This is what I allege is intrinsic, extrinsic fraud and down right stupidity.


Whereas the tax money of working individuals is used to build roads and bridges.

whereas foreign companies gets certain concessions and other valuable considerations from our local and federal governments to build camera towers.

Whereas citizens pay the DMV a fee to get identification and driving privileges on the very roads we paid to build.

Whereas the foreign companies converts the free money, valuable concessions and considerations into bonds.

Whereas these said bonds are sold to investors, including institutional investors and inclusive of our own retirement 401k plans, intrinsically we the tax paying workers are investing in these foreign companies to build the camera towers.

Whereas we are not properly forewarned that if we use the roads we paid for, the said foreign company will levy a bill on us using the DMV and the government who gives them free let to our private information.

Then we the tax paying public is[are] investing money in this operation directly or indirectly, yet we get no monitory return, in fact we get to pay for assets we purchased.

This is what I allege is intrinsic, extrinsic fraud and down right stupidity.

received a bill for $4.10 I went driving to the SW Miami the other day, these unknown foreign companies enjoys certain concessions and other valuable considerations, they get free money to build these camera towers, on our roadways, our tax money is used to pay for these roads, and uses the DMV information about us to serve us bills, which we are not forewarned about, yes I know slavery was abolished a long time ago right? So we pay the DMV to store our private information, then the foreign company gets this information free, then the foreign company gets our tax money to place cameras, on our roads, then that company sends us a bill for using the roads we built. The most obscene part is, if the bill is not paid in the time frame the company provides, a further charge is levied, on the illicit bill. Talk about fraud.

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Under Federal Truth in Lending Law you can rescind your loan in Bankruptcy – Some things to think about in regard to validity of the lien, borrower and lender tender obligations and the like. By Steve Vondran


via http://activerain.trulia.com/blogsview/1851434/under-federal-truth-in-lending-law-you-can-rescind-your-loan-in-bankruptcy-some-things-to-think-about-in-regard-to-validity-of-the-lien-borrower-and-lender-tender-obligations-and-the-like-

Under Federal Truth in Lending Law you can rescind your loan in Bankruptcy – Some things to think about in regard to validity of the lien, borrower and lender tender obligations and the like.

By Steve Vondran

Services for Real Estate Pros with The Law Offices of Steven C. Vondran, P.C. CA#232337 AZ#025911

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September 11, 2010 07:38 PM

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The following is general legal information only and not intended as legal advice or a substitute for obtaining legal advice. For specific answers to your questions please consult a real estate attorney. Steve Vondran, Esq., is a real estate attorney licensed to practice law in California and Arizona. He can be reached at steve@vondranlaw.com or by phone at (877) 276-5084. There is no representation that this article is 100% accurate or up-to-date as the law is constantly evolving.

(1) If a borrower has a forensic loan analysis done and uncovers a “material truth in lending violation” in their loan file, and if the loan was originated within the last three years, then an “extended three year right to rescind” the loan is raised.  The extended right to rescind exists only for refinance transactions on consumer loans (not for purchase loans or commercial or business loans unfortunately).

NOTE: There are several different ways to get a “material TILA violation.”  The main ones I will mention are failure of each borrower or person with security interest in the property to get two (2) properly executed notices of right to cancel.  Another one is under-disclosure (outside permitted tolerance leves) or the Annual Percentage Rate (APR) and under-disclosure of Finance Charges / Amount Financed.  There are other potential violations, and you should consult a forensic loan examiner if you have loan within the last three years.

(2) In this event, a Rescission letter must be sent to the lender, and all parties who at ay time may have had a financial interest in the loan.  The letter should set forth that “I wish to cancel” the loan, state the loan number, and all other pertinent information about the loan, including specific TILA violations (although this is not a legal requirement).  Your letter should also discuss the lenders legal obligations under TILA law.  To be safe, you should have a Federal Truth in Lending Lawyer review your file and draft this letter for you.

(3) What are the legal obligations of the parties after the TILA rescission letter is sent (loan rescinded)?  Let’s take a look:

(a)   If the Lender disputes the right to rescind, they have 20 days to file a legal action for declaratory relief.  See 15 U.S.C. 1625(b).   I have not seen that they will go to this extent for the most part.  Rather, they will either respond to your letter telling you that you do not have a valid claim, or, they just blow you off all together.  Assuming they don’t file for declaratory relief, here is what TILA Law (also known as Reg Z) says must happen next.

NOTE:  TILA rescission applies to ALL ASSIGNEES OF THE LOAN.  There is no “holder in due course” argument or anything like that.  See 15 U.S.C. 1641(c), Belini w. Washington Mutual Bank, 412 F.3d 17 (1st Cir. 2005), and Ocwen Fed. Bank v. Russell, 53 P.3d 312 (Haw Ct. App. 2002).
(b)  STEP ONE, by operation of law, the security interest and promissory note automatically becomes void and the consumer is relieved of any obligation to pay any finance or other charges (15 USC 1635(b); Reg. Z-226.15(d)(1),226.23(d)(1). . See Official Staff Commentary § 226.23(d)(2)-1. (See Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002) (Once the right to rescind is exercised, the security interest in the property becomes void ab initio). Thus, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. (See Family Financial Services v. Spencer, 677 A.2d 479 (Conn. App. 1996) (all that is required is notification of the intent to rescind, and the agreement is automatically rescinded).

(c)  STEP TWO, THE LENDER HAS A TENDER OBLIGATION TO THE BORROWER.  YES, YOU HEARD THAT RIGHT, BY STATUTE, IT IS THE LENDER WHO MUST TENDER FIRST.  NOT THE BORROWER.  THE QUESTION OF WHO HAS TO TENDER FIRST CAN ONLY BE MODIFIED BY THE JUDGE.  As part of the lender’s legal tender obligation under TILA, the lender must return any money, including that which may have been passed on to a third party, such as a broker or an appraiser and to take any action necessary to reflect the termination of the security interest within 20 calendar days of receiving the rescission notice. See 15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2).

(d) STEP THREE:  After the Lender has fulfilled their obligations under TILA, the borrower must then TENDER all proceeds they received in connection with the loan transaction.  That is, they must pay the lender back what they got.  There are no free lunches, and you cannot get something for nothing or your house for free.

