Tag Archives: declaratory relief

BOTH QUIET TITLE ACTIONS AND C&E ACTIONS ARE DECLARATORY RULINGS! UPDATE!

(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.

 

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U.S. SUPREME COURT NARROWLY OPENS ANOTHER DOOR TO PUNISH FALSE EVIDENCE!

(BREAKING NEWS – OP-ED) — The author of this post is a paralegal and consultant to trial attorneys on foreclosure matters; deals in cancellation and expungement actions and chain of title issues and thus, the material discussed here, while appearing to be a “breath of fresh air” for homeowners fighting foreclosures, is still an opinion NOT to be considered legal, nor should it be construed to guarantee any type of legal outcome or advice.

On June 20, 2019, the United States Supreme Court opined (through Justice Sotomayor) in McDonough v. Smith (see the ruling here: McDonough v. Smith) that the 3-year statute of limitations for bringing a civil rights claim under 42 U.S.C. § 1983 does not begin to run until the case against McDonough was terminated.  All of the legal pundits have thus jumped into the argument, declaring that this ruling could also apply to foreclosure cases, while others say the ruling only applies to law enforcement officials acting under color of law.

The case surrounds an attack by McDonough (a New York county elections commissioner) against prosecutor Youel Smith for allegedly fabricating evidence (testimony) used to indict him before a grand jury.  The trial ended in a mistrial. Smith then allegedly elicited fabricated testimony again in a second trial, which ended in December of 2012, with McDonough being acquitted of all charges (of forging absentee ballots in a Troy, NY election).

Again, the Supreme Court (as it did in Obduskey) narrowly ruled on the matter.  In this case, it was the statute of limitations for bring a civil rights claim for deprivation of rights, ONCE THE CASE HAS CONCLUDED.  In short, this post’s author deems it necessary to posit that the intention of the Supremes was to indicate that one cannot bring an action (involving a foreclosure matter) until the case has reached Final Judgment.  Then, and only then, can the matter go “federal”.

In this case, McDonough was deprived of his liberty, because he was falsely arrested and detained; thus, depriving him of his liberty (because he was charged using false testimony, which he later discovered).  Thus, when acquitted, he brought the civil rights claim against the prosecutor.   This is where some in the legal community say that a deprivation of rights brought under “color of law” only applies to “law enforcement”.

However, was the prosecutor also an “officer of the court”?  For that matter, aren’t all attorneys licensed by their respective state bar associations “officers of the court”?   Courts address matters at law and in equity.  “In equity” clearly points a finger at foreclosures and that slippery slope we call, “phony assignments”, fabricated for use in getting a positive outcome for the bank’s servicer bringing the foreclosure action.

It’s bad enough that this case exposed wrongdoing by the prosecutor, but to say this doesn’t apply to fraudulent documents placed within the land records of all 3,141 boroughs, counties and political subdivisions across America is at best, only slightly diminished based on the violation of criminal statutes.   In this instance, the validity of the claims against McDonough, even though he was acquitted, are still claims.  There is no doubt that the false testimony was later discovered and applied to the case, resulting in a mistrial.  On the second go-round, these same factors resulted in an acquittal.

In this case, McDonough alleged Smith falsified affidavits, coached witnesses to lie and orchestrated a suspect DNA analysis to link him (McDonough) to relevant ballot envelopes.  Now … apply that to foreclosure mill lawyers, who are also “officers of the court” in relying on suspect assignments that could be shown to contain false and misrepresentative information, in order to wrongfully obtain a final judgment of foreclosure (in a mortgage state); or in deed of trust states, to claim their Trustee’s Deed was valid and forthright … obtained without blemish.

The question in this case is WHEN the statute of limitations began to run.

The case mentions nothing about applying civil rights claims to foreclosure actions.

You can be sure that the bank’s attorneys will bring this up if you attempt a 42 U.S.C. § 1983 (or § 1985) claim against the attorney, an officer of the court, for allegedly bringing forward (relying on) evidence later shown to be false and misrepresentative.  Further, the attorney for the bank/servicer brings forward (through his/her own mouth) continued disparaging remarks about the “deadbeat homeowner”, to elicit an emotional response from the judge, who then pronounces judgment in the bank’s favor, because, well, we can’t let phony documents stop “the system of things” from screwing homeowners out of their properties now, can we?

Prosecution of a foreclosure is an in rem action that sounds in equity, while the introduction of fabricated evidence (the phony assignments and affidavits produced in tandem with the foreclosure complaints) smack of “common-law malicious prosecution”, defined in this case, as deprivations of a “Constitutional right”, caused by the prosecutor’s malfeasance (of office) in fabricating evidence.   When applying this to foreclosures, is an “officer of the court”, appearing on behalf of any entity, political or otherwise, still an “officer of the court”, bound by the same code of ethics as criminal prosecutors?

