IF THE GLOVE DOESN’T FIT, YOU MUST ACQUIT

IF THE PRETENDER LENDER DOES NOT HAVE THE POWER, AUTHORITY, RIGHT TITLE OR INTEREST TO EXECUTE A SATISFACTION OF MORTGAGE, THEN THEY HAVE NO RIGHT TO FORECLOSE IT. HERE IS ARIZONA’S STATUTE ON SATISFACTION OF MORTGAGES: NOTE THE REFERENCES TO LOST NOTES VERSUS LOST MORTGAGES.

33-707. Acknowledgment of satisfaction; recording

A. If a mortgagee, trustee or person entitled to payment receives full satisfaction of a mortgage or deed of trust, he shall acknowledge satisfaction of the mortgage or deed of trust by delivering to the person making satisfaction or by recording a sufficient release or satisfaction of mortgage or deed of release and reconveyance of the deed of trust, which release, satisfaction of mortgage or deed of release and reconveyance shall contain the docket and page number or recording number of the mortgage or deed of trust. It shall not be necessary for the trustee to join in the acknowledgment or satisfaction, or in the release, satisfaction of mortgage or deed of release and reconveyance. The recorded release or satisfaction of mortgage or deed of release and reconveyance constitutes conclusive evidence of full or partial satisfaction and release of the mortgage or deed of trust in favor of purchasers and encumbrancers for value and without actual notice.

B. When a mortgage or deed of trust is satisfied by a release or satisfaction of mortgage or deed of release and reconveyance, except where the record of such deed of trust or mortgage has been destroyed or reduced to microfilm, the recorder shall record the release or satisfaction of the deed of trust or mortgage showing the book and page or recording number where the deed of trust or mortgage is recorded.

C. If the record of such mortgage or deed of trust has been destroyed and the record thereof reduced to microfilm, it shall be sufficient evidence of satisfaction of any such mortgage or deed of trust for the release or satisfaction of mortgage or deed of release and reconveyance to be recorded and indexed as such. The instrument shall sufficiently identify the mortgage or deed of trust by parties and by book and page or recording number of the official records. Such instrument shall be treated as a release or satisfaction of mortgage or deed of release and reconveyance and recorded.

D. If the note secured by a mortgage or deed of trust has been lost or destroyed, the assignee, mortgagee or beneficiary shall, before acknowledging satisfaction, make an affidavit that he is the lawful owner of the note and that it has been paid, but cannot be produced for the reason that it has been lost or destroyed, and the affidavit shall be recorded. If the record of such mortgage or deed of trust has been destroyed and the record thereof reduced to microfilm, such affidavit shall be recorded and indexed as releases, satisfactions of mortgage and deeds of release and reconveyance are recorded and indexed and shall have the same force and effect as a release or satisfaction of a mortgage or deed of release and reconveyance as provided in subsection A of this section.

E. If a full release or satisfaction of mortgage or deed of release and reconveyance of deed of trust that, according to its terms, recites that it secures an obligation having a stated indebtedness not greater than five hundred thousand dollars exclusive of interest, or a partial release or satisfaction of mortgage or partial deed of release and reconveyance of deed of trust that, according to its terms, recites that the payment required for the partial satisfaction or release does not exceed five hundred thousand dollars exclusive of interest, has not been executed and recorded pursuant to subsection A or C of this section within sixty days of full or partial satisfaction of the obligation secured by such mortgage or deed of trust, a title insurer as defined in section 20-1562 may prepare, execute and record a full or partial release or satisfaction of mortgage or deed of full or partial release and reconveyance of deed of trust. No earlier than sixty days after full or partial satisfaction and at least thirty days prior to the issuance and recording of any such release or satisfaction of mortgage or deed of release and reconveyance pursuant to this subsection, the title insurer shall mail by certified mail with postage prepaid, return receipt requested, to the mortgagee of record or to the trustee and beneficiary of record and their respective successors in interest of record at their last known address shown of record and to any persons who according to the records of the title insurer received payment of the obligation at the address shown in such records, a notice of its intention to release the mortgage or deed of trust accompanied by a copy of the release or satisfaction of mortgage or deed of release and reconveyance to be recorded which shall set forth:

1. The name of the beneficiary or mortgagee or any successors in interest of record of such mortgagee or beneficiary and, if known, the name of any servicing agent.

