Tag Archives: Quiet Title Actions

FLORIDA HOMEOWNERS SHOULD STAY OUT OF BK 7 COURTS IF THEY WANT TO FIGHT FORECLOSURES!

The author of this post is not giving legal advice, just reporting what’s out there.  You should consult a competent foreclosure defense attorney regarding such matters, as the contents in this post appear to reflect the court’s intolerance for homeowners who file bankruptcy to stop a foreclosure. 

OP-ED — 

Folks who are in trouble with their mortgages in Florida really need to strategize before taking the plunge into the abyss known as the Florida legal system, where state judges clearly have “agendas”, the Florida Legislature has “agendas” and the federal courts have “agendas” … all aimed at taking of property when you can’t make the payments on it.  It’s not often that the author of this post steers away from chain of title issues, but there appears to be widespread ignorance (or in the alternative, intolerance) on the part of the Sunshine State’s legal system, which makes things “not so shiny” anymore, given the recent spate of legislation and court actions.

STATE JUDGES

All one needs to do is examine court dockets to see how fast, over time, that Florida circuit judges have blindly assumed that the financial institutions coming before them actually own the promissory note they’re trying to enforce.  It would seem that judges simply rely on the blatant attack on the property owner as just because otherwise, why would this particular bank show up in court?   Because they can!  And they do!  And judges give them so much leeway that Florida homeowners are stymied for options.  This is why the State of Florida has so many zombie homes (despite what the politicians, economists and the media would have you believe) and shadow inventory that sits empty because of title issues.  In very few cases I’ve examined have I seen evidence within a transcript that allowed for a forensic examination of the note, to make sure it’s “original”, like the bank’s attorney says it is.  To show you that the inequity between state court systems is similar in nature, I’m consulting a case in New Jersey where the bank’s law firm sent a “cover lawyer” into court with what appeared to be a “faxed copy” of the note, claiming it to be the “original”.  I think most judges, even in light of the foreclosure defense attorney’s objections, could tell the difference, but nope … this judge said that the word of the law firm and the faxed copy of what it self-authenticated is good enough!  Can you believe that shit?

Another part of the equation is the existence of foreclosure defense lawyers who have seen fit to turn the foreclosure debacle into a cash cow by using delay tactics to keep property owners in their homes, despite the probable outcome that only about 1 in 25 cases brought into court makes it past the 810-day mark in a Florida foreclosure cycle.  Knowing that the odds are never “in their favor” (attributing the quotation to The Hunger Games), frustrated mortgagors then contemplate using bankruptcy court to dodge the “sale bullet”. However, things in Florida are about to change.

THE FLORIDA LEGISLATURE

Effective July 1, 2017, Florida homeowners who run to the bankruptcy court and get their promissory note discharged are going to find themselves without other options to fight the foreclosure.  See House Bill 471 here if you don’t believe me: fl-hb-471  It’s only two pages long and I’m sure you can read (if you’re reading this)!

Simply put, any documentation that is filed in Bankruptcy Court which would indicate surrender of the property (commonly seen in Chapter 7 cases) makes it legally okay for the bank’s attorney to submit that document that was filed in the Bankruptcy Court under penalty of perjury to a Florida circuit judge to get a Final Judgment of Foreclosure.  I see this as a definite negative if you’re trying to fight a foreclosure.  But then again, most homeowners are like electricity.  They want to take the path of least resistance; and declaring bankruptcy is certainly a hell of a lot cheaper than fighting a foreclosure through Florida’s appellate system.

It appears that folks don’t understand the difference between an in rem and an in personam action.  Enforcement of a security instrument, which in Florida’s case is a mortgage, can only happen when the party claiming to have an interest in the property can prove ownership.  An attack on the property through the recorded security instrument is an in rem action (like quiet title actions).  This is why I wrote the book The Quiet Title War Manual (with the professional help of California attorney Al West).  The book explains the difference between the note and the mortgage.  Folks who don’t get it should get this book and read it, because when Al West and I taught quiet title workshops, we hammered these basic principles into the heads of the attendees.  In personam actions are actions involving debt, which in this case is the promissory note, NOT the mortgage!   How convenient it is that the Florida legislature has come up with this House Bill in the wake of the recent court conflicts within the federal system!

