My Take on Quiet Title

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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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In my opinion, the party that should be seeking to quiet title is a creditor to whom the debt is owed. Nobody is doing that. And I believe that the reason for this is that there is no party who could actually answer to the description of a creditor. And even if there was, the “creditors” don’t want to be asserting the right to foreclose and getting involved in foreclosures.

* Lawyers who are rejecting rescission as a strategy are doing so because they think they WOULD lose in a challenge to the rescission. They have not considered whether that attack will ever come. From my perspective with hundreds of thousands of rescission notices sent, it speaks volumes that no such action for declaratory relief has ever been filed. If anyone has an example where such an action was filed, I invite you to send me the pleadings at neilfgarfield@hotmail.com.

*Quiet title is a very restricted remedy saved for things like wild deeds and other VOID instruments (not voidable). If the instrument is voidable then you must win that point first before you can seek quiet title. My short answer is that you probably can’t get quiet title without making the mortgage or deed of trust void. And remember that the note in all probability was intentionally destroyed just as it was in most “loans”.

*One way to void the mortgage is to send rescission notice. They will probably send a letter back saying it’s beyond three years or asserting something else. But all that does is confirm receipt. Then an action to enforce rescission after the 20 days has run from date of receipt. That would be coupled with an action for injunction to prevent the parties from using the note and mortgage because they are void. Lastly the third count would be for quiet title because only a void instrument, in my opinion can be ignored for purposes of title chain. It isn’t enough to presume that the “creditor” with standing (apart from the note and mortgage) WOULD win — the creditor with true legal standing (i.e., direct financial injury from the “default” must file a declaratory action to declare that the rescission is vacated because of whatever reasons they assert and they must actually win it. Procedurally it is almost a sure thing that they have no party that can fulfill the standing requirement.

*Many lawyers are saying that they want nothing to do with rescission without realizing that it is a very strong procedural tool. The issue is not whether the rescission can withstand an attack in a declaratory action filed by a creditor who does NOT rely upon the void note and mortgage. The issue is whether that attack will EVER come from a party with standing.

 

*The other way of getting the mortgage void is to file an action asserting that the original loan was NEVER consummated. This could even be added as an alternative action to the the one outlined above. If the originator and payee on the note was not the party who loaned any money they had no right to be on the note or mortgage. The execution of the instruments would be fraud in the execution and possibly fraud in the inducement. The release of the instruments for transfer and recording would be wrong, which is to say that they were void despite their execution. In addition it is predatory per se under REG Z, which means at the very least they can’t enforce the note and mortgage in a court of equity. But note that just because a document of record cannot be enforced, does not in and of itself mean that it is a wild deed or a void instrument. It remains in the chain of title.

9 Responses

  1. http://www.federalreserve.gov/boarddocs/caletters/2008/0805/08-05_attachment1.pdf

    Statute of Limitations §§108 and 130
    Civil actions may be brought within one year after the violation occurred. After that time,
    and if allowed by state law, the consumer may still assert the violation as a defense if a
    financial institution were to bring an action to collect the consumer’s debt.

    Criminal actions are not subject to the TILA one-year statute of limitations.

    Regulatory administrative enforcement actions also are not subject to the one-year statute of
    limitations. However, enforcement actions under the policy guide involving erroneously
    disclosed APRs and finance charges are subject to time limitations by the TILA. Those
    limitations range from the date of the last regulatory examination of the financial institution,
    to as far back as 1969, depending on when loans were made, when violations were
    identified, whether the violations were repeat violations, and other factors.
    There is no time limitation on willful violations intended to mislead the consumer. A
    summary of the various time limitations follows.
    • For open-end credit, reimbursement applies to violations not older than two years.
    • For closed-end credit, reimbursement is generally directed for loans with violations
    occurring since the immediately preceding examination.

  2. Consumation applies to verified Creditors who do not rely on void Instruments.

    NEVER AGAIn

  3. Attorney Stephen P. Wright
    Address: 300 Bic Dr # 1, Milford, CT 06461
    Phone:(203) 878-0661
    Thank you,
    LivingLies Operations

  4. I belIeve Judge Scalia said ” this does not last forever” it’s 3 years under the statute ( emphasis added)

  5. Hello Neil, I have retained Patricia Rodriguez against Wells Fargo. I rescinded at the ten year mark and she thinks that the judge has to rule on when the consummation of the loan occurred before he can grant rescission. She stated (yesterday BTW) that TILA states only 3 yrs to rescind and no more. I told her that Rescission is effective after the 20day period when the bank has filed nothing to stop rescission. She disagrees! She says since we are in a non-judicial state that the Judge has to decide on the SOL/consummation issues before he rules on the rescission. I told her that the Judge cannot rule on weather or not the rescission is effective after the 20 days has passed. Anyway, it looks like the loan is void anyway due to the violations (table funded, securitization without the borrower knowing etc.) But her thinking is in direct conflict with what you have stated in your blog and I thought she stated the same on the radio interviews too!

  6. so what would a judge do if, you the homeowner comes in to court , holding the note? also, and then go on to say also judge i believe there are many many more of these notes running around.

    how many more times do i have to defend my home from others , saying i hold the note?? your honor??

    and oh your honor, mine is signed in wet ink, to a party that is not in court today, signed and dated to this other bank 10 yrs ago. hum

    so how could this trust get it assign to them only 4 yrs ago. ?

    oh judge how could a dead lender, almost 10 yrs dead, come in and sign the assignment 10 yrs later? to this trust. hum.

    am sure judge that you dont want any part of this scam. do you.

  7. Thank you, Garfield, for all the insightful information. Here in CT, what the attorneys will do is to file 1) record assignment of mortgage on to borrower/debtor land records one year before the Foreclosure act, 2) one year later, file Foreclosure on the claim that the borrowers/debtors are “liable” for the note, 3) file motions for summary judgment and strict foreclosure, 4) law day to steal borrower/debtor homes.

    Judges, both state and Federal, will block discovery and twist procedural process to let them steal the homes. One of CT Gen Stat allows whoever has the note in possession to foreclose and to steal.

  8. Until the courts respect the homeowners opinions it will NEVER change. I have my deed with my name on it and fannie mae went to court and STOLE my home anyway even when I had nothing to do with them. When Washington mutual was shut down and chase went in and took the illegal paperwork I was foreclosed on and fannie came in and bought my home on site when they were NEVER on the property. The courts don’t want to hear you.

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