U.S.C. §1640 for appellant’s failure to rescind upon request.
Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (Pa. 1986). Any misgivings creditors may have about the technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not the courts. Disclosure requirements for credit sales are governed by 15 U.S.C.S. § 1638 12 CFR § 226.8(b), (c). Disclosure requirements for consumer loans are governed by 15 U.S.C.S. § 1639 12 CFR § 226.8(b), (d). A violator of the disclosure requirements is held to a standard of strict liability. Therefore, a plaintiff need not show that the creditor in fact deceived him by making substandard disclosures. Rowland v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (1992),
Even technical violations will form the basis for liability. The mortgagors had a right to rescind the contract in accordance with 15 U.S.C. §1635(c). New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (D. Me. 1992). The court held that defendants were entitled to rescind loan under strict liability terms of TILA because plaintiff violated TILA’s provisions.

Reply ↓
david belanger (@revolutionnow1) on August 9, 2015 at 5:56 am said:

Legal Notices
CAVEAT EMPTOR NOTICE – BUYER BEWARE!
NOTICE TO ALL PARTIES: Be advised litigation is pending in Federal Court Docket 1:15-cv-
00028-WMS (WDNY) and LIS PENDENS filed Index No.807348/2014 on 1/20/2015 has been
RECORDED property a 6853 Erie Road Evans New York SBL 192.20-8-26.1 OWNER OF
THE Account Deborah Ann Buczek
 “The maxim … operates as between purchaser and vendor (and) instructs the potential
purchaser to rely upon his own investigations, inspections and inquiries.
 Spivey v. Adaptive Marketing, 660 F. Supp. 2d 940( United States District Court,
Illinois, 2009)
 Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R.
85
According to: 1868 U.S. Dist. Lexis 265::In re Kerosene Oil Co.: Nov. 1868 The Federal
Court(s) Have jurisdiction to restrain the Mortgagees from proceeding in the action
See U.S. v. PhillipsC.A.4 (N.C.) | July 16, 1999 | 185 F.3d 183 W.D.N.Y. | August 20, 2012 |
1.) 890 F.Supp.2d Tachiquin v. HSBC Bank USA S.D.Cal. | November 14, 2012 | Not
Reported in F.Supp.2d
2.) Nixon v. Individual Head of St. Joseph Mort. Co., Inc. N.D.Ind. | June 26, 1985
3.) 612 F.Supp. 253 Ungar v. MandellC.A.2 (N.Y.) | December 06, 1972 | 471 F…2d 1163
“MEMORANDUM OPINION BRIEF
STATEMENTS BY A JUDGE ANNOUNCING his/her RULING”
JURISDICTION:
1.) Patton v. Diemer, 35 Ohio St. 3d 68; 518 N.E.2d 941; 1988). A judgment rendered by a court
lacking subject matter jurisdiction is void A ab initio. Consequently, the authority to vacate a
void judgment is not derived from Ohio R. Civ. P. 60(B), but rather constitutes an inherent
power possessed by Ohio courts. I see no evidence to the contrary that this would apply to ALL
courts.
2.) “A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or
a representative capacity, some real interest in the subject matter of the action. Lebanon
Correctional Institution v. Court of Common Pleas 35 Ohio St.2d 176 (1973).
3.) “A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or
a representative capacity, some real interest in the subject matter of an action.” Wells Fargo
Bank, v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (2008). It went on to
hold,” If plaintiff has offered no evidence that it owned the note and mortgage when the
complaint was filed, it would not be entitled to judgment as a matter of law.” (The following
court case was unpublished and hidden from the public)
4.) Wells Fargo, Litton Loan v. Farmer, 867 N.Y.S.2d 21 (2008). “Wells Fargo does not own the
mortgage loan. Therefore, the matter is dismissed with prejudice.” (The following court case was
unpublished and hidden from the public)
5.) Wells Fargo v. Reyes, 867 N.Y.S.2d 21 (2008). Dismissed with prejudice, Fraud on Court &
Sanctions. Wells Fargo never owned the Mortgage. (The following court case was unpublished
and hidden from the public)
6.) Deutsche Bank v. Peabody, 866 N.Y.S.2d 91 (2008). EquiFirst, when making the loan,
violated Regulation Z of the Federal Truth in Lending Act 15 USC §1601 and the Fair Debt
Collections Practices Act 15 USC §1692; “intentionally created fraud in the factum” and
withheld from plaintiff “vital information concerning said debt and all of the matrix involved in
making the loan”.
