Robert K.

Ramers 415-730-4514

Quiet Title Approach

Definition
A proceeding to establish the plaintiffs title to land by bringing into court an adverse claimant and compelling him either to establish his claim or forever be stopped from asserting it.

Desired outcomes
1. Possibly get property reconveyed to you by proving that original lender was paid in

full, and, as specified in the Deed of Trust, is required to reconvey the property OR
2. Show that the party attempting to foreclose (who is NOT the original lender) does

not have standing to foreclose, since the note and deed of trust were separated during a securitization process. You will prove that the chain of title is irrevocably broken and there is no feasible way (without exposing all of the mortgage frauds) to correct it.

Reasoning
For outcome 1, you bring an action under contract law to force the original lender to reconvey the property to you since he has been paid in full and the terms of the deed of trust require him to do so. For outcome 2, you bring an action to court stating that your Defendant pretender lender claims to have some interest in the land that you state is your own estate by title. You also state that the lenders claim has no foundation , since the original lender sold or transferred the loan to a new unknown creditor somewhere, who still has to be brought forward (having a securitization audit in your back pocket that proves this would be a good thing). You are essentially asking the Defendant pretender lender to produce the note without directly challenging the judge and giving your pretender lender the opportunity to claim that you are just trying to get your house free and clear. You also do not have to educate the judge on the intricacies of the securitization process.

Gathering evidence
Before you file suit, you will need to gather all of the necessary evidence to support your claims. This should include: 1. All of the documents in your loan file
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Go to the title company that closed your loan and pay them to review your folder and see if you are missing any important documents you may not have received them or they might have been sent to the lender. If any are missing, you will request them in discovery during your lawsuit. Do NOT tell them that you are planning to sue your lender. 2. Certified copies from the county recorders off ice of all of the documents recorded from the day you got your loan to today.
3. OPTIONAL: To strengthen your case, you might want to do a securitization audit

to show that the deed of trust may have been assigned multiple times to unknown parties and might have clouded your title.
4. A Commitment Letter with Exclusions and Conditions from your title company in

order to: a. Reduce the chances of your action getting thrown out of court by proving to the court that even a title company thinks that there are clouds on the title. b. Remove any liability from the title company and its errors and omissions carrier by endorsing the action.

To get this commitment letter, use the following process:

1.

Go to the county recorders office and get CERTIFIED copies of all recorded documents from the date of your loan to today. buy a homewoners indemnity policy, but you think you may have a cloud on your title that you think will have to be cleared off in a quiet title action. Show your Deed of Trust and point out that this organization called MERS is shown as nominee and beneficiary. Tell them that it looks like MERS is hiding all subsequent lenders and there might be future damages that would have to be covered by your Errors and Omissions carrier. Also, if there are improper recordations on your record, woudnt the title be slandered? You probably have to find out what documents need to be recorded to legally tie the ownership interest in the property together. Ask how much they would charge to do that. Ask whether if you are able to get a quiet title in court would they issue a homeowners indemnity policy to protect me as beneficiary in case

2. Go to a competitive title company and tell them that you would like to

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another cloud is discovered. Say you would be happy to sign a letter of intent if they would give you a declination (exclusionary) letter that outlines some of the things that have to be corrected in order for them to insure this property. 3. If they give you a hard time, ask to talk to their E&O carrier. If they will only talk to your attorney, have him follow up and get the declination letter .

Legal strategy
1. Stop the property from being sold under you. Immediately file a Lis Pendens when you file your suit to tie up the property during the suit and prevent it from being sold from under yo.
2. Jurisdiction and venue

State courts in California have not favored homeowners in their foreclosure defense attempts. However, to use the quiet title approach, you MUST keep the case in a state court, which is the only court that can quiet your title. The lenders often try to get the case moved to Federal Court to further delay the process and increase your costs. Here are some tactics to make sure that the case stays in state court: a. Do not include any federal questions in your allegations or counts b. Do not ask for specific damages. Make them exemplary and let he court decide what damages are proper. If you ask for a settlement figure and it is above $75,000, the lender will ask that it be removed to federal court, claiming diversity jurisdiction.
c. List the legal description of your property as a defendant by publication in the

county where the property is situated (action in rem). Since the property is the county of record in which jurisdiction and venue reside, it cant logically be removed to federal court. 3. Attack approaches The cause of action that you use will depend on the particular situation. Here are some possibilities to consider: a. Determination of Lien validity prior to filing quiet title

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Check statutes to see if you have the right to bring an action to have the court review and determine whether a lien is valid or not.
b. Attack the deed of trust directly. You are going to scrutinize the parties in

the deed of trust. i. If MERS is on your deed of trust, and MERS has appointed a successor trustee (without participation of the original trustee, usually the title company) could be a violation of the Merger Doctrine in trust law. When this occurs, one of the elements of the Deed of Trust ceases to exist from the beginning (ad initio) an the trust is voidable. Also fraud on the face of the deed of trust occurs because the Trustee was not really a trustee, but a figurehead put there by the beneficiaries. ii. If MERS is involved, you will have to sue MERS and its agents for damages for slandering the title to your property. This is fraud because MERS cannot convey anything that it does not own. Any document that it created must be challenged on the grounds that MERS committed fraud on the county by causing the document to be recorded in its four corners standing . If you uncover fraud in a document, it can be stricken from the record and thus create another cloud on the title because a part of the chain is broken and the entire chain is affected. Therefore, there is no feasible way the lender can legally perfect title to your property, and both the lien and the note may be expunged. c. Attack the Deed of Trust under statute There is a possibility that a state statute was violated, especially if MERS is involved, and the Deed of Trust may be voided, making the note an unsecured debt. Some things to look for: i. Is the trustee be an out of state trustee? May not be legal unless a recorded in-state trustee is made part of the deed of trust. j. Are there violations of the Uniform Trust Code k. Are there violations of the Uniform Fraudulent Transfer or Conveyance Act? This could be true when MERS assigned the Deed of Trust to another entity. d. Attack the fraudulent chain of title In many cases the lender and its agents recorded actions in the wrong order in their foreclosure process. For example, they may have filed a Notice of
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Default BEFORE they were assigned the deed and the note, and therefore the chain of title was disrupted because of misfiling in sequential order. In this case, you can claim that the holder in due course committed fraud on the court by NOT being the owner of the note until AFTER it filed. The specific attack on title is the gap between the original filing of the Deed of Trust and the time the actual assignment was filed, which could be fraudulent behavior. This could make the lender produce the note, which they very likely will not be able to do. e. Attack unknown claimants There might be unknown claimants that need to be legally served to make th quiet title service of process proper. California Civil Code 762.010 Known Persons says the plaintiff shall name as defendants in the action the persons having adverse claims to the title of the plaintiff against which a determination is sought; Unknown persons or claims says: (a) If the name of a person required to be named as a defendant is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties all persons unknown in the manner provided in 762.060

f. Other statutory strategies There may be a statute against filing false public documents , including any document containing a false statement or false representation of a material fact.