THE FLORIDA FEDERAL COURTS

Let’s look at the case of In re Hookerin-re-hooker   Once you get past the first three paragraphs, you’ll understand why the Florida legislature did what it did to help the banks fight continuous counterattacks in state court.  Again, how convenient, to avoid further confusion in the courts.  Let’s just legislate this away, shall we?

Now we come to the slam dunk that affects the way the 11th Circuit Court of Appeals (which covers Florida), has ruled that Chapter 7 debtors who file a bankruptcy action and put forth a statement of intention to surrender the real property cannot later contest a foreclosure in the state court. in-re-failla   If you read the first paragraph of this PUBLISHED OPINION, and then read the background on the case, it appears that the homeowners wanted to “have their cake and eat it too”.  The Failla case simply states: “Debtors who surrender property must get out of the creditor’s way.”   The Florida Legislature (I believe) made sure that a bill was passed that shut off the trough at the source of the feed (so to speak).

No more hogs at the trough.  There have been so many different points of view, it’s understandable that the Florida legislature would pass a bill that state courts could point a finger at and say, “SEE?”   So for those of you thinking that running into bankruptcy court (in any state for that matter) and declaring your intent to surrender the property (God forbid, why would you do that?) under penalty of perjury is so confusing to some when their state court cases get shut down.

ANOTHER WHAMMY! 

It has also become relatively apparent that any homeowner that has placed themselves in the foregoing position and continue to litigate their foreclosure in the state courts of Florida are likely to get sanctioned!   Vexatious litigants are likely to wind up in jail on contempt charges!  I say this because of what happened to foreclosure defense attorney Stuart Golant, 70,  in the Palm Beach County courtroom of Senior Judge Howard Harrison for simply making a motion!

Florida homeowners have had the deck stacked against them by the courts and the legislature in favor of the banks when it comes to promissory note enforcement.  Once a mortgage has been recorded in the land records where the subject property is situated, all it takes is a missed payment and the door to “foreclosure hell” opens to swallow the homeowners whole.   I can’t help but wonder what kind of counseling homeowners have received, given the phone calls and emails I get regarding strategizing an in personam case against them.

ONE MORE TIME …

In a judicial foreclosure state like Florida, a lender comes to court and waves the promissory note around and claims it has the right to enforce the terms of the note!  It should be required to prove that the note is genuine, forensically.  Have the actual paper tested.  Have the ink tested.  Check for pixelation by blowing the note up on a computer screen to examine evidence the note was photoshopped.  Object to the note being entered as the original.  I believe a majority of securitized notes are copies of what was downloaded into the MERS® System and later shredded, as I’ve covered in previous posts.

Once the lender gets the note in front of the court and gets it admitted into evidence and gets the court to agree that U.C.C. Article 3 (Negotiable Instruments) exists and that the alleged lender has the right to enforce the note, THEN the Lender gets to enforce the Security Instrument, the in rem part of the equation.  The security instrument (Mortgage) is then “ripe for the picking”.  Believe it or not, most homeowners think that the lender is foreclosing on the mortgage.  That couldn’t be further from the truth!  The Lender is foreclosing on the Note.  Proving it has the right to enforce the Note means the Lender gets the right to enforce the Security Instrument, not until!

Bankruptcy Courts are designed to handle in personam scenarios.  In personam relates to debt.  Promissory notes are evidence of debt!   Recorded mortgages are evidence of security interests, not debt!   If you’re going to use the bankruptcy court to alleviate your personal obligation to the note, and liquidate it in a Chapter 7 bankruptcy proceeding, be prepared to move out of your home!

Thinking twice about running into Chapter 7 bankruptcy court to stop the sale?   The “system” is ready for you!   (Hint: This is why we have Chapters 11 and 13!)  No matter, if you live in any state where you think the “deck is stacked” against you, plan your “end game” BEFORE you go into default, not after!

And this is why I don’t talk about in personam issues much.  Homeowners really should get a financial education before they sit down at the closing table.