7.) (The following court case was unpublished and hidden from the public) Indymac Bank v.
Boyd, 880 N.Y.S.2d 224 (2009). To establish a prima facie case in an action to foreclose a
mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note. It is
the law’s policy to allow only an aggrieved person to bring a lawsuit . . . A want of “standing to
sue,” in other words, is just another way of saying that this particular plaintiff is not involved in a
genuine controversy, and a simple syllogism takes us from there to a “jurisdictional” dismissal:
8.) (The following court case was unpublished and hidden from the public) Indymac Bank v.
Bethley, 880 N.Y.S.2d 873 (2009). The Court is concerned that there may be fraud on the part of
plaintiff or at least malfeasance Plaintiff INDYMAC (Deutsche) and must have “standing” to
bring this action.
9.) (The following court case was unpublished and hidden from the public) Deutsche Bank
National Trust Co v.Torres, NY Slip Op 51471U (2009). That “the dead cannot be sued” is a
well established principle of the jurisprudence of this state plaintiff’s second cause of action for
declaratory relief is denied. To be entitled to a default judgment, the movant must establish,
among other things, the existence of facts which give rise to viable claims against the defaulting
defendants. “The doctrine of ultra vires is a most powerful weapon to keep private corporations
within their legitimate spheres and punish them for violations of their corporate charters, and it
probably is not invoked too often. “ Zinc Carbonate Co. v. First National Bank, 103 Wis. 125, 79
NW 229 (1899). Also see: American Express Co. v. Citizens State Bank, 181 Wis. 172, 194 NW
427 (1923).
10.) (The following court case was unpublished and hidden from the public) Wells Fargo v.
Reyes, 867 N.Y.S.2d 21 (2008). Case dismissed with prejudice, fraud on the Court and Sanctions
because Wells Fargo never owned the Mortgage nor the note was lost.
11.) (The following court case was unpublished and hidden from the public) Wells Fargo, Litton
Loan v. Farmer, 867 N.Y.S.2d 21 (2008). Wells Fargo does not own the mortgage loan nor the
note. “Indeed, no more than (affidavits) is necessary to make the prima facie case.” United States
v. Kis, 658 F.2d, 526 (7th Cir. 1981).
12.) (The following court case was unpublished and hidden from the public) Indymac Bank v.
Bethley, 880 N.Y.S.2d 873 (2009). The Court is concerned that there may be fraud on the part of
plaintiff or at least malfeasance Plaintiff INDYMAC (Deutsche) and must have “standing” to
bring this action.
13.) Lawyer responsible for false debt collection claim Fair Debt Collection Practices Act, 15
USCS §§ 1692-1692o, Heintz v. Jenkins, 514 U.S. 291; 115 S. Ct. 1489, 131 L. Ed. 2d 395
(1995). and FDCPA Title 15 U.S.C. sub section 1692.
14.) In determining whether the plaintiffs come before this Court with clean hands, the primary
factor to be considered is whether the plaintiffs sought to mislead or deceive the other party, not
whether that party relied upon plaintiffs’ misrepresentations. Stachnik v. Winkel, 394 Mich. 375,
387; 230 N.W.2d 529, 534 (1975).
15.) “Indeed, no more than (affidavits) is necessary to make the prima facie case.” United States
v. Kis, 658 F.2d, 526 (7th Cir. 1981). Cert Denied, 50 U.S. L.W. 2169; S. Ct. March 22, (1982).