2. The name of the original mortgagor or trustor.

3. The name of the current record owner of the property and if the release or satisfaction of mortgage or deed of release and reconveyance is a partial release, the name of the current record owner of the parcel described in the partial release or satisfaction of mortgage or deed of partial release and reconveyance of deed of trust.

4. The recording reference to the deed of trust or mortgage.

5. The date and amount of payment, if known.

6. A statement that the title insurer has actual knowledge that the obligation secured by the mortgage or deed of trust has been paid in full, or if the release or satisfaction of mortgage or deed of release and reconveyance of deed of trust is a partial release, a statement that the title insurer has actual knowledge that the partial payment required for the release of the parcel described in the partial release or satisfaction has been paid.

F. The release or satisfaction of mortgage or release and reconveyance of deed of trust may be executed by a duly appointed attorney-in-fact of the title insurer, but such delegation shall not relieve the title insurer from any liability pursuant to this section.

G. A full or partial release or satisfaction of mortgage or deed of full or partial release and reconveyance of deed of trust issued pursuant to subsection E of this section shall be entitled to recordation and, when recorded, shall constitute a full or partial release or satisfaction of mortgage or deed of release and reconveyance of deed of trust issued pursuant to subsection A or C of this section.

H. Where an obligation secured by a deed of trust or mortgage was paid in full prior to September 21, 1991, and no release or satisfaction of mortgage or deed of release and reconveyance of deed of trust was issued and recorded by November 20, 1991, a release or satisfaction of mortgage or deed of release and reconveyance of deed of trust as provided for in subsection E of this section may be prepared and recorded without the notice prescribed by subsection E of this section.

I. A release or satisfaction of mortgage or a release and reconveyance of deed of trust by a title insurer under the provisions of subsection E of this section shall not constitute a defense nor release any person from compliance with subsections A through D of this section or from liability under section 33-712.

J. In addition to any other remedy provided by law, a title insurer preparing or recording the release and satisfaction of mortgage or the release and reconveyance of deed of trust pursuant to subsection E of this section shall be liable to any party for actual damage, including attorney fees, which any person may sustain by reason of the issuance and recording of the release and satisfaction of mortgage or release and reconveyance of deed of trust.

K. The title insurer shall not record a release and satisfaction of mortgage or release and reconveyance of deed of trust if, prior to the expiration of the thirty day period specified in subsection E of this section, the title insurer receives a notice from the mortgagee, trustee, beneficiary, holder or servicing agent which states that the mortgage or deed of trust continues to secure an obligation, or in the case of a partial release or satisfaction of mortgage or deed of partial release and reconveyance of deed of trust, a notice that states that the partial payment required to release the parcel described in the partial release or satisfaction has not been paid.

L. The title insurer may charge a reasonable fee to the owner of the land or other person requesting a release and satisfaction of mortgage or release and reconveyance of deed of trust for services, including but not limited to search of title, document preparation and mailing services rendered, and may in addition collect official fees.

15 Responses

  1. Charlie

    Although you are wordy – which I also tend to be – what you say could not have been said better.

    People need to quiet the media mumbo jumbo against the borrowers – “who bought too much house”. This was Mr. Henry Paulson’s purpose from the onset of the crisis. Knew we were dead meat when Paulson first spoke to “fix” the financial crisis.

  2. To angry & NOT TAKING IT! regarding the bk judge abstaining: Is there any court that this can be taken to? I know that there was another case in either superior or district court where the judge did not come to court, sent the law clerk. The judge basically refused to hear the case but with him not entering a ruling, it could not be appealed. That person filed a BK to get the case heard. (I hope that was not also your case.) Neither method of refusing to hear a case sits well with any but the pretender-lender and the judge.

