UTAH QUIET TITLE CASE GIVES CLEAR TITLE TO HOMEOWNER

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Harvey v Garbett, quiet title case in Draper Utah

(1) The case was decided on procedural rather than substantive grounds, so citing to this case as proof that the homeowner is entitled to quiet title in the context of a securitized loan would not be right. Nevertheless the substantive defects in the position of the pretenders prevents them from correcting the procedural defects in their position.
(2) The procedural history of the case would indicate that the lawyer for the Plaintiff knew what he was doing and gradually realized that Quieting Title has nothing to do with securitization. It is a simple matter of whether the party OF RECORD in the title registry of the county in which the property is located has any right, title or interest in the property — and therefore whether the recording of that instrument should be expunged from the record.
(3) Quieting title has nothing to do with the debt in a direct sense, although the fact that no money is owed to the defendant is a compelling reason for expunging the mortgage. If someone is holding or otherwise claims rights to the obligation that arose when the loan was funded for the benefit of the homeowner, they might and might not be able to use the note as evidence, but they certainly could introduce evidence of the fact their money went to the homeowner and it wasn’t a gift. It would be more like a lawsuit for restitution than enforcement of a note. There are some theories out there that an equitable lien could be imposed on the property, but the courts have not been very receptive to equitable liens or equitable assignments.

So in plain language what it means is that if you sue to quiet title your lawsuit should only be against the party in the title record and not the other parties who appear to have some claim or interest. And if you win, you have removed the security instrument from the title records, which probably eliminates the mortgage rights altogether, but if the courts split  hairs, they could carve out a distinction between the recording of an instrument and the recording of it. Either way it would be an uphill battle for anyone to argue that the debt was secured, and they would be required to plead and prove a difficult case.

36 Responses

  1. What is the largest or best Utah law firm for a quiet title action?

  2. “Is this the end of the Quiet Title defense?” Anybody Know? Neil?
    Apparently in Utah the Note doesn’t Matter.
    Other link was been deleted!?!?
    The gist is here –
    http://news.yahoo.com/attorney-walter-keane-explains-unfavorable-ruling-quiet-title-223207058.html

  3. “Is this the end of the Quiet Title defense?”

    Anybody Know?

    Neil?

    Apparently in Utah the Note doesn’t Matter.

    Other link was been deleted!?!?

    The gist is here –
    http://news.yahoo.com/attorney-walter-keane-explains-unfavorable-ruling-quiet-title-223207058.html

  4. Is this

    http://waltertkeane.com/DeathofQuietTitle.aspx

    the end of the Quiet Title defense?

  5. But what would stop the “pretender” from simply correcting recorded assignments?

  6. Hi, i am in georgia, is there anyone who might have done QT iin this state out there? i was wondering about attempting it here in my situation, is there a georgia QT attorney on the site/ if so please contact me.
    email me at jlshoup710@gmail.com.
    my situation is rather complex, been going on since 2009. my loan was america’s wholesale lender, and of course mers a refi in 2003.
    i am expecting the third, or it may be the 4th attempt to foreclose notice most any day now. i have survived the previous ones through several means. thanks

  7. Hehe, the Utah quiet titles finally hit this site… Well there are also some in Texas. I have been pounding QT as a method to fight back “dual track” loan mods / foreclosures for months now.

    Anyway, the point I’d like to make is that QT is extremely useful in non-judicial states: you file a QT and record a lis pendens tying up the property in litigation. Because the foreclosing party is not named in QT, they have to intervene. To do that, they have to show . . . standing! Just like in judicial states. They try to come in and you simply ask: who are you??? What interest do you have in this litigation??? On it goes…

  8. tnharry,

    OOPS ,, should have stated “mortgage” not “note” .. although it is self described as “[security instrument(note)]” on it’s face..

  9. @neidermeyer – is your only recorded doc really the note? or did you mean the deed of trust? if it is the note, then it sounds like a pretty open and shut case of unsecured debt

  10. I think I’m in a rather common place … and I’ve been contemplating QT for about 6 months..

    1.) My only doc recorded is the note
    2.) No assignments , transfers or anything else
    3.) Received NOD by mail 3 months ago , not recorded yet
    4.) Loan is securitized but of course “I don’t know that” because my docs don’t touch on that.
    5.) I have numerous defenses based on my knowledge of the actual funder and PSA etc. etc.
    6.) Named lender is BK , operating under a new name “owns nothing” per the CEO and is only in operation to service lawsuits.

    Is the “UTAH STRATEGY” a good path to go down in this instance?

  11. How can you waiver oppertunity to bind the actual owner when these entities who claim
    interest were kept a secret and tje collection rights for ?? still to be discovered hencethe double joeoardy Neil reminds us of. Add the concept that the Loan was charged to zero, and a receivership to boot
    ofcourse I find this hard ” to get”
    when the indorsement and therefor enforcement is in question

  12. David C Breidenbach,

    I agree!!!!

    leapfrog

    Only one with all capitals in ANONYMOUS.

