LivingLies: “The prima facie case for the homeowner is simply that the notice of rescission was sent, and that the statute makes rescission effective by operation of law, and that the defendants are proceeding as though they still have a right to foreclose or to collect the debt contrary to the method for collection described in 15 U.S.C. §1635.
I think the problem could be that lawyers favor pleading a violation of statute and therefore present TILA rescission as a claim. This is a mistake. It is an event. The pursuit of a foreclosure is not, in my opinion, a violation of the TILA rescission statute. It is the pursuit of a claim that does not exist. The claim does not exist is the right to foreclose. The claim that still exists is the right to collect on the debt.
There is only one party category that possesses the right to collect on the debt under the TILA rescission statute, to wit: it is a party who has paid value for the debt and therefore owns it. Theoretically the party to bring the foreclosure could be owners of the debt, but usually, that is not the case. Usually, they are concealing any information about the identity of the owners of the debt. They can only get away with that if a notice of rescission has not been sent. It is only the notice of rescission that removes and cancels the original loan agreement containing the right to foreclose.
Therefore any pleading, motion or argument from a party whose legal standing was dependent upon the existence of the mortgage or deed of trust must be ignored unless they first establish that they still have legal standing because they paid value for the debt and they own the debt, or because they are authorized representatives of an identified owner of the debt.”