A Perfectly Good Deed Can Result in a Perfectly Bad Title

see https://www.law.com/njlawjournal/almID/1202429165401/

In an article by New Jersey attorney Dennis M. Gonski | Updated on March 18, 2009, the qualities of “real title” are clearly specified. His “wild deed” commentary applies equally well to promises of title or implied promises of title to liens.

My point in directing your attention to this article is that Gonski takes on the most popular misconception: that the paper instrument is the event. If that were true, the Brooklyn Bridge would belong to thousands of people.

His second major point is that promises are just promises. They are only as good as the intent of the party making the promise or implied promise.

The fact that a title insurer is willing to issue a policy does not mean you are covered if the grantor had no legal title. This is the scenario in most conveyances from property classified as “REO” after a void foreclosure sale.

And now, to my point: the banks rely on the fact that their fabricated paper instruments have been prepared, executed, and recorded with all the required formalities. They also rely on human nature.

We believe what we see. But the document that says the property is transferred or that the lien is transferred is only a promise. Looking at the document, you cannot know whether the promise has been fulfilled.

And that is why we have a whole body of law that describes when the promise is to be treated as fulfilled. So on a warranty deed, if the grantor possessed title based on a title chain going back generations before him or her, there were no other outstanding conveyances appearing after a period of time, and the grantor had, in fact, received the consideration recited in the deed, then the law treats the promises contained in the deed to have been fulfilled. The matter, for legal purposes, is settled.

Applying that simple proposition to the promises contained in an assignment of lien or assignment of beneficial interest, we can see what Attorney Gonsky was talking about. He unequivocally states that despite any legal argument to the contrary and formal court decisions to the contrary, that void title is void. And that status is fatal, incapable of correction. All such documents are to be treated as legal nullities — i.e., for purposes of legal actions they are treated as if they didn’t exist at all — even if they are recorded.

Gonsky’s article makes my points using much simpler explanations than I have done. If the title is void and title has no statute of limitations (i.e., except in scenarios of adverse possession), then all the instruments in the world that make promises based upon grantors who possessed no title to the lien or the property are all legal nullities.

His point that all such instruments are legal nullities is both well-founded by reason and well-established in law. The transfer of a lien without the grantee acquiring the underlying obligation from the grantor means that an essential attribute of a valid assignment is missing.

That fact is also corroboration of the narrative that the grantor had no right, title or interest to convey, and neither did the predecessor of the grantor, even though all such promises and claims were made in writing and duly executed and recorded according to law.

In practice, most lawyers and pro se homeowners dilute their narrative by immediately attempting to go back to all of the grantors. This is a mistake. The strategy requires more nuance than that.

The central and relevant question at bar is whether the presently named claimant has suffered a legally recognizable loss that was caused by the homeowner’s misbehavior according to the implied loan “contract.” [Keep in mind that residential transactions never have a loan agreement. The existence of several documents implies it].

So the factual question that is relevant is not whether the claimant can be argued as being the “holder” of a note or the “assignee” of an assignment of interest. The relevant question is whether the claimant can produce what lenders have always produced in foreclosure cases up until the era of securitization starting in the late 1990’s: the claimant’s ledger showing the history of the “loan” from inception to the present.

“We have been doing this for 20 years” does not bridge the gap. it does not cure fatal title deficiencies.

This is also true in cases where judges have ignored the existence of a well-timed notice of rescission under TILA. In that case, a federal statute asserts the law of the land, to wit: upon such notice, the mortgage lien is extinguished by operation of law and the liability under the note is also extinguished by operation of law.

A claimant has an alternative way under the statute to collect the underlying obligation, but then they would need to show that they owned the underlying obligation — something that nobody has been able to do for more than 20 years. So instead they have persuaded judges to enter void judgments based on extinguished mortgages liens and notes.

Several County recorders have stated openly and directly that marketable title was becoming extinct under this scheme. As  Gonsky points out, they were and remain absolutely correct. Accordingly, the title has NOT changed. This entitles the record title owner who IS “seized” with the property to eject (evict) anyone from the property.

And contrary to those who spout things about adverse possession, it does not apply unless the current possessors of the property have been on the said property with the intention of taking over title purely by possession for a period that in most states is 20 years.

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)


But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.


2 Responses

  1. “…grantees receive no title, because the grantor had absolutely no title to give” – says it all in these typical fraud cases. Excellent article call should read. https://www.law.com/njlawjournal/almID/1202429165401/

  2. Looking back over just what happen in my case and in doing so the 2nd mortgage against the property I am using to fight Wells Fargo who was not ever my lender but as the mortgage servicer until Washington Mutual Bank (WAMU) was declared a “failed bank” on Sept 25, 2008, which the only reason Wells is the mortgage servicer is through the servicing agreement but once WAMU is no more neither is the agreement between the two. WAMU after Sept 25, 2008 is never owed a cent once they don’t exist!

    WAMU starting back in 2006 started assigning all it Fed Gov loans Deed of Trust (DOT) over to Wells in a remote bankruptcy procedure as it did not have monies to repurchase the investor loan they received against the MBS, and Ginnie Mae requires the investor loan to be repaid before the mortgage loan are release back to bank to handle loss mitigations.

    However going back looking the issue of 2nd mortgage came up in the titling and what WAMU did was assign these DOT with saying that a value was paid for the loans making it seem that Wells purchased these loans when in fact they did not, but as 2nd mortgage were behind a lot of loans, and this allege sale of the loan, there no subordination of those 2nd mortgage as with my loan, but Wells non-judicially foreclosed when in fact they did not own the debt and unlike the other loans WAMU did not assign over the DOT when it was still existing, but over a year after the bank was declared failed by the FDIC, it was MERS that assigned the DOT to Wells as if the loan was purchased.

    My argument is that UCC9 is required because Wells needs to provide proof of purchase and in fact not in 1st position and foreclosed without settling that debt which would have caused a different outcome allowing the 1st lien position who did not receive a dime, in handling how to want to deal with this situation!

    I am through the CFPB receiving the release of lien from the originator of the loan which I already have a letter of the date of sale with proves that the DOT in fact was recorded outside the time frame it needed to be recorded and is why there was never a assignment before WAMU stopped existing.

Contribute to the discussion!

%d bloggers like this: