QUIET TITLE BECOMES FOCAL POINT OF REMEDY: WHO CAN LEGALLY SIGN A SATISFACTION OF MORTGAGE?

FROM CASECLARITY

The court of appeals clearly focused its analysis on the underlying action as a weak foundation for the relief that was requested. The suit, a quiet title action, was essentially in the nature of a declaratory action. However, the opinion points out that because this action was missing essential elements (they did not use these exact words) of a controversy – that is, allegations that would make consideration of the dispute ripe for consideration – the matter was not ripe. They are telling you that your foundational allegations were just not there. That gave the other side grounds to seek dismissal. Rather than amend your complaint to allege sufficient facts to state a claim you pursued an appeal. The High Court will not likely take this case.

The court’s analysis and that which the other side seized upon is the fact that without an actual controversy the court’s subject matter jurisdiction is not invoked or perfected and remains at rest. All they could do is to note the defect and dismiss. Of course all these courts are reluctant to actually say that. However, they did leave the door open and gave you hints about what might be used to state a claim.

It may have been better to frame out the legal issues in two parts. First, a DEC action that focuses on doubts about the rights of the parties on both sides of the dispute, alleging that there is no other remedy at law to resolve the issue. That issue would need to be resolved first, ideally on summary judgment after an adequate evidentiary foundation has been established. Prevailing on that first point opens the door to the second part which is the quiet title action. Most observers may read this and believe that it’s all the same and the two-part strategy is more work than necessary. However, going for the whole thing at once leads the result obtained here. The current climate in the judiciary just doesn’t have the tolerance for this “home run” kind of outcome.

A declaratory judgment action would smoke out the gaps in the missing chain of title and other related issues and strategically shifts the burden to the defendant. When that part breaks down for them, and it will where the mortgage loan has been securitized, it will begin to shape the path for the court to decide the rights of the parties. Once that happens, and the court finds in favor of the plaintiff, it opens the door to the the quiet title portion of the action which will be a perfunctory proceeding at that point.

Energies spent pursuing relief from the supreme court might be better spent crafting a new complaint, tight and focused, with a new strategy. There is little risk of any claim preclusion or res judicata here because the new dec action would be a different cause of action and because the prior ruling was grounded on lack of ripeness. They left the door open for you. Reread the opinion with an eye for the gaps they point out.

43 Responses

  1. Mary in Maryland- I too am in Md, and Geesing-Ward was appointed a trustee in late 2008 for my foreclosure, are they still being assigned cases? It was my understanding that they were under investigation for forgery , I have had many lawyers rudely cut me off , hang-up etc. , click on the link above ” lawyers that get it ” there is a man by the name of Suss in Md. who has been helpful in answering some of my questions , this can get very confusing at times but keep at it – sites like this will help us cut through the BS and keep the Banksters in defensive mode . Good Luck to All

  2. My lender, New Century Mortgage, NEVER FILED A DEED OF TRUST with the county recorder, here in California. The only thing filed was a FULL RECONVEYANCE clearing TITLE in 2005.

    New Century Mortgage was barred from doing business in California in 2007. They are in Bankruptcy in Delaware.

    According to the documents on file at the recorder’s office, there is no lien or deed of trust on file since the full reconveyance.
    Select Portfolio Servicing says they are servicing the loan and the lender is Credit Suisse First Boston (CSFB) and the trustee is USBANK. None of this is on file with the county recorder.
    Do I file a quiet title action? Who must I notify?

  3. ANONYMOUS- thanks for replies. I am further wondering if a “satisfaction of mortgage” filed in the land records of any county courthouse in the US actually means if anyone,whomever it may be, has been paid anything by anyone else. I am, unfortunately, beginning to think that exactly NONE of the securitized “refinances” resulted in the satisfaction of the previous mortgage.

  4. Anon (and others)

    Let’s set aside all the discussions on the MBS, securitizations, etc.. for just a momment.

