EXCELLENT AMICI BRIEF ON UCC REQUIREMENTS

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COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

SEE 10.17.2011-Dobson-v-Wells-Fargo-Bank-w

Filed by North Carolina Justice Center, North Carolina Advocates for Justice, Center for Responsible Lending, Maine Attorneys Saving Homes, Financial Protection Law Center, AARP, and the National Association of Consumer Advocates

PRESENTING THE NOTE AND PROVING THE RIGHT TO ENFORCE IT UNDER THE UCC

AFFIDAVITS IN FORECLOSURE PROCEEDINGS MOST COMPLY WITH BASIC STANDARDS FOR AFFIDAVITS IN COURT PROCEEDINGS

ABUSES IN THE EXECUTION OF AFFIDAVITS AND OTHER DOCUMENTS IMPUGN THE INTEGRITY OF THE FORECLOSURE PROCESS

To Streamline the Foreclosure Process and Cut Costs, Mortgage Companies Routinely File Untrustworthy Affidavits and Fraudulent  Documents

Federal And State governments Respond to Mortgage servicers’ Fraudulent Conduct

Robo-signing and Other Fraudulent Practices result in Wrongful foreclosures

Robo-signed Affidavits are fundamentally unreliable as evidence of ownership or default

False affidavits mask servicer errors that lead to wrongful foreclosures

Wrongful foreclosure of active duty military personnel

10 Responses

  1. To ANONYMOUS:
    New Jersey is trying to wind down its Order To Show Cause but I think it is still hung up on the plaintiff’s foreclosure attorneys affidavits/certifications of diligent search. After 2 1/2 yrs., I’m still hung up on the “Affidavits”( instead of Certifications) for foreclosure judgments, Proof of Amount Due, that the courts have been ignoring and allowing banks like JP Morgan and Wells Fargo to submit. Now, after the Order, they must submit Affidavits along with a schedule, Appendix XII-J. The only problem is that these laws have been required since September 2008. The banks, especially JP Morgan, had been fighting this and finally has given in. Now, New Jersey judges are saying words like “reaffirming strict compliance.” I truly believe that the Affidavits/ Certifications of these attorneys are just a smoke screen for the judges failure to abide to the laws that were in place.

  2. ian,

    Yes — certain states onto it — NJ front-runner.

