Cancellation, Expungement, Reformation and Quiet Title

It’s appealing in theory but not very productive.

Once upon a time cancellation or reformation of an instrument was at least somewhat possible. today the courts are not open to that approach. But that might be because it has not been presented properly. If you do get an order cancelling an instrument and it is recorded it is fairly easy to get the instrument either expunged or have the order of cancellation literally attached to the mortgage or deed of trust.

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Cancellation means to cancel the encumbrance completely, but it does not discharge the debt. To achieve this you would need to show that the mortgage or deed of trust should never have been recorded in the first place — and to show that the only thing I know of that could work is lack of consideration. Today as soon as judges hear that you received a loan, the fact that you say you got it from someone else who is NOT making a claim, is enough for them to rule against you.
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But the less travelled road has a higher likelihood of being considered as being in good faith. If you petition the court to reform the encumbrance because you  have evidence to plead that another identifiable party is the true creditor, AND that the originator was not working for that other party, then you can say that the encumbrance should be reformed to reflect the actual party who paid value for the debt. In the end this might not get you anywhere in terms of a verdict or judgment but if you are fortunate enough to have a judge that allows discovery, the possibilities increase that there will be a declaration of rights.
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Quiet title can only be achieved against certain parties unless the encumbrance has been cancelled. This is more easily done in bankruptcy court where the claimant must file a proof of claim or the borrower submits one on behalf of the party claiming to be a creditor. In that sense the court simply issues a declaration that certain parties have no right to collect, process or enforce the debt, note or mortgage. 

3 Responses

  1. You know that over 95% of Fed Gov loan program loans are Ginnie Mae pooled so when WAMU went under there was no granting the debt to Ginnie or Wells Fargo who was servcing the loans and custodian of records for the 1.3 million loans.

    WAMU originated and purchased these loans and was required to perform UCC3, so in the end after Sept 25, 2008 what must have been done was presenting proof of purchase per UCC9. as there were illegal foreclosure there were also payouts generated for all the streamline refinances as from 2010until now the interest rates on a 30yr have been 4% and under. The refi borrower is not complaining because they been lowered from the 8-6% rates they had. However the truth is that the WAMU debt should have stopped existing on Sept 25, 2008. WAMU loss $300 billion were the $140 billion in loan serviced by Wells should have been handled through the bankruptcy court!

    Proof of purchase by the Wells was needed on all the loans they did not originate!

  2. May I add — if a refinance find out if the prior loan was PAID BY YOU. If a new purchase – find out if the prior loan was recorded as paid by prior owner. If you are claimed to be in a so-called private label Trust — unlikely paid off by borrower. That is why there is no consideration.

    A recorded Discharge does NOT mean you paid off the prior loan. I would assume this would also affect Quiet Title.

    Thanks.

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