NOTE:  Under TILA, the Courts are given the EQUITABLE POWER to modify Steps One and Two  (technically speaking, the Court cannot revive the security instrument that was voided when the borrower rescinded) but the Court can condition the ability to rescind on tender, based upon a balance of the equities in the case.  You will need a foreclosure or TILA rescission attorney to explain this to you, and there are a bunch of cases that discusses the tender obligations and who should have to tender first, the borrower or the lender.

NOTE: One you send the TILA rescission letter to your creditor, you may want to try to prepare a recordable document and see if you can record it so the rest of the world is on notice that the loan has been rescinded.  You do this because the lender will likely be licking its chops and setting the stage for foreclosure once it gets your letter (often times the borrower is in foreclosure and the lender has been unwilling to provide a loan modification, or a meaningful loan modification which compels the borrower to explore and assert its other legal rights) and you would like to try to prevent a Sale or transfer of the property.  Again, you are wise to discuss this with a foreclosure or real estate lawyer with knowledge of truth in lending law.

SPECIAL ISSUES WHEN RESCINDING YOUR LOAN UNDER TRUTH IN LENDING (“TILA”) AND FILING BANKRUPTCY. 

(1)   Filing Chapter 7 or Chapter 13 Bankruptcy does not terminate your right to rescind your loan.  You can still do it.  However, there are a few things to keep in mind.  In most cases, the rescission right belongs to the trustee to bring the action, that is, the right to rescind the loan is one held by the estate (rather than the debtor’s right to exercise – unless the proceeds are exempt to the debtor).   If the proceeds are exempt, the debtor should be able to file the case.  See in re Polis, 217 F.3d 899 (7th Cir. 2000) and Christy v. Heights Financial Corp., 101 B.R. 542 (C.D. Ill. 1987).

If there is no exemption to cover the cause of action or the proceeds, then the Trustee will have to bring the claim or has standing to bring the claim.  In these cases, if the Trustee does not want to bring the claim, make sure you get a determination (or stipulation) that the Trustee has abandoned the Claim so you can bring it in the current bankruptcy case or at a later district court case yourself.  See Bryson v. Bank of N.Y., 584 F. Supp. 1306 (S.D.N.Y. 1984) for authority that the TILA case must abandoned by the Bankruptcy Trustee.  In Bryson the Court said:

Upon a filing of bankruptcy, title to the bankrupt’s property vests in the trustee in bankruptcy. “Property” includes the right to pursue causes of action formerly belonging to the debtor. Hanover Insurance Co. v. Tyco Industries, Inc., 500 F.2d 654, 656 (3d Cir.1974). Bryson thus was not a proper plaintiff when this suit was instituted. However, a trustee may abandon his claim to any asset which he deems to be less valuable than the cost of recovering it. Id. at 657; 11 U.S.C. § 554(a). This is exactly the statement plaintiff’s trustee makes in the submitted affidavit. An effective abandonment would relate back to the time of filing of the petition, thereby retroactively making plaintiff a proper party. Brown v. O’Keefe, 300 U.S. 598, 602, 57 S.Ct. 543, 546, 81 L.Ed. 827 (1937).

“Abandonment, however, is not effectuated by an affidavit from the trustee. The Bankruptcy Code, specifically 11 U.S.C. § 554, authorizes a trustee to abandon any property of the estate “[a]fter notice and a hearing.” Implementing this, Fed.R. Bankruptcy 608 provides for approval by the Bankruptcy Court of such abandonment. The Advisory Committee Note to Rule 608 states that the rule “codifies the preferred practice developed under case law.” See, e.g., Lincoln Nat. Life Ins. Co. v. Seales, 62 F.2d 582, 585 (5th Cir.1933). According to Collier on Bankruptcy, which is cited by the Advisory Committee as authority for the case law practice, the preferred practice is to require court approval as a “condition prerequisite” to abandonment by the trustee. 4 Colliers on Bankruptcy, ¶ 554.01 (15th Ed.1982). Rule 608 and § 554 must therefore be read to require court approval before a trustee can abandon property otherwise within the estate. This rule assures that the creditors of the bankrupt, for whom the trustee must conserve the estate, are given an opportunity to object to the returning of any property to the bankrupt. In the absence of court approval of trustee abandonment of plaintiff Bryson’s claims, they must be dismissed in their entirety.

(2)    Also realize, if you file a district court case to rescind your loan BEFORE you go into bankruptcy (or where your TILA claim arose prior to filing bankruptcy but was not filed – for example, the TILA rescission cause of action relates to a loan entered into PRIOR to filing BK but you have not filed suit before filing your BK petition), if you filed a TILA state or federal case your TILA claim can be removed to the bankruptcy Court and your TILA claim can become part of (property of) the bankruptcy estate.  Even if you haven’t filed the case yet, if the cause of action arose before the BK petition, there is a good argument the TILA cause of action is part of the bankruptcy estate.  Again, you may want to contact the trustee to have the trustee stipulate to abandoning the case or letting you bring it so you have standing to file it (a common objection the opponent may raise).

As was said in the Polis case cited above:

On the date Polis filed her petition in bankruptcy, she had not yet sued Getaways, but the legal claim on which the suit was based, having arisen out of a transaction (the sale of the travel package) that had occurred before the petition was filed, was already “property” of the debtor and hence of the debtor’s estate in bankruptcy. Cable v. Ivy Tech State College, 200 F.3d 467, 472-73 (7th Cir.1999); In re Carousel Int’l Corp., 89 F.3d 359, 362 (7th Cir.1996); In re Smith, 640 F.2d 888, 890 (7th Cir.1981) (Truth in Lending Act claims-just as here); Northview Motors, Inc. v. Chrysler Motors Corp., 186 F.3d 346, 350 (3d Cir.1999); In re Wischan, 77 F.3d 875, 877 (5th Cir.1996); Wissman v. Pittsburgh National Bank, 942 F.2d 867, 869-71 (4th Cir.1991). The question is what its value was then.

