(OP-ED) — The author of this post is not an attorney and thus cannot give legal advice. However, based on the research contained herein, one can share without retribution; thus, let this be for your educational value only!
UPDATE … NEW IDEA! (Please move to the bottom of the article to read my thoughts on this!)
One judgment appears to be a “cheap date”, while the other judgment isn’t.
Which one is cheaper to prove? Why … the C&E of course!
The “C&E” should become part of everyone’s vocabulary these days. I can give you over 500-million reasons WHY a C&E is important to every American property owner. The main one is adverse condition of title to over one-third of every parcel of land in America! That’s the biggest reason.
How can you consciously sell a piece of property to another human being when there is clear evidence of chain of title issues present, especially when “MERS” is involved?
The C&E has been in the forefront the entire time, albeit not exclusively. Everyone knows that quiet title actions have been around for centuries. But … and I use this caveat succinctly: Quiet title actions are more than just a simple step in clearing title to a piece of land. Like the C&E, both matters involve an evidentiary proceeding. Both are rooted in declaratory relief. Both require a certain amount of discovery. However, the C&E requires less discovery because you’re only targeting one suspect document in the real property records, while the Quiet Title Action focuses on the entire chain of title, leading back to the document (usually the mortgage or deed of trust) that plagued the chain of title in the first place!
Back in the days preceding the first financial collapse in 2008, mortgage brokers and their title companies were so quick to file stuff in the land records that: (a.) they submitted the documents incorrectly for recording; (b.) they submitted MERS-originated documents to the county recorder knowing full well that the borrowers encumbering their property had no knowledge their loans were being securitized; and (c.) they did this knowing that a majority of the documents being recorded contained information on loans that were designed to default years later, causing a huge rash of foreclosure actions that plagued the United States from coast to coast.
I can tell you with a certainty (after having lectured to hundred of various county clerks) that a lot of clerks (recorders, registers of deeds, etc.) these days still don’t understand what MERS is and what kind of issues became predominant after MERS-related assignments are recorded. I have been asked from time to time whether we should sue county clerks and recorders and my answer is “NO” (not just NO but HELL NO)! These folks are generally elected officials that have a bond. These folks unknowingly became victimized by the “MERS process” as much as the collective body politic affected by borrowing that was intended to be obtained from the secondary mortgage markets.
In The C&E on Steroids! Attorney Al West and I bring forward the reality of challenging documents through declaratory relief, especially the documents created from 2004 through today.
Yes! These entities are still “manufacturing” bogus documents and causing them to be recorded in the land records all over the country!
And what’s even more astounding … MERS and its parent have absolutely NO IDEA that the MERS name was being used in these assignments!
The culprits …
Mortgage loan servicers, third-party document mills and title processing services are the guilty parties!
Secondary to these groups of land record predators are the foreclosure mill law firms prosecuting the foreclosures themselves!
The potential targets …
All of the above … depending where they’re located.
Again, The C&E on Steroids! describes WHO these targets are … WHAT prompted them to become targets … WHEN they became targets … WHERE they got involved as targets and WHY they are targets … and more importantly, HOW the “system” played us in letting them become targets!
Wouldn’t it be nice to know WHO your enemy is BEFORE engaging them in a legal battle?
This is why is becomes important to understand the principal of declaratory relief. It allows us to obtain discovery to get at the “root” of the problem.
Most homeowners don’t get that. They think, “Okay, I’m going to get pissed off and sue everybody!” They let their emotions get out of whack, failing to recognize the tools available to isolate and attack individual targets to further corrupt a chain of title to the point where a county court HAS TO quiet title title in order to comply with marketability statutes!
California attorney Tim McCandless was recently quoted as saying:
” … the more recent strategy of attacking the assignment of mortgage and seeking nullification of that instrument has met with some success and it should succeed, because you are attacking the facial and substantive validity of that specific instrument and not the entire mortgage or deed of trust. That strategy merely attacks the technical requirements for creation and recording of an an instrument affecting title to real property and attacking the substantive validity of the assignment by revealing that the debt was not transferred to the assignee by a party who owned the debt.”
The success in doing a C&E would seemingly “cut the legs out from under” the perpetrator of any future alleged foreclosure, right? It would stand to reason that without an assignment being present in the chain of title, the mortgage loan servicer and its counterparts that were probably the culprits behind the very assignment they’re relying on as a tool in their foreclosure arsenal would be affected directly by the “lack of gunpowder” in their magic bullet. The only thing they’re attorney will say is, “These people just want a free house, your Honor!” because they don’t have anything else they can say that will evoke the emotion of the Court to screw the homeowner one more time!
The beauty of this process is that it can be used at any time prior to foreclosure without bringing the mortgage loan servicer itself into the fray. And it can be used in both deed of trust and mortgage states! All 50 states have statutory mechanisms for declaratory relief. All 50 states have rights to attack phony documents!
Further, there is case law out there that has taught us much in the way of educational value! That case law is described in The C&E on Steroids!
In fact, the case law Al West and I discuss in this book and the related course materials SHOW YOU validity past what attorney McCandless previously described!
And it all revolves around a simple and concise declaratory relief action. Yet, homeowners will continue to go out and make a “mountain out of a molehill” (go overboard in citing every cause of action under the sun, thinking they’re entitled to damages), when a simple action designed to knock these bogus assignments out of the land record create a precedent of bad behavior on the part of those who would undertake the illegalities of trying to steal your homes! This is not a pipe dream process. This process has been used countless times and has been successful because of the patience and effort put into drafting the proper complaint against the proper parties, isolating them in such a way as to keep the matter in county court!
Federal courts will generally NOT hear these types of cases. Suing the wrong party in a C&E will get your case removed to federal court, where the judge is likely to dismiss it, because federal law has already declared declaratory rulings to be discretionary. In state court, judges do not have that option. They HAVE TO hear that complaint. This is why Al West and I decided to get to the bottom of the root causes for doing a cancellation and expungement action and extrapolate the material into something useful for the average American consumer and put it into an 8-DVD/book weekend training kit. America has to know there is a remedy out there that can be used to attack phony documents!
If you don’t know your rights, you don’t have any!
UPDATE!: While I was having a conversation with an aggrieved party, the thought crossed my mind as to the type of attorney that would be GREAT to utilize for the C&E when the opposing law firm is your target …
Who can you think of that isn’t intimidated by prosecuting attorney misconduct and malpractice?
Legal Malpractice Attorneys (they prosecute malpractice for a living!) … add that to your arsenal (just Google them … they’re out there)!
I found at least a dozen in the Dallas-Fort Worth area alone!
If your own attorney screws you in the process, it may be that your defense attorney is “working for the bank/servicer” under a silent agreement to feed you to the wolves. Why not prosecute BOTH ends of malpractice if you’re going to attack one for failing to defend your case adequately.
Just a thought.