Tune into kdwradio.com every Friday night at 6:00 p.m. EST for my radio show, City Spotlight: Special Edition!   Order any of the author’s books by visiting Clouded Titles!

For those of you waiting for the new FDCPA book, it’s almost ready!   Pre-order your copy today!  (FDCPA actions are for dealing with debt collectors!)

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ANOTHER CLASSIC EXAMPLE OF WHY I BELIEVE YOUR PROMISSORY NOTE WAS SHREDDED …

OP-ED — The author of this post is a consultant to attorneys in quiet title actions and foreclosure defense matters involving chain of title. However, in this particular instance, I accidentally stumbled upon this federal circuit ruling that merits consideration as to why I believe that your MERS-originated mortgage loan NOTE (and potentially your security instrument that went along with it). You can read it here:

first-am-bank-v-fed-res-bk-of-atlanta-et-al-7th-app-cir-no-16-1122-nov-22-2016

I customarily do not read the entire piece of litigation unless there are specific things regarding real property law I’m looking for; however, in this case, I found some interesting UCC citations specific to Illinois that were referenced by the 7th Circuit Court of Appeals (which I deem fairly conservative in their holdings on cases), in extrapolating what further happens when physical paper is converted into electronic paper, as noted here:

“…banks would drown in paper”

In this particular suit brought by First American Bank, it accused Citizens Bank of destroying a check; in other words, a spoliated (an albeit fraudulent) check, as it had been honored and then “truncated”.  This term (in quotes) is important to understand. To clarify, I’ll use the Court’s own wording in the suit:

“The Federal Reserve Board’s Regulation J, 12 C.F.R. § 210.6(b)(3)(i)(A), provides that when a Federal Reserve Bank presents an electronic check (such as the check drawn on First American) for pay- ment, “the electronic image … [must] accurately represent[] all of the information on the front and back of the original check as of the time that the original check was truncated.” By “truncated” is just meant that an electronic image is substituted for the original paper check.” Id. at 3.

Since your mortgage promissory note is also considered in the realm of debt as a negotiable instrument (even the banks will agree with me on this), the MERS® System relies on the conversion (or truncation) of the note into electronic form in order to be stored on its system. However, you and I both know that MERS does not do the conversions, right?  The users of the MERS® System do the conversions and then upload those conversions into individual files within the database known as Mortgage Electronic Registration Systems, Inc.  That is what this database was created for, for the storage of electronic files.

Now for the truth of the matter … here is the Court’s own wording:

“There is no duty to retain paper checks after an electronic substitute has been made—otherwise banks would drown in paper—provided there’s a record of the contents of the paper check, as there is of course in this case; we know what the electronic check omitted, and knowing that, we know the information that the original, the paper check, contained.” Id at 5.

I hope you caught the highlighted phrase as to my realization that spoliation of the original note and mortgage (or deed of trust) happened in all MERS-related cases.  When you compare how banks used to do business, when you borrowed money from a bank, they would issue a check payable to the seller on your behalf, store the hard documents in their vault … and at least you’d know WHO you were making your payments to every month.

Caveat to this story …

There was also another interesting notation I picked up on while reading through the opinion of the Court:

“Some information that was on the original check was missing from the electronic version, but unavoidably so be- cause it was information consisting of characteristics of the check, such as watermarks, microprinting, or other physical security features that cannot survive the imaging process,” and their absence from the electronic image, being inevita- ble, was not actionable. See Regulation CC, 12 C.F.R. Part 229, App. E, § 229.51(A)(3).” Id at 3

If you continue reading onto page 4 of the Opinion, First American Bank could have demanded a “substitute check”, which is a paper printout “is deemed the legal equivalent of the original paper check.”

The foregoing statement would clearly tell me that a challenge is necessary to all promissory notes contained within the MERS® System because there is no “paper printout” or “substitute check” other than a copy of the electronic note downloaded by the foreclosing entity (most likely a REMIC), which in most cases is clearly missing certain items not found within the original note. Let’s revisit one of the previous mentions of items that cannot survive the imaging process.  One of them could seriously be an indorsement on the note, if you consider the current round of “indorsement-in-blank” arguments as to their lack of dating.  This is another one of the key reasons I believe that servicers, working in conjunction with the foreclosure mills, deliberately and purposefully create documents out of thin air for the purposes of manufacturing standing.