As to the value question the court held:

“The Code provides that the “value” of property sought to be exempted “means fair market valueon the date the petition for bankruptcy was filed, 11 U.S.C. § 522(a)(2), unless the debtor’s estate acquires the property later.” Although we may assume (without having any case law to go on) that a Truth in Lending Act claim is not assignable and so cannot be the subject of a “market” transaction in the literal sense, that is irrelevant.  Legal claims are assets whether or not they are assignable, especially when they are claims for money; as a first approximation, the value of Polis’s claim is the judgment that she will obtain if she litigates and wins multiplied by the probability of that (to her) happy outcome. That is roughly how parties to money cases value them for purposes of determining whether to settle in advance of trial. They do so whether or not the claim is assignable; unassignable claims (tort claims, for example) command positive prices in the settlement “market.”

NOTE:  In a Chapter 7 (or Chapter 11 bankruptcy case), the Bankruptcy Trustee, (or the Debtor in possession in a Chapter 11 case), can file a motion to sell property of the estate “outside the ordinary course of business” by seeking to conduct a “363 Asset Sale”.   We are writing a separate blog on this rather interesting topic.  In general, what does that mean?  It means, that in many cases, the Bankruptcy Trustee has the right and legal authority to sell your property (including your TILA  lawsuit) to the highest bidder, and may even sell your TILA case at a Bankruptcy Auction under 11 U.S.C. 363.  Yes, that means they can attempt to sell and seek court approval of the sale of the asset subject to an “auction” of the claim to any potential over-bidders.  So your TILA claim could be sold-off to the highest bidder in a Bankruptcy Court.  Yes, that is right – Judge turned auctioneer – it really is interesting).

Can you guess who might be interested in bidding (paying cash to settle your TILA case at 363 Sale/bankruptcy auction?  If you said the lender who is being sued for rescission and TILA statutory damages, you are a TILA pro.  That is right, and that is exactly what happened in one case.  The lender (“creditor” under TILA) effectively bid about 5k to “buy” and “settle” – meaning the debtor had to dismiss adversary proceeding with prejudice – the TILA case filed by the Debtor.  Wait, that seems strange right?  The lender who is being sued gets to buy the lawsuit (unless someone bids higher of course and as long as the court approves the sale as being in good faith and at arms length) and the Trustee is more than happy to generate some revenue – for both themselves (yes, the BK trustee earns a commission on assets recovered for the estate) and the rest goes to the unsecured creditors.  So, you need to at least understand that there is a potential the lenders being sued will want to bid on the lawsuit (“asset” of the estate) and try to cash out the Chapter 7 Trustee.  You will have a chance to over-bid and different types of financial bids will have to be considered by the judge including contingency type bids.  This is certainly a consideration to be made when thinking of filing an adversary proceeding to rescind your loan under TILA when the claim arose, or was filed before bankruptcy.

Note: As stated above as borrower/debtor, you can bid on your own case being auctioned off.  And you do not have to bid ALL CASH or anything like that.  There is another blog we will be writing that discusses the Lahijani case which discusses the different types of bids the judge can consider in deciding whether a bid is in good faith.  Google “Vondran discusses Lahijani case.”

(3)     In regard to the bankruptcy petition itself, the TILA damages should be listed as an asset (property) of the estate and if there is a homestead exemption at play (ex. the 704 exemption in California) or other exemption, this should be listed as exempt.  Being exempt may permit the borrower to bring the TILA action.  A dollar value to the claim should also be stated, and the “statement of intent” of the debtor should list the intent to rescind the loan.  Again, a Truth in Lending lawyer can help you craft good language for your statement of intent which will put the lenders and the banks on notice of your plans.  People have asked whether filing a chapter 7 bankruptcy petition, and then filing an adversary proceeding seeking a determination that the “lien is invalid” will compel a loan workout.  I have not seen that result being forthcoming.  If you go to rescind your loan, plan on following through which again normally will require (a) equity in the property and (b) some inequity on part of the lender and (c) sale of the property.  Those are the harsh realities of TILA rescission in Bankruptcy.

NOTE:  A lot of people miss this (including opposing counsel for Banks).  IF A BANK FAILS TO HONOR YOUR RESCISSION LETTER, THAT IS A LEGAL VIOLATION TRIGGERING A ONE-YEAR RIGHT TO SUE FOR STATUTORY MONEY DAMAGES.  MOST LENDERS FAIL TO BELIEVE THEY CAN BE HELD ACCOUNTABLE FOR THIS.  If your loan was originated within one year, there is also a separate statutory damage claim that can be brought.  If the loan was transferred from the originating lender to a new “lender” on the secondary market, then the TILA violation must be “apparent on the face of the documents  (ex. Notice of Right to Cancel that has no dates filled in) to trigger lender liability.

NOTE:  Another trick to avoid…….all assignees of the loan are subject to TILA rescission.  I have seen some really bizarre arguments by lenders for big banks such as Wells Fargo and One West bank who do not seem to understand this relatively simple concept.  If they are a loan assignee, they should audit the files they purchase and if there is a material TILA violation they should decline the purchase of that particular loan.  That is their problem to deal with.

(4)    Another thing to consider is some courts may deem the TILA claim property of the estate and that ONLY THE TRUSTEE HAS STANDING to bring the TILA claim.  Again, if the Trustee won’t bring the claim, get a determination that they abandoned it so you, as debtor, can bring the claim in the current BK case or at a later date.

(5)     What does the Borrower get back from the creditor when it rescinds the loan (remember, STEP ONE of TILA is the LENDER MUST TENDER – unless the Court later modifies or conditions this step).  You should pretty much argue that all fees, costs, finance charges, and “other charges” paid in connection with the loan should be refunded or credited to the consumer.  For example, the following fees, costs, finance charges and other charges should be considered:

FEES THAT SHOULD BE REFUNDED TO BORROWER FOLLOWING TILA RESCISSION – “ALL FINANCE AND OTHER CHARGES”\ 

√  All Finance charges paid in connection with the credit transaction

√ All late fees paid

√ Any pre-payment penalty fees paid

√ Any fees paid to any third party in connection with the loan (ex. appraisal fees, credit report fees, filing fees, doc prep fees, loan origination fees, points, rate lock  fees, etc.)

