Rescission missed

10 Feb

[CAMFFG] MENJIVAR VS. WELLS FARGO BANK – Argument at the Ninth Circuit – February 2, 2016 [1 Attachment]

Inbox x

PHiLiP KOeBeL pkoebel@gmail.com [CAMFFG] <CAMFFG@yahoogroups.com>

Feb 6 (4 days ago)

(please disregard my earlier post a few minutes ago and look at this one instead.)

here is our argument before the Ninth Circuit in Menjivar v. Wells Fargo from last Tuesday, February 2, 2016. Richard Antognini argued our side.  we are appealing US Bankruptcy Judge Neil Bason’s order dismissing our complaint with prejudice.

the very OBVIOUS takeaway from this hearing is that everyone better damn-well-plead an EXPLICIT rescission claim in any action on a mortgage.

https://www.youtube.com/watch?v=Ikg8jGFCmP4
if you watch it, please send your thoughts to the group or directly to me or Richard Antognini.  we are especially interested in whether you agree that all three judges really wish we had used the word “rescission” in the complaint and that they are inclined to rule for us so long as they don’t feel prohibited by the rule – real or not – that arguments not made below are waived.
we lost at the bankruptcy court and the bankruptcy appellate panel (“BAP”) because those four judges believed that our claims for relief for nonformation of contract due, in part, to fraud in the inducement were NOT claims in contract with a four-year statute of limitation. nor were any of our other contract-related claims deemed to be contract claims. instead they said we had pleaded fraud claims which were only entitled to three years SOL and therefore we filed too late.
it was bizarre to me since i hadn’t even included fraud as an alternative to our various contract and fraudulent transfer claims (unless you consider discriminatory lending or predatory lending as fraud claims, which i didn’t. i consider them allegations that undermine the essential element of the formation of any contract – a mutual meeting of the minds).
when Richard Antognini came into the case, he observed that all of the facts we had pleaded fit neatly into a contract rescission claim.  we took a gamble and dumped all of the arguments that we had made below and threw everything into the rescission argument.  it appears from watching the video that our gamble has almost paid off, but for the pesky problem that arguments not raised below may be waived. we believe its within the Ninth Circuit’s discretion to accept our “rescission” argument now. indeed, we believe it has been there the whole time.
(if someone could explain to me the difference between “nonformation of contract” and “rescission” i would be grateful, because I fear that I have let my great Loyola contracts professor down. i still don’t see the difference.)

all three judges chase Richard around the complaint asking him where the word “rescission” is used and why we didn’t plead “rescission damages.”  Hon. Consuelo Callahan starts off pointing out our gall to believe that we can raise “rescission” for the first time at this time. even the Hon. Dorothy Nelson – a truly wonderful presence in the courtroom – jumps right in and Richard adroitly points precisely to the pages in the record that best support our “rescission” claim.
The Hon. N. Randy Smith (“I’ve pled rescission claims many times myself”) is especially annoyed with us/me for leaving it out. (if you listen closely, i am pretty sure you can hear him say “duh.”)  as hard as it was to listen silently while my work was thusly criticized, the Judges’ passion and their engagement suggests they are taking the question very very seriously.

of course, we believe that federal court is a notice or fact pleading court and that so long as the facts are there, we should have been allowed to amend the complaint to insert the single word “rescission” into it.  we used the words “disallow,” “cancel” and “avoid” throughout the complaint. (see our 18 claims for relief below and in the complaint that i attach.)
it is very encouraging, i think, that the judges ask Wells Fargo what prejudice they would suffer if we are allowed to amend and then they ask us the same question.  Wells Fargo’s response is that they would have to keep fighting us in court – pretty lame – but our response is that at this point – because of the statute of limitations that everyone is so keenly aware of – the Menjivars would forever lose their right to challenge the origination of their mortgage.  to me, the judges really seem concerned that the Menjivars would be prejudiced if they are not allowed to amend. (i hope i am not projecting.)
thanks for watching and reading.