Also revisit the statement the Court made about what the electronic image must accurately represent (all of the information from the front and back of a check). Why do you think that when you access your online banking checks, you see both sides of the check’s image?  You never see that with a promissory note, do you?

A promissory note operates just like a check!

It has to be endorsed among the parties to show the custody of the chain of the note; otherwise, someone could come in at a point in time uncertain to a future borrower and attempt foreclosure upon their home because the chain of custody of the note was not preserved, especially in a “failed beta system” like MERS, which relies on its user-subscribers to “do the right thing” in managing their online transfers; however, there is no requirement by MERS that its user=subscribers even use the MERS® System, so long as they sign an executory contract naming MERSCORP Holdings Inc. (its parent), as the “electronic agent” in the transaction.

And you never see MERSCORP Holdings, Inc. anywhere on your paperwork, do you?  Further, once you realize that MERS and MERSCORP require its user-subscribers to indemnify MERS and MERSCORP from all liability for the errors and atrocities in its “system”, you’d also have to believe that MERS and MERSCORP have little (if any) idea what transactions are submitted by its user-subscribers unless they are actually made aware of it.  How then can MERS come into Court and say they have an interest in a promissory note they don’t even know is in their own database (or not) or was traded out of its database, when MERS itself did NOT input said data into the database?  How’s that possible?   Plainly, it doesn’t appear to be the case.

Mortgage States versus Deed of Trust States

Sadly, the difference between the two is that in a Mortgage State, you at least get your day in court.  In Deed of Trust States, all foreclosures are deemed to be legal unless otherwise legally challenged.

So the next time you’re looking at your promissory note that you managed to retrieve from the Servicer in a Qualified Written Request, remember what “version” of the promissory note you’re likely to get back.  If you lost or destroyed your copy of the files you got at closing, we need to go no further because you have no physical proof of any of the items that could or could have not reproduced on the electronic version.  This entire sham process is as bad as the sham check that was tendered to the attorney in this story.

This case does represent a mild test of the Uniform Commercial Code, at least as far as Illinois was concerned.  It merits further analysis by your attorney of record, especially when it comes to evaluating what is and isn’t contained within your promissory note.

How then can allonges (as well as indorsements) be attached AFTER the note has been scanned and uploaded into the MERS® System?  I don’t see too many attorneys revisiting that angle. Even though I predominantly deal in chain of title issues, this case tells a story of proportions equal to the sum of many promissory notes and merits further research for your understanding into the flow of promissory notes and what you’re actually presented with in Court, especially when MERS is involved.

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DR. KLAUS HOSTS FORT MYERS QUIET TITLE WORKSHOP EVENT!

BREAKING NEWS! 

With the cancellation of the July 30-31, 2016 Quiet Title Workshop in Las Vegas, Nevada comes a new pitch by a Fort Myers, Florida investor to host a replacement Quiet Title Workshop and has asked Al West and I to lecture at this event.  In other words, Dr. Klaus, a Florida resident, has secured hotel arrangements at the La Quinta Inn & Suites – Fort Myers Airport for July 30-31, 2016.  DK Consultants LLC is not sponsoring this event, so you have to contact Dr. Klaus directly.

I have been informed that there will be Florida attorneys at this event that are involved in quiet title actions!

While Al West and I have agreed to speak at the event, we need a minimum of 20 people to attend to make it work to fit our logistics.  So, in light of that, I’m posting Dr. Klaus’s information here so you can contact him directly to make arrangements to attend:

Here is the flyer for the Fort Myers, Florida QT Workshop on July 30-31, 2016: QT-WORKSHOP-2016-July-FM-Flyer

Here is the registration form for the Fort Myers, Florida QT Workshop on July 30-31, 2016: QT-WORKSHOP-2016_JULY-Fort-Myers_REGISTRATION-FORM

Here is the Quiet Title Workshop Syllabus (what we will be teaching you at this event) for the Fort Myers, Florida QT Workshop on July 30-31, 2016: FORT MYERS-QT-WORKSHOP-SYLLABUS

This is your golden opportunity to take advantage of more education!  If you and/or your attorney wishes to attend this event, you need to contact Dr. Klaus directly.   His contact information is on the FLYER!  He needs 20 attendees, minimum, to make this work!  You would need to make hotel and airfare arrangements separately.  The next DK Consultants LLC sponsored Quiet Title Workshop is in Honolulu in October (15, 16), 2016; so if travel to Hawaii is not in your budget, you may wish to take advantage of this educational opportunity!

