The First Step in Foreclosure Defense: Title Issues

The same judges that consistently ignore defenses with respect to the endorsements, assignments, or other issues instantly recognize that where there is an error or break in the chain of title, the “bank” must step back, dismiss the foreclosure and start over again.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Last Thursday night I had North Carolina Attorney James Surane as a guest on my radio show. As I suspected it was technical but VERY interesting. He gave many examples where title issues had either resulted in an outright win or much greater leverage over the party claiming to be authorized to foreclose on property. In his state of North Carolina, the judicial climate is very frosty when it comes to a homeowner challenging foreclosures. But the same judges that consistently ignore defenses with respect to the endorsements, assignments, or other issues instantly recognize that where there is an error or break in the chain of title, the “bank” must step back, dismiss the foreclosure and start over again.

Although most people have stopped ordering title searches and title analysis by a lawyer, they are throwing out the baby with the bathwater. As I have previously discussed on this blog, the problem with the title reports is not that they are useless, it is that they don’t go back far enough. In the run-up to the mortgage meltdown some closing agents were processing loan closings at the rate of 100 per day. These agents and lawyers were overwhelmed by the volume. They made mistakes.

Here is a summary of what Jim said last Thursday night:

FIRST STEP IN FORECLOSURE DEFENSE CASE:

A thorough title search of the property being subject to foreclosure is an absolute necessity. This includes researching back to the plat in the case of a home in a subdivision, and back 30 years in a case in which the property is not in a subdivision. We have won many cases based upon errors in the chain of title. It must be remembered that a large majority of the mortgages that we deal with today were closed between the years of 1992 – 2007. During these years, closing attorneys and lenders were overwhelmed with business, and as a result many errors in preparing documents that compromised the lenders lien rights. In our title search, we are looking for:

  • Plat was recorded prior to conveyance of lot
  • Errors in the legal descriptions
  • The legal description was attached at the time the deed of trust was signed
  • Errors in the timing of the recordation of documents in the chain of title
  • Errors in the spelling of the grantor or grantee names
  • Both Grantors names in the body of the Deed of Trust and not just signed
  • Failure to include all necessary signatures on deeds
  • Recordings in the wrong county
  • The grantor owned the property at the time of the conveyance
  • The date on the note matches the date of the deed of trust
  • The names on the note match the names on the deed of trust
  • The grantors signed the Deed of Trust in the proper place (not under notary)
  • Check the Secretary of State on all corporate grantors
  • The date the substitute trustee was appointed relative to the Notice of Hearing
  • The proper substitute trustee filed the Notice of Hearing

Surane has won at least one case for each and every issue listed above. Some of the issues listed above have resulted in our winning several cases. Clerks and Judges are not reserved about recognizing errors in the chain of title, and will readily dismiss a case if the errors are properly presented to the Court. It is very important to thoroughly examine the chain of title before proceeding to identity errors with the lenders standing and endorsements to the promissory note.  As many people are aware, the standing and endorsement issues often lead to fertile ground for many additional defenses to a foreclosure action.

North Carolina is more or less a non-judicial state. But instead of the “trustee” recording a notice of default and notice of sale, the trustee in North Carolina files a Notice of Hearing. The Clerk actually has some power to either dismiss or require the filer to dismiss if the chain of title is clearly wrong. This makes North Carolina a somewhat safer place for homeowners than other non-judicial states because there is at least some minimum oversight over the process.

Not all errors in title result in an outright win in Court. But they do create a time interval that could be as long as years in which the homeowner can properly address other issues and seek modification.

At livinglies we provide a title report and an analysis, but most people don’t want to pay the extra cost of going back 3-4 owners. And they don’t want to spend time on a lawyer analyzing title issues. It’s boring stuff to most people. Most vendors providing title information CAN produce a report going back 30 years but they don’t because they have not been paid the extra money to do so — often requiring an actual trip to the building where the public records are kept in the county in which the property is located.

Some vendors, like TitleTracs, will point out potential areas of inquiry that assist a lawyer in analyzing title, but most lawyers don’t want to do the work even if they could get paid for it. It is a laborious task but people are missing “low hanging fruit” when they fail to raise a proper challenge to the substitution of trustee and other defenses.