  13. Dave kreiger isn’t this about attacking the instrument as in what they did with it ” negotiated for value” ? These entities under the psa therefor benefitted BUT were never recorded
    so up until sham foreclosure time the origionator
    was the only recorded ” beneficiary” under the deed of trust/mortgage. But mers is also apparently beneficiary and one of their vp ,s say Roger Stotts acts to assign beneficial interest, even though they hold bare legal title, the rest is a charade carried out by agents who
    had on personal knowledge and will fall apart when cross examined oath because they dance to
    puppet master and are on the LPS payroll ?!
    This does infact mean clouded title so no one is protected nonone who purchased ” for value” the record is bogus a fraud and who will insure
    it? So any company that insures title they aid and abeit fraud and they have to know this. the seller knows this.
    Perfection of title. No absolute perfection of certificate of title I think no.

  14. So….. if Equifirst who was on the mtg. (but I believe it was tablefunded) are out of business now, does that help my case even further? Seeing there’s no one there to go after?

  15. Wednesday Evening 25 May 2011

    Marie:

    The problem is the other way around: the note does not
    follow the mortgage. For instance, when MERS assigns the mortgage, it was never authorized to assign
    the note. In assigning away the mortgage, it splits the security from the note, and like Humpty Dumpty,
    cannot be put back together again.

  16. If the Note was “non negotiable” ie had all the
    extra baggage in the Note referring to the security
    agreement, it would seem to me that the Note would be unenforcible after the Quiet Title.
    On the other hand, if the Note was negotiable,
    the holder could sue on the Note, get a judgment and place a judgment lien against the property and then do a sheriff sale. The homestead exemption
    might interfere with the sheriff sale in some states.
    Also the unsecured Note might be subject to a discharge in Chapter 7 BK. I am working on a case
    like this right now. Any predictions?

  17. How about the plaintiff admitted that I had the Note and not only with the other things that Isaid , I slao have a letter from Mers that said in 2002 they was off . MIN# deactivated .. Now By way of Assignment in 2009 ,16 after the LIS ,summons , complaint some one filed an assignment in and for the corporate name of A defunct company directily to the successor trustee VIA Mers , by an employee of lps who has signed over 100,000 docs in a year . The every entity i have spoke to and investigated on my behalf has found and sent me letters that state successor trustee said we don’t know who tha tis we have no mortgage for that person, including the servicer who was a third party defendant…

  18. “So in plain language what it means is that if you sue to quiet title your lawsuit should only be against the party in the title record and not the other parties who appear to have some claim or interest. ”

    Generally in most states the statute tells you who and how to get actual and constructive service on the parties that you want to cut off. Im sure the precise rules differ state to state as to publication etc. One issue that might conceibaly arise is nominal interests–vs the eqyuitable ones referred to. If you think that so and so is the equitable owner and another the nominal title holder and you cut off the nominal title holder by actual notice and ignore the one that you believe is the true owner—and it might come back to bite you. Expect them to say you waived opportunity to bind the actual owner -so he goes and asks to set aside the voiding order on quiet title-I think They dont let a chance go by.or at least dont bet on it.

  19. We finally got top notch attorneys to plead our case.

    http://latimesblogs.latimes.com/money_co/2011/05/lps-california-attorney-general-kamala-harris.html

    The banksters will hand over the properties and beg for forgiveness within the year.

    I want Treble damages, Cash They can have the property

  20. Anon: This is exactly what we are doing in our BK/AP case! I always love your posts (that is if you are are THE anonymous – lol – there aren’t more than one?)

  21. Neil — well said. As you know, I do not always agree with you (ongoing disagreement as to investor and funding) — but that is a minor disagreement in my view.

    QT is extremely difficult — and may be impossible if in default — and, even if loan is not paid off in full.

    MERS — set up to transfer unsecured collection rights.

    Further, entities recorded are likely gone – with unsecured collection rights passed elsewhere. . Subprime loans — were not mortgages — they are unsecured debt. QT treats as if secured — this is false — they are unsecured assignments of collections rights.

    My suggestion — try QT for the recording prior to the “loan” they claim to be collecting on now. This is a novel approach — but, if loan was a subprime “refinance” — should never have been recorded as secured. And, was never paid off by a subsequent “refinance.”

    That is what I would like to see with QT. But if going to do QT — do it along with BK — as you are dealing with unsecured debt.

  22. Virginia rulings say the mortgage follows the note. Can’t be split. To my mind an unwieldy theory but there it is. How do you quiet title without the note?

  23. Dave Krieger I like your analysis. It is clear and to the point.

    thanx

  24. @uprootedone… I have a great truth ( not a story) Kids and teachers tell stories for the entertainment and imagination. This would need to be more a documentary of the Too Big to Fail , Too Big to Jail… It’s just the paper trail….

  25. regarding Pro Se

    There is the old adage in criminal trials that describes a person who represents himself at trial: “He has a fool for a client.”

    Does this only apply to criminal or civil also?