    There are so many landmines in getting access to an actual trial or even a chance for the attorney to argue a motion. Time can be very constrained with filing written responses to motions and counter responses to the defense contentions. Lots of decisions on motions are handed down with no chance to really educate the judge. If he misses a point you were trying to make in the writen argument, you may not get a chance to make a verbal argument to keep the particular count of your suit ‘live’.

    All the more reasons for FL voters to get the message to their state legislature that they do not want to become a non-judicial state.

  3. ca bk court has its own pitfalls… my ca bk case the judge ruled to abstain from hearing the case,hmm…seems the judge now has too many cases [huh??] or “please dont ask me to rule on a debtor / creditor issue ” if not in bk court then where? I just never saw that coming!

  4. 2 Anonymous.. Not at all… concur on all levels’ ! Just adding my 2 cents…

  5. I find it pretty damn sad that the whole “real” problem it’s been diverted towards another “dark” spot in this whole mess, let me explain, why in the *&^%$ would short sales and foreclosures, deed in lieu of foreclosure and all the crap it’s been pushed by the government instead of addressing this mess for what it really is?: A TOTAL FRAUD, now they want to redirect our attention towards the Goldman Sachs’ mess, they ALL are in it!! that’s why the situation it’s not being looked at properly, let me put this out there, when the IRS audits someone, do they play around, and start asking ambiguous questions or do they tell you EXACTLY what they want from you and expect to get it right away or else you are so screwed? see my point, here, in this mess though, all it happens it a “diverting” game, first they go after the appraiser, then they go after a few crooked Realtor/Lenders, then go after the whole WRONG crew!!! up to this date I am to yet see a REAL arrest on a REAL crook, but no, no , no, that’s simply not possible, because they all are in this to their eyebrows, that’s why, all of them are covering each other up, and will continue doing so until WE get totally sick and actually do something about it, rallies, protests to our “representatives” (whom i am not even sure who they are representing), the biggest heist in American History, in which the crook/perpetrator it’s being rewarded with more of our money for screwing us in the first place, crooks who shamelessly come back to ask for more of OUR money over and over, then with OUR money they make billions and pay themselves some pretty big “bonus”, there isn’t a bigger and more humiliating way to mock the American people than that one right there, “let me screw you, then I’ll come back screw you some more, then I’ll blame you for letting me screw you, then for letting me screw you I’ll be asked to help me screw you over and over until I take everything you have, careful though I”ll come back to see if you have made some more since I took it all and may screw you again, and on and on and on” the question here is: how long will we allow this crap to happen? NO ONE will stop it, we have seen the way the dance around the real issue by blaming others instead of taking responsibility or hold the perpetrator responsible, how long will we take it?

  6. Simon,
    You asked: “Supposing non-judical passes, what would Neil say about how this effects us compared to when we were a judicial state?”

    My answer(although I’m not Neil): It has a chilling effect on your attempts to have a valid defense case against the foreclosure mounted.

    In your state, the pretenders have to prove their case. Here (in CA, a state with both avenues,) the borrower has to prove that they have a CAUSE to be heard to even proceed to trial. The pretenders ALWAYS initate the action via the non-judicial route.

    You have to sue to attempt to block their action. You find that you have to overcome all the defense motions to dismiss each count in the suit you bring. Finding a good attorney who is wise to the system is hard to do. Proceeding without one is almost impossible. Judges will deny valid motions if they are brought pro se. You really have to overcome their attitude that you are only trying to delay the inevitable. They believe you are asking them to give you a free house. They have, as yet, not awoken to the fact that they are giving the fraudsters the ‘free house’, if anyone. Cases here can have a difficult time getting the original note produced. Judges have ruled that they are satisfied with a copy. I question whether the judge was even interested in verifying the chain of custody.

    The BK court is frequently where ligitimate complaints end up being actually heard for the first time. Cases that are ignored, counts dismissed in Superior court have found some traction in BK court.