√ Any money or property given to anyone in connection with the consumer credit transaction

√  Any attorney fees paid by the consumer

√   Yield Spread Premium (YSP)

NOTE:  Generally these fees are treated as an offset to the borrower’s tender obligation, and you can basically create a new payoff amount by figuring out what you are owed from the lender versus the amount of the loan owed (the borrowers tender obligation).  It should be argued that the Court has NO POWER to modify what amounts are owed the borrower.  See Semar v. Platte Valley Federal Sav. & Loan Ass’n, 791 F.2d 699, C.A.9 (Cal.),1986.  In Platte, the Court held:

“On rescission, the security interest is dissolved and the borrower returns “the property”-in this case the loan proceeds-to the lender. 15 U.S.C. § 1635(b). TILA specifically states that the borrower “is not liable for any finance or other charge.” Id. Interest is a finance charge. 15 U.S.C. § 1605(a); see Ljepava v. M.L.S.C. Properties, Inc., 511 F.2d 935, 938 (9th Cir.1975) (district court subtracted from amount borrower owed lender under a TILA rescission “finance charge” that included 10% interest, commissions, and “extra payment”); 12 C.F.R. § 226.4(b)(1). The district court erred by making the Semars responsible for interest and many of the charges listed on the Closing Statement. The proper formula under the statute is the one suggested by the Semars: the loan amount less all charges in the loan agreement. Therefore, they owe Platte Valley $92,290.65.   15 U.S.C. § 1605(a) provides:  “Except as otherwise provided in this section, the amount of the finance charge in connection with any consumer credit transaction shall be determined as the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit. The finance charge does not include charges of a type payable in a comparable cash transaction. Examples of charges which are included in the finance charge include any of the following types of charges which are applicable:

(1) Interest, time price differential, and any amount payable under a point, discount, or other system of additional charges.

(2) Service or carrying charge.

(3) Loan fee, finder’s fee, or similar charge.

(4) Fee for an investigation or credit report.

(5) Premium or other charge for any guarantee or insurance protecting the creditor against the obligor’s default or other credit loss.

“Platte Valley concedes that the Semars’ formula is correct under TILA but argues that the district court has equitable discretion to alter the statute. Platte Valley cites Rachbach v. Cogswell, 547 F.2d 502 (10th Cir.1976), which held that the district court did not abuse its discretion by requiring the borrower to repay principal and interest in a TILA rescission. However, this decision contravenes 15 U.S.C. § 1635(b), which states that a borrower is not liable for any finance charge, and 15 U.S.C. § 1605(a), which lists interest as an example of a finance charge. We defer to Congress’ method of enforcing TILA and follow the plain language of the statutes.”

NOTE:  As set forth above, the Creditor should also return any money or property even if it was given to a third party in connection with the loan transaction.  For example, fees paid to the broker, appraisers, closing costs, etc., even if such fees and costs “don’t represent profit to the creditor”  See Official Staff Commentary 226.23(d)(2)(1).   Here is a good link to review http://www.bankersonline.com/regs/226/suppi226-23.html

As it says here: 

Paragraph 23(d)(2).

  1. Refunds to consumer. The consumer cannot be required to pay any amount in the form of money or property either to the creditor or to a third party as part of the credit transaction. Any amounts of this nature already paid by the consumer must be refunded. “Any amount” includes finance charges already accrued, as well as other charges, such as broker fees, application and commitment fees, or fees for a title search or appraisal, whether paid to the creditor, paid directly to a third party, or passed on from the creditor to the third party. It is irrelevant that these amounts may not represent profit to the creditor.
  2. Amounts not refundable to consumer. Creditors need not return any money given by the consumer to a third party outside of the credit transaction, such as costs incurred for a building permit or for a zoning variance. Similarly, the term any amount does not apply to any money or property given by the creditor to the consumer; those amounts must be tendered by the consumer to the creditor under §226.23(d)(3).

Citations to borrower refund provisions are: Reg Z 226.15(d)(1), 226.23(d)(1), 15 U.S.C. 1635(b). 

NOTE:  Again, make sure you ask for just about everything.  As one Court put it: “the creditor bears the risk of loss and they can limit their loss by complying with TILA.  See French v. Wilson, 446 F. Supp. 216 which held: 

The Truth in Lending Act has been interpreted as being “remedial in nature” and “must be construed in liberal fashion if the underlying Congressional purpose is to be effectuated.” N. C. Freed Company, Inc. v. Board of Governors of Federal Reserve System, 473 F.2d 1210, 1214 (2nd Cir. 1973), cert. denied, 414 U.S. 827, 94 S.Ct. 48, 38 L.Ed.2d 61 (1973). See also Littlefield v. Walt Flanagan and Company, 498 F.2d 1133, 1136 (10th Cir. 1974); Ratner v. Chemical Bank New York Trust Company, 329 F.Supp. 270 (S.D.N.Y.1971). As the Court in Starks v. Orleans Motors, Inc., 372 F.Supp. 928, 932 (E.D.La.1974), aff’d mem., 500 F.2d 1182 (5th Cir. 1974) aptly stated: “Where the nature of an act is remedial, as here, it should be construed liberally in an attempt to provide the remedy, not avoid it………“Congress’ intended operation of the statute, as evidenced by the 1635(b) creditor-forfeiture provision, therefore clearly calls for a debtor windfall if the creditor does not set about to rectify his earlier nondisclosures in the manner envisaged by the statute. In fact, the Act flatly provides that if his creditor continues in his untoward ways, the debtor incurs no obligation to pay for property which he is at the same time entitled to keep.”

(6)     TOLLING OF THREE YEAR PERIOD TO RESCIND (or one year damages provision under TILA) – is possible if you file for Bankruptcy.  For example, if the three-year right to rescind is about to expire, it may be possible that you can file Bankruptcy and then rescind in the bankruptcy court even if the rescission exercise comes after the three year period (for example, you might get an extra sixty days to rescind – see Thomas v. GMAC Residential Funding Corp., 309 B.R. 453 (D. MD. 2004).  The same is probably true if the one year statute for statutory damages is about to expire.  See Section 11 U.S.C. 108(a) for authority.  Just note, it may require the trustee to bring the action.  But see In re Gaskins, 98 B.R. 328 which permits a claim brought by the debtor on behalf of the estate.  Just something to keep in mind.