The bad news is that Surane agrees with my current opinion — it is highly unlikely that any judge anywhere will enter an order quieting title where the mortgage or deed of trust is removed as an encumbrance to the property. Unless the mortgage or deed of trust is void, in our opinion it is not proper to bring the quiet title action. BUT, that said, as Surane pointed out on the show, he has made extensive use of declaratory actions that undermine the enforceability of the mortgage or deed of trust and potentially undermine the note as well. The catch is that courts don’t issue advisory opinions so you need a present controversy in order to get the court to rule.

If this article prompts you to order our COMBO Title and Securitization Report and you want the kind of in-depth title report that is described above the cost of the report is $1995.

Get a consult or order services! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.

 

 

 

PICK-A-PARTY — BOA – RED OAK – Countrywide Merger Revealed in all its “Glory”

Maybe now I will get something other than a blank look when I referred to anomalies in what appears to be the merger of Bank of America with Countrywide. For about 18 months now I have been saying that there is something wrong with that report, because the documents in the public domain show two things, to wit: first, that BAC was merely a name change for Countrywide;  and second, it appears to be a merger between Red Oak Merger Corp. and Countrywide.  My conclusion was that Bank of America was claiming what it wanted depending upon the circumstances and disregarding the actual transactions. In fact, in various court actions ranging from foreclosures to investor and insurer lawsuits over bogus mortgage bonds, Bank of America was submitting documents referring to agreements that referred to fictional transactions.

This behavior should come as no surprise to anyone who has been following the actions and statements of the major banks throughout the financial crisis.  The various positions asserted by Bank of America in court actions around the country contradict each other and are obviously intended to mislead the court. It is for that reason that I have maintained the position that any benefit claimed by Bank of America by virtue of its alleged merger with Countrywide should be tested thoroughly in discovery.  Lawyers, judges and borrowers should stop assuming that if the bank says something it must be true. My position is that if a bank says something it probably is not true or it is misleading or both.

This is not merely some technical objection. This issue runs to the heart of our title system. There are many of us who are sending up warning flares. Judges, attorneys, title agents, and other experts have examined this issue and concluded that we are headed for a crash of the recording system that will undermine the title and priority of owners and lenders.

Thanks to one of my readers, I obtained the following quote and link which requires substantial study and analysis to see how this will impact any case in which  your opposition is Bank of America.

BAC is not just a “shareholder” of
Countrywide, as it argued to the Court at the outset of the case.
Then from Charles Koppa on the idiotic practice of allowing a controlled company or subsidiary be substituted for the trustee on the deed of trust on record — namely in this case Bank of America (AGAIN) who owns and controls Recontrust. SO in this case, like nearly all of the non-judicial situations, pick-a-party: the beneficiary on the deed of trust vanishes and is replaced with a “new beneficiary” by fiat more than anything in fact. Then the new beneficiary effectively names itself as the new trustee on the deed of trust. THIS PRACTICE SHOULD BE CHALLENGED AND NOW IS A GOOD TIME TO DO IT. THE COURTS ARE GETTING WISE TO THESE ANTICS.
From Koppa:
ReconTrust is “owned” by Bank of America Corporation.
 
Bank National Associations are governed by The Office of Controller of The Currency.
Anything on ReconTrust, NA?  It should be Governed by OCC, part of the US Treasury Dept (NOT the SEC)?
 
If ReconTrust is a subsidiary of Bank of America Corporation…. This is NOT Bank of America, “NA”or “BANA”.  So, which are THEY??
How can one “NA”= National Association, own a second “NA”.  Looks like self-dealing to us whistleblowers! 
Jes Thinkin: Who receives proceeds of lien foreclosure sales conducted by ReconTrust  which become REO re-sales of Land Titles @ 100% profit??
Who receives proceeds from Trustee Sales to third parties where “bid purchase proceeds” are delivered to ReconTrust @ 100% profit (to WHO)???
 
OPINION 1: Add common ownership by BANA of LandSafe Title for “corrections” on all ReconTrust foreclosure land title transactions; means possible crimes of “Conversion”.  Borrowers real property Trust Deed/Mortgage (a hard record asset) transfers via MERS/REMIC and off-balance sheet accounting into purported RMBS Products via Bank of America Securities, etc. as a non-transparent new soft asset class, which funds lien security investment credits without reference to the borrower.
 
