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EXCELLENT AMICI BRIEF ON UCC REQUIREMENTS

10 Responses

1. 

   eugenevillarreal@hotmail.com, on October 20, 2011 at 7:19 am said:

   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.

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2. 

   ANONYMOUS, on October 19, 2011 at 6:37 pm said:

   ian,

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

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3. 

   Elaine, on October 19, 2011 at 10:31 am said:

   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

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4. 

   carie, on October 19, 2011 at 10:10 am said:

   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.

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5. 

   Steve, on October 19, 2011 at 9:53 am said:

   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/

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6. 

   ian, on October 19, 2011 at 9:26 am said:

   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.

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7. 

   Christopher King, on October 19, 2011 at 9:04 am said:

   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

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8. 

   Robert J Koenig, on October 19, 2011 at 8:39 am said:

   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.

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9. 

   Enraged, on October 19, 2011 at 7:52 am said:

   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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10. 

    carie, on October 19, 2011 at 7:39 am said:

    Latest from Lynn S:

    http://frauddigest.com/pdfs/beneficiariesdocx.pdf

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