  3. AMICUS BRIEF FOR RECENT MASSACHUSETTS RULING THAT NEW BUYER DOESN’T OWN HOME!

    COMMONWEALTH OF MASSACHUSETTS
    APPEALS COURT
    S.J.C. NO. 10880
    A.C. NO. 2010-P-1912
    FRANCIS 3. BEVILACQUA, 111
    Petitioner-Appellant
    V.
    PABLO RODRIGUEZ
    Respondent-Appellee
    ON APPEAL FROM MASSACHUSETTS LAND COURT
    CIVIL ACTION NO, 10 MISC 427157
    AMICUS CURIAE BRIEF OF
    PROFESSORS ADAM J. LEVITIN, CHRISTOPHER L. PETERSON,
    KATHERINE PORTER, 5 JOHN A.E. POTTOW
    Adam J. Levitin
    Associate Professor of Law
    Georgetown University Law Center
    600 New Jersey Ave., NW
    Washington, DC 20001
    adam.levitin@law.georgetown.edu
    (202) 662-9234
    Christopher L. Peterson
    Associate Dean for Academic Affairs
    Professor of Law
    University of Utah
    S . J . Quinney College of Law
    332 South 1400 East, Room 101
    salt Lake City, UT 84112-0730
    (801)581-6655
    christopher.peterson@law.utah.edu
    Katherine Porter
    Robert Braucher Visiting Professor
    Harvard Law School
    Professor of Law
    University of Iowa College of Law
    1575 Massachusetts Ave.
    Cambridge, MA 02138
    katie-porter@uiowa.edu
    (617) 496-6710
    John A.E. Pottow
    Professor of Law
    University of Michigan School of Law
    625 South State Street
    Ann Arbor, MI 48109-1215
    pottow@urnich.edu
    (734) 647-3736
    April 17, 2011
    2
    Table of Contents
    I . Statement of Interest of Amicus Curiae ……….. 5
    I1 . Statement of the Issue ……………………… 5
    I11 . Argument ………………………………… 6
    A. The Principle of Nemo Dat Must Prevail Over The
    Rights of a Good Faith Purchaser ………………. 6
    B . The Recording of a Deed Is a Ministerial Act that
    Cannot Create Title ………………………….. 8
    C . Enabling the Laundering of Bad Title to Good
    Title Via Try Title Actions Would Eviscerate This
    Court’s Ruling in Ibanez and Would Encourage
    Frivolous and Inequitable Litigation ………….. 10
    IV . Conclusion ……………………………….. 13
    Table of Authorities
    Cases
    Barnard v . Norwich & W.R. Co .
    2 F . Cas . 841. 845 (Cir . Ct . D . Mass . 1876) ……… 7
    United States Bank Nat’l Ass’n v . Ibanez
    458 Mass . 637 (Mass . ZOll)…. ………….. . 8 . 10. 13
    Statutes
    M.G.L. c . 106 § 9-610(a) ……………………… 10
    M.G.L. c . 183 8 2 …………………………….. 8
    M.G.L. C . 183 §§ 4-58 ………………………….. 9
    M.G.L. c . 185 SS 6 , 10, 68 ……………………… 9
    M.G.L. C . 240. $5 1-5 …………………….. 5 . 8. 9
    M.M.G.L. c. 240, SS 6-10.,………………………9
    Other Authorities
    JOHNF. DoLAN ET AL., CORE CONCEPTS OF COMMERCIAL LAW: PAST,
    PRESENTA, ND FUTURE:C ASES AND MATERIALS 2 (Thompson West,
    2004) ………………………………………… 6
    william Warren, C u t t i n g Off Claims of Ownership Under
    the Uniform Commercial Code
    30 IJ. CHI. L. REV. 469, 470 (1963) ………………… 7
    4
    I. Statement of Interest of Amicus Curiae
    we are professors of law at Georgetown University
    Law Center in Washington, D.C., Harvard Law School in
    Cambridge, Massachusetts, the University of Utah S.J.
    Quinney College of Law in Salt Lake City, Utah, and
    the University of Michigan School of Law in Ann Arbor,
    Michigan. We teach courses in commercial law,
    contracts, structured finance, consumer law and
    finance, and bankruptcy. We have written extensively
    on mortgage servicing and testified before Congress
    repeatedly on problems in the foreclosure process. we
    have no affiliation with any party in this case and
    have had no contact with any party to the case. we
    write to the Court as amici concerned with the case’s
    implications for commercial law and the foreclosure
    process and urge the affirmation of the Land Court’s
    opinion.
    11. Statement of the Issue
    Whether a Land Court judge correctly dismissed a
    petition under M.G.L. c. 240, § 1, to “try title”,
    where the plaintiff held a quitclaim deed conveyed
    after an invalid foreclosure sale of the property by
    5
    U.S. Bank National Association, which did not hold the
    mortgage at the time of the sale.
    III. Argument
    A. The Principle of Nemo D a t Must Prevail Over The
    R i g h t s of a Good Faith Purchaser
    This case presents an unusually stark contest
    between two of the most fundamental principles of
    commercial law: the principle of nemo dat and the
    principle of the bona fide purchase. The principle of
    nemo dat quod non habet-that you can’t give what you
    don’t have-is the bedrock principle on which all
    commercial law is built. S e e , e.g., JOHN F, DoLAN ET AL.,
    CORE CONCEPTSO F COMMERCIALL AW: PAST,P RESENTA,N D FUTURE:
    CASES AND MATERIALS 2 (Thompson West, 2004) (“The First
    Rule of Conveyancing-Nemo oat”),
    Nemo dat means that a sale of the John Adams
    Courthouse is ineffective, unless the seller holds
    title to the Courthouse. So too, under the nemo dat
    principle, one cannot convey good title to a
    neighbor’s house in a sale. As the Circuit Court for
    the District of Massachusetts noted 135 years ago, “No
    person can sell a thing he does not own, unless as the