16.) “Silence can only be equated with fraud where there is a legal or moral duty to speak or
when an inquiry left unanswered would be intentionally misleading.”U.S. v. Tweel, 550 F.2d
297 (1977).
17.) “If any part of the consideration for a promise be illegal, or if there are several
considerations for an un-severable promise one of which is illegal, the promise, whether written
or oral, is wholly void, as it is impossible to say what part or which one of the considerations
induced the promise.” Menominee River Co. v. Augustus Spies L & C Co., 147 Wis. 559 at p.
572; 132 NW 1118 (1912).
18.) Federal Rule of Civil Procedure 17(a)(1) which requires that “[a]n action must be
prosecuted in the name of the real party in interest.” See also, In re Jacobson, 402 B.R. 359, 365-
66 (Bankr. W.D. Wash. 2009); In re Hwang, 396 B.R. 757, 766-67 (Bankr. C.D. Cal. 2008).
19.) Mortgage Electronic Registration Systems, Inc. v. Chong, 824 N.Y.S.2d 764 (2006). MERS
did not have standing as a real party in interest under the Rules to file the motion.The declaration
also failed to assert that MERS, FMC Capital LLC or Homecomings Financial, LLC held the
Note.
20.) Landmark National Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009). “Kan. Stat. Ann. §
60-260(b) allows relief from a judgment based on mistake, inadvertence, surprise, or excusable
neglect; newly discovered evidence that could not have been timely discovered with due
diligence; fraud or misrepresentation; a void judgment; a judgment that has been satisfied,
released, discharged, or is no longer equitable; or any other reason justifying relief from the
operation of the judgment. The relationship that the registry had to the bank was more akin to
that of a straw man than to a party possessing all the rights given a buyer.” Also In September of
2008, A California Judge ruling against MERS concluded, “There is no evidence before the court
as to who is the present owner of the Note. The holder of the Note must join in the motion.”
21.) LaSalle Bank v. Ahearn, 875 N.Y.S.2d 595 (2009). Dismissed with prejudice.Lack of
standing.
22.) Novastar Mortgage, Inc v. Snyder 3:07CV480 (2008). Plaintiff has the burden of
establishing its standing. It has failed to do so.
23.) DLJ Capital, Inc. v. Parsons, CASE NO. 07-MA-17 (2008). A genuine issue of material fact
existed as to whether or not appellee was the real party in interest as there was no evidence on
the record of an assignment. Reversed for lack of standing.
24.) Everhome Mortgage Company v. Rowland, No. 07AP-615 (Ohio 2008). Mortgagee was not
the real party in interest pursuant to Rule 17(a).Lack of standing.
25.) In Lambert v. Firstar Bank, 83 Ark. App. 259, 127 S.W. 3d 523 (2003), complying with the
Statutory Foreclosure Act does not insulate a financial institution from liability and does not
prevent a party from timely asserting any claims or defenses it may have concerning a mortgage
foreclosure A.C.A. §18-50-116(d)(2) and violates honest services Title 18 Fraud. Notice to
credit reporting agencies of overdue payments/foreclosure on a fraudulent debt is defamation of
character and a whole separate fraud.
26.) A Court of Appeals does not consider assertions of error that are unsupported by convincing
legal authority or argument, unless it is apparent without further research that the argument is
well taken. FRAUD is a point well taken! Lambert Supra.
No lawful consideration tendered by Original Lender and/or Subsequent Mortgage and/or
Servicing Company to support the alleged debt. “A lawful consideration must exist and be
tendered to support the Note” and demand under TILA full disclosure of any such consideration.
Anheuser-Busch Brewing Company v. Emma Mason, 44 Minn. 318, 46 N.W. 558 (1890).
