Showing posts with label Texas. Show all posts
Showing posts with label Texas. Show all posts

Sunday, October 12, 2014

DON'T MISS MANDELMAN.MI-IMPLODE.COM! ALWAYS A GOOD READ!!

Court Rules Against the Robinson’s in Quiet Title Case  (You can’t file for quiet title and not invite MERS to the party.)


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When we last bid adieu to our intrepid homeowners, Daniel and Darla Robinson (“And Here’s to You, Mr. & Mrs. Robinson – Will Quiet Title Hold Up in California?) MERS had suffered a largely procedural setback on top of a default judgment that could have led to the expunging of the Deed of Trust to the Robinson’s home and their title being quieted.  The couple had filed a “Motion for Judgment on the Pleadings,” and we were awaiting the judge’s decision. (Mortgage Electronic Registration Systems et al. v. Robinson et al.  Case No. CV 13-7142 PSG (ASx)
In case anyone’s memory requires a little refreshing, in January of 2012, the couple filed suit in the Los Angeles County Superior Court with the goal of quieting title to their property.
Now, when you file for quiet title the rule is that you have to give notice to everyone with an interest or “adverse claim” in the property.  After finding that now bankrupt, United Pacific Mortgage… their original Lender under the Deed of Trust… was the only recorded beneficiary, they simply named only that company as a defendant in their quiet title action.
They intentionally did not name MERS as a party to the suit, because for one thing, there was no recorded assignment to MERS on file at the county recorder, and besides that, as a “nominee,” or agent of United Pacific Mortgage, they reasoned that MERS would have no independent interest in the property and therefore would not require any notification of their suit.
Not surprisingly, United Pacific Mortgage failed to respond to the complaint or show up in court… bankrupt companies so rarely do either, as one would imagine… and the couple secured a default judgment for quiet title with an order expunging the Deed of Trust.  Defendants recorded the judgment in the Los Angeles County Recorder’s Office.
As both sides thought would be the case, United States District Judge in the Central District of California, The Honorable Philip S. Gutierrez found the matter to be one that he would rule on without additional oral argument and so his decision on the Robinson’s motion, which was very much like a motion to dismiss the case, was expected in a matter of days or weeks.
Well, late last week, on September 16th, Judge Gutierrez ruled… and DENIED the Robinson’s motion.  As stated in the judge’s 10-page decision
The Deed of Trust identified United Pacific Mortgage as the “Lender” on the loan and Mortgage Electronic Registration Systems, Inc. (“MERS”) as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns.”  Not only that, but the Deed of Trust also provided: “MERS is the beneficiary under this Security Instrument, stating that, “The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender’s successors and assigns) and the successors and assigns of MERS.”
Further, the Robinson’s Deed of Trust also stated the following:
Borrower [i.e., Defendants] understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.
In ruling in favor of MERS, and denying the Robinson’s motion, the court recognized that MERS’ claims are ultimately based on their contention that, under California law, MERS was entitled to be named in the Robinson’s quiet title action.
The Robinsons, on the other hand continue to disagree, arguing that all claims made by MERS “must therefore necessarily fail.”  The couple also argues that the Court lacks subject matter jurisdiction, that MERS lacks standing, and that MERS may not prosecute this action in their own name as a “real party in interest.”
The Court, however, was very clear in stating the reasons it was NOT persuaded by any of those arguments after receiving additional briefing on the issue, and I’m going to paraphrase in order to simplify those reasons below for homeowners and others.
  1. Was MERS Entitled to be Named in the Robinson’s Quiet Title Action?