PHiLiP KOeBeL

(626) 629-8199

here are our 18 claims. the complaint was amended by right, not after any court order dismissing with leave to amend so it really should not be thought of as a first amended complaint in the sense that the court gave us any chance to fix it. the dismissal with prejudice came as a complete surprise to us.

FIRST AMENDED COMPLAINT TO DISALLOW CLAIM AS UNENFORCEABLE OR TO DETERMINE CLAIM IS UNSECURED AND NOT TIMELY FILED:

1. TO DECLARE MORTGAGE CLAIM CONSISTS OF IN PERSONAM NOTE OBLIGATION AND IN REM DEED OF TRUST SECURITY INTEREST TRANSFER INCIDENT TO NOTE [11 U.S.C. § 101, Carpenter v. Longan 83 U.S. 271, Johnson v Home State Bank, 501 U.S. 78, Madrid 725 F.2d 1197];

2. TO DISALLOW CLAIM AS UNENFORCEABLE – CONTRACT NOT FORMED [11 U.S.C. § 502(b)(1)];

3. TO DISALLOW CLAIM AS UNENFORCEABLE – PREDATORY LENDING [11 U.S.C. § 502(b)(1), 15 U.S.C. §§ 1601-1667f, 12 C.F.R. pt 226];

4. TO DISALLOW CLAIM AS UNENFORCEABLE – DISCRIMINATION IN LENDING [11 U.S.C. § 502(b)(1), 15 U.S.C. §§ 1691-1691f, 42 U.S.C. §§3601-3619];

5. TO DECLARE DEBTOR HAS STANDING TO AVOID OBLIGATION [Cohen 305 BR 886];

6. TO USE STRONG-ARM POWERS TO AVOID NOTE AS ACTUALLY FRAUDULENT OBLIGATION [11 U.S.C. § 544, Cal.Civ.C. § 3439.04(a)(1)];

7. TO USE STRONG-ARM POWERS TO AVOID NOTE AS CONSTRUCTIVELY FRAUDULENT OBLIGATION [11 U.S.C. § 544, Cal.Civ.C. §§ 3439.04(a)(2), 3439.05];

8. TO DISALLOW CLAIM AS UNENFORCEABLE – SECURITY INTEREST FOLLOWS THE NOTE [11 U.S.C. § 502(b)(1), Carpenter v. Longan 83 U.S. 271];

9. TO DECLARE DEBTOR HAS STANDING TO AVOID TRANSFER [11 U.S.C. § 522(h), Cohen 305 BR 886];

10. TO USE STRONG-ARM POWERS TO AVOID DEED OF TRUST AS ACTUALLY FRAUDULENT TRANSFER [11 U.S.C. § 544, Cal.Civ.C. §§ 3439.04(a)(1)];

11. TO USE STRONG-ARM POWERS TO AVOID DEED OF TRUST AS CONSTRUCTIVELY FRAUDULENT TRANSFER [11 U.S.C. § 544, Cal.Civ.C. §§ 3439.04(a)(2), 3439.05];

12. TO DISALLOW IN REM DEED OF TRUST SECURITY INTEREST AS AVOIDABLE TRANSFER [11 U.S.C. § 502(d)];

13. TO DETERMINE IN PERSONAM NOTE IS UNSECURED [11 U.S.C. § 506];

14. TO DISALLOW UNSECURED CLAIM AS UNTIMELY [11 U.S.C. § 502(b)(9)];

15. FOR QUIET TITLE [28 U.S.C. § 2201];

16. FOR INJUNCTIVE RELIEF [11 U.S.C. §§ 105, 362];

17. FOR DAMAGES;

18. FOR COSTS

to Richard, PHiLiP, Chris

2 Responses to “Rescission missed”

  1. George Hopper February 10, 2016 at 9:21 pm #

    I agree with you that as a practical matter there is no difference between non-formation of the contract and a rescission. However, you know of course what the court will say. As a matter of law a rescission assumes The existence of the contract. The non-formation is an argument that no contract was ever formed. While I realize that this is extremely simplistic I believe that’s exactly what the court would say. Nevertheless, in reviewing your email I agree that there is rescission pled.