    The Deed of Trust is a contract, right?

    It has clearly defined parties to the contract – Borrower, Lender, and even MERS (we can argue “well defined”, but they are defined).

    The Lender on this contract has never been replaced with another, so it is the original mortgage broker.

    That mortgage broker sent a letter that they sold the loan – ie. they have been paid.

    So why can’t I simply send them a nice letter asking them to comply with the contract?

  5. Ian

    Each state has different method for satisfaction/cancellation/discharge etc. None of this will tell you whether any entity was actually paid.

    If mortgage loan was a refinance, it was likely already in a so-called “trust” before the refinance. Only the servicer/trustee to prior trust can tell you if they actually received payoff. If they did not — not only fraud against you — but also securities fraud.
    And, also consider that prior trust may have been paid by insurance — and not borrower’s payoff.

  6. The form in question is OREGON–Single Family–Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3038

    See link: http://www.freddiemac.com/uniform/unifsecurity.html

    This has every state.

    Seems to me Lender is defined clearly. MERS is defined, but as a “beneficiary” and a “nominee”. But what does that mean?

    So if you have this as your Deed, the stated Lender (the broker) goes away (sells the Note), but no assignments or the Deed are recorded……

    Is this a valid contract??

    Any contract lawyers want to comment?

  7. ANONYMOUS- re John’s post below- section 23,standard deed of trust form- upon payment of amount of obligation, lender shall release note to trustee who will then reconvey to borrower.(paid) It doesn’t mention who or what is doing the paying-what do you make of this? I never saw this before.

  8. Has anyone tried simply sending the original Lender on the Deed of Trust a letter stating they are in breach?

    The standard Deed of Trust form includes this:
    23. Reconveyance. Upon payment of all sums secured by this Security Instrument, Lender shall request Trustee to reconvey the Property and shall surrender this Security Instrument and all notes evidencing debt secured by this Security Instrument to Trustee. Trustee shall reconvey the Property without warranty to the person or persons legally entitled to it. Such person or persons shall pay any recordation costs. Lender may charge such person or persons a fee for reconveying the Property, but only if the fee is paid to a third party (such as the Trustee) for services rendered and the charging of the fee is permitted under Applicable Law.

    My Lender sent me a letter saying “we sold your loan”. There have been no assignments of the Deed recorded. MERS sent me a letter “we are not your Lender”. So my Deed has no Lender.

    What is the downside of simply sending the original Lender a letter requesting that they either force an assignment, or comply with section 23 above?

  9. My question is WHY ARE MARYLAND LAWYERS SO AFRAID TO TAKE ON THE BANKS ???? You never post anything about saxon or Maryland…. Yes we are a non judicial state and they can foreclose with out notice. And why are they so afraid of the trustees of the Geesing firm…

  10. Two brand new cases in Nevada find nonjudicial foreclosure execution defective (because of MERS):
    http://bryllaw.blogspot.com/2011/01/nevada-another-non-judicial-state-where.html

  11. Homeowners should counter-record documents after defective NODs and similar bogus recordings by the banksters:
    http://bryllaw.blogspot.com/2011/01/additional-ammunition-for-homeowners-in.html

  12. Deb wynn,

    Understand.

  13. THE A MAN

    Agree– do not dispute individual challenges and believe they are extremely important. But, the fraud is so massive and we need government investigations.

    There were supposed to be results published this month by some government investigations — I do not see any results. Where are they???

    If anyone here believes that the government does not know what is going on — they are wrong.

  14. Anonymous thank you for the clear and understanding response.

    I agree with you the Federal government knows about all this.

    It is our job as citizens to remind the Gov that it works for us. In a civil way.

    I still think that the solution is through the local DA’s office and the City Counsel.

  15. FDIC I heard have been refusing to supply the info even under freedom of information act
    Our Laws are not being followed gov entities apowarsvto have a free pass don’t they

  16. Deb wynn

    FDIC should be able to give you all information. But, FDIC appears to also be covering.

