Adverse Possession vs Cancellation of Instrument and Quiet Title

In the final analysis, the only way to smoke out the banks on their fraudulent claims as “creditors” or “agents of creditors” is to create a situation where the creditor must be disclosed. In those cases where judges have ruled in discovery or ruled on the right to prepay, subject to identification of the creditor, the cases have all settled under seal of confidentiality. There are thousands of such cases buried under side agreements requiring “Confidentiality.”

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I have been seeing a number of people adding Adverse Possession to their theories about Quieting title. So let me say first that an order granting quiet title to a homeowner whose title is encumbered by a recorded mortgage or deed of trust is practically impossible not only because judges don’t want to grant it, but for the more important reason that quiet title is not legally sound strategy for homeowners seeking defend their homes from foreclosure.

In order to quiet title, one would need to allege and prove by clear and convincing evidence that the mortgage or deed of trust should never have been executed or recorded in the first place. Anything less than that does not deserve quiet title declaration from any court. The fact that a certain party purports to have authority to enforce the mortgage or deed of trust when in fact they don’t have such authority is damn good reason not  to let them enforce the mortgage or deed of trust. But that does not mean that the instrument is void.

Here is the response I gave to a question about adverse possession:

Adverse possession does not seem to apply to this situation. But it is possible that you could get traction by filing a lawsuit to cancel the DOT (Cancellation of Instrument) and maybe even get a order quieting title to your name. This is not simple and the requirements and elements of such claims are difficult to fulfill.

Adverse possession is usually utilized in boundary disputes.
A mortgage or a deed of trust is an interest in real property. And where we are dealing with the deed of trust,The trustee is receiving title to the property. So technically you are probably correct. But when you look deeper, You will see that adverse possession does not apply.
The transfer of title to a trustee under the deed of trust divests the homeowner of title. Under the terms of the DOT you are entitled to live there and act, for all  purposes, as though you are the title owner including in a foreclosure proceeding. Hence several elements of adverse possession are not met especially “adverse,” since you have express permission under a contract to be there and to act as the title owner.
ELEMENTS OF ADVERSE POSSESSION: (NOTE — the “title owner is the DOT trustee)
  • Continuous
  • Open
  • Notorious
  • Peaceful, Peaceable
  • Hostile (claiming title against the interest of the party who actually has title)
  • Adverse (no permission or contractual right to assert title against the party who is seized with title).
  • Exclusive (barring claims or use by the actual title owner
  • Visible (putting a fence on your neighbor’s yard, ignoring the property line)
  • Actual (not implied)
But the fact that the DOT conveyed title to a real trustee on behalf of a false beneficiary is probably the basis for a lawsuit to cancel the instrument (if you can prove your allegations) and then get an order declaring the title is quieted, free from the encumbrance of record that is declared by the judge to be void.
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You need to be careful though about your conclusion that the DOT was void. This involves several factual questions that are not obvious. Even a void instrument could conceivably be valid if it contains a defect that is corrected or could be corrected by affidavit pursuant to local law.
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Your argument would be that no such affidavit was ever offered. Thus even after you filed your lawsuit, they failed or refused to make any corrections.
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Their argument will circle around third party beneficiary, “standing,” and the fact that SOME party could enforce it if they could show that they were the intended beneficiary despite the recitation on the face of the DOT.
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This is not the basis for a simple legal argument. Each side must allege and prove their factual (what happened, when, where, who was involved and why) allegations by at least a preponderance of the evidence and most probably, legal or not, the homeowner would be held to a higher standard of clear and convincing evidence informally or formally because the recorded documents carry a “presumption” of authenticity and validity that the homeowner must overcome.
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Academically speaking such claims are well-founded. But in practice judges look at such claims as gimmicks to get around a legitimate debt. In order to combat that we must figure out a way to bring in a party who has a legitimate claim to represent the unknown and undisclosed creditors.
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The banks have successfully cast the money trail in obscurity. The banks are committing fraud with each foreclosure in my opinion and in the opinion of everyone else I know that has analyzed the securitization of mortgage debt. But they have made it appear that there is nobody other than the bank’s pet entities (the so-called trusts) to play the role of creditor.

5 Responses

  1. @ ALL

    A key excerpt from this post suggests a strike at the core issue:

    “…[W}e must figure out a way to bring in a party who has a legitimate claim to represent the unknown and undisclosed creditors.”

    In the non-judicial foreclosure context, one possibility may be to allege:

    (1) the purported ABS sercuritization conduit trail that resulted in the ABS bond certificate purchasers’ (the unknown and undisclosed creditors??) acquiring variable interest(s) in the putative loan transaction conflict and are directly at odds with…

    (2) the circumstantial evidence averred showing the claim(s) intended to support the execution of a power of sale is by an illegitimate party, because it IS NOT, nor can it, show it acquired the status of a creditor/beneficiary/real-party-in-interest as a result of a monetary transaction for VALUE (MONIES PAID); thus not the property party, if any at all, that can show harm/injury.

    REBUT THE PRESUMPTION.

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  2. When a party acquires funds from a warehouse lender, how is it they can claim they actually “secured” the debt and tie it to the DOT? And further, how can a DOT be “valid” when you have an originator listed as “the lender”, when the note is seized from non-payment of a warehouse lender, whom is a non-lending third party? Then assignments showing up years later, with an allonge from the same “originator-lender”, who didn’t pay the warehouse lender. While the same named “lender” is on the DOT and the note allonge is signed by this same entity when in a bankruptcy proceeding? Just asking…anyone here, please respond, cause I don’t see it.

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  3. The same logic applies. But it is probably easier to attack an assignment. If you are applying to a court for the purpose of quieting title, then the principal issue is whether there is anyone who has or could have an interest in the document that arises from an actual monetary transaction in which they purchased the debt. It is a lot easier to attack the party who is invoking an assignment than the assignment itself. Once it is recorded most judges accept it as being facially valid and thus carried a presumption of reliability, authenticity and validity. The burden of proof and burden of persuasion is thus shifted to the homeowner who actually lacks sufficient information to rebut the presumption unless a forensic analyst is employed and an expert in the securitization of debt. A good tactic is to go after the indicia of reliability — showing that the document was self serving and created by and for an entity with a track record of fabrication and forgery.

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  4. “In order to quiet title, one would need to allege and prove by clear and convincing evidence that the mortgage or deed of trust should never have been executed or recorded in the first place. Anything less than that does not deserve quiet title declaration from any court.”

    That’s true if one is challenging the original loan documents. But what if you’re just challenging the foreclosing party, the alleged holder? The assignment documents are fraud, and the “holder” is often a non-existent entity made up by the “servicer”. It should be possible to quiet the title at least in relation to those claims.

    Liked by 1 person

  5. I would like you, Neil and associates, to review and comment on my case. Is this possible? If so, at what cost?

    Thank you,

    Tim Collins

    Sent from my iPhone 206.919.6005

    >

    Like

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