27.) “It has been settled beyond controversy that a national bank, under Federal law, being
limited in its power and capacity, cannot lend its credit by nor guarantee the debt of another. All
such contracts being entered into by its officers are ultra vires and not binding upon the
corporation.” It is unlawful for banks to loan their deposits. Howard & Foster Co. vs. Citizens
National Bank, 133 S.C. 202, 130 S.E. 758 (1926),
28.) “Neither, as included in its powers not incidental to them, is it a part of a bank’s business to
lend its credit. If a bank could lend its credit as well as its money, it might, if it received
compensation and was careful to put its name only to solid paper, make a great deal more than
any lawful interest on its money would amount to. If not careful, the power would be the mother
of panics . . . Indeed, lending credit is the exact opposite of lending money, which is the real
business of a bank, for while the latter creates a liability in favor of the bank, the former gives
rise to a liability of the bank to another. I Morse. Banks and Banking 5th Ed. Sec 65; Magee,
Banks and Banking, 3rd Ed. Sec 248.” American Express Co. v. Citizens State Bank, 181 Wis.
172, 194 NW 427 (1923). I demand under TILA full disclosure and proof to the contrary.
29.) UCC § 2-106(4) “Cancellation” occurs when either party puts an end to the contract for
breach by the other and its effect is the same as that of “termination” except that the canceling
party also retains any remedy for breach of the whole contract or any unperformed balance.
NOTE WAS LOST BREACH OF CONTRACT
N.Y. UCC. LAW § 2–106 : NY Code – Section 2–106: Definitions: “Contract”; “Agreement”;
“Contract for Sale”; “Sale”; “Present Sale”; “Conforming” to Contract; “Termination”;
“Cancellation”. (1) In this Article unless the context otherwise requires “contract” and
“agreement” are limited to those relating to the present or future sale of goods. “Contract for
sale” includes both a present sale of goods and a contract to sell goods at a future time. A “sale”
consists in the passing of title from the seller to the buyer for a price (Section 2–401). A
“present sale” means a sale which is accomplished by the making of the contract.(2) Goods or
conduct including any part of a performance are “conforming” or conform to the contract
when they are in accordance with the obligations under the contract.(3) “Termination” occurs
when either party pursuant to a power created by agreement or law puts an end to the contract
otherwise than for its breach. On “termination” all obligations which are still executory or
both sides are discharged but any right based on prior breach or performance survives. (4)
“Cancellation” occurs when either party puts an end to the contract for breach by the other
and its effect is the same as that of “termination” except that the cancelling party also retains
any remedy for breach of the whole contract or any unperformed balance.
30.) “There is no doubt but what the law is that a national bank cannot lend its credit or become
an accommodation endorser.” National Bank of Commerce v. Atkinson, 55 F. 465; (1893).
31.) National Banks and/or subsidiary Mortgage companies cannot retain the note, “Among the
assets of the state bank were two notes, secured by mortgage, which could not be transferred to
the new bank as assets under the National Banking Laws. National Bank Act, Sect 28 & 56”
National Bank of Commerce v. Atkinson, 8 Kan. App. 30, 54 P. 8 (1898).
32.) “A bank can lend its money, but not its credit.” First Nat’l Bank of Tallapoosa v. Monroe,
135 Ga 614, 69 S.E. 1123 (1911).
33.) It is not necessary for rescission of a contract that the party making the misrepresentation
should have known that it was false, but recovery is allowed even though misrepresentation is
innocently made, because it would be unjust to allow one who made false representations, even
innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson,
43 Wis. 2d 166, 168 N.W.2d 201 (1969).
34.) “A bank is not the holder in due course upon merely crediting the depositors account.”
Bankers Trust v. Nagler, 23 A.D.2d 645, 257 N.Y.S.2d 298 (1965).
35.) “Any conduct capable of being turned into a statement of fact is representation. There is no
distinction between misrepresentations effected by words and misrepresentations effected by
other acts.” (The seller or lender) “He is liable, not upon any idea of benefit to himself, but
because of his wrongful act and the consequent injury to the other party.” Leonard v. Springer,
197 Ill 532. 64 NE 299 (1902).
36.) “If any part of the consideration for a promise be illegal, or if there are several
considerations for an un-severable promise one of which is illegal, the promise, whether written
or oral, is wholly void, as it is impossible to say what part or which one of the considerations
induced the promise.” Menominee River Co. v. Augustus Spies L & C Co.,147 Wis. 559 at p.