  17. THE A MAN,

    The law is the May 2009 TILA Amendment, and with this law — the creditor must identify itself to you — by providing contact information including address and phone number. If there is more than one creditor – the entity with the largest position in loan –accounted for on balance sheet must identify itself. FASB 166 and 167 demand that SPVs be brought back on balance sheet. (note this has nothing to do with Safe Harbor for failed institutions taken over by FDIC).

    In addition, the Fed Res, in it’s opinion (now codified as RULE) of the TILA Amendment, newly defines creditor — and is not the servicer — and not pass-through beneficial security investors. That would exclude also exclude a Trust/Trustee. I have spoken with Fed Res at great length to question exactly then — who is the creditor. The Fed Res has stated than while loan is current — it is the tranche holders. Tranches are only — at max — about 20. Tranches are originally sold to security underwriters (see PSA) — but security underwriters may sell tranches to other financial institutions. It is after the tranches are arranged that current receivables are bundled into trade- able securities (likely into CDOs). None of those security investors are the creditor.

    After the loan is in default, and servicer has stopped making current payment advances to trustee — the non-performing loan is removed from the trust — by the servicer — who likely owns the equity residual tranche that is not securitized (passed-through). Whether or not the servicer purchases collection rights – or passes them onto a third party (by derivatives (swap out) or direct sale) — is up to the servicer to tell you. But servicers are NOT talking.

    If servicer has advanced all payments to the trustee, then the entity who holds the largest position by tranche (of the original 20 — and there is probably at most a third of remaining remnant tranches) must identify itself to you as the creditor- this would be the security underwriter’s parent corporation – as security underwriter as no balance sheet (neither does the Depositor). .

    At first I though the TILA may not be retroactive to before May 2009, but this appears not to be true. It only means that if creditor did not identify itself – voluntarily before May 2009 — they would not be in violation of the law. But, if you request this information through the servicer, the creditor must comply. If they do not, then they are in violation of the TILA.

    This is federal law — and if you allege violation in state court — may get transferred to federal court. It will take a long time for the Amendments to work its way through courts — but I do not even see it being utilized (except one district court that allowed the the violation to stand.)

    Also, have to remember if you do not know your creditor — you cannot negotiate for anything – any settled modification would be invalid under the servicer name. Not only has there been fraud in court upon foreclosure, your right to attempt to settle is also denied.

    All of this is secondary to the fact that loans were not properly conveyed to any trusts — and, therefore, no tranche holder is the actual “creditor” — including the servicer tranche. But, it will confirm that the security underwriters parent corp. is – or is not the creditor — depending on what the parent has since done with the loan. And, at least there is discovery of a face — against whom you then can assert fraud and assert fraud in court by the party who initiated the foreclosure action. .

    Government KNOWS all this. And, you are right — what are they going to do about it?. And, what is IRS going to do about it???

  18. It’s an illusion all of it I simply can’t make sense of all the song and dance re a bogus beneficiary sells back to the trustee for the certificate holders but needs a law firm for the ” Bsnk” same address as trustee Corp foreclosure mill lps, aid of various ” vice presidents” and reo agents to hussle me out of my home how desperate to covet up Can you be and they all get paid and they put up websites ” foreclosures for sale, can they deliver a clean clear title , no, and they know it but they know what’s behind mers so that’s not an issue, however a lis pendens is a big issue and they must now file themselves a quiet title because they got ” trustees deed upon sale so they are entitled ?

  19. Would quiet title be the appropriate defense if the original lender no longer exists?

  20. But, we have a new law that says servicers and creditors must now talk — no one is using it. And, if you do not tell the court — the court ignores.
    What is the law can you be specific Anonymous please.
    You dont need new laws you need to follow the chain of title at the county recorders office. If their is no lender on file then their should be no foreclosure and you dont need to make payments until you know where your payments go. That is the plain and simple law.
    The Servicer cannot accept payments,if it does not have proof of who the real lender is.
    That is Comingling of funds which is a felony.
    It is not my fault that MERS is a defective system.