Opinion 2: Countrywide/BAC converts “loan obligations debt” with homeowners… into pre-funded aggregated “securities credits” assigned to affiliated servicers by the Sponsor of the SEC Prospectus (Like BANA).  Upon loan default servicer changes hats and squires foreclosure liquidation of the fabricated “lien security” (under SEC).  This delivers “huge profits” beyond the REMIC Trust —- via BAC Home Loans and “controlled servicers” named by the Shadow Sponsor.  Affiliated servicer names ReconTrust as a self-substituted Foreclosure Trustee which seems to be clear of all regulation and criminality!!
 
Opinion 3:  Double income on a single transaction = “Embezzlement”.  20% Real Estate Equity is confiscated into the RBMS via “identity theft”of innocent homeowners using proceeds to the REMIC via the FED discount process! 
 
Opinion 4:  Vertical integration of all steps accomplishes “conversion for purposes of embezzlement”, which violates Anti-Trust Act, RICO, mail/wire fraud, etc.  What part of organized crime might IRS, OCC and SEC regulators actually understand when the California18 brings legal action via the evidence against ReconTrust prepared in vain for CA-AG Harris a year ago?
 
What is your opinion?
 
Charles J. Koppa 760-787-9966, www.TitleTrail.com

New Workshop on Motion Practice and Discovery

why-you-should-attend-the-discovery-and-motion-practice-workshop

VISIT LIVINGLIES STORE FOR FREE VIDEOS AND OTHER RESOURCES

START WINNING CASES!!

May 23-24, 2010 2 days. 9am-5pm. Neil F Garfield. CLE credits pending but not promised. Register Now. Seating limited to 18. INCLUDES LUNCH AND EXTENSIVE MANUAL OF FORMS, NARRATIVE AND CASES. An in-depth look at securitized residential mortgages and deeds of trust. Latest cases on standing, nominees, splitting note from security instrument, bankruptcy strategies, expert declarations, forensic analysis reports.

Lawyers, paralegals, experts, forensic analysts will all benefit from this. This workshop includes monthly follow-up teleconferences and continuing on-going support with advance copies of articles, cases and analysis.

  1. STRATEGIC REVIEW: WHY THESE CASES ARE BEING WON AND LOST IN MOTION PRACTICE.
  2. SECURITIZATION REVIEW
  3. USE OF FORENSIC REPORTS AND EXPERT DECLARATIONS
  4. RAISING QUESTIONS OF FACT IN CREDIBLE MANNER
  5. SETTING UP AN EVIDENTIARY HEARING
  6. FOLLOW THE MONEY
  7. OBLIGATION, NOTE, BOND, MORTGAGE, DEED OF TRUST ANALYSIS
  8. TILA, RESPA, QWR, DVL AND RESCISSION — WHY JUDGES DON’T LIKE TILA RESCISSION AND HOW TO OVERCOME THEIR RESISTANCE.
  9. NOTICE OF DEFAULT, TRUSTEE, STANDING, REAL PARTY IN INTEREST EXAMINED AND REVIEWED
  10. INVESTORS, REMICS, TRUSTS, TRUSTEES, BORROWERS, CREDITORS, DEBTORS, HOMEOWNERS
  11. FACT EVIDENCE ON MOTIONS
  12. FORENSIC EVIDENCE ON MOTION
  13. EXPERT EVIDENCE ON MOTION
  14. ORAL ARGUMENT
  15. WHAT TO FILE
  16. WHEN TO FILE
  17. EMERGENCY MOTIONS — MOTION TO LIFT STAY, MOTION TO DISMISS, TEMPORARY RESTRAINING ORDERS, MOTION TO COMPEL DISCOVERY
  18. DISCOVERY: INTERROGATORIES, WHAT TO ASK FOR, HOW TO ASK FOR IT AND HOW TO ENFORCE IT. REQUESTS TO PRODUCE. REQUESTS FOR ADMISSIONS. DEPOSITIONS UPON WRITTEN QUESTIONS.
  19. FEDERAL PROCEDURE
  20. STATE PROCEDURE
  21. BANKRUPTCY PROCEDURE
  22. ETHICS, BUSINESS PLANS, AND PRACTICAL CONSIDERATIONS

Rooker Feldman Doctrine: Another Look At Standing and Necessary Parties

In Rooker v. Fidelity Trust Company, 263 U.S. 413, 416 (1923) the Court held that the federal district court had no subject matter jurisdiction to entertain what was essentially an appeal seeking to review the substantive merits of a final state court judgment. The Court noted that the common law bill was merely an attempt to collaterally attack the judgment for alleged errors of law committed in the state court.