(7)      BORROWER’S “TENDER” REQUIREMENT IN BANKRUPTCY: 

COURTS CAN (OR ARGUABLE “SHOULD”) TAKE INTO ACCOUNT A BORROWERS ABILITY TO TENDER THE LOAN BALANCE IN BANKRUPTCY COURT AND DETERMINE THE AMOUNT OF TENDER – See In re Giza 428 B.R. 266 (Bkrtcy.D.Mass.2010).  In Giza, the Court discussed:

When a security interest is voided, the underlying claim becomes unsecured, and the Bankruptcy Code provides for how all unsecured claims must be treated in bankruptcy by the Chapter 13 plan under 11 U.S.C. § 1322(a)(3). The debtor may designate unsecured claims into different classes, but only if the designation does not discriminate unfairly against any class so designated. 11 U.S.C. § 1322(b)(1). And once a class is designated, the plan must “provide the same treatment for each claim within a particular class …” 11 U.S.C. § 1322(a)(3). Tender in full of the Gizas’ obligation to Deutsche Bank–should this Court otherwise find that the conditions for rescission have been met–would violate the requirements of § 1322(a)(3) by giving Deutsche Bank’s unsecured claim preferential treatment. Even if practical, such a payment would rob other unsecured creditors of most, if not all, of the dividends on their unsecured claims. Inasmuch as Deutsche Bank’s unsecured claim would be no different in character as any other, classifying the claim differently would be just the type of unfair discrimination as is expressly prohibited by § 1322(a)(3).

The Giza Court continued:

“Even if the Jaaskelainen view is correct and tender is a requirement for rescission, the outcome should be the same. In Jaaskelainen, the court still emphasized that “traditional equitable notions” were an important factor to consider when crafting appropriate tender. Wells Fargo Bank, N.A., 407 B.R. at 462. In remanding the case back to the bankruptcy court, the court urged: “consideration of the appropriate conditions to impose on Debtors’ exercise of rescission. In undertaking this evaluation the bankruptcy court should consider traditional equitable notions, including such factors as the severity of Appellants’ MCCCDA violation and the degree to which Debtors are able to pay the principal amount.”

“Indeed, in a Chapter 13 case, this Court, sitting as a court of equity, is well-suited to decide a debtor’s ability to pay his or her creditors, including those creditors whose claims may be repaid in whole or in part on account of their violations of TILA and MCCCDA. And, to the extent that such discretion is itself limited by the provisions of Chapter 13, that limitation is one prescribed by Congress in 11 U.S.C. § 1322(a)(3). To hold otherwise also would strike at the goals Congress sought to achieve in both the Bankruptcy Code and TILA.

“As the court stated in In re Piercy, “[i]t would be palpably unfair to deny the relief to which a consumer is entitled under TIL [A] because that consumer has also availed himself of bankruptcy relief. To do so would require that the consumer choose between bankruptcy and TIL[A], something neither form of statutory relief contemplates.” In re Piercy, 18 B.R. 1004, 1007 (Bankr.W.D.Ky.1982).  Accordingly, the Court will not dismiss the Gizas’ claim for rescission but will, if the conditions for rescission are otherwise met, determine the amount of tender and order the Gizas to classify that claim and treat it consistently with those of other unsecured creditors of these debtors.”

Note: we have written another Brief about balancing the Equities of a Case and Determining whether or not (outside the bankruptcy court for the most part) the Courts can condition full tender on the ability of borrower to tender.  (Google Vondran Equities must be balanced in a TILA case including a lender forcing you into court to assert rights that are supposed to be self-enforcing). 

WHAT YOU NEED TO CONSIDER IF YOU THINK YOU HAVE A TRUTH IN LENDING (CASE FOR LOAN RESCISSION)

(1) HAVE YOUR LOAN FILE AUDITED FOR MATERIAL TRUTH IN LENDING VIOLATIONS BY A REAL ESTATE LAWYER (YOU CAN REACH US AT 877-276-5084).  LOAN NEEDS TO BE A REFINANCE TRANSACTION WITHIN THE LAST THREE YEARS TO BE WORTH THE TIME, MONEY, AND EFFORT.

(2) DRAFT AND SERVE A TILA RESCISSION NOTICE TO YOUR LENDERS (AS MENTIONED ABOVE, THERE ARE MANY REQUIREMENTS TO TAKE INTO ACCOUNT, AND YOU WILL PROBABLY WANT TO INCLUDE OTHER LEGAL REQUESTS AT THE SAME TIME).  YOU MAY WANT TO TRY TO RECORD THE LETTER IN THE COUNTY RECORDER’S OFFICE WHERE THE REAL PROPERTY IS LOCATED.  NOTE: THEY MAY NOT ACCEPT IT FOR RECORDING.  YOU NEED TO CHEK THEIR RULES FOR RECORDABLE DOCUMENTS.

(3) IF THE LENDER FAILS TO TENDER, OR FAILS TO FILE A DECLARATORY RELIEF ACTION CHALLENGING YOUR RIGHT TO RESCIND, THEY ARE BASICALLY SPITTING ON YOUR FEDERAL TILA RIGHTS AND FORCING YOU INTO COURT (AND FORCING YOU TO INCUR LEGAL FEES TO ENFORCE YOUR LEGAL RIGHTS).  THIS IS INEQUITABLE BECAUSE TILA IS SUPPOSED TO BE SELF-ENFORCING, BUT THEY ARE HOPING EITHER: (A) YOU WONT FILE BANKRUPTCY (OR A STATE OR FEDERAL PREDATORY LENDING LAWSUIT), (B) YOU CAN’T AFFORD TO LITIGATE YOUR TILA CLAIM – OR HAVE NO VALID TILA CLAIM, OR (3) THAT YOU WILL JUST DISAPPEAR AND WALK AWAY FROM YOUR HOME AND DEAL WITH THE FORECLOSURE ON YOUR CREDIT.

(4) IF YOU HAVE VALID DEBTS TO DISCHARGE OR REORGANIZE, YOU MAY WANT TO CONSIDER WHETHER A CHAPTER 7 OR CHAPTER 13 BANKRUPTCY IS RIGHT FOR YOU.  IF SO, THE TILA CLAIM MAY BE BROUGHT IN A BANKRUPTCY COURT (USUALLY FILED AS AN ADVERSARY PROCEEDING).