  21. But, we have a new law that says servicers and creditors must now talk — no one is using it. And, if you do not tell the court — the court ignores.

    What is the law can you be specific Anonymous please.

    You dont need new laws you need to follow the chain of title at the county recorders office. If their is no lender on file then their should be no foreclosure and you dont need to make payments until you know where your payments go. That is the plain and simple law.

    The Servicer cannot accept payments,if it does not have proof of who the real lender is.
    rent and put it in its own bank account. That is Comingling of funds which is a felony.

    It is not my fault that MERS is a defective system.

  22. Anon help me figure this. Since indymac were the purported beneficiary on notice of trusteesale and that interest was transfered from mers by Roger stotts robosigner vice president for mers followed by Scott Walter robo signer vp for indymac giving substitute trustee to mtc financial Dba trustee corps( foreclosure sake conducted by kevin Hahn atty for Malcolm cisneros law office who ate incidentally retained by Fannie )
    and guess what THEY sEll homes they, trustee Corp apparently aquire homes. Also dies anyone know Randy Johnson and what he’s up to is he ( was gonna ask if he was somrones cousin but don’t want to slander lol)

  23. Servicer was indymac went to FDIC srvicing rights sold to onewest ( what were they servicing I was in purported default sept 08 so it was moved and should of been replaced by a performing loan per psa) I got into it with FDIC who told me onewest bought only servicing rights . 97 percent of indymac loans were toxic therefor

  24. THE A MAN,

    Servicer knows — they are just not talking. Servicer knows who will recover foreclosure proceeds. And, servicer knows whether or not they are advancing payments to any trustee. Servicers just are not talking. And, servicers claim — no one is making me talk!!! So – they do not talk — and they lie. All court sees is what the servicer tells them — not paid.

    But, we have a new law that says servicers and creditors must now talk — no one is using it. And, if you do not tell the court — the court ignores.

  25. ( woops hadn’t finished ) well my point is that unless we can get the accounting and who received what and who held or has held beneficial interest for the life of the loan ( showing the fraud ofcourse) then we will struggle for quiet title so how can we force the issue if accounting, where the money went and how it was held and then distributed.

  26. The right to quiet title is Thr issue because the reason we are at that juncture is because we font know who gas rights to the receivable maybe it could be Argued that to show right, the bank as in my case and too many others they obtained wild deed ” trustees deed upon sale” well actually no trust no trustee but it was via The robosigning pervert under oath ( I mean lying under oath isn’t that serious? I digress)

  27. The whole issue is that we cannot find the true lender.
    If I could find the true lender than I can negotiate a settlement or give them back the property.

    The Servicing company has no right to foreclose it is the Lender that can foreclose.

    If my lender has not shown up in two years to claim their loan something is wrong.

    Why is the Government keeping the economy in limbo?

    This is the million dollar question.

  28. If the lender is nowhere to be found then how can you pay the lender?

    There must be a lost lender law? Just like lost and found or an abandoned locker Storage. Or a Renter that leaves their contents and you cannot find the Renter.

    If the Servicer cant find the lender then you dont owe the money to the Servicer. You owe money to the lender that cannot be found.

  29. Court cases regarding Quiet Title are being tossed out because borrower has not paid in full – therefore no right to Quiet Title. And, this is even if loan is current. .

    How do you get around this??? Am I missing something??.

  30. GOOD ANALYSIS, HOWEVER THE CASE REFERRED TO ABOVE IS NOT POSTED OR EVEN NAMED. IS IT AVAILABLE FOR READING?

  31. GO BEARS!

  32. http://www.scribd.com/doc/47417667/Mississippi-Adversary-Chapter-13-to-Void-Deed-of-Trust-1-07-11-Filed

    CHAPTER 13 TRUSTEE ADVERSARY IN MISSISSIPPI USING THE PSA AS AN EXHIBIT.