  7. PJ

    You seem to think I am defending the process. I am not. I am just looking at the process – and why it went wrong. See my post to “Seeking A Smoking Gun.”

  8. It would be great if Neil could write about the trend for States to move from judicial to non-judicial. I think some well-meaning (and completely uninformed) legislators are looking at the clogged courts and are genuinely trying to help that by voting to turn the foreclosures away from the court. That is the argument anyway, but it seems to be effective.

    We dodged a bullet here in FL, but the gun still has 5 more rounds and I can hear the sound of the pistol cocking back.

    Supposing non-judical passes, what would Neil say about how this effects us compared to when we were a judicial state?

  9. “This is a huge fraud upon the American public. My biggest problem, right now, is that Pres. Obama, the Federal Reserve, U.S. Treasury, Congress, and the courts, are covering for the fraud. This is because they want to “clear the market” by pushing foreclosures through at a fast pace.”

    2 Anonymous, while I agree they want to clear the “market”, look at the hardest hit in this mess… minority & working class communities.

    The most rapid/amount of foreclosures occurred in 2007 which were largely concentrated in lower middle working class neighborhood’s where there was little help and little resistance and concentrated in “rust belt” so to speak declining economic areas…. it would be interesting to see if other shorts were made on those mortgages at that time… sort of a litmus test so to speak… not savvy enough to gather that information… but just a hunch that these short’s were going on way before Mr. Paulson jumped into the game, CDO’s & CDS’s were highly used way before he became “Rich & Famous”

    With that the last 14 months of the attempted placation of the American people with their alphabet soup of programs HAMP, AARA, you name it, has been the biggest shell game witnessed in my lifetime… The time given to the perpetrators at large by the current “good cop , bad cop” administration to allow them to clean up the mess, which they are having a hard time for now ,would be laughable if not so serious.

    Not a lawyer, but have a bit of common sense… and the facts are glaringly obvious. There is truth in facts but more importantly there is power in numbers… most unfortunately will leave it up to the few to fight the battle… have been there done that… but concur that until like minded people concentrate their efforts, the same people in the same room will continue to chip away at your liberties, your freedom and confiscate all that you own….

  10. Judy:

    This is a huge fraud upon the American public. My biggest problem, right now, is that Pres. Obama, the Federal Reserve, U.S. Treasury, Congress, and the courts, are covering for the fraud. This is because they want to “clear the market” by pushing foreclosures through at a fast pace.

    We will not win in court until the media and administration side with the people. Until that point, winning in court is a hit or miss – depending on your state and judge – and not dependent upon the great evidence you can produce.

    It is up to the people to unite. It is up to lawyers on this blog to unite in class actions. The evidence is overwhelming regarding fraud in foreclosures and fraud in mortgage origination. But it will take a coordinated effort by astute and dedicated attorneys to bring class actions in order to assert power – and precedent – in courts of law across the country. This is political warfare. The people will not get free houses – and if that is what they are searching for – they will lose. But the people have legitimate claims to expose fraudulent foreclosures and mortgages. They need to be compensated. They need power to fight the fraud.

    To attorneys that follow this blog – join together. In the process, you will succeed – make a name for yourselves – and a hefty profit. And, in the process, you will restore dignity and rights to the people who have been so deprived.

  11. Anonymous,

    They are typically hiding those assignments via MERS. Once in MERS, they are avoiding all the payment of county recording fees until they want to foreclose. Then only the documents that they think are sufficient to foreclose will be recorded.

  12. Brian,

    it looks like you could use a good ‘kick-butt’ attorney who will get the answers. I’m in So Cal, down the road in SD County. I know an attorney in northern part of the county who could help if you can afford an attorney.

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  14. Interesting article from NorthEastern Law Journal – Spring 2010. Do not know if it has been posted here or not. Talks about everything from A to Z – including REMIC assignments. First time I am actually seeing that originators sold mortgages “to other institutions as part of a securitization process.” (page 2) – and where, may I ask, are these assignments?

    see:

    http://www.nulj.org/journal/2010Final.pdf.

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