Livinglies's Weblog

Hat tip to Summer chic

I have been receiving a lot of really good contributions from Summer chic, and she deserves a big atta girl. Her latest is the issue raised by the Bruce’s Beach case in which property owned by a family, fair and square, was subject to several instruments of conveyance that made their property the property of someone else. After 100 years, the family finally got the property back, but it is important to note that this was a political decision, not a legal one.

So here is the edited version my answer to summer chic:

The problem of course is that the Bruce’s case ended with a return of the land as a political decision rather than a legal one. On the legal side there are actually good solid legal arguments going both ways.

On the dark side, even if a transfer of legal title is recorded in error or fraudulently or even unconstitutionally, there has to be some point in time where the transfer becomes valid for all time. This is why we have statutes of repose in addition to statutes of limitation.

On the lighter side, the argument of the dark side should not be allowed because it incentivizes exactly what has happened in the lending marketplace over the last 25 years. People will try to fraudulently induce homeowners to enter into transactions that are not subject to any good faith or truthful disclosure. Then they will try to keep the homeowners in the dark until the statute of limitations or statute of repose has expired.

I would also add that foreclosures are mostly considered to be actions in equity and not at law. In equity, judges have the discretion to make things right.

The dark side is attempting to cover their bases the same way as the lead up to fraudulent foreclosure claims. After a successful foreclosure, there are multiple transfers of title. Many of those are fake. Thus the argument against making things right is that the court would need to unwind multiple presumed transactions both before and after the foreclosure was complete. That argument is generally received by friendly ears on the bench. It assumes that even if the “former” homeowner is completely and legally correct, the disruption to the title chain and all of the apparent (facial) transactions is too great.

And that is exactly the argument that was used in the state of Florida and other states that expressly limit the amount of time in which a homeowner can attempt to put things right. Those statutes then purport to grant a right of action for damages, which are subject to statutes of limitation and statutes of repose.

But as we all know, the facts and legal grounds for a cause of action for damages on behalf of a homeowner who has been defrauded through the weaponization of the foreclosure procedures are not generally known or understood by homeowners, who have no access to such information and who have been deprived of such information by the securitization actors who intentionally withhold such information and even disseminate disinformation.

So the question becomes whether we will ever come to terms with state and federal law making and rulemaking that attempts to legalize that which was completely illegal and inequitable.

Right up to the date that I am writing this most homeowners and nearly all lawyers and judges believe the disinformation that has been disseminated by Wall Street, thus hiding their misdeeds and thwarting the possibilities or opportunities for making things right. I personally agree completely that both legal precedent and equitable principles entitle “former” homeowners to recover possession of property that has been subject to foreclosure based upon completely false pretenses arising from fabricated documents containing false statements and references.

And once again I issue a challenge to anyone with personal knowledge and experience in investment banking such that they have personal knowledge of the facts surrounding claims of securitization: tell me or anyone I am wrong. In 16 years you have not done so. Instead, you pay or send ignorant people out to make wild claims about me or the “theories” of Neil Garfield. They are not theories and they are not mine. This is all fact and while people are entitled to their own opinions, they are not, as Senator Patrick Moynihan said, entitled to their own facts. There is a difference.

Filed under: foreclosure |