(5) WHEN YOU GET INTO A BANKRUPTCY COURT, YOU WILL LIKELY HAVE TO FILE AN “ADVERSARY PROCEEDING” (WHICH IS A COMPLAINT IN THE BANKRUPTCY COURT) CHALLENGING THE EXTENT OR VALIDITY OF THE LIEN.  THE IDEA IS ONCE YOU HAVE RESCINDED YOUR LOAN, THAT LOAN IS UNSECURED, AND IF YOU ARE IN BANKRUPTCY, THE LIEN SHOULD BE TREATED AS UNSECURED AND THE LENDER SHOULD BE LUMPED IN, AND TREATED THE SAME AS ALL OTHER UNSECURED LENDERS.  WHY IS THIS?  UNDER TILA, THE STEP REQUIRING THAT “THE SECURITY INSTRUMENT IS VOID BY OPERATION OF LAWTECHNICALLY SPEAKING, SHOULD NOT (OR PERHAPS CANNOT) BE ALTERED BY THE COURTS.  ONLY THE QUESTION OF WHO TENDERS FIRST, OR WHETHER RESCISSION SHOULD BE CONDITIONED ON TENDER SHOULD BE THE ISSUE.  THE LOAN ITSELF SHOULD BE TREATED AS UNSECURED.  OF COURSE, IT IS PROBABLY THE CASE THAT YOU NEED TO PROVE THE VALIDITY OF THE TILA VIOLATION CLAIM TO REACH THIS RESULT. See Williams v. BankOne, N.A. See In re Williams, 291 B.R. 636, 657-58 (Bankr.E.D.Pa.2003) (“The language of § 1635(b) and Regulation Z as supported by the legislative history to § 1635(b) informs that, while courts can modify the procedures set forth in § 1635(b), they cannot modify the voiding of a creditor’s security interest.”).

NOTE: IF YOU FILE FOR BANKRUPTCY YOU WILL GET AN AUTOMATIC STAY, BUT THE LENDER MAY TRY TO FILE A MOTION TO LIFT THE AUTOMATIC STAY.  AS SUCH, YOU MIGHT ALSO WANT TO CONSIDER FILING A LIS PENDENS (YES, WE HAVE SEEN ACTS SUCH AS TRYING TO SELL YOUR PROPERTY AFTER A CREDITOR’S HEARING BUT BEFORE YOUR ADVERSARY PROCEEDING CASE IS HEARD ON THE MERITS), AND SEEKING AN INJUNCTION AGAINST FORECLOSURE IN THE ADVERSARY PROCEEDING IS PROBABLY A WISE IDEA.

NOTE: WE TALK MORE ABOUT ADVERSARY PROCEEDINGS ON OTHER BLOGS (GOOGLE “VONDRAN ADVERSARY PROCEEDINGS IN BANKRUPTCY”).

(6) IN BANKRUPTCY, THE COURT SHOULD APPLY EQUITABLE PRINCIPLES, INCLUDING EQUITABLE CONSIDERATIONS TO THE UNSECURED CREDITORS, AND THE INEQUITY OF DEFENDANTS CONDUCT IN FORCING YOU INTO COURT TO ASSERT YOUR TILA RIGHTS, WHEN DETERMINING WHAT AMOUNT OF TENDER THE BORROWER IS ABLE TO PAY, OR SHOULD PAY, AND HOW AND WHEN THOSE PAYMENTS SHOULD BE MADE (EX. OVER 60 MONTHS IN A CHAPTER 13 CASE, ALLOWING SALE OF THE HOUSE IN A CHAPTER 7 CASE ETC.).  See In re Giza 428 B.R. 266 (Bkrtcy.D.Mass.2010) discussed further above.  Also see Ray v. Citifinancial Inc., 228 F.Supp 2d 664, 670 (D. Md. 2002) which held: “courts can take into account the equities of the case including those affecting unsecured creditors.”  And in re Bell, 309 B.R. 139 (Bankr. E.D. Pa 2004) where the Court permitted borrower to pay tender, after offsets for lender tender, over 60 month bankruptcy plan in Chapter 13 case.

(7) Also, if the lenders conduct is particularly reprehensible, oppressive or shocking to the conscience, consider whether the obligation to tender should be completed eliminated.  As the court said in one case: “My research reveals that although some courts have recognized that such a remedy may be imposed under § 1635(b), it is viewed as a harsh one and therefore to be confined to “situations where creditors have tried to deceive or cheat the consumer.” Michel v. Beneficial Consumer Discount Co. (In re Michel), 140 B.R. 92, 101 (Bankr.E.D.Pa.1992) (refusing to allow debtors to eliminate debt where creditor had “committed substantial TILA violations” but no “serious overreaching or improper conduct”). See also Shepard v. Quality Siding & Window Factory, 730 F.Supp. 1295, 1306-07 (D.Del.1990) (ruling that if a “creditor does not properly respond to the consumer’s notice of rescission,” the consumer’s obligation to the creditor can be eliminated but noting that “courts have avoided such a harsh result when there is no evidence that the creditor tried to cheat or deceive the consumer.”). I need not decide whether or under what circumstance release of the debt is an available remedy under § 1635(b) since there is no evidence in the record before me that Aames or BankOne tried to deceive or cheat the Williams. Consequently, I find no merit in Debtor’s contention that she should be relieved of her tender obligation.  See In re Williams 291 B.R. 636 (Bkrtcy.E.D.Pa.,2003). 

(8) Also, there is some legal authority where the borrower has offered to tender, and the creditor has refused to accept tender, that no obligation to tender exists.  The situations where this applies will probably be limited in that the Bankruptcy Courts are Courts of “equity” and may not be willing to go this far.