572; 132 NW 1118 (1912).
37.) “The contract is void if it is only in part connected with the illegal transaction and the
promise single or entire.” Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis. 550, 279
NW 79 (1938).
38.) “It is not necessary for rescission of a contract that the party making the misrepresentation
should have known that it was false, but recovery is allowed even though misrepresentation is
innocently made, because it would be unjust to allow one who made false representations, even
innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson,
43 Wis.2d 166, 279 N.W. 79 (1938).
39.) In a Debtor’s RICO action against its creditor, alleging that the creditor had collected an
unlawful debt, an interest rate (where all loan charges were added together) that exceeded, in the
language of the RICO Statute, “twice the enforceable rate.” The Court found no reason to impose
a requirement that the Plaintiff show that the Defendant had been convicted of collecting an
unlawful debt, running a “loan sharking” operation. The debt included the fact that exaction of a
usurious interest rate rendered the debt unlawful and that is all that is necessary to support the
Civil RICO action. Durante Bros. & Sons, Inc. v. Flushing Nat ‘l Bank, 755 F.2d 239 (1985).
Cert. denied, 473 U.S. 906 (1985).
40.) The Supreme Court found that the Plaintiff in a civil RICO action need establish only a
criminal “violation” and not a criminal conviction. Further, the Court held that the Defendant
need only have caused harm to the Plaintiff by the commission of a predicate offense in such a
way as to constitute a “pattern of Racketeering activity.” That is, the Plaintiff need not
demonstrate that the Defendant is an organized crime figure, a mobster in the popular sense, or
that the Plaintiff has suffered some type of special Racketeering injury; all that the Plaintiff must
show is what the Statute specifically requires. The RICO Statute and the civil remedies for its
violation are to be liberally construed to affect the congressional purpose as broadly formulated
in the Statute.Sedima, SPRL v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346
(1985).
41.) A violation such as not responding to the TILA rescission letter, no matter how technical, it
has no discretion with respect to liability. Holding that creditor failed to make material
disclosures in connection with loan. Title 15 USCS §1605(c) Wright v. Mid-Penn Consumer
Discount Co., 133 B.R. 704 (Pa. 1991). Moore v. Mid-Penn Consumer Discount Co., Civil
Action No. 90-6452 U.S. Dist. LEXIS 10324 (Pa. 1991). The court held that, under TILA’s
Regulation Z, 12 CFR §226.4 (a), a lender had to expressly notify a borrower that he had a
choice of insurer.
42.) Marshall v. Security State Bank of Hamilton, 121 B.R. 814 (Ill. 1990) violation of Federal
Truth in Lending 15 USCS §1638(a)(9), and Regulation Z.The bank took a security interest in
the vehicle without disclosing the security interest.
43.) Steinbrecher v. Mid-Penn Consumer Discount Co., 110 B.R. 155 (Pa. 1990). Mid-Penn
violated TILA by not including in a finance charge the debtors’ purchase of fire insurance on
their home. The purchase of such insurance was a condition imposed by the company. The cost
of the insurance was added to the amount financed and not to the finance charge.
44.) Nichols v. Mid-Penn Consumer Discount Co., 1989 WL 46682 (Pa. 1989). Mid-Penn
misinformed Nichols in the Notice of Right to Cancel Mortgage.
45.) McElvany v. Household Finance Realty Corp., 98 B.R. 237 (Pa. 1989). debtor filed an
application to remove the mortgage foreclosure proceedings to the United States District Court
pursuant to 28 USCS §1409.
46.) It is strict liability in the sense that absolute compliance is required and even technical
violations will form the basis for liability. Lauletta v. Valley Buick Inc., 421 F. Supp. 1036 at
1040 (Pa. 1976).
