Notice of Non-Compliance: recording Offices Reluctant to take it: Discussion

Posted on November 2, 2008 by Neil Garfield

The following represents a discussion between readers in which I inserted my comments. The principal issue is whether you CAN file a notice of non-compliance in the county recorder’s office. And the sub-issue is whether the County reorder has any discretion. My answer is that the County Recorder has NO discretion and that the ONLY way the document can be removed from the title records is through a court order, which of course is the point — we want to convert a proceeding that is non-judicial and improper just for that reason (because of the presence of necessary and indispensable parties and standing issues) into a judicial proceeding where the parties — all of them — can be heard on the merits of their respective claims.

The objective here is not to WIN something by filing the notice of non-compliance, but rather to force the foreclosing party into alleging, under oath the facts upon which they would have assumed in a non-judicial proceeding. The use of the non-judicial proceeding is a ruse to avoid the requirements of due process, which simply means that everyone should have their say in court if they have some meritorious claim.

I agree in part and disagree in part. With the caveat that I am not a California Lawyer and that this involves California law with which I am familiar but have not included in my practice of law.

First there IS a difference between “filing” which generally means sending a document to the clerk of the court for entry into the docket of a case in litigation and “recording” which means sending a document to the clerk of the county records office for entry into the title records and therefore gives “notice” of something that affects the actual title of a particular piece of property.

However, the notice of non-compliance, if phrased properly, and perhaps with a few additions relating to a recitation of rescission by the homeowner DOES affect future transfers of title. It says in essence that anyone who takes title at auction does so at their peril, same as with a mortgage encumbrance. The defense of failure to follow statutory requirements for pursuing modification and for rescission will survive the sale, in my opinion. This could reach as far as a third party who buys the property at arm’s length at auction, or after auction from the REO inventory of the bank. Adding the non-compliance with RESPA and TILA and the recitation that the mortgage has been rescinded means that by operation of law the mortgage is extinguished and that this notice of non-compliance operates as a satisfaction of mortgage. In addition, the failure to comply with the new California statute creates a cloud on title.

It is therefore my opinion, subject to the opinion of licensed California counsel, that the filing of a notice of non-compliance must be accepted by the county recording office as a document that affects an interest in a particular piece of real property. My suggestion is that the issue be brought up before the “County Recorder” responsible for filings in that office. I have not seen any discretionary language that allows the County recorder or any of his/her clerks the option of interpreting a document submitted for recording.

Neil F. Garfield, Esq.
livinglies.wordpress.com

From: darrellmcdonald@hotmail.com
To: saldanna@gmail.com; bluedawnrealprop@yahoo.com
CC: drdan@rockstarinlife.com; libertynow@warpmail.net; ynotout4fun@yahoo.com; 99libra@gmail.com; ngarfield@msn.com
Subject: RE: California Recorders Office
Date: Sun, 2 Nov 2008
you are using the terms record and file interchangeably and it is confusing.

Filings are done with the court and must be done on pleading paper with a proper caption that must match the caption of the original filed court documents.

Recording is done at the recorder’s office where title documents and marriage licenses and such are recorded. The document you have attached appears to be for recording at the recorder’s office and should be ok for that purpose only.

Date: Thu, 30 Oct 2008 00:08:36 -0700
From: saldanna@gmail.com
To: bluedawnrealprop@yahoo.com
Subject: Re: California Recorders Office
CC: DrDan@rockstarinlife.com; libertynow@warpmail.net; darrellmcdonald@hotmail.com; ynotout4fun@yahoo.com; 99libra@gmail.com; ngarfield@msn.com

I made this form exactly like the form used by the Lender to Record their Notice of Rescission.  It is therefore in their format.
The term “instrument” as used in Cal. Gov’t Code § 27280 is defined in Cal. Gov’t Code § 27279(a), as a written paper signed by a person or persons transferring the title to, or giving a lien on real property, or giving a right to a debt or duty. Three categories are thus presented. A recordable instrument is one which either a) transfers title, b) gives a lien, or c) gives a right or duty.
“Instrument” means some written paper, or instrument, signed and delivered by one person to another, transferring the title to, or creating a lien on, property, or giving a right to a debt or duty. Hoag v. Howard (1880) 55 Cal 564, 1880 Cal LEXIS 323; De Wolfskill v. Smith (1907, Cal App) 5 Cal App 175, 89 P 1001, 1907 Cal App LEXIS 199; Hale v. Pendergrast (1919, Cal App) 42 Cal App 104, 183 P 833, 1919 Cal App LEXIS 720.
Gov. Code, § 27280, subd. (a), providing that “[a]ny instrument or judgment affecting the title to or possession of real property may be recorded …” did not authorize a homeowners association to record, in a county’s land title records, a document asserting that homeowners were in violation of the association’s covenants, conditions, and restrictions by painting their house an unauthorized color. A recordable “instrument” is one that either transfers title, “gives” a lien, or “gives” a right or duty (Gov. Code, § 27279, subd.(a)), and the notice of noncompliance did none of those (Editor’s Note: For reasons above, I disagree with that conclusion).
Even assuming that the notice of noncompliance were an “instrument” as defined by Gov. Code, § 27279, it would be recordable only if, pursuant to Gov. Code, § 27280, it affected “title to” or “possession of” the real property, but the notice of noncompliance did not affect title to the property or possession. (Editor’s Note: I disagree with that conclusion applied in the context of a mortgage of foreclosure) The notice simply created uncertainty about whether the association would be able to force the homeowners (or their successors) to repaint their home. Ward v. Superior Court (1997, Cal App 2d Dist) 55 Cal App 4th 60, 63 Cal Rptr 2d 731, 1997 Cal App LEXIS 394, review denied (1997, Cal) 1997 Cal LEXIS 5230.Ward v. Superior Court (1997, Cal App 2d Dist) 55 Cal App 4th 60, 63 Cal Rptr 2d 731, 1997 Cal App LEXIS 394, review denied (1997, Cal) 1997 Cal LEXIS 5230.
BHA relies on the third category of the “instrument” definition. BHA argues that the notice of noncompliance is a recordable instrument “because it is in writing and gives ‘a right to a debt or duty’ in that it provides petitioners and any successors notice of their duty to bring their property into compliance.” Clearly there is a major difference between providing notice of a duty, and “giving” or creating that duty. To the extent that BHA has the “right” to dictate the color of a wall or garage door, that “right” was given to BHA by the CC&R’s. If the right exists, it exists whether or not a notice of noncompliance is recorded to give public notice of BHA’s claim. In this case, for example, BHA filed suit to enforce this claimed right, something BHA could have done without recording a notice of noncompliance. Thus BHA’s notice of noncompliance does not come within the third category of the “instrument” definition.