What there is legal precedence for is tendering (all or some of the amounts due) over 3 months, 60 months, or even longer in a Chapter 13 setting or reaching some other type of “middle ground” or “compromise result”.  Again, the Courts have the equitable authority to do this in a TILA rescission case in bankruptcy.  See 2004 Bankr. LEXIS 2366 (Bankr. E.D. Pa. Nov. 1, 2004); Williams v. Bank One, 291 B.R. 636 (Bankr. E.D. Pa. 2003) and Clay v. Johnson, 77 F. Supp 2d, 879 (N.D. ILL. 1999).  If the payments are not made in the Chapter 13 plan, then the creditor may still retain the lien (although there is a good argument that the loan must still be treated as rescinded).  See Bell v. Parkway Mortgage, Inc. (in re Bell) 314 B.R. 54, 60-61 (Bankr. E.D. Pa 2004).

(9)  Just a quick note on TILA statutory damage awards (ex. for failing to honor your TILA rescission letter), the award may go the Trustee for the benefit of unsecured creditors, unless such amounts are exempt to the debtor in Bankruptcy.  See in re Perkins, 106 B.R. 863, 875, (Bankr.E.D.Pa 1989).  There is also legal authority that proceeds under a TILA lawsuit should be paid to the debtor in cash and should not be offset against a debt discharged in bankruptcy.  See in re Riggs, 623 F.2d 68 (9th Cir. 1980).

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Mario Insenga, president and founder of The Refinishing Touch


FAILURE OF The Refinishing Touch TO PAY FOR WORK IT CONSIGNED, DISHONESTY BY THE COMPANY

I allege all of the following based on my personal experience.

I was looking on Craigs list for work to make money I came across an add posted by Stephanie Lackington I  Project Coordinator & Operations Administrator, The Refinishing Touch I CFRMC,  9350 Industrial Trace I Alpharetta GA 30004, Main: (770) 642-4169 I Direct E Fax: (404) 393-9705, slackington@therefinishingtouch.com

I called Stephanie sometime about May 23rd, 2014 to inquire about the position, her description sounded too good to be true, but I gave her the benefit of doubt as she was telling me the information she rendered as a result of my inquiry.

Stephanie proceeded to ask me to send to the company all of my identification information as her company needed to do a total background check on me, reluctantly I did comply slowly. I sent to her all of my very personal information by email. Some time later within two weeks she came back to me with my court records and found the only two entries in my record, being crimes I committed in my home, these charges were both dismissed, so basically her criminal background check turned up nothing of value on me, she then proceeded to want to hire me as she concluded that I was in possession of the skill set her company needed.

Stephanie explained that the correct person for mthe position mush have a truck and all of the equipment to do upholstery work nationwide including in Miami. Personally and from a professional standpoint I found this requirement to be sort of out of the ordinary, she promised consistency of nationwide work but no recognisable price in payment. The requirement and the unrecognisable price did not support her too good to be true claims.

At no time during the telephone interviews could I get her to tell me what the pay was, she told me the manner in which they remunerated was based on many aspects of the jobs to be performed. We talked many times and exchanged emails, but in the end I simply forgot about the silly idea all together.

Some months had passed until one day Stephanie called me to tell me that one of the officers of the company was coming down to Miami area and that he would come by to see me and to review my skill at my shop in Miami.

I thought that was a splendid idea  and naturally I was looking forward to this meeting, the days passed and the ” officer” of the company did not show or call to cancel a no show. Again I simply forgot about stupid sounding idea, why would I want to be associated with a company who could not keep an important appointment right? but look I was pissed off at myself for having wasted so much time and energy plus I gave them all of my personal information and really could not say I trusted them or knew them to be credible.

Some time passed and one day I again remembered about them and decided to call again I spoke to Stephanie that day she convinced me to come to Georgia, that she would pay the hotel for 2 nights and pay for the lunch. I sorta thought it was a good offer, but after many hours of contemplation  I decided against the idea again, that was it I was now done.

Well I was not time passed and one day my phone rang and a man called Joe told me he was from the finishing touch and that he had a job offer for me in Tampa that I can make the stuff in his small shop in Fort Lauderdale Florida and install the work in Tampa. I told Joe that my shop was more equip than his and that I could very easily do this work as he described it to me in my own shop in my home in the City of Miami, he described his shop to me, his description sounded like a hole in the wall with a sewing machine and I would be working on the floor basically is what I understood as the cutting table he said he had was very small.

His description led me to decline his offer to work at his hole in the wall and invite him to my home shop which is a professional outfit.

Joe  wasted no time the very next day he came by my shop as he was totally convinced after actually talking to me that I was the man for his job. I demonstrated my sewing skills to him and I saw him smile, that smile of approval, he further made the remark to me that seeing how my hands manipulated the material, he saw the hand of an expert.

The following day Joe brought the work for me to do I was very disappointed with him as he had failed to tell me the another person or company had already started the task and the sewing was not done in a proper manner.

 

I WILL CONTINUE TO UPDATE THIS STORY AS I GET TIME BUT THE BOTTOM LINE IS THE COMPANY NAMED HEREIN FAILED TO ,PAY ME FOR MY WORK, IT USED MY ASSETS, PROMISED TO PAY AND FAILED TO DO THIS TO DATE

 

 

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Michael Salla, PhD, ExoNews.org 3-27-15… “Whistleblower reveals multiple secret space programs concerned about new alien visitors” [namely, GoodETxSG]


Originally posted on Kauilapele's Blog:

exonews_image_re_GoodETxSGThis is a “review” of sorts, and kind of an evaluation, of GoodETxSG and the data he’s been releasing, by Michael Salla, PhD (who happens to live here on the Big Island). I’ve met Michael many times and respect and appreciate his input on various things ET, UFO, disclosure, etc., etc. I found this to be a very helpful “all the information about GoodETxSG and his data in one place” kind of article,

Here’s a couple highlights about what he’s “get” regarding GoodETxSG.

“Using the online pseudonym GoodETxSG, the whistleblower (who announced yesterday that his first name is Corey and that he will soon end his anonymity) has described in interviews and posts on two major online forums his former covert background with a number of secret space programs run by various military, corporate and earlier human civilizations.

“A significant point concerning security in GoodETxSG’s postings is that concerning…

View original 2,375 more words

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Audio Post


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The DCA Closes a Loophole Exploited By Foreclosure Mills, and delivers a good Slap to the Foreclosure Mills in Florida.


“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010). The plaintiff must prove that it had standing to foreclose at the time the lawsuit was filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n.