  26. @ Dave guiet titles is a confusing issue especialiy for the pro-se . Just as is correctily handling most of the case laws that an Attorney can raise as for as other issues that without a law backgron could not possible counter properly. I would like to ask if a defendant has the original wet ink note endorsed in blank, and the Plaintiff did not attach anything to their complaint ,only that said defendant defaulted on the terms of the note and that they are the owner and holder of the note and mortgage.what in your opinion would you do , Knowing that you had possession of the original Note endorse, The plaintiff is a successor trustee , to the trustee and you had a sworn affidavit filed as of record said that they never assigned the note or mortgage to anyone, they meant to assign it to the trust but that never happened. Then they go on to state for the record that they warrant and represent that the note and mortgage has never been sold to any other entity. I have the PSA and the prospectus Chain of title was never even attempted, I would call that securities fraud first and foremost then , Fraud upon the court, lack of standing , not the real party in interest … any thoughts?

  27. Again, we are grasping at straws …

    For those of you that have had me do a chain of title assessment done, you obviously know the real issue of a cloud on title. Fundamentally, the chain of title does not match up with the chain of custody of the note. That in of itself, is a problem. When clear title cannot be conveyed, and title companies won’t insure, that is also a problem.

    Who bought booze, coke and hookers on Wall Street is not a quiet title issue. Determining the rights and interests of the parties, so that some party down the road doesn’t come back and take issue with your property’s title in a quasi in rem action outside of your hard work, is a necessity.

    Every attorney I talk to about doing a quiet title action is afraid to put his toe in the water because he thinks a judge won’t understand. The cases I am currently working on are revealing plenty … for one, the banks don’t like quiet title and neither does MERS, because MERS is used in securitizing loans as the supposed tracking mechanism.
    More judges are starting to realize that if an entity doesn’t have authority to convey a note, then the note is split from the deed. The deed of trust or mortgage is not only unsecuritized, it acts as a cloud on title, because there is no note on which a security is necessary, because the note is null and void … as the security is a nullity by operation of law because the note is gone. The deed of trust or mortgage then acts as a standalone cloud, because there’s no claim backing it up.

    Now where exactly did we talk about securitization of a loan inside of a Wall Street trust? All we are doing is attacking agency. That is what this is all about. Attorneys don’t think there is any money in these actions? What about the actual value of a property when it can’t be conveyed as a damage?

    What about the E&O insurance carriers for the title companies that insured for the lender? What about the trustees’ E&O policies? Still don’t think there’s anyone to pay out claims for damages yet?

    Then examine the states where it’s a criminal offense to file false documents in a county land record and use it to defraud a homeowner. I refer you to Texas Penal Code 37.101. I have a case I’m working on with a fraudulent Substitute Trustee’s Deed. They want to do a loan mod. The attorney for the wrongfully foreclosed Plaintiff wants to know when the Grand Jury is going to be empaneled to look into it. The guy has been out of his house for almost 2 years now … the Realtor who has tried to sell the house is a Defendant too! They were warned! The county judge wrongfully evicted. The county was warned too! How about the County as a Defendant? Still don’t think there are damages available along with quiet title?

    Praytell all you securitization buffs? How much in damages are you going to get from Wall Street? Provided you can get a judge to listen, understand and allow and insist on the kind of discovery you’re looking for?

    Again, I point to Ibanez. The very first page says the two banks were in court seeking what? Damages for securitization? NOPE! They were seeking quiet title on the respective properties they didn’t own at the time they foreclosed on them! Stupidity on the banks’ part? Yep. Arrogance on banks’ part? Yep. Does that mean that we can use statutes that have limitations on them to get damages? Nope. Where in the securitization chain does it provide relief for the Borrower? This is why we have so many 12(b)(6) rulings. Failure to state a claim for which relief can be granted.

    At least the owner got his title quieted in Utah, eh?
    http://www.cloudedtitles.com
    These are not standalone cases folks. There’s a little more to them than a standardized form. You go out and use these and you’ll screw the forums up for the rest of us.

  28. Neil you lost me on this:

    “but if the courts split hairs, they could carve out a distinction between the recording of an instrument and the recording of it….”

    Typo?

  29. Thanks we need that for a case in Utah!

    Meanwhile

    http://mortgagemovies.blogspot.com/2011/05/borrowers-insurance-scam-mortgage.html

    WEDNESDAY, MAY 25, 2011

    Borrower’s Insurance scam: Mortgage Movies explains how Lamar Gunn was a victim of wrongful foreclosure…. he never missed a payment; the underlying loan was satisfied.

    How does a financial planner who pays his mortgage on time become a victim of foreclosure fraud? Well it goes like this. …..

  30. Doesn’t the editorial comment that quieting title has nothing to do with securitization undermine the thrust of this site’s message and focus? I’m seeing some contradiction there. And agreed, this is basically a default judgment that is subject to being set aside down the line and has no real value for use in other cases.

  31. Looks like the Banksters are starting to get squeezed from all sides…

    I am working with a producer in Hollywood on a under ground documentary called

    “Smoke and MERS”

    its about foreclosure Fraud, robo, BS, etc?

    The Producers are looking for homeowner to tell their story on camera…

    If interested email me uprootedone@gmail.com

  32. It’s starting to get ugly for the banks, hopefully.

  33. Thanks for that link. I was just going to ask for it.

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