Tag Archives: quiet title

Adverse Possession v Cancellation and Quiet Title

Adverse Possession vs Cancellation of Instrument and Quiet Title

In the final analysis, the only way to smoke out the banks on their fraudulent claims as “creditors” or “agents of creditors” is to create a situation where the creditor must be disclosed. In those cases where judges have ruled in discovery or ruled on the right to prepay, subject to identification of the creditor, the cases have all settled under seal of confidentiality. There are thousands of such cases buried under side agreements requiring “Confidentiality.”

I have been seeing a number of people adding Adverse Possession to their theories about Quieting title. So let me say first that an order granting quiet title to a homeowner whose title is encumbered by a recorded mortgage or deed of trust is practically impossible not only because judges don’t want to grant it, but for the more important reason that quiet title is not legally sound strategy for homeowners seeking defend their homes from foreclosure.

In order to quiet title, one would need to allege and prove by clear and convincing evidence that the mortgage or deed of trust should never have been executed or recorded in the first place. Anything less than that does not deserve quiet title declaration from any court. The fact that a certain party purports to have authority to enforce the mortgage or deed of trust when in fact they don’t have such authority is damn good reason not to let them enforce the mortgage or deed of trust. But that does not mean that the instrument is void.

Here is the response I gave to a question about adverse possession:

Adverse possession does not seem to apply to this situation. But it is possible that you could get traction by filing a lawsuit to cancel the DOT (Cancellation of Instrument) and maybe even get a order quieting title to your name. This is not simple and the requirements and elements of such claims are difficult to fulfill.

Adverse possession is usually utilized in boundary disputes.

A mortgage or a deed of trust is an interest in real property. And where we are dealing with the deed of trust,The trustee is receiving title to the property. So technically you are probably correct. But when you look deeper, You will see that adverse possession does not apply.

The transfer of title to a trustee under the deed of trust divests the homeowner of title. Under the terms of the DOT you are entitled to live there and act, for all purposes, as though you are the title owner including in a foreclosure proceeding. Hence several elements of adverse possession are not met especially “adverse,” since you have express permission under a contract to be there and to act as the title owner.

ELEMENTS OF ADVERSE POSSESSION: (NOTE — the “title owner is the DOT trustee)

  • Continuous
  • Open
  • Notorious
  • Peaceful, Peaceable
  • Hostile (claiming title against the interest of the party who actually has title)
  • Adverse (no permission or contractual right to assert title against the party who is seized with title).
  • Exclusive (barring claims or use by the actual title owner
  • Visible (putting a fence on your neighbor’s yard, ignoring the property line)
  • Actual (not implied)

But the fact that the DOT conveyed title to a real trustee on behalf of a false beneficiary is probably the basis for a lawsuit to cancel the instrument (if you can prove your allegations) and then get an order declaring the title is quieted, free from the encumbrance of record that is declared by the judge to be void.

You need to be careful though about your conclusion that the DOT was void. This involves several factual questions that are not obvious. Even a void instrument could conceivably be valid if it contains a defect that is corrected or could be corrected by affidavit pursuant to local law.

Your argument would be that no such affidavit was ever offered. Thus even after you filed your lawsuit, they failed or refused to make any corrections.

Their argument will circle around third party beneficiary, “standing,” and the fact that SOME party could enforce it if they could show that they were the intended beneficiary despite the recitation on the face of the DOT.

This is not the basis for a simple legal argument. Each side must allege and prove their factual (what happened, when, where, who was involved and why) allegations by at least a preponderance of the evidence and most probably, legal or not, the homeowner would be held to a higher standard of clear and convincing evidence informally or formally because the recorded documents carry a “presumption” of authenticity and validity that the homeowner must overcome.

Academically speaking such claims are well-founded. But in practice judges look at such claims as gimmicks to get around a legitimate debt. In order to combat that we must figure out a way to bring in a party who has a legitimate claim to represent the unknown and undisclosed creditors.

The banks have successfully cast the money trail in obscurity. The banks are committing fraud with each foreclosure in my opinion and in the opinion of everyone else I know that has analyzed the securitization of mortgage debt. But they have made it appear that there is nobody other than the bank’s pet entities (the so-called trusts) to play the role of creditor.

