Facially Valid for Those Inclined to Latin

Bill Paatalo in his unrelenting search for doctrine that covers the widespread fraud confronting borrowers of all types including especially homeowners, has found some old English common law concepts that do have some application in today’s chaos in the courtroom.

His question related to the Latin doctrine Nul Tiel Record.

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OK this is really technical and potentially out-dated. But still relevant.
 
This is from old English common law. It generally is used in the context of Scire Facias. That in turn means “written on its face.” But contextually it also means something of record and by that is meant something of public record. 
 
Nul Tiel Record, also Latin, literally means there is no such record. It is used in the context of a defense (criminal case) or claim (civil) which relies on the allegation of a written record, presumably a public record. 
 
Nailing a poster to a telephone poll would not ordinarily be regarded as a public record despite being a “record” and displayed in “public.” Some authorized agency would need to review and approve it as being in conformity with statutory requirements for entering it into the public record.
 
Versions of these concepts are found in appellate law where the appellate court is limited to looking at the record in appeal and not on allegations contained in the brief that are unsupported by the record on appeal. Some doctrines allow a very limited amount of time to correct the record or to show how the matter is literally a matter of record and hopefully, public record. 
 
These particular doctrines related to allegations that claim something is in the record but in fact is absent from the record, as displayed.
 
Theoretically these concepts could be used in the context of foreclosure actions where, for example, banks or their lawyers upload some version of the PSA and then point to that record as being facially valid because it was “recorded.” But uploading it to a site that can be seen is not the same as formal registration of the document; and formal registration of the document does not mean it is complete unless it is reviewed and formally accepted by the government agency with whom the document is “registered.”
 
So for example a county clerk would reject a deed that does not have a signature, notarization or the proper number of witnesses. At SEC.gov there is no such review and thus no rejection or formal acceptance of improper documentation. While the document is scire facias (i.e., it has writing on its face)  it isn’t “of record.” This is why the PSA should never be used for judicial notice. Sec.gov is basically used by foreclosure mill lawyers as a an ftp site on which documents are stored rather than registered or reviewed for facial validity. But they use it to mislead the court into believing that the document is a public record document, when it clearly is not.
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Such documents are definitely in the public domain when they are written and displayed publicly. But they are not appropriate for judicial notice because they have neither been reviewed or accepted by any authorized governmental entity or agency. 
Perhaps an extension of these doctrines could apply to assignments of mortgages and endorsements of notes that contain amorphous or implied reference to public records that do not exist. For example, Ocwen signing as Attorney in Fact asserts or implies that Ocwen is the attorney in fact. 
 
Being attorney in fact necessarily implies a power of attorney executed by a party who possessed powers to convey. Such powers generally need to be in writing. Such an assertion then would be reference to a document that is neither attached to the original document nor specifically described as part of public record. Thus the document would be claiming Scire Facias (it is written on the face) without describing the document upon which it is written. 
 
It also might imply that the power of attorney is public record. If a homeowner challenges the document as not being in the public record at all and not being attached to the instrument, the court should refuse to accept facial validity of the instrument. But the validity of the document can still be proven with extrinsic (parole) evidence showing that the power of attorney actually existed even though it wasn’t in the public record and wasn’t attached the assignment. 
And without timely objection the instrument could be accepted into evidence even with obvious defects.

4 Responses

  1. Great info!

  2. You can find rare recordings of POA and modification agreements as well as corrections to gaps in title. Should provide context to attack presumptions. Have also seen executives and ethics officers sign off on SEC docs. They should be personally charged.

  3. There is no known judicial notice available for privately drafted documents. They are not usually public records containing undisputed facts or propositions of fact or law. JN has limited applications as you can read in state codes or the Fed. Rules of Evidence.
    If we can help, call us at 818.453.3585….Consumer Rights Defenders. .

  4. i would still use those SEC.GOV docs as “admissions against interest.”

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