Where the plaintiff files the original note after filing suit, an undated blank endorsement on the note is insufficient to prove standing at the time the initial complaint was filed. Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So. 3d 1130, 1132 (Fla. 4th DCA 2014). Moreover, an assignment of mortgage, even if executed before the foreclosure action commenced, is insufficient to prove standing where the assignment reflects transfer of only the mortgage, not the note. Id. at 1133. The mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee. Id.

Here, the plaintiff’s documents failed to demonstrate that the plaintiff had standing to foreclose at the time it originally filed suit. The undated blank endorsement on the original note, which was filed over a month after the plaintiff initially brought suit, was insufficient to prove that the plaintiff had standing to enforce the note at the inception of the lawsuit.

Likewise, the “Assignment of Mortgage” from DLJ Mortgage Capital to the plaintiff reflected a transfer of only the mortgage, not the note. Because there was no proof that the plaintiff was entitled to enforce the note when it filed the initial complaint, the Assignment of Mortgage to the plaintiff was insufficient to establish the plaintiff’s standing at the inception of the case. Thus, a genuine issue of material fact still exists as to when the plaintiff took possession of the note.”

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LAX BNE, Brisbane Australia, Private Group Fares, September 3rd tru Sept 13 all days inclusive 45% OFF the published fare. LAX to BNE. Group Air-Fare Rate


Fare-Brains Travel

OFFICIAL SPECIAL FARE NOTICE

Group Air-Fare Rate.

I have been working to get the best possible fares for a private group to Brisbane. I have the best fares. To be announced in the next few days.

email: malibubooks@gmail.com

Tele# 786 274 0527

contact me in Miami Florida.USA

Please join the Face Book Amaroo group to find info and discuss.

https://www.facebook.com/events/704419783014540/

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CITY PAIR

LAX TO BNE

FLIGHTS FROM LAX TO SYD

A total of 154 seats are blocked at $1572.30.00 TAXES included. United

A total of 68 seats are blocked at $1371. 30 TAXES included. DELTA

I can hold these seats until May 25rd, 2015.

I will be getting other group seats in the coming days and weeks. I will do my best to keep the price as low as possible so that more people can afford to attend the event.

This flight stops in Sydney and goes to a change of equipment to Brisbane, round-trip.

LAX BNE Sept 03 to Sept 12 and Sept 04 to Sept 13, 2015

This is a group fare and the seats are blocked, first come first serve.

I am asking that interested parties send the following information first to express interest in the fare;

NAME

EMAIL ADDRESS

TELEPHONE #

*******************************************************************************

CITY PAIR

HNL TO BNE

FLIGHTS FROM HONOLULU, HI (HNL) TO BRISBANE, AUSTRALIA (BNE)
OFFICIAL OFFER  NOTICE

Air-fares from Honolulu to Brisbane Sept 4th to Sept 12th, 2015

70 seats AVAILABLE from HNL to BNE on Hawaiian Air Sept 04 to 12 sept 2015

1.C/50-50MARIO/KENNY/ONE

HA443O 04SEP F HNLBNE HK50 145P 745P 05SEP J /E
HA444N 12SEP J BNEHNL HK50 955P 1110A /E

1.C/20-20MARIO/KENNY/TWO

HA451L 04SEP F HNLSYD HK20 1235P 720P 05SEP J /E
HA452W 12SEP J SYDHNL HK20 920P 1100A /E

This is a group fare and the seats are blocked, first come first serve.

A total of 70 seats are blocked at $1625.00 TAXES included,

pay $200.00 by May 23,

the balance $1425.00 by end of June 2015

to secure space the group and ticketing by end of June.

I can hold these seats until May 23th, 2015

THIS IS A DIRECT FLIGHT

This is a group fare and the seats are blocked, first come first serve.

I am asking that interested parties send the following information first to express interest in the fare;

NAME

EMAIL ADDRESS

TELEPHONE #

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228239_6482022906_4488_n 230229_6523757906_342_n

Macaroon Tent Wallaby

Macaroon Tent Wallaby

424704_10151401449882907_179876044_n


Fare-Brains Travel

HA443O 04SEP F HNLBNE HK50 145P 745P 05SEP J /E HA444N 12SEP J BNEHNL HK50 955P 1110A /E

HA443O 04SEP F HNLBNE HK50 145P 745P 05SEP J /E
HA444N 12SEP J BNEHNL HK50 955P 1110A /E

Find Flight Deals from Los Angeles to Brisbane (LAX – BNE)

Brisbane Airport

brisbane-airport

http://www.bne.com.au/

  • Domestic and international terminals connected to Brisbane by an express air link train service.
  • Address: 11 The Circuit, Brisbane Airport QLD 4008, Australia
  • Brisbane airport is good because it has 2 good plane spotting areas but it’s not very clean at one of the plane spotting areas there is glass smashed and no one is cleaning it up over all great airport !!😀

    Cheap Flights from Los Angeles to Brisbane

    ***************************************************
    notes

    I called United Air-lines  to inquire why the airline charges the $680 international surcharge  for the SYD flight – as a fuel surcharge, but not charge the same for RIO?

    Both the Rio and Sydney flights are about a 14 hour flights.  Why does the SYD flight have a $680 fuel charge and the Rio flight $zero? is there a economic war on BNE?

    Both flights are on all United Air lines metal.

    *****************************************************

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    Top Los Angeles Flights to US Destinations

    “Navi returns to the basics of what it means to breathe, to play, to be. #breathe #play #love. I think she is special and you?

    Flight Departure Arrival
    VA 6572 T Operated by DL 2015-09-03 18:30 JFK 2015-09-03 22:00 LAX
    VA 8 T Operated by VA 2015-09-03 23:50 LAX 2015-09-05 06:50 BNE
    Flight Departure Arrival
    VA 992 T Operated by VA 2015-09-12 20:00 BNE 2015-09-12 21:35 SYD
    DL 16 T Operated by DL 2015-09-13 11:10 SYD 2015-09-13 08:00 LAX
    DL 476 T Operated by DL 2015-09-13 09:10 LAX 2015-09-13 17:45 JFK

     

    • Totals
    • Cost: 595.00 USD
    • Taxes: 860.90 USD
    • Total cost: 1,455.90 USD
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