Again, you need to contact Dr. Klaus directly! 

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THE SIGNIFICANCE OF DOING A QUIET TITLE WORKSHOP IN HONOLULU …

BREAKING NEWS! 

After the Chicago Quiet Title and New York COTA Workshops are over, the next scheduled (and final sponsored) event is in Honolulu, Hawaii (at the Ala Moana Hotel), October 15-16, 2016; 9 a.m. – 5 p.m. both days.

I wanted to share just how meaningful this upcoming event is for a number of reasons:

  1. Attorney Gary Dubin (The Foreclosure Hour) is going to carry the workshop live on iHeart Radio, which is initially broadcast over KHVH-AM in Honolulu.
  2. Attorney Dubin is also extending the workshop an hour, making it a two-hour event, from 3-5 p.m. HST, so you get to hear the last two hours of the workshop live, which will contain a huge amount of Q&A on quiet title actions!
  3. I have been told that many attorneys plan to attend this event because of its location, which means the amount of legal acumen being displayed in the workshop is going to be huge!
  4. Many homeowners from the West Coast have also told me they plan to attend this event, especially people from California, now that the Yvanova decision has affirmed Glaski and opened the door for homeowners to challenge their assignments of deeds of trust.  Use this time to “clear your head” and strategize your next moves in fighting the good fight!
  5. This is the first time (and only time) that Al West and I will be conducting a workshop of da kine (any kind) in Hawaii.  As “neglected” as the Islanders may feel about our attention paid to the foreclosure scene there, we are rising to the occasion (and then some) due to Mr. Dubin’s participation in the event!
  6. We are not raising the prices to attend the event, just because it’s costing us three times as much to present it!  Let’s face it, doing any kind of workshop in Honolulu costs way more than on the mainland, but this workshop needs to be conducted, because the “little guy” lives in Hawaii too!
  7. Hey, let’s be honest here … this is the last workshop of 2016 and we’re going out with a bang!   We will have the details for the Honolulu event posted online in June.  We are being told there are between 50 and 70 seats available at the Honolulu event.  You can also count on local homeowners from all of the Islands taking up much of these seats!  Please do not wait until the week of the event to plan to attend.  This is why we are giving you the “heads up”, so you can put it on your calendar NOW!

In lieu of the foregoing … you still have a way to get the same education by attending Chicago (May 28-29, 2016) and New York (June 3-5 2016) for the same money and less in travel expense, especially if you don’t fancy a vacation in the Aloha State.  Save money by using AAA, Expedia, Orbitz, Hotels.com or some other hotel discount program to book your room at the participating hotels (since the group discount rate has expired on both locations).  Go to the Clouded Titles website for more details!  We still have seats available at both events!

In other breaking news … we are currently working on a two-day, online CLE Webinar for attorneys regarding quiet title actions (proposed 14 credit hours). Unlike other quiet title classes that are being offered by other companies, we cannot share the most important logistical details in 5 hours!    The online COTA Workshops are still in production, but we anticipate having them out by the end of the year.

More to come on that, later!   Aloha! 

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CHICAGO QUIET TITLE WORKSHOP: THE REAL WAY TO CELEBRATE MEMORIAL DAY WEEKEND!

BREAKING NEWS!: 

The next planned Quiet Title Workshop is slated for Saturday and Sunday, May 28th and 29th, 2016 in Chicago at the Radisson O’Hare Airport Hotel in Des Plaines, Illinois from 9 a.m.to 5 p.m. both days.

