Clerks Illegally Bowing to Bank Pressure: Recording the Notice of Interest in Real Property with the Notice of Rescission attached.

For more information please call 954-495-9867 or 520-405-1688.

This is for general information only and contains my general opinions on the subject NOBODY should use this article as a substitute from advance from an attorney licensed in the jurisdiction in which the subject property is located.

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The Banks are at it again — using their political power to influence officers of State and County government into refusing to perform ministerial duties required by State statutes.
The Clerks are rejecting any filing of the notice of rescission but some are getting through. It is a good idea to send it in by mail rather than show up in person. It should be a Notice of Interest in Real Property. The letter should appear to be from either a lawyer or title agent. If it looks like a homeowner they will inspect it. If it looks like business as usual then they will ordinarily process it without any scrutiny.

A number of people are gearing up to sue the Clerk for a Writ of Mandamus in order to force the Clerk to accept the recording of the Notice of Interest in Real Property with the Notice of Rescission attached. Before suing, the matter should, in my opinion, be escalated briefly, at least, to the County attorney and give him/her a chance to correct the situation. Any document that is properly filled out with formalities that are required by statute MUST be recorded by the Clerk. The Clerk does not have discretion as to what documents they record and no discretion as to what documents that can’t record.

There is also the possibility of escalating to the Florida Attorney General and the US Attorney General

In the event that the attorneys general or County attorneys ignore or delay it, then the Petition for Writ of Mandamus is probably a viable option. Forms for Writ of Mandamus are online but nobody should do this unless they have an attorney licensed in the correct jurisdiction. The complaint should (my opinion) [comments invited]

  1.  Establish jurisdiction in the State or Federal Court (I would say Federal at first glance), to wit: that TILA Rescission is a Federal Law and that the Clerk is refusing to allow implementation of the rights of the borrower under Federal Law.
  2. The complaint should NOT ask the Court to enter an order that says that the rescission was effective — that is not the proper subject for an issue between the property owner and the clerk.
  3. Establish jurisdiction and description of the parties — the Clerk and the party seeking to record, their residence etc.
  4. The State Law requiring the Clerk to record documents should be quoted verbatim
  5. The allegation should be made that any party with an interest in the real property has the right to record such interest and that the Clerk has not been delegated or authorized to exercise discretion as to whether to accept a properly drafted and executed Notice of Interest in Real Property.
  6. The allegation should be made that the Petitioner is a person, sui juris, with an interest in the real property, to wit: the Petitioner owns the property described on Exhibit “A” legal description and street address).
  7. The allegation should be made that the Petitioner rescinded the mortgage (and note) at page ____ of OR Book _____, as per the notice of rescission attached as Exhibit “B”.
  8. The allegation should be made that the rescission is effective by operation of law, and does not require any judicial determination of whether the rescission was effective or not. 15 USC § 1635 et seq. [Maybe cite Jesinoski]
  9. The allegation should be made that the effect of the rescission is to void the mortgage (and note), by operation of law.
  10. The allegation should be made that under the TILA Rescission statutes, the creditor is required to file a release of the encumbrance, but has failed or refused to do so and has not attempted to vacate the rescission within the time window provided by law (20 days from receipt of the rescission).
  11. The allegation should be made that the said mortgage continues to create the illusion of an encumbrance in the chain of title, thus affecting (preventing) the ability of the Petitioner to sell or refinance the property.
  12. The allegation should be made that in the absence of recording the Notice of Interest in Real Property, with the Notice of rescission attached, the mortgage would remain on record with no document releasing the encumbrance as required by Federal law.
  13. The allegation should be made that the Petitioner properly executed, witnessed and notarized a Notice of Interest in Real Property dated the __ day of ___, 201_ and presented same on the ___ day of ____, 201_ to the Respondent for recording by the Respondent. (see attached Exhibit “C”)
  14. The allegation should be made that the Respondent unlawfully refused to accept the aforestated Notice of Interest in Real Property for recording without any right, justification or excuse.
  15. The allegation should be made that Petitioner was neither granted nor delegated any authority to exercise discretion in the recording of a properly executed, witnessed and notarized Interest in real property.
  16. The demand clause should be something like “Wherefore, Petitioner prays this Honorable Court will enter an order commanding the Clerk of _______ County to accept the Notice of Interest in Real Property with its exhibits and, upon payment of the required fees, record same in the Public Records of ____ County.”
  17. Make sure it is served correctly. Expect the banks to mount some challenge to the suit. But there is nothing that they can say that is legally controlling. All they can do is not like it. If they wanted to seek a court order vacating the rescission they should have done so within the 20 days.

 

But more importantly it is none of their business — if the Clerk is mandated to record ANY document that fulfills statutory requirements, then the document gets recorded — just like the lis pendens in a foreclosure action — the issue of whether the lis pendens or the lawsuit were wrongfully filed is up to the parties and the courts to fight it out — it is NEVER up to the Clerk. Any argument to the contrary would require an administrative hearing apparatus that does not exist.

BOA, Urban Lending Sued for Rackateering on Fraudulent “Modification” Program

In a case that may have far-reaching consequences, a lawsuit was filed in federal court in Colorado accusing Bank of America of racketeering, which is what borrowers have been screaming about for years. It was a game to the bank. They intentionally lured people into what they thought was a good faith modification program, encouraged people to get deeper and deeper into “debt”, and then foreclosed when they were sure that the person could not reinstate nor exercise a right of redemption. A key player in this scheme was Urban Lending Solutions.