47.) Johnson-Allen v. Lomas and Nettleton Co., 67 B.R. 968 (Pa. 1986). Violation of Truth-inLending
Act requirements, 15 USCS §1638(a)(10), required mortgagee to provide a statement
containing a description of any security interest held or to be retained or acquired. Failure to
disclose.
48.) Cervantes v. General Electric Mortgage Co., 67 B.R. 816 (Pa. 1986). creditor failed to meet
disclosure requirements under the Truth in Lending Act, 15 U.S.C.S. § 1601-1667c and
Regulation Z of the Federal Reserve Board, 12 CFR §226.1
49.) McCausland v. GMAC Mortgage Co., 63 B.R. 665, (Pa. 1986). GMAC failed to provide
information which must be disclosed as defined in the TILA and Regulation Z, 12 CFR §226.1
50.) Perry v. Federal National Mortgage Corp., 59 B.R. 947 (Pa. 1986) the disclosure statement
was deficient under the Truth In Lending Act, 15 U.S.C.S. § 1638(a)(9). Defendant Mortgage
Co. failed to reveal clearly what security interest was retained.
51.) Schultz v. Central Mortgage Co., 58 B.R. 945 (Pa. 1986). The court determined creditor
mortgagor violated the Truth In Lending Act, 15 U.S.C.S. § 1638(a)(3), by its failure to include
the cost of mortgage insurance in calculating the finance charge. The court found creditor failed
to meet any of the conditions for excluding such costs and was liable for twice the amount of the
true finance charge.
52.) Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (Pa. 1986). Any misgivings creditors
may have about the technical nature of the requirements should be addressed to Congress or the
Federal Reserve Board, not the courts. Disclosure requirements for credit sales are governed by
15 U.S.C.S. § 1638 12 CFR § 226.8(b), (c). Disclosure requirements for consumer loans are
governed by 15 U.S.C.S. § 1639 12 CFR § 226.8(b), (d). A violator of the disclosure
requirements is held to a standard of strict liability. Therefore, a plaintiff need not show that the
creditor in fact deceived him by making substandard disclosures. Since Transworld Systems Inc.
have not cancelled the security interest and return all monies paid by Ms. Sherrie I. LaForce
within the 20 days of receipt of the letter of rescission of October 7, 2009, the lenders named
above are responsible for actual and statutory damages pursuant to 15 U.S.C. 1640(a).Lewis v.
Dodge, 620 F.Supp. 135, 138 (D. Conn. 1985);
53.) Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066 (3rd Cir. 1992). Porter filed an
adversary proceeding against appellant under 15 U.S.C. §1635, for failure to honor her request
to rescind a loan secured by a mortgage on her home.
54.) Rowland v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (1992) Even technical
violations will form the basis for liability. The mortgagors had a right to rescind the contract in
accordance with 15 U.S.C. §1635(c).
55.) New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (1992). The court held that defendants
were entitled to rescind loan under strict liability terms of TILA because plaintiff violated
TILA’s provisions.
56.) Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567 (1990); TILA is a
remedial statute, and, hence, is liberally construed in favor of borrowers. The remedial objectives
of TILA are achieved by imposing a system of strict liability in favor of consumers when
mandated disclosures have not been made. Thus, liability will flow from even minute deviations
from the requirements of the statute and the regulations promulgated under it.
57.) Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (1990) There was no dispute as to the
material facts that established that the debt collector violated the FDCPA. The court granted the
debtors’ motion for summary judgment and held that (1) under 15 U.S.C. §1692(e), a debt
collector could not use any false, deceptive, or misleading representation or means in connection
with the collection of any debt; Unfair Debt Collection Practices Act.