N. Garfield

 

 

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

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©2014-2018 Doug Boggs All Rights Reserved

Certified Forensic Loan Securitization Analyst

I am happy to announce my certification as a Mortgage Securitization Auditor.  I have been helping people with this type of information for a few years now by passing them on to Bloomberg forensic mortgage securitization auditors I know.  I decided to educate myself to this procedure and am very grateful that I put myself through that learning curve.  Being a Mortgage Securitization Auditor allows me to complete a Bloomberg Forensic Loan Securitization audit for lawyers or their clients, property owners, and those who might be in litigation against the illegal foreclosure of their property and are trying to prove lack of standing, the void or voidable condition of their note, filing for quiet title, and much more.

Our report will include the following:

  • Loan Recording at county, governmental housing reporting agencies and financial reporting services
  • Deed Recording and Transfers
  • Verification that Assignees on Promissory Note is True and Correct
  • Information Identifying “True” beneficial Interest as per Promissory Note
  • Disclosures and Sufficiency of Information as per UCC
  • Securitized Trust Verification
  • Pooling and Servicing Agreement governing the Trust that holds your Note
  • CUSIP – Identifying the Trust Account
  • Trust Prospectus filed with the Securities and Exchange Commission
  • Identification of the Servicers; Originators; Trustees and Underwriters
  • Details of Bond Performance – Transactional up-to-date information
  • Periodic Reporting of Loan Performance in Securitized Trust
  • Client Specific Information – (special requests)

We use a private Bloomberg terminal for the latest search for Non-Agency residential loans by characteristic. Either Loan Number or Original Amount that are provided to perform a search to verify that the loan is inside the Securitized Trust.

Have a look at our sample Bloomberg securitization audit and see the depth of research our audits have compared to other firms. – Sample – Level-III-Securitization-Analysis

With our audits you get much more than just a Bloomberg Securitization Audit.  We work with a staff of expert lawyers who also help us draft you a legal complaint that can be used in any court in the country, to include state and federal jurisdictions. –  Sample –   Complaint-Petition

Bloomberg Securitization Audit

Our Bloomberg securitization audit is one many attorneys request. This type of audit is among the first important steps in determining the securitization of a loan and by whom.  A Bloomberg securitization audit can be a vital tool in an attorney’s or homeowner’s foreclosure defense and litigation brought against lenders. Call us today to talk about your needs.

For more information on Mortgage Securitization audits:

60 Minutes – Mortgage Securitization  Auditor – Forensic Loan Audit

 

 

Testimonials –  (from clients of my associates)

To begin, I bought your securitization audit after I had lost in state court in a foreclosure-10/27/14. Thinking there was no hope I found Certified Forensic and decided to try a securitization audit in order to have evidence of fraud in a filing with the Federal Court in New Jersey. I ended up in discovery in Federal Court. As you may remember part of discovery was a deposition taken by Chase of Michael Carrigan. I filed before Final Judgment in Federal Court on 04/10/15 with a securitization audit from Certified as evidence of fraud.To my surprise after a ruling for Chase in a summary judgement on 10/27/2014 -and going on four years later- on February 1, 2018 Chase unilaterally dismissed my state foreclosure case without any notice or discussions. I used most of the legal package from Certified. I did have people with some experience I could discuss the case with, and I had an expert witness which is also very helpful. William Paatalo is one of my expert witnesses. Bill knows the game well and he has testified around the country against the banks. It could only have happened because of the discovery in Federal Court which provided me with more evidence of fraud. This evidence could only have been gotten from discovery. And therefore the securitization audit was critical to my success in getting into discovery in Federal Court. Although I must caution there were others with the securitization audits that were not so successful so a securitization audit does not guarantee anything but in my opinion it puts you in the race. You need good legal advice and lots of reading and research with a lot of luck. I do think the odds are improving today as people are educating themselves. There are success stories. Its a long road home but the odds are getting better in my opinion. This may qualify me as a qualified success story for your firm since the state court dismissal could only have happened if I had not filed in Federal Court which brought me to discovery. Discovery gave me the evidence of fraud that I turned around and used in a Motion to Dismiss for Certification fraud in state court. The battle rages on. And there are more defeats than wins but there is hope. Many people have no idea that even after all these years there are options open to them. Chase tried to claim statue of limitation but there is no statue of limitation if you find fraud.”
James Farah

 