    duly authorized agent of the owner. NemO dat quod non
    6
    habet.” Barnard v. Norwich & W.R. Co., 2 F. Cas. 841,
    845 (Cir. Ct. D. Mass. 1876).
    The bona f i d e purchaser principle protects
    parties who take for value in good faith. I n this
    case, it is not clear whether Mr, Bevilacqua was a
    good faith purchaser; no finding of fact was made in
    this regard.’
    For the purposes of this amicus curiae brief,
    however, it is irrelevant whether Mr. Bevklacqua was a
    good faith purchaser, as the nemo dat doctrine trumps
    the bond fide purchase doctrine. It is wellestablished,
    black letter law that the “good faith
    purchaser from a thief or a mere bailee took subject
    to claims of ownership”. W i l l i a m warren, Cutting Off
    Claims of Ownership Under the Uniform Commercial Code,
    30 U. CHI. L. REV. 469, 470 (1963). This case fits
    squarely within that description.
    There is no contention in this case that U.S.
    Bank, N.A., the trustee of the securitization trust
    ‘ Leaving aside the possibility of actual knowledge of
    title defects, it is questionable whether, as a matter
    of law, a purchaser of a quitclaim deed at a
    nonjudicial foreclosure sale can ever be a good faith
    purchaser. Nonjudicial foreclosure sales are subject
    to legal requirements beyond those of regular private
    sales, and absent due diligence, a foreclosure sale
    purchaser cannot be sure that the sale complied with
    the law and therefore was capable of passing good
    title.
    that claimed to hold the Rodriguez note and associated
    security instrument did not properly foreclose on the
    Rodriguez property. U . S . Bank, N,A. failed to show
    that it was the mortgagee, just as it did in United
    States Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637
    (MaSS. 2011). Accordingly, U.S. Bank, N.A., was no
    more capable of passing on good title to the Rodriguez
    property than a common thief.2
    B . The Recordfng of a Deed Is a Ministerial Act that
    Cannot Create T i t l e
    Mr. Bevilacqua argues that the filing of a
    recorded quitclaim deed gives him record title to the
    property and therefore the ability to petition to try
    title under M.G.L. c. 240, SS 1-5. Mr. Bevilacqua’s
    argument places too much importance on the existence
    of a recorded deed. There is nothing magical about a
    *
    quitclaim deed, M.G.L. c. 183 § 2 provides that “A deed
    of quitclaim and release shall be sufficient to convey
    all the estate which could lawfully be conveyed by a
    deed of bargain and sale.” In other words, a
    quitclaim deed, such as the one conveyed from U . S .
    Bank, N.A. to Mr. Bevilacqua at the nonjudicial
    foreclosure sale could only convey such title as U.S.
    Bank, N.A. could have conveyed through a regular deed
    of sale. Thus, if U.S. Bank, N.A. lacked the ability
    to convey through a regular deed of sale, it also
    lacked ability to convey through a quitclaim deed.
    This conclusion is not altered by the use of a
    8
    deed, however. The recording of a deed does not make
    a deed valid. Recording is a ministerial rather than
    an adjudicative function. See M.G.L. c. 183 §§ 4-58;
    M.G.L. C. 185 55 6, 10, 68.
    Thus, Professor Levitin could type up a quitclaim
    deed on his computer and convey Fenway Park to
    Professor Pottow, which Professor Pottow could then
    record, making him the “record title holder.” All a
    recorded title does is provide notice to third parties
    of a possible claim to a property: it does not confer
    ownership.
    Accordingly, Mr. Bevilacqua’s argument simply
    proves too much. By its logic, Professor Pottow could
    record the quitclaim deed to Fenway Park from
    Professor Levitin and then use that recorded deed as
    the basis for bringing a “try title” petition under
    M.G.L. c. 240 5 1. By his logic, if the Boston Red
    Sox failed to answer his petition, for whatever
    reason, he could take title to Fenway Park. The
    effect would be to short circuit the adverse
    possession provisions of the Massachusetts General
    Laws, M.G.L, c. 240 SS 6-10, and enable Professor
    Pottow (in connivance with Professor Levitin) to use
    the courts to e–xtively steal Fenway Park.’
    Interpreting the law as Mr. Bevilacqua would have it
    would permit “try title” plaintiffs to create good
    legal title out of thin air.
    C. Enabling the Laundering of Bad T i t l e to Good T i t l e
    V i a Try T i t l e Actions Would Eviscerate This Court’s
    Ruling in Ibanee and Would Encourage Frivolous and
    Xnequitable Litigation
    Adopting Mr. Bevilacqua’s position would also
    seriously undermine this Court’s recent ruling in
    Ibanez, 458 Mass. 637. If the purchaser of a property
    at an invalid foreclosure sale can conjure up good
    title through a “try title” petition, it will make the
    strictures of Ibanez meaningless by permitting
    financial institutions and foreclosure sale purchasers
    to “launder” title through invalid foreclosures and