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    IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C OR YOU HAVE A MORTGAGE WITH INDYMAC OR ONE WEST BANK CALL KIM THOMAS OR GEORGE BABCOCK!!!!!See MoreSee MoreSuccess Fighting Foreclosure with Produce the Note
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    http://www.consumerwarningnetwork.com/2009/02/09/success-fighting-foreclosure-with-produce-the-note Rhode Island Attorney George Babcock is finding success using the “Produce the note”

  34. They are playing with us like a Cat dangles and plays with its prey before it eats its prey.

  35. Missing one point here …

    Quiet title is a remedy … declaratory judgment action determines the rights of the parties.

    If the party that has the right to sign a satisfaction of mortgage has proven its claim to a proper position in the chain of title, the court rules by declaratory judgment that it has that right. Quiet title action is the means to get the relief if it doesn’t. Quiet title in of itself does NOT render the judgment; declaratory ruling does. The declaratory judgment action is where the claim for relief is established, everything flows from the combo declaratory action-quiet title as relief. As previously discussed, the gaps in the chain of title is the focus. Agency and contract law come into play here.

    THIS IS MY PERSONAL OVERVIEW AND NOT LEGAL ADVICE!

    I will be talking about a lot of this, including my take on Ibanez, Monday morning at 8:00 a.m. CST on The Power Hour. http://www.thepowerhour.com if you don’t have local radio station access.

    http://www.cloudedtitles.com

  36. Things that make you go Hummm?

    1) sued for foreclosure by us bank, trustee for axx-2006-AR7 MBO as Plaintiff.
    2) Wells the sevicer did not respond to RESPA QWR
    3) Assignment in floirda made after the foreclosure filing.
    4) Assignment made in june 2005, ****PSA shows a start date of Sept 2005 (chicken before the egg theory.
    5) Assignment states made from orginal lender to the MBO in June 2005. The orginal lender, Regions stated they signed it in blank in August-more fraud upon the court.
    5) Wells agreed to short sale and signed the satisfaction of mortgage. I did not want to sell or do the short sale, but duress of a foreclosure lawsuit scared me.
    6) Wells agreed to dismiss foreclosure suit in writing and to forgivethe debt…however they instead sought summary judgment on the lawsuit (Stern law firm-big surprise)

    QUESTION- Perfect opportunity to now track where the short sale payoff went…who got the money? follow the money they always say on TV!

    Question- Grounds for;
    A) fraud upon the court for assignment
    B) unjust enrichment for taking the sale proceeds and not owning the note
    C) misleading and misrepresentations on the Assiginemt dates and times
    D) lies about transferrignthe loan to the PSA, when it was not in existence yet.
    E) breach of contract for agreeing to dismiss the lawsuit and then not upholding and trying to get summary judgment.
    F) issues for not responding to RESPA and TILA request letters…

    Should I sue them to get some money….the property is sold and gone, don’t care to get it back now….I wanted to fight them in court, but partners would not do it with me.

  37. This is poted in the wrong place. My original post was in response to the article titled “TENNESSEE APPEAL NEEDS HELP”.

    Please correct this so that my comments are shown within the correct context.

    Thankk you.

  38. Im missing sonething here and I have done a lot of research on QTA and DC. I have a preliminary title report by CT saying the chain is broken and the title clouded. That gets me to the DC–doing it the opposte way makes no sense– Please tell me what court has said this–I have not seen anything substantiating this post–WHERE IS THE CASE LAW ON THIS POST

  39. What case and ruling is being discusses?

  40. Send to your lenders a TILA recession, after they ignore you send to the county clerk a photo shopped Notice of Release of Lien with robo signers. If you have more than one pretender lender the real lender will have to prove their lien.

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