58.) Jenkins v. Landmark Mortg. Corp. of Virginia, 696 F.Supp. 1089 (W.D. Va. 1988). Plaintiff
was also misinformed regarding the effects of a rescission. The pertinent regulation states that
“when a consumer rescinds a transaction, the security interest giving rise to the right of
rescission becomes void and the consumer shall not be liable for any amount, including any
finance charge.” 12 CFR §226.23(d) (1)..
59.) Laubach v. Fidelity Consumer Discount Co., 686 F.Supp. 504 (E.D. Pa. 1988). monetary
damages for the plaintiffs pursuant to the Racketeer Influenced and Corrupt Organization Act, 18
USC §1961. (Count I); the Truth-in-Lending Act, 15 USC §1601.
60.) Searles v. Clarion Mortg. Co., 1987 WL 61932 (E.D. Pa. 1987); Liability will flow from
even minute deviations from requirements of the statute and Regulation Z. failure to accurately
disclose the property in which a security interest was taken in connection with a consumer credit
transaction involving the purchase of residential real estate in violation of 15 USCs §1638(a)(9).
and 12 CFR §226.18(m).
61.) Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567, 1570 (S.D. Ga. 1990).
Congress’s purpose in passing the Truth in Lending Act (TILA), 15 USCs §1601(a). was to
assure a meaningful disclosure of credit terms so that the consumer will be able to compare more
readily the various credit terms available to him. 15 USCs §1601(a). TILA is a remedial statute,
and, hence, is liberally construed in favor of borrowers.;
62.) Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984). disclosure
statement violated 12 CFR §226.6(a).,
Wright v. Mid-Penn Consumer Discount Co., 133 B.R. 704 (E.D. Pa. 1991) Holding that
creditor failed to make material disclosures in connection with one loan;
63.) Cervantes v. General Electric Mortgage Co., 67 B.R. 816 (E.D. Pa. 1986). The court found
that the TILA violations were governed by a strict liability standard, and defendant’s failure to
reveal in the disclosure statement the exact nature of the security interest violated the TILA.
64.) Perry v. Federal National Mortgage, 59 B.R. 947 (E.D. Pa. 1986). Defendant failed to
accurately disclose the security interest taken to secure the loan.
65.) Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066 (3rd Cir. 1992). Adversary
proceeding against appellant under 15 U.S.C. §1635, for failure to honor her request to rescind a
loan secured by a mortgage on her home. She was entitled to the equitable relief of rescission
and the statutory remedies under 15 U.S.C. §1640 for appellant’s failure to rescind upon request.
66.) Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (Pa. 1986). Any misgivings creditors
may have about the technical nature of the requirements should be addressed to Congress or the
Federal Reserve Board, not the courts. Disclosure requirements for credit sales are governed by
15 U.S.C.S. § 1638 12 CFR § 226.8(b), (c). Disclosure requirements for consumer loans are
governed by 15 U.S.C.S. § 1639 12 CFR § 226.8(b), (d). A violator of the disclosure
requirements is held to a standard of strict liability. Therefore, a plaintiff need not show that the
creditor in fact deceived him by making substandard disclosures. Rowland v. Magna Millikin
Bank of Decatur, N.A., 812 F.Supp. 875 (1992),
67.) Even technical violations will form the basis for liability. The mortgagors had a right to
rescind the contract in accordance with 15 U.S.C. §1635(c). New Maine Nat. Bank v. Gendron,
780 F.Supp. 52 (D. Me. 1992). The court held that defendants were entitled to rescind loan under
strict liability terms of TILA because plaintiff violated TILA’s provisions.
STANDING
The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter
at hand, and there must be a case or controversy that can be resolved by legal action.There are
three requirements for Article III standing: (1) injury in fact, which means an invasion of a
legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical; (2) a causal relationship between the injury and the challenged
conduct, which means that the injury fairly can be traced to the challenged action of the
defendant, and has not resulted from the independent action of some third party not before the
court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means
that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too
speculative. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (Lujan). The party
invoking federal jurisdiction bears the burden of establishing each of these elements. Id.
See Also:
http://jennaison.hubpages.com/hub/VoidOrders

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