    try title petitions.’ The “try title” statute is meant
    3 Mr. Bevilacqua’s position would similarly mean that we
    professors could engage in a self-help repossessions
    of the cars of every Justice on the Supreme Judicial
    Court and then sell them in a commercially reasonable
    manner, pursuant to M.G.L. c. 106 5 9-610(a)
    (Massachusetts version of the Uniform Commercial Code)
    and thereby pass good title to the cars to their
    purchasers. Such a result would be patently
    ridiculous.
    41n this case, Mr. Bevilacqua knowingly bought into the
    clouded title via a quitclaim deed at a nonjudicial
    foreclosure sale, and presumably purchased at a steep
    e use4 !fens rely, as a E ? , not o fens .Y
    as a sword to deprive others of their property.
    Indeed, the concern about “try title” petitions
    being used offensively is also a concern for
    mortgagees. If anyone can record a deed and bring a
    try title action and win by mere default, it creates
    an incentive for legitimately foreclosed homeowners to
    file try title actions after foreclosure and hop that
    the foreclosure sale purchaser (frequently the
    foreclosing mortgagee) will fail to answer the
    petition for whatever reason, resulting in the
    homeowner getting his or her house back, Opening up
    try title to those without a colorable claim could
    flood the courts with actions.
    There is also a particular equity concern that
    arises if “try title” actions are used in an attempt
    to kosher otherwise illegitimate foreclosures.
    Defending against a “try title” action creates a
    particular burden for homeowners who are in default on
    their mortgages, but where a proper foreclosure has
    not yet taken place. These homeowners still have
    title to their home until a proper foreclosure is
    discount from the price in a normal arms-length sale.
    U.S. Bank, N.A., received the proceeds of the sale in
    exchange for transferring dubious title.
    c OmF ?ked. Often, Dwever , t :Y ick t 3 fun’ to
    effectively defend against a “try title” petition.
    Permitting “try title” petitions via invalid
    foreclosure sales would have the effect of permitting
    indirectly what is forbidden directly-the deprivation
    of a homeowner’s property without proper procedure.
    It is particularly troubling if this could be done
    solely because the homeowner lacks the funds to defend
    his or her title. Homeowners in default on their
    mortgages are among the most vulnerable of populations
    and should be protected from costly and vexatious
    litigation such as “try title” petitions by
    opportunistic foreclosure sale purchasers.
    The Land Court sensibly interpreted the “try
    title” provision to apply only to colorable claims to
    title, not to the recording of quitclaim deeds from
    faulty foreclosures.’ Affirmation of the Land Court
    might chill the market in foreclosure sales in
    Massachusetts.6 But reversal would have a far more
    At worst, the Land Court “jumped the gun” by ruling
    on standing rather than by formally trying title. It
    is possible, however, to read the Land Court’s ruling
    on standing as being the actual trying of title,
    Moreover, in light of this Court’ ruling in Ibanez,
    458 Mass. 637, Mr, Bevilacqua cannot prevail in a
    formal trial of title.
    ‘Affirmation might also have the salutary effect of
    encouraging lenders to attempt negotiated
    5
    12
    deleterious impact on the legal and economic system,
    as parties’ confidence in their tenure in their
    property would be impaired. Whatever the effect on the
    Massachusetts foreclosure sale market, affirmation of
    the Land Court’s opinion i s essential in order to
    avoid doing serious harm to the fundamental principles
    of commercial law and from undermining the Court’s
    recent ruling in Ibanez, 458 Mass. 637.
    Iv. Conclusion
    For the reasons set for above, the judgment of the
    Land Court dismissing Mf. Bevilacqua’s action, dated
    August 26, 2010, should be affirmed.
    Respectfully submitted,
    Associate Professor of Law
    Georgetown University Law Center
    600 New Jersey Ave., Nw
    Washington, DC 20001
    a..~.d…… a m. Levi tine law. ~?g>i”~ke,wn. cdu
    ( 2 0 2 ) 662-9234
    restructurings of defaulted mortgages instead of
    proceeding to foreclosure.
    13
    Bssociate Dean €or Academic Affairs
    Professor of Law
    University of Utah
    S.J. Quinney College of Law
    332 South 1400 East, Room 101
    Salt Lake City, UT 84112-0730
    Christopher. peter son@l aw.utah.edu
    (801)581-6655
    Robdrt Braucher Visiting Professor
    Harvard Law School
    Professor of Law
    University of Iowa College of Law
    1575 Massachusetts Ave.
    Cambridge, MA 02138
    katie-portereuiowa.edu
    (617) 496-6710
    ProfessVor of Law
    university of Michigan School of Law
    625 South State Street
    Ann Axbor, MI 48109-1215
    (734) 647-3736
    pot t ow@ umic h . edu
    Dated April u, 2011
    14