    GEORGE A. HOPPER, ESQ.

    On Wednesday, February 10, 2016, Serving California only 949-388-7779 & 925-957-9797 wrote:

    > timothymccandless posted: “[CAMFFG] MENJIVAR VS. WELLS FARGO BANK – > Argument at the Ninth Circuit – February 2, 2016 [1 Attachment] Inbox x > PHiLiP KOeBeL pkoebel@gmail.com > [CAMFFG] CAMFFG@yahoogroups.com > > Feb 6 (4 days > ago) (please disregard my earlie” >

  2. thecompanyofcreators February 11, 2016 at 4:59 pm #

    In my opinion, you have lost nothing. The fact that the case was dismissed which clearly did not have “rescission” as a claim, means that you can bring a new action under rescission. The question is did the person send a “notice of rescission” ??? If not then they need to do it and wait the 20 days for them to not file a case. Then you can make a case. Naturally they will say statues of limitations is passes.. which is why I make my rescission both under common law and remove my “alleged signature, initials and/or seal and authorization” from all documents, and due to recently discovered fraud (equitable tolling) rescind by and through TILA.” “Further I have recently discovered that the conditions precedent by the alleged and named “Lender” failed to perform its condition precedent to the creation of an obligation and alleged signing of the alleged Note, promise to pay conditional upon “a Loan I have received”.”
    If you have any evidence to the contrary or any record of an actual “Loan” from the named “Lender” for which “in return for a Loan I have received, I promise to pay”, please provide such information, records along with an affidavit verifying the accuracy and validity thereof. Failure to do so, constitutes your admission that they do not exist and no “consummation of the loan” ever took place.
    So when they do not bring an action within the 20 days they are also admitting that they can not challenge the Notice of Rescission nor can evidence or support any claim to any obligation, entitlement to payment, or anything owed which would challenge the rescission.
    Notice that the supreme court in its opinion stated that the “rescission” is a common law right and that TILA merely added too it and allowed by law to sue for other damages for breaches thereof, but in no way substitutes nor replaces nor eliminates it!!
    So now you have a good cause to show that the alleged “statute of limitations” is subject to “equitable tolling” a legal argument as to discovery of the fraud and the beginning of the limitation. Second and in my opinion what is more important and worth going to the supreme court over, is that the terms used was NOT “signing of the documents, Closing, deliver, filing, recording, receipt etc etc.” NO!!! the specific term and actually phrase of terms is “consummation of the loan” … Thus the “LOAN” (caps for emphases only) must be evidenced and the “CONSUMATION” OF THE “LOAN” must be evidenced. Look up the term “consummation” and you get an idea that there must be an entering and deposit of something of substance and value in order for there to be a pregnancy/consummation/obligation.
    Also please, please, please notice that you do not argue the elements of the note, alleged debt, signing, assignments, holder, etc etc etc.. and do not except “in the alternative” argue the validity of the “statute of limitations”!!!!!!!!! Simply say, “that is a very nice argument and may be valid, however, the defendant had the opportunity to argue that in an action setting aside or voiding the “rescission” via TILA, and failed to do so!
    I learned that from them… so turn it around. When you fail to assert your rights you wave them!!! So the same thing goes for them. They had by the law of TILA 20 days to bring an action… NOT WRITE A LETTER TO YOU. And they FAILED TO DO SO!!!! End of story!!!
    In other words, the same shit they use on you on virtually everything including traffic tickets, by failing to rebut the assertion, presumption, you/they ADMIT to it.!!!!!!! This is so HUGE.. YOU, WE MUST GET AHOLD OF THIS CONCEPT!!

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