This case was a criminal proceeding, not a civil matter … but …

Another argument for the legal pundits to say this case only applies to “law enforcement”; however, on the back end of the ruling, the following statement appears:

“The better course would be to dismiss this case as improvidently granted and await a case in which the threshold question of the basis of a “fabrication-of- evidence” claim is cleanly presented. Moreover, even if the Second Circuit were correct that McDonough asserts a violation of the Due Process Clause, it would be preferable for the Court to determine the claim’s elements before deciding its statute of limitations.”

The foregoing statement came from the dissenting opinion of Justices Thomas, Kagan and Grouch.  If we were to apply that standard, and deep-dive into the elements of the cause of action itself, then we would have to squarely apply the law (42. U.S.C. § 1983) as it was written:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The foregoing federal law specifically says, any “person”.  Does that single out “law enforcement”?  Or does it mean, a foreclosure mill attorney too?
Notice how the word “citizen” in line 2 of this statute is in lower case.  Now, now … you Sovereigns that think that everything that starts with a Capital “C” means you and anything that doesn’t, does not apply to you … this statute applies to everyone.  That’s what our Founding Fathers and Congress intended for it to mean … ANYONE living within the jurisdiction where the crime was committed that was used to deprive (steal) their property.  If you’re going to maintain that Sovereign crap, you’re going to lose anyway.  Federal judges can apply state law too.  And they do.
Now … let’s examine the C&E as it applies here (and to those pesky assignments). 
If you do your homework in applying the foregoing statute, it clearly says you have “redress”, except when the action is brought against a “judicial officer” acting in their “judicial capacity”.  That could mean a foreclosure mill lawyer or a judge presiding over a foreclosure court.  BUT … and I mean to be clear here … it only applies if you brought an action for declaratory relief and the judge, knowing full well there was an issue with the document you allege is phony, and told you to piss off!   Then, it would appear that a “declaratory decree” (as described in the foregoing statute) “was violated”, NOT that it wasn’t available.  The C&E is rooted in (inter alia) a declaratory relief action.
This is why folks who recognize the viability of the C&E are buying up our DVD training kit and learning what’s involved in a C&E!  Understand that bringing this action, whether in an original petition or as a compulsory counterclaim (which in certain instances involving a foreclosure in the judicial realm becomes radically necessary), involves the issuance by a judge of a “declaratory decree”.  The right to bring a declaratory judgment action is available in state court.  If a judge is so inclined as to tell you that you can’t bring this action, when in fact it was available, does not appear to discount the applicability of this statute, to sue the judge for telling you to piss off.
The federal court would have to determine that: (a.) you are a citizen as described in the statute; (b.) this is a suit in equity and at law (if a tort was in play); (c.) a final judgment was issued against you that (d.) relied on a false document; and (e.) you brought a claim for declaratory relief and were told to piss off or that that kind of relief wasn’t available when in fact, it really was … THEN … AFTER THE FACT (that’s when the “damage” was done) … you have a right to bring the action in federal court.
The U.S. Supremes may have opened a narrow door for you (3-year statute of limitations) to reverse what happened; however, can you imagine the costs involved?   Given the heightened pleading standards invoked by the rulings in Iqbal and Twombly, you can’t just amble into court with lame-ass pleadings and expect to get anywhere.  You have to bring your action with “all your ammo” on the table.  You need hard proof.  Declaratory rulings can be utilized in federal court as well.  Even though federal law makes it “discretionary”, if you were to couple that cause of action with a claim for tortious “slander of title” (under state statute) and 42 USC § 1983, then you might have something plausible to go on.
A 42 USC § 1985 claim only applies to conspiracies involving multiple actors and would be harder to prove, unless you were suing the law firm, the robosigner and the notary who acknowledged the document.  The effort would be more expensive because you have more parties to serve and more pleadings and answers that have to be drafted and served.
The matter of “injunctive relief” may be hard to fathom in unwinding a foreclosure where the title to the property was transferred and sold to a third-party buyer.  Hence, you may only end up with “damages” as the result of the improper taking based on fraudulent documents.  Again, just walking into court and telling the judge the assignment is fraudulent doesn’t prove anything.  You have to do your due diligence and build a case.  You have to target the right individuals in order to procedurally succeed in the matter.

The C&E (cancellation and expungement) action is a game-changer (like this case), if properly utilized.  This is why attorney Al West and I put the training kit together.   You can view that kit on the Clouded Titles website shop and get one for your very own.  Heck … go ahead and share it with your attorney.  Everyone needs to know what we know.   We actually give you proof that it works!

And no … my response to this ruling is not an opportunity to push my training kit … however, 42 USC 1983 does in fact talk about declaratory relief issues, which is what C&E’s are couched in.  Something has to matter.  Otherwise, why fight at all?

 

 

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