Words from the Rising Republics

October 17, 2016

 

RECOUPMENT § 7-3-305. Defenses and Claims in Recoupment.

§7-3-305c An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.

15 U.S. Code § 1635 - Right of rescission as to certain transactions

(3) Right of recoupment under State law

Nothing in this subsection affects a consumer’s right of rescission in recoupment under State law.

§ 7-3-501(b)(2). PRESENTMENT.

       Surrender the instrument if full payment is made.

In contract law, rescission has been defined as the unmaking of a contract between parties. Rescission is the unwinding of a transaction. This is done to bring the parties, as far as possible, back to the position in which they were before they entered into a contract (the status quo ante).

BY OPERATION OF LAW means that the only way it can be avoided is by getting a due process court order.

Recoupment: To recover a loss by a subsequent gain. In Pleading, to set forth a claim against the plaintiff when an action is brought against one as a defendant. Keeping back of something that is due, because there is an equitable reason to withhold it. A right of the defendant to have a deduction from the amount of the plaintiff's damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.

GAAP. On bank’s financial statement all loans are considered assets. The customers promissory note is a liability which it must surrender if full payment is made.  

             On private customer of the bank books, the loan is a liability that must be paid to the bank, the promissory note given the bank is an asset that the bank must return. (Paid-in-Full).            

Recoupment is the return to each his classified asset. The loan is returned to the bank, promissory note returned to borrower.

American Jurisprudence 2d  § 618. Liability for wrongful repossession

It has been said that where the creditor improperly refuses to accept payment of the debt, the creditor is estopped from repossessing the collateral on the basis that the debtor is in default, a conversion action is especially appropriate where wrongful repossession is at issue. (See Chesterton State Bank v Coffey (Ind App) 454 NE2d 1233.)

Above are laws ignored by Circuit Judge Kimberly Clark who ruled after the agreement had been canceled for rescission. With the ignored laws, the borrower was prohibited from selling the Holman House property even when earnest money was paid by the purchaser who then backed out because there was a “cloud” over the title since there was a mortgage with a “Criminal Enterprise”, Wells Fargo Bank, N.A.

Full payment was refused by Wells Fargo even though there were more than adequate deposits on hand in their Bank. Why? Because the “Criminal Enterprise” could produce no authenticated evidence of debt. Wells Fargo just pretended to having made the loan. The IRS was told recently that Freddie Mac was, in fact, the lender. Only the holder in due course can foreclose. Quiet title!

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