Quiet Title in Missouri

Gwen,

This article is written by Dave Krieger, ” The QT man”

http://foreclosureblues.wordpress.com/2011/01/11/missouri-trustee-fails-on-motion-to-dismiss-in-pending-quiet-title-action/

MISSOURI TRUSTEE FAILS ON MOTION TO DISMISS IN PENDING QUIET TITLE ACTION
Posted on January 11, 2011 by Foreclosureblues
Today, January 11, 2011, 2 hours ago | Dave KriegerGo to full article

TRUSTEE FAILS ON MOTION TO DISMISS IN PENDING QUIET TITLE ACTION
By Dave Krieger

Most of the judges and foreclosure attorneys on both sides are watching this case carefully. It should be noted here that former civil rights lawyer and 30-year trial litigator Gwen Caranchini, no stranger to the blog sites by any means, had her best day in court in years in her case against Bank of America, MERS and an alleged “substitute trustee”.

On Friday, January 5, 2011 at 1:30 p.m., Caranchini showed up to a court hearing in the Jackson County Circuit Court on Friday. The trustee, who in this particular case is going it alone (as Bank of America and MERS removed the initial claims Caranchini filed to federal court) pro se, filed a motion to dismiss her breach of fiduciary duty claims and attempted wrongful foreclosure claims as well as a motion for sanctions for filing the claims.

The judge in this case has known Caranchini for some 30 years. Even the judge was stymied by the arguments Gwen was proffering, admitting that she felt as if she was “in kindergarten” when it came to understanding the issues and terms involved in the discussion. The judge set over two hours aside, in part to get educated, as Caranchini came to court loaded with documentation, including the slip order from the Ibanez decision, which she handed a copy of to the judge, who read it at the start of the hearing.

The problem in Caranchini’s case … the documents on file in the Jackson County Recorder’s office that were relevant to her case “did not make sense” to the judge; as compared to much of the recordation issues in Ibanez. According to this author’s research, which is used to craft chain of title assessments for review by title companies and attorneys in their preparation for litigation, when the chain of title was properly demonstrated to the court, the judge “got it”.

The judge in this instance looked carefully at the stamps (of the signors), the dates, what the documents were proffered to be … and smiled; she had never had this pointed out to her. Caranchini then discussed how Chicago Title, who issued the declination letter which is incorporated into Section 12 of the book “Clouded Titles”, found her chain of title to be irretrievably broken. The judge then inquired as to whether Chicago Title would offer up an expert to testify, to which Caranchini answered in the affirmative.

To prove a point about the differences in arguments … Caranchini then went through some of the issues involving securitized loans; the judge did not understand the importance of it. The argument then got down to the note (which you knew it would at some point). The judge looked at the trustee and asked him if he had the original note. Then she asked him if he ever had the original note. Then she asked him if he had ever seen the original note (which he previously attempted to foreclose on). Then she asked him whether the alleged lender had the original note. To all of these inquiries, the trustee responded … NO!

[In this case, the appointment of successor trustee was filed 13 months BEFORE the assignment proving the alleged lender was filed; a trust whose last 10-K was filed in March of 2007!]

The Court then granted the trustee’s motion to dismiss the wrongful foreclosure from the lawsuit; however, the trustee’s motion for dismissal of breach of fiduciary duty was denied!
Then the judge urged the trustee that he should join in a settlement conference scheduled by a federal magistrate in U.S. District Court for the Western District of Missouri in Kansas City, which set for February 18, 2011.

Then the judge denied the trustee’s motion for sanctions against Caranchini, saying, “these are developing claims and we have to let them develop”, allowing Caranchini thirty days to amend her petition and to bring the quiet title and declaratory judgment claims back into court that had been previously removed, as the Court indicated they needed to be put back into the litigation in state court to be joined with the trustee. (The trustee was not a party to the action when the quiet title and declaratory judgment counts were removed.)

From Caranchini’s own observations, she is totally convinced that the judge understood the issues involving agency, quiet title, declaratory judgments, breach of fiduciary duty and negligence (some of which have damage claims attached). According to Caranchini however, the judge did not understand all of the terms and arguments involving securitization and essentially admitted that on the record.

This goes back to the problems the author has previously written about regarding what is fundamental in proving agency and what is not. Education of the Court in pointing out the flaws on your recorded documents is extremely important. The declination letter is also on the record. The Ibanez decision in this instance proved to gain impetus with the Court as well as to its applicability regarding proving agency. The judge ordered deposition of a Chicago Title expert witness (That’s part of discovery folks!) by the end of March and set a trial date for October 24, 2011 (unless the parties settle beforehand). Needless to say, the trustee wasn’t happy. He’s still a Defendant in the lawsuit. Not having even seen the Note didn’t sit well with the judge either. You can probably surmise where this case is headed.

Two days later, Caranchini received an Order in the mail from another judge in Jackson County Circuit Court, where she had a motion for temporary restraining order against Bank of America et al: “Now on the 5th day of January, 2011, the Court takes up and considers Defendants Bank of America and BAC Home Loan Servicing, LP’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Request to Quash Hearing on Plaintiff’s Request for TRO. After being duly advised on the premises and for good cause shown, the Court hereby denies the same without prejudice. IT IS FURTHER ORDERED that additional proceedings be STAYED due to this cause pending in federal court and the possibility of remand back to circuit court. IT IS SO ORDERED.”