  4. The failure to provide a complete mortgage—or ANY mortgage—to the secondary market is the real fraud that the financial institutions are and have been trying to conceal—hence all the fraudulent paperwork. Fraud begets fraud.

    It’s all ultimately about subject matter jurisdiction, real party in interest, legal standing, and unsecured false default debt.

    To the banks: Resistance is futile…you WILL fail…the sooner the better.

  5. Connecting the Dots

    Lender Processing Services and its affiliates.

    Fidelity National Financial
    Fidelity National Title Co. of California
    Fidelity National Title Insurance Co.
    Fidelity National Title Co. of NY
    Fidelity National Financial Inc. – FLA PAC
    Fidelity Asset Management
    First American Title Insurance Co. now affiliated w/ Fidelity
    National Title Insurance
    Chicago Title Co.
    Chicago Title Insurance Co.
    Chicago Title & Trust
    Alamo Title Holding Co.
    Alamo Title Holding Co.
    LSI Title Agency Inc., Irving, TX

    LSI a division of LPS

    http://www.lsi-lps.com/

  6. Robert J Koenig- good points,all. The homeowner puts himself at risk if he reflexively disputes facts in the affadavits which are later proved true. Conversely, if the lender/ foreclosure mill/trustee/servicer or whatever is, by their appearance in court, alleging THEIR facts to be true, and they are proven false, what then? Also, is the onus of a properly executed POA more demanding from a legal standpoint than the other assorted docs required? Thanks.

  7. Big Bust on Boston Bro!

    The moment we’ve all been waiting for as Ibanez gestates a very ugly mortgage baby hahahaha…… Subsequent purchaser invalid title.

    WEDNESDAY, OCTOBER 19, 2011

    KingCast and Mortgage Movies tell Francis J. Bevilacqua: “Blame it on the corrupt bankers, bro… and start occupying Wall Street and Boston!”

    http://mortgagemovies.blogspot.com/2011/10/kingcast-and-mortgage-movies-tell_19.html

  8. There is a curious tie-in between the use of preemptively and presumptively credible product of robo-signers and the doctrine that “lawyers may not perform non-legal work” thereby obtaining some sort of “client-attorney privilege”.

    The core purpose of “the affidavit” is to tell the court that a human being has performed a due and diligent review of the facts the matter: and that the “prima facie facts” conform to the basic requirements of the commencement of a foreclosure procedure. The foreclosure affidavit is a gateway document: and the defendant homeowner places himself at risk for sanctions if he reflexively disputes facts in the affidavit which are later proved to be true.

    But . . . : it is well settled that the due and diligent review must be performed by a sentient natural person who is subsequently available to be examined as to the methods and means by which he and she came into possession of the facts averred to.

    The defective robo-signed documents fail for lack of review by a sentient natural person: it doesn’t matter that the facts averred to may be artifactually or incidentally correct.

    In truth: the robo-signed documents are very little more than writings generated by a Xerox machine under the aegis of “client-attorney privilege.

    And when the forecloser treacherously wraps himself in the trappings of a due and diligent affidavit: it ought to be grounds for debarring the lawyer who permitted it. Any judge who lets this sort of garbage get by should be impeached and removed from the bench.

    These fraudulent affidavits have not been reviewed in a due and diligent manner: with a responsible and sentient human-being going over them for factual correctness.

    On closer review, one can see that the facts averred to in these affidavits are not facts at all: rather, they are a narrative of dubious and un-provable events that the “forecloser” hopes will build some sort of putative bridge to an entitlement to be in court making the petition in the first place.

    Shame on our legal system.

  9. Cool.

    Agencies uniting to fight TOGETHER. I think “Divide to conquer” is a thing of the past. Not that banks (together) didn’t try to divide homeoners between the mortgage-payors and the mortgage-defaulters and pin them against each other… but people are smartening up.

    Let’s get Congress to see the light too!

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