Rooker simply provides that where a final state court judgment has been rendered, after due hearing, by a state trial court, with jurisdiction of the subject matter and parties, and fairly presented to the highest state court in which a decision could be obtained, then only the resort for correction of errors involving federal questions is by certiorari to the United States Supreme Court under 28 U.S.C. § 1257.

Cases Dismissed for Lack of Standing of Mortgage servicer or Third Party

cases-dismissed-for-lack-of-standing-1

AmericanBrokersConduitvZAMALLOAJudgeSCHACK11Sep2007
AmericanBrokersConduitvZAMALLOAJudgeSCHACK28Jan2008
AuroraLoanServicesvMACPHERSONJudgeFARNETI11Mar2008
BankofNYNAvSINGHJudgeKURTZ14Dec2007
BankofNYNAvTORRESJudgeCOSTELLO11Mar2008
BankofNYNAvOROSCOJudgeSCHACK19Nov2007
CitiMortgageInc.vBROWNJudgeFARNETI13Mar2008
CountrywideMortgagevBERLIUKJudgeCOSTELLO13Mar2008
DeutscheBankv.Barnes-JudgmentEntry
DeutscheBankv.Barnes-WithdrawalofObjectionsandMTD
DeutscheBankvALEMANYJudgeCOSTELLO07Jan2008
DeutscheBankvBenjaminCRUZJudgeKURTZ21May2008
DeutscheBankvYobannaCRUZJudgeKURTZ21May2008
DeutscheBankvCABAROYJudgeCOSTELLO02Apr2008
heBankvCASTELLANOS2007NYSlipOp50978UJudgeSCHACK11May2007
heBankvCASTELLANOS2008NYSlipOp50033UJudgeSCHACK14Jan2008
DeutscheBankvCLOUDEN2007NYSlipOp51767UJudgeSCHACK18Sep2007
DeutscheBankvEZAGUIJudgeSCHACK21Dec2007
DeutscheBankvGRANTJudgeSCHACK25Apr2008
DeutscheBankvHARRISJudgeSCHACK05Feb2008
DeutscheBankv.LaCrosse,Cede,DTCComplaint
DeutscheBankvNICHOLLSJudgeKURTZ21May2008
DeutscheBankvRYANJudgeKURTZ29Jan2008
DeutscheBankvSAMPSONJudgeKURTZ16Jan2008
GMACMortgageLLCvMATTHEWSJudgeKURTZ10Jan2008
GMACMortgageLLCvSERAFINEJudgeCOSTELLO08Jan2008
HSBCBankUSANAvCIPRIANIJudgeCOSTELLO08Jan2008
HSBCBankUSANAvJACKJudgeCOSTELLO02Apr2008
IndyMacBankFSBvRODNEY-ROSSJudgeKURTZ15Jan2008
LaSalleBankNAvCHARLEUSJudgeKURTZ03Jan2008
LaSalleBankNAvSMALLSJudgeKURTZ03Jan2008
PHHMortgageCorpvBARBERJudgeKURTZ15Jan2008
PropertyAssetManagementvHUAYTA05Dec2007
Rivera, In Re
ServicesLLCvSATTAR2007NYSlipOp51895UJudgeSCHACK09Oct2007
USBankNAvAUGUSTEJudgeKURTZ27Nov2007
USBankNAvGRANTJudgeKURTZ14Dec2007
USBankNAvROUNDTREEJudgeBURKE11Oct2007
USBankNAvVILLARUELJudgeKURTZ01Feb2008
WellsFargoBankNAvHAMPTONJudgeKURTZ03Jan2008
Wells Fargo,Litton Loan v. Farmer WITH PREJUDICE Judge Schack June2008
Wells Fargo v. Reyes WITH PREJUDICE,Fraud on Court & Sanctions Judge Schack June2008
Deutsche Bank v. Peabody Judge Nolan (Regulation Z)

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