The following represents a discussion between readers in which I inserted my comments. The principal issue is whether you CAN file a notice of non-compliance in the county recorder’s office. And the sub-issue is whether the County reorder has any discretion. My answer is that the County Recorder has NO discretion and that the ONLY way the document can be removed from the title records is through a court order, which of course is the point — we want to convert a proceeding that is non-judicial and improper just for that reason (because of the presence of necessary and indispensable parties and standing issues) into a judicial proceeding where the parties — all of them — can be heard on the merits of their respective claims.
The objective here is not to WIN something by filing the notice of non-compliance, but rather to force the foreclosing party into alleging, under oath the facts upon which they would have assumed in a non-judicial proceeding. The use of the non-judicial proceeding is a ruse to avoid the requirements of due process, which simply means that everyone should have their say in court if they have some meritorious claim.
I agree in part and disagree in part. With the caveat that I am not a California Lawyer and that this involves California law with which I am familiar but have not included in my practice of law.
First there IS a difference between “filing” which generally means sending a document to the clerk of the court for entry into the docket of a case in litigation and “recording” which means sending a document to the clerk of the county records office for entry into the title records and therefore gives “notice” of something that affects the actual title of a particular piece of property.
However, the notice of non-compliance, if phrased properly, and perhaps with a few additions relating to a recitation of rescission by the homeowner DOES affect future transfers of title. It says in essence that anyone who takes title at auction does so at their peril, same as with a mortgage encumbrance. The defense of failure to follow statutory requirements for pursuing modification and for rescission will survive the sale, in my opinion. This could reach as far as a third party who buys the property at arm’s length at auction, or after auction from the REO inventory of the bank. Adding the non-compliance with RESPA and TILA and the recitation that the mortgage has been rescinded means that by operation of law the mortgage is extinguished and that this notice of non-compliance operates as a satisfaction of mortgage. In addition, the failure to comply with the new California statute creates a cloud on title.
It is therefore my opinion, subject to the opinion of licensed California counsel, that the filing of a notice of non-compliance must be accepted by the county recording office as a document that affects an interest in a particular piece of real property. My suggestion is that the issue be brought up before the “County Recorder” responsible for filings in that office. I have not seen any discretionary language that allows the County recorder or any of his/her clerks the option of interpreting a document submitted for recording.
Neil F. Garfield, Esq.
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Subject: RE: California Recorders Office
Date: Sun, 2 Nov 2008
you are using the terms record and file interchangeably and it is confusing.
Filings are done with the court and must be done on pleading paper with a proper caption that must match the caption of the original filed court documents.
Recording is done at the recorder’s office where title documents and marriage licenses and such are recorded. The document you have attached appears to be for recording at the recorder’s office and should be ok for that purpose only.
Date: Thu, 30 Oct 2008 00:08:36 -0700
Subject: Re: California Recorders Office
CC: DrDan@rockstarinlife.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org
Even assuming that the notice of noncompliance were an “instrument” as defined by Government Code section 27279, it would be recordable only if–pursuant to Government Code section 27280–it affected “title to” or “possession of” the real property. As discussed above, the notice of noncompliance does not affect title to the property. Nor does it affect possession. Petitioners retain possession as well as title. Legally speaking, petitioners can freely transfer title and possession.
“I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE. ANY INFORMATION PROVIDED IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR SEEKING ADVICE FROM A LICENSED ATTORNEY”
Hi,Just got back from the Riverside recorders office. They will not record. They say they “may” record under the 27280 code, but it does not fit their format so they won’t! until it fits their needs. Any more suggestions?Have a Great Day!Janice
— On Tue, 10/28/08, sal danna <email@example.com> wrote:From: sal danna <firstname.lastname@example.org>
Subject: Re: California Recorders Office
Cc: “RockStar Dr Dan” <DrDan@rockstarinlife.com>, “Liberty” <email@example.com>, “Darrell McDonald” <firstname.lastname@example.org>, email@example.com, “Steve Cisko” <firstname.lastname@example.org>, “Neil” <email@example.com>
Date: Tuesday, October 28, 2008, 11:13 PMHere is the provision that authorizes the recording.Cal Gov Code 27280.
Instruments and judgments recordable; Change in ownership statement(a) Any instrument or judgment affecting the title to or possession of real property may be recorded pursuant to this chapter.On Tue, Oct 28, 2008 at 9:51 PM, Jan Mcclinton <firstname.lastname@example.org> wrote:
Yes, that is exactly what I tried to file…with my info of course, and the Riverside recorder gave me a paper saying: “We have found no provision in the California State Law authorizing recording of the enclosed document(s).” I have it notarized and all. I am wondering if we need something else to go with this. Any thoughts?