My wife and I would like to thank you for the wonderful work you’ve done submitting the loan modification to ocwen on our behalf, we have been wrestling with them for so long and we were getting nowhere and in fear of losing our home. After you suggested I called them to find out what the status of our loan modification was, they told us over the phone that we were eligible for a Sam [Shared Appreciation Modification) they reduced our principle from $736,579.75 to $513,950.00 our interest rate went from 4.25% to 2.00% our monthly mortgage payment went from $3467.83 interest only to $2354.82 principle interest taxes and insurance included, our interest only loan was changed to a 22‐year conventional fixed rate loan at 2.00%. This is good news, we could not be more grateful for the work you put into the modification. In addition; the difference between the original principle including penalties and interest and the new principal balance of $513,950 was $476,732.99 which they agreed to waive off 1/3 of that amount each year for three years as long as I remain current on my payments, at the end of that time the debt would not exist. They also told me that notification had gone out to their attorneys to stop the foreclosure proceedings, which was pending a sale date as you know. My wife and l are still in shock we wanted to see everything in writing and they told me over the phone tracking indicated that the package had been delivered to my address and it was already in the mailbox. I’m sending you copies of everything for you to look over. This was a great deal you got us, Steven, there’s more I can’t put in writing. Well done. This is a big step for us to be able to stay in our home.”
Anthony and Karen Boone

 

“Thank you for the support over the years. We just beat the bank in court to save house and prevent eviction. Their case was denied.”
Jeff Castillo

 

 

What Good Are the Reports and Analyses?

If you have a medical problem do you want just one doctor to look at your lab results or a team of doctors each doing their own analysis? The same question applies if you are heading into litigation. The problem for homeowners is that having a deep bench of professionals costs money. That is the way our system works, for better or worse.

Let us help your plan for trial and help you or your attorney draft your foreclosure defense strategy, discovery requests and defense narrative.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

Today I was copied on an email sent by a client who was frustrated by having to pay his attorney to do his own analysis of the status of the loan and litigation in addition to reports by my staff and myself. The client regarded the work done by the lawyer as the same as reports done by forensic analysts, and the same as the work that I do at my firm.

Here is my answer:

The lawyer is doing something else entirely — making strategic and tactical decisions that will result in a homeowner winning the case — not just being “right.” The lawyer not only uses his unique knowledge of local laws, rules and procedures, he/she will only pursue those issues, claims and defenses that have the highest likelihood for traction and the lawyer makes the difficult decision of selecting 2-3 issues out of dozens because he knows the local bar and can make the best judgment on which tip to put at the end of the spear.

The “bench” for the financial industry is very deep involving as many as 20 people, most of whom are not seen by you because they want it to appear as a “standard foreclosure.” You need to understand that because of finances you are limiting your bench to one person (a lawyer or consultant) when what you need is a full bench.

For your lawyer to use any specific strategy or tactic he/she needs to believe in it. If not, it will not play well in the courtroom even on motions. If the lawyer wants to do further analysis to bring himself/herself up to that level of confidence then that is what it costs. If the lawyer is satisfied to direct the work of Bill Paatalo or myself to provide “second sight”, then that is what should happen.

The Justice system is based upon rationing out decision making where there is a dispute. It boils down to a vetting process based upon available resources. In other words it is about money. Lawyers, forensic analysts, and consultants, have spent years, even decades accumulating knowledge, skill and intuition. They have a right to get paid for that when it is applied to your benefit.

In an event like the past and current tidal wave of foreclosures based upon questionable and fraudulent business practices sometimes law enforcement gets involved; but the real benefit of winning and stopping the foreclosure can only be achieved through direct action by the homeowner and not some agency. That takes money from people who were wiped out by Wall Street banks who are propped up by an executive branch and legislative branch that not only doesn’t help homeowners but actually pass and enforce laws directly opposite to the legitimate interests of homeowners.

The system, particularly nonjudicial foreclosure, is rigged to favor devious parties who use fraud as their business plan. They have very deep pockets. For a homeowner who wants to win a case, the homeowner must be willing to commit resources required by the effort. Each professional has their own contribution to make, if you let them. Even if they are performing what appears to be identical work you will get a better decision based upon better interpretation.     ~    A.P. Lehman, JD

 

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I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2018 Doug Boggs All Rights Reserved