(Op-Ed) — The poster of this blog is not an attorney and thus, what is printed here should not be construed as legal advice. However, some of the information contained in this piece was “run past” a foreclosure defense attorney, who thought of it as “novel” and thus, I note it as worthy of sharing!
Let’s say (hypothetically) that you’ve retained a foreclosure defense attorney to help you save your home. The attorney usually wants some sort of retainer up front (fees which can run anywhere from $2,500 to $10,000 or more, depending on the track record of the attorney) and many of them want monthly payments (which can run anywhere from $500 to $2,000 or more, depending on the track record of the attorney). You’re already out of pocket to the tune of at least a couple of mortgage payments.
Let’s say your attorney claims to be aggressive and claims they will fight for you, but later, you find that the scenario seems to be more like “kicking the can down the road” in defense of the foreclosure action. In other words, “the delay game”. It’s happened to tens of thousands of homeowners all across America. This is why many of those who got into the fight pro se did so because they didn’t trust attorneys and figured out that they (as pro se litigants) could at least delay the foreclosure themselves while keeping food on the table and the lights turned on. We know that many of those who chose that path were eventually evicted. Only a small percentage of those homeowners (who should consider themselves fortunate) are still in their homes and still fighting because they bothered to get an education and talk to the right people about their various legal snafus.
However, I might take this moment to add that desperate homeowners throw everything they’ve got at the bank to save their homes, even if it’s not appropriate. Al West and I do not advocate using quiet title actions to stop foreclosures! You’ll have to attend the workshop to find out why.
Let’s say however, that your attorney really does care about your problem and thinks that the big, bad banks need to be stopped and is really willing to put forth the effort and display an aggressive attitude in court in an effort to shut down the bank’s attack. This poses a different problem in an unforgiving legal system. Instead of kicking the can down the road, they file potentially game-changing briefs in court, briefs that not only stall the foreclosure process (especially in Florida, where judges were mandated to “clear the dockets” of foreclosure backlog, hence the name “rocket docket”) but actually bring the legal options for the banks to a standstill. This does not come without a price. That “price” appears political in nature. That price involves the behaviors of the Florida Supreme Court, the Florida Bar (it is NOT an association) and virtually every Florida judge who rules on a foreclosure case (or even a quiet title action). You may see “the writing on the wall” in your own state too (even if you don’t live in Florida)!
Let’s examine the repercussions of what happens when attorneys file quiet title actions in Florida.
Here is one such response I received from one attorney (in part):
“Please be advised that the Florida Bar has filed a complaint against me for filing quiet title lawsuits, initially proposing a 91-plus day rehabilitative suspension which means I would have to re-apply to the Bar. I have been an atty for 30 years and have never had one client complain about me. However, two banks and two judges have filed complaints as to quiet title lawsuits I filed during 2013 and 2014 that were unsuccessful as the judiciary here is not ready to recognize that there might be a colorable action against the lying, cheating, thieving lenders. The Bar will not even discuss a penalty less than a 45-day suspension.”
So it would appear (at least to me) that some real “muscle” has been brought in to the fight, which now shines a strange light on the Florida Bar. Why would judges complain about quiet title actions unless they have something to worry about … like the real truth coming out. Well, we can’t have THAT now, can we?
This prompted me to start looking into WHY the Florida Bar is being used as a “henchman” for the courts who don’t particularly like vetting the truth. Is it because of the pension fund that all Florida judges are tied to? This brought back memories of the case of Countrywide v. Mines (as noted below):
February 05, 2010, 05:44 PM EST by Cary O’Reilly
Feb. 5 (Bloomberg) — A Florida judge was ordered to remove himself from a foreclosure proceeding by Bank of America Corp.’s Countrywide unit after the homeowner claimed the judge received a discount loan from an affiliate of the mortgage lender. Circuit Judge Hugh Carithers in Jacksonville, Florida, must enter a recusal order and ask Chief Circuit Judge Donald Moran to pick a replacement, a district court of appeals ruled today. Joseph W. Mines Jr., who is representing himself in the foreclosure proceeding, alleged the judge had received favorable interest rates not available to the public in his own dealings with a lender affiliated with Countrywide, court records show. Mines’s home was just about to be sold when he filed his claim seeking the judge’s removal, according to the case docket. “This court finds these facts, taken as true as they must be, would prompt a reasonably prudent person to fear that he or she would not obtain a fair and impartial hearing,” the appeals court in Tallahassee, Florida, said its ruling. Pat Ryan, a courtroom clerk for Carithers, said she hadn’t seen the ruling and couldn’t comment. Directory assistance had no phone listing for Joseph Mines in Jacksonville. The case is Countrywide v. Mines, 2007-CA-6852.
Here’s the Court Decision that parallels what you just read: Mines v Countrywide Home Loan_31 So.3d 820
So I started thinking … hmmm … what about these judge’s state-sponsored pension funds and other “perks” they’re getting? What if their “funds” are vested in financials? So now my “crew” is on the warpath to dig up all of the financials involved in this “retirement” account these judges seem so eager to protect. Why they would they complain to the Florida Bar to do something about scenarios like the filing of quiet title actions, if there wasn’t something in it for them (besides being forced to rule on something legitimate for a change)?