The planning of this event still gives you time to take morning flights out to spend with your families on Memorial Day, despite the fact that many Chicagoans are expect to attend this event.

All attendees to this Workshop will receive a FREE COPY of The Quiet Title War Manual, along with a 16GB USB flash drive which is loaded with seven years of research on quiet title actions and foreclosure defense information and case law you can share with your foreclosure defense attorney!  We even anticipate that a few foreclosure defense attorneys will be attending this event, so it would open the doors for great networking possibilities for you, the student of quiet title.

Education is important, especially when it comes to legal issues.  No matter what time of the year, if you are in property distress and/or facing foreclosure, you owe it to yourself to invest in your future by attending this workshop!

Here is the flyer for the Chicago Quiet Title Workshop: QT WORKSHOP FLYER_CHICAGO_2016

Here is the registration form for the Quiet Title Workshop: QT WORKSHOP 2016_CHICAGO_REGISTRATION FORM

We’ve also included a syllabus containing the schedule of topics discussed by myself and Quiet Title Superlawyer Al West: CHICAGO QT WORKSHOP SYLLABUS

There are a limited number of seats to this event.  Because the workshop is slightly more than thirty (30) days away, we suggest that you plan your schedule for that weekend accordingly and make plans to attend this invaluable workshop! 

Homeowners: The information you learn in this workshop will make you more knowledgeable about the subject matter than most attorneys who dabble in real property law.

Investors: The information we offer in this workshop is designed to help you avoid tens of thousands of dollars in legal fees in investing in or defending your already-acquired investment properties.

Paralegals: Who has more of a handle on actual case files than you?  The step-by-step procedural handouts we offer in this class will help you to be the best paralegal you can be!

Attorneys: Quiet title actions, when properly and timely filed, can be very effective when done properly.  Attorney Al West shares with you the latest strategies that he has developed to secure quiet title wins for his clients!  Put aside any preconceived notions, because we know you haven’t heard of a “C & E” … and this is one strategy in winning a quiet title action you don’t want to be without!  This will save you time and expense in winning a quiet title action!

What a unique holiday plan!  

Again, despite the fact it’s a holiday weekend, we must take pause to recognize that Memorial Day does not just reflect on the service and the sacrifices that our veteran’s made, it also commemorates the losses we have suffered as Americans in the wake of foreclosures that have swept this country and continue to plague our very existence.

Visit the Clouded Titles Website and register for this once-only area event!  When you book your hotel sleeping room, ask about our Quiet Title Workshop sleeping room group rate, accompanied by a FREE full breakfast each day of the event for those booking sleeping rooms at the Radisson!

Al West and I will not be back in Chicago again, so this would be the time to plan your picnics and other celebrations around the Quiet Title Workshop!  Become empowered!   Learn to effectively fight the good fight!

Will you be proactive or reactive?

Millions of Americans have simply given up fighting a foreclosure of their home.  They didn’t plan for this eventuality.  They were promised something that eventually they could make good on: a mortgage loan that was unaffordable and at best, predatory in nature.  When push comes to shove, we believe that your original note and mortgage were digitally uploaded into the MERS® System … and then shredded!   Most Americans do not realize this!

The Illinois courts (as well as courts in other areas of the country) appear to NOT be homeowner friendly because desperate, uneducated homeowners don’t understand what is required to defend their properties.  Instead of fighting the right issues in a timely manner (proactive), they wait until it’s too late and cling to whatever ideas they happen to glean from the Internet (reactive) in an attempt to save their homes.  A majority (85%) of them run away.  This is what the banks want!   Most flee their situation because of a lack of education!

If you’re still paying on your mortgage in a timely manner, this workshop is for you, especially if you have a MERS-originated mortgage!  We’ll give you the educational tools you need to do your research to “fight the good fight”!

Please also understand that Al West, Esq. is a sincere friend of the homeowner.  He has won dozens of quiet title actions and has taken time out of his busy schedule to educate homeowners to “get ugly”!  His time is extremely valuable, so it should come as no surprise that our 2016 tour is a highly precious commodity!   Technically, you have less than 30 days to decide what is important to your future.  Make good choices!

 

 

 

 

 

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