Even assuming that the notice of noncompliance were an “instrument” as defined by Government Code section 27279, it would be recordable only if–pursuant to Government Code section 27280–it affected “title to” or “possession of” the real property. As discussed above, the notice of noncompliance does not affect title to the property. Nor does it affect possession. Petitioners retain possession as well as title. Legally speaking, petitioners can freely transfer title and possession.

(Editor’s Note: In my opinion this case does not apply to the recordation of a notice of non-compliance in the context of mortgages, notes, foreclosures and evictions. In the context of mortgages, foreclosures and evictions, this is exactly the point of most of the defenses raised under securitization, TILA and RESPA — the absence of a chain of good title on the note and mortgage clouds the title of the deed and the trustee’s authority under the deed in a non-judicial state. The frauds and deceptive lending practices contrary to statute allow the “borrower” to rescind or even nullify the note and mortgage. Both possession and title are at risk for ANYONE seeking to obtain title or possession, or maintain title or possession under such circumstances, until a judicial determination is made as to the merits of the claims)
The constraints petitioners are experiencing on transfer of title and possession are practical ones, not legal limitations. For example, property subject to a lis pendens remains freely transferable as a legal matter. (See, e.g., Stagen v. Stewart-West Coast Title Co. (1983) 149 Cal. App. 3d 114, 122 [196 Cal. Rptr. 732].) The notice of noncompliance involved here has no legal effect on title or possession, or on transfers of title or possession. Instead, the notice simply creates uncertainty about whether BHA will be able to force petitioners (or their successors) to repaint their home. It is because few purchasers or lenders would likely be willing to assume this risk that transfer or encumbrance of the property might be impeded.
In this case, the Notice does effect title and possession of real property.  You have tried to give notice to the lender, but have been unable to, therefore you have no other way to give notice to the lender of their “duty” to negotiate with you or to give them your offer but through this recordation.
Sal

“I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE. ANY INFORMATION PROVIDED IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR SEEKING ADVICE FROM A LICENSED ATTORNEY”

Wed, Oct 29, 2008 at 2:58 PM, Jan Mcclinton <bluedawnrealprop@yahoo.com> wrote:
Hi,
Just got back from the Riverside recorders office.  They will not record.  They say they “may” record under the 27280 code, but it does not fit their format so they won’t! until it fits their needs.  Any more suggestions?
Have a Great Day!
Janice

— On Tue, 10/28/08, sal danna <saldanna@gmail.com> wrote:

From: sal danna <saldanna@gmail.com>
Subject: Re: California Recorders Office
To: bluedawnrealprop@yahoo.com
Cc: “RockStar Dr Dan” <DrDan@rockstarinlife.com>, “Liberty” <libertynow@warpmail.net>, “Darrell McDonald” <darrellmcdonald@hotmail.com>, ynotout4fun@yahoo.com, “Steve Cisko” <99libra@gmail.com>, “Neil” <ngarfield@msn.com>

Date: Tuesday, October 28, 2008, 11:13 PM

Here is the provision that authorizes the recording.

Cal Gov Code 27280.
Instruments and judgments recordable; Change in ownership statement
(a) Any instrument or judgment affecting the title to or possession of real property may be recorded pursuant to this chapter.
On Tue, Oct 28, 2008 at 9:51 PM, Jan Mcclinton <bluedawnrealprop@yahoo.com> wrote:

Yes, that is exactly what I tried to file…with my info of course, and the Riverside recorder gave me a paper saying: “We have found no provision in the California State Law authorizing recording of the enclosed document(s).”  I have it notarized and all.  I am wondering if we need something else to go with this.  Any thoughts?

Filed under: CDO, currency, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: , , |

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2 Responses

  1. Sal, on November 10, 2008 at 2:05 am said:

    The law says they have to sign a declaration and attach it to the Notice of Default in order to foreclose. They will try to get away with the false declaration and will as long as no one tries to challenge them. Then if challenged, they will claim ignorance on how the new law works and that the contact provision is ambiguous.

  2. DeVonna, on November 7, 2008 at 8:17 am said:

    I was able to have mine recorded, however a friend of mine was denied to record hers. I was wondering if you named it a Declaration of non-compliance would that make them adhere to filing? I see the lenders are getting smart and are attaching a “Declaration of compliance” with the county recorders office, even though in most cases they are not complying with this new law.

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