The other thing that is bothering me is “tortuous interference with contractual relations”.
The problem with quiet title actions anywhere in America is that it appears that in many instances, they are improperly filed and even moreso, improperly utilized as a means of foreclosure defense, when they have nothing to do with the Note and have everything to do with title to the property. The lack of understanding of this concept has set numerous spates of bad case law. This is what prompted Al West and I to write the book (The Quiet Title War Manual) and go on a tour offering a quiet title workshop that can educate homeowners and their attorneys about the real issues involved in the filing of quiet title actions.
Part of my problem is that when a lender can’t prove they own the note, yet after the ruling their attorneys insist on continuing the tirade against the homeowners filing quiet title actions by asking for “dismissals with prejudice”, which I have personally seen in at least one case I have in my files, the possibility exists that these law firms may have committed a tort against the homeowner and they’re asking the courts to sanction this behavior!
What these bank attorneys don’t seem to get is the following reasoning (by virtue of every mortgage contract in America since 1999 that I am aware of):
This paragraph has two parts (which I will expound upon here):
(1) the Borrower is claiming that he owns the property and has superior title to that property, with the rights to convey an interest in the property to other parties (which could be lenders, or the complete transfer to another owner). As the Borrower, the Borrower is claiming that the property is unencumbered; yet I seriously doubt that any “Borrower” has actually (besides me) gone into the land records to see exactly what the chain of title looks like for their property and really do a thorough search to find out if anything “could come back to bite them later”. The “except for encumbrances of record” part even scares me more, because with the advent of MERS-originated mortgages, this Fannie Mae/Freddie Mac Uniform Instrument language (put there by the lender, NOT by the Borrower) is enforceable as part of the conditions of the contract. If MERS’s business model is problematic, which according to the latest settlement with Multnomah County, Oregon appears to be indicative of, then the entire country is in trouble; and
(2) the Borrower also covenants (promises) to warrant the title to the property and will defend that title “against all claims and demands, subject to encumbrances of record.” The term “subject to” is a “weasel clause”, left up to the discretion of the court; but the term “and will defend title generally” sure seems to me as if the Borrower has been obligated by the contract to file a quiet title action in order to preserve his and any real lien holder’s interest in the property from harm by a party that is not entitled to it. This would clearly indicate to me that anyone coming against the property that doesn’t have a real interest may be interfering with the Borrower’s contractual relations with the real party in interest. So if the lender can’t prove it owns the note, it and its attorneys really have no place trying to achieve the ultimate goal of obtaining a “Certificate of Title”, claiming that they own something and that the Courts now could be interfering with that contractual obligation by “going after” attorneys who are trying to do right by their clients!
So there has to be an underlying reason. In my COTA Workshops, I mention the importance of “backgrounding your judges and opposing counsel”. Well, it appears this has just gone one step further. Time to start digging into those retirement accounts to see what those judges are so worried about and why they would make illicit use of the Florida Bar (who itself could be brought into question for interfering with a Borrower’s right to quiet title to property) to do its dirty work so the court won’t have to rule on such matters. It would be politically expedient to toss these kinds of cases, depending on where your source of election campaign money is coming from. Ask Pam Bondi. She should be able to tell you which banks and servicers are funding her future re-election campaign. You can tell whose side she’s on based on the lack of support for certain causes, like investigating what’s in the OSCEOLA COUNTY FORENSIC EXAMINATION. One would think with all of the negative publicity and stink made by the Osceola County Sheriff’s Office vis a vis the Orlando Smutinel, that her office knew this examination had been conducted.
I suppose I will have to launch multiple FOIA Requests at some point on all of this (sigh!).
If it proves to be true, then the Mines case may just be as important as I made it out to be, because judges ruling on foreclosure cases involving the very REMICs they’re protecting may be an “apple they’re not entitled to take a bite out of” and we may end up having to have special masters in Florida to rule on foreclosure and quiet title actions because all judges in the State would be conflicted out! More to come on this story and its relevance to quiet title actions in America.
I might also wish to point out an article from THE DOCKET CALL in Volusia County, Florida, which you can read here: 2014Spring_DocketCall In this post, you should read the second section about clearing the foreclosure backlog and pay close attention to the last sentence of the article! It will scare the hell out of you when it comes to why judges are fighting homeowners and lending the appearance of siding with the lenders. There’s more to the story than this article appears to ferret out.
In the meantime, this is a friendly reminder that Al West and I are hosting a Quiet Title Workshop in Tampa, Florida, April 2-3, 2016 at the Tampa Airport Marriott. You and/or your attorney may wish to attend. We will also be discussing issues with aspects of quiet title and TILA. There are only 36 seats in the room and a slew of them have already been reserved. Please visit the Clouded Titles website for further details … and get educated!
The real fight has just begun!