In a case that I am currently litigating, Bank of America at first denied any knowledge of Urban Lending Solutions. When confronted with correspondence issued from urban lending solutions under the letterhead of Bank of America, they finally conceded that they knew who who the company was.  In a Massachusetts case depositions were taken and it is quite clear that this affiliate of Bank of America had their employees working off of Scripts and that anyone who went off the reservation would be disciplined or fired. Going off the reservation merely meant that they actually tried to help a borrower achieve a modification.

There are at least six whistleblowers who have executed sworn affidavits stating that the modification program was a sham. I think we might be getting closer to the point where whistleblowers tell us that the origination of the loan was a sham and that the so-called sales of loans were also sham transactions. Those employees of Bank of America or their affiliates who were successful in throwing homeowners into foreclosure were rewarded with $500 gift certificates to Target and other stores.

The claims against Bank of America are using laws that were designed to target organized crime. For seven years experts and laymen have been claiming that the banks were engaged in organized crime in the  the sale of mortgage mines, origination of loans, the assignment of loans, the recording of unperfected mortgage liens, wrongful foreclosures, illegal foreclosure sales in which the property was sold without any cash being paid, interference  in the right of the borrower to reinstate, modify, or redeem.

We are just around the corner from the key question, to wit: why would the banks engage in organized crime to create foreclosures when it is painfully obvious to homeowners and local government officials across the country that the banks have no interest in acquiring the property but only causing the sale of the property at a foreclosure auction?  Why would the banks delay the prosecution of their cases for years? Why would the banks argue against expediting discovery against them and against the borrower? Why would the banks argue for less money in foreclosure rather than more money in modification?

The answer to all of those questions is simply that there is more money in this scheme than has been divulged.  In the coming weeks and months the revelations about the true nature of these transactions will shock the conscience of the country and cause voters and politicians to rethink their position regarding the ability of regulators and courts to clawback illegally obtained proceeds that started with the transactions originated with the money of investors and somehow ended up with the banks growing by 30% despite a failing economy and a diving housing market.

We are now at the point where filing RICO charges against the banks is likely to gain traction whereas in prior years it was considered overkill for what appeared to be negligence in paperwork caused by the volume of mortgages and foreclosures. Volume had nothing to do with it. The banks made a ton of money selling those mortgage bonds.  Out the money they made selling the mortgage bonds was dwarfed by the amount they made when they received insurance, credit default swap proceeds, and taxpayer money on investments owned by the investors and not by the banks. So far more than 5 million foreclosures have proceeded illegally which means that 5 million families have been disrupted in some cases beyond repair. Recent estimates suggest that another 5 million foreclosures will be added to the list unless the banks are required to conform with their regulations and the laws of the federal and state government.

BOA and Urban Lending Sued on Racketeering Charges

Bain Decision Brings Us Back to Reality

People are asking in emails and calls why I think this decision from Washington State is so basic and decisive. So here is my answer.

If MERS was right, then there would be no point to having a statutory scheme for recording of deeds and mortgages. Let’s take a simple example, if MERS was named on the deed as the Grantee by a real person who was selling the property as Grantor. So far so good. Everything is in order if the deed is recorded in the county recorder’s office in the same county as where the property is located.

So you decide you would like to make an offer to MERS for purchase of the property. MERS says we don’t own the property and you say but the recorded deed says you are the owner and the statute says that makes you the owner. MERS says no, we are not the owner we are just a nominee for a succession of owners. You’ll have to figure it out for yourself.

So you go to a lawyer and you say I want to buy this property and I went to the owner of record, but they say they have no power to sell it because they don’t own it. So who owns it? The lawyer makes some calls and is finally told that on the MERS data files the owner is XYZ Corp. He looks into the title record and finds no evidence of any XYZ Corp. nor that they ever had an interest or stake in the property.

So the lawyer goes back to his client and tells the prospective buyer, well, they have identified XYZ Corp as the owner and here is their telephone number. And ask “how do I know they are the owner if there is nothing in the title record? Are we to simply take the word of someone at MERS? IS that the way title works in this state?”

So the lawyer thinks for a minute and says well, MERS says they will sign off if XYZ signs off and XYZ is willing to show an assignment from MERS to XYZ that hasn’t been recorded yet. But you are still concerned. “We are still taking the word of someone at MERS that XYZ Corp is the owner. I guess if we get a deed  or assignment of deed from MERS that helps but isn’t something wrong here?”

The lawyer does some research and finds out that MERS is designed to pass around the title to the property by way of an unsecured database and that neither MERS nor XYZ can actually be trusted source of title without their being a final order from a judge declaring the rights of the stakeholders. But then he gives you the bad news. You are just a prospective purchaser who has no interest in the property so you cannot get that order from a court. It must be MERS or XYZ and they refuse to do that. But the good news is that they have accepted your offer to purchase the property.

Head scratch. The lawyer is saying that you must have a final order from a judge which can be certified and recorded in the county recorder’s office and you don’t have the right (standing) to go get that order and the “sellers” refuse to participate in that strategy, for whatever reason.

So you go to your local title insurance company and find out that that sure, they will issue a policy, but the policy will exclude off-record transactions so if there are any claims that are different than what is represented in the MERS or XYZ documents, the problem is yours.

So there you are, ready to buy the property, you have a willing “Seller” and no certainty or insurance that you can get title.

THAT is exactly what the statutory scheme for recordation of title instruments is all about. It creates certainty without all the steps above and it provides a free marketplace where people can trust that they are getting what they think they are buying. The same holds true for mortgages. So you want to pay off your mortgage now? Go to MERS and start at the top of this blog and work your way down again. That is why the decision in Washington is so important and why it is the only right decision to make.

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