This would certainly cause the author to surmise that there is the possibility for a remand of the original case from the federal court back to the Jackson County Circuit Court, where the action to quiet title in the county in which the property is located is supposed to be heard. Because there are both state and federal judges involved, it would also probably be safe to assume that both state judges are in agreement on the procedural aspects of this case and that they’ve also had at least telephone conferences with both judges in the U.S. District Court. Look for a lot of action on this case in February (the case was filed last April). Look for possible settlements and an agreement to allow quiet title with the purchase of homeowner’s indemnity coverage! Caranchini is following my suggestions as I outlined in the book “Clouded Titles”.

http://www.cloudedtitles.com

14 Responses

  1. mike maunu,
    Thanks here’s another more recent one

    Neitzke v. Williams, 490 US 319, 329-30, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) “Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. These procedures alert him to the legal theory underlying the defendant’s challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action.” Id. (footnote omitted)

  2. If you are going to court for any matter when dealing with foreclosures and don’t have a lawyer, these are some cases that you should motion the court to take Judicial Notices of for your own protection:

    .

    These should be included under the section of “Judicial Notice” in your pleadings.

    .

    Caldwell v Miller, 790 F. 2d 589, 595 (7th Cir. 1986) “Pro Se litigants are not held to the stringent standards applied to formally trained members of the legal profession, and their pleadings are to be liberally construed.”

    .

    The United States Supreme Court, in Haines v Kerner 404 U.S. 519 (1972), said that all litigants defending themselves must be afforded the opportunity to present their evidence and that the Court should look to the substance of the complaint rather than

    the form.

    .

    In Platsky v CIA, 953 F.2d 26 (2nd Cir. 1991), the Circuit Court of Appeals allowed that the District Court should have explained to the litigant proceeding without a lawyer, the correct form to the plaintiff so that he could have amended his pleadings accordingly. Plaintiff respectfully reserves the right to amend this complaint.

  3. AM I THE ONLY ONE HERE WHO THINKS THAT GWEN’S HAVING KNOWN THE JUDGE FOR 30 YEARS HAD AN OBVIOUS INFLUENCE ON HER WILLINGNESS TO LISTEN TO GWEN’S ARGUMENTS. ALL MORE SHOWING JUDGES’ CONSISTENT INABILITY TO HEAR CASES AND CONSIDER ARGUMENTS IMPARTIALLY. WHEN EVER DO YOU HEAR ABOUT JUDGES GIVING NONATTORNEYS THEIR DAY IN COURT?

  4. Good Luck Gwen

  5. neidermeyer

    Yes — and filed under 15-D.

  6. HELP ,

    It usually means that the number of owners of the security is under a statuatory limit and that the report is not required to be filed.

  7. Go Dave!
    Go Gwen!

  8. Your Kidding right ?

  9. why am I being moderated? I have seen worse posted ,I was just asking a question and letting Gwen know that a message had been sent to an address that was posted by her in another blog. I just wanted to make sure that it was a legit email and that she could respond to what I sent her so that she would no that it was legit

  10. Gwen, I just sent you a message to a email address that was posted in a previous blog comment. I would love to be able to present my case in front of a Judge so that the Judge would understand and not prejudge me on the fact that I’m pro-se. I know that I’m not an attorney nor am I trying to be one … But I have enough evidence, that presented in the right way I really don’t need a law degree. My attorney quit on me a month before trial I requested an enlargement of time but was denied. The plaintiff in my case asked for an enlargement of time 20 days later and was given a 6 month continuance .

  11. Florida:

    If Mers is listed on the Mortgage as nominee and mortgagee, but lender, Mers and closing agent, did not offer or educate the borrower of the causes and effects it would have, would and could that be omission, negligence, fraud, etc., used against Plaintiff/lender/creditor/trust., etc???

  12. Help
    NO.

    Gwen
    Good Luck!!!

  13. These kind of unscrupulous behavior by banksters should not be tolerated. This is not the way we honor our men who serve our country.

    http://www.mfi-miami.com/2011/01/jamie-say-it-aint-so-chase-admits-ripping-off-active-duty-soldiers/

    Jamie Say it Ain’t So! Chase Admits Ripping Off Active Duty Soldiers!
    Jan 17, 2011 // by admin // Mortgage News // No Comments

    Lisa Myers and Sarah Heidarpour, NBC New

    One of the nation’s biggest banks — JP Morgan Chase — admits it has overcharged several thousand military families for their mortgages, including families of troops fighting in Afghanistan. The bank also tells NBC News that it improperly foreclosed on more than a dozen military families.

    The admissions are an outgrowth of a lawsuit filed by Marine Capt. Jonathan Rowles. Rowles is the backseat pilot of an F/A 18 Delta fighter jet and has served the nation as a Marine for five years. He and his wife, Julia, say they’ve been battling Chase almost that long.

    The dispute apparently caused the bank to review its handling of all mortgages involving active-duty military personnel. Under a law known as the Servicemembers Civil Relief Act (SCRA), active-duty troops generally get their mortgage interest rates lowered to 6 percent and are protected from foreclosure. Chase now appears to have repeatedly violated that law, which is designed to protect troops and their families from financial stress while they’re in harm’s way.

    A Chase official told NBC News that some 4,000 troops may have been overcharged. What’s more, the bank discovered it improperly foreclosed on the homes of 14 military families.

  14. Fingers Crossed for Her to Kick BofA/BAC’s butt.

    Question- What does it mean if the TRUST has not filed a 10K filing since 2007, does that mean the Trust is defunct or bankrupt or nonexistent or what?

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