The Court ruled that YES… MERS was entitled to be named and therefore should have been notified of the Robinson’s quiet title action.  And you know why, right?  Come on… it’s really as much based in common sense as it is law.
The court reasoned that the purpose of a quiet title action is, “to establish title against adverse claims to real or personal property or any interest therein.” Cal. Civ. Proc. Code § 760.020; Walters v. Fid. Mortgage of Cal., Inc., 730 F. Supp. 2d 1185, 1197 (E.D. Cal. 2010)
Quoting Newman v. Cornelius, 3 Cal. App. 3d 279, 284 (1970))…
“The purpose of a quiet title action is to determine ‘all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to.’”  Therefore, California law requires a quiet title plaintiff to name as defendants those persons “having adverse claims to the title of the plaintiff against which a determination is sought.”
As used in this context, “claim” includes “a legal or equitable right, title, estate, lien, or interest in property or cloud upon title.”
The court also noted that “claim” is intended in its broadest possible sense.  (Emphasis mine.)  So, the court reasoned that, “in addition to persons required to be named as defendants, a quiet title plaintiff may elect to include “all persons unknown” with adverse claims to the property.
And even so, the plaintiff filing for quiet title in California, must name those persons “having adverse claims that are of record or known to the plaintiff or reasonably apparent from an inspection of the property.”  Cal. Civ. Proc. Code § 762.060(b).
In this case it is undisputed that the Deed of Trust was recorded and known to the Robinsons when they filed their quiet title action.  The Deed of Trust identifies MERS as “the beneficiary under this Security Instrument,” and provides that “MERS (as nominee for Lender and Lender’s successors and assigns) has the right to . . . exercise any or all . . . interests” granted under the Deed of Trust, “including, but not limited to, the right to foreclose and sell the Property.”FAC ¶ 50; Exh. 1, p. 4.
And that’s true, right?  The Robinsons knew of MERS, they just chose not to recognize MERS as having any independent interest in the property, and therefore they didn’t need to notify MERS.
Or, let’s be honest about this… a more accurate way to describe what happened here, would be to say that the Robinsons didn’t want to notify MERS, because they wanted the default judgment that was likely to result from only naming their bankrupt original lender.  I understand perfectly… in fact, I find it a perfectly understandable strategy, but it is just that… a strategy.
They didn’t want to notify MERS, and their rationalized argument would be that they didn’t have to notify them.  In other words, they took a shot… but ultimately it was shot down.

The Court said it this way…

“Whatever the full scope of MERS’s rights and interests under the foregoing provisions, it can hardly be disputed that by those provisions MERS made some adverse “claim” against Defendants’ title.” 
The Court also went on to revisit many of the California decisions, infamous among homeowners and foreclosure defense lawyers alike, that have regularly upheld MERS as being authorized to sell the subject property.  
As found in the written decision
In fact, when considering deeds of trust materially identical to the one at issue here, courts applying California law have regularly held that they authorize MERS to foreclose and sell the subject property.
See, e.g., Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, 1157-58 (2011); Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1189-90 (N.D. Cal. 2009) (collecting cases and noting “courts have been clear” that MERS is authorized by these deeds of trust to conduct foreclosure). At a minimum, this “right of sale provided by the deed of trust is an interest in the property.” Yulaeva v. Greenpoint Mortgage Funding, Inc., 2009 WL 2880393, at *9 (E.D. Cal. Sept. 3, 2009) (emphasis added).
More accurately, Judge Gutierrez reasoned about the Deed of Trust that it is “effectively a lien on the property, citingWalters, 730 F. Supp. 2d at 1199 (emphasis added); Monterey S. P. P’ship v. W. L. Bangham, Inc., 49 Cal. 3d 454, 460 (1989) “In practical effect . . . a deed of trust is a lien on the property.”
Interestingly, the judge also reasoned that the Robinsons themselves even argue that by the provisions at issue, MERS “instantly clouds title.”  And therefore, these considerations were sufficient to satisfy the Court that, under the Deed of Trust, MERS held an adverse “claim” to the Robinson’s title.  (See Yulaeva, 2009 WL 2880393, at *9 (finding MERS held adverse claim to title under materially identical deed of trust).

Finally, because this claim was recorded and therefore known to the Robinsons, this Court ruled that they were required to name MERS as a defendant in the quiet title action.

And yes… Judge Gutierrez also pointed out some additional decisions that would have said a few things otherwise, but as found in the written decision, “in any event, this Court sees no need here to look beyond the California Supreme Court’s much more recent statement that the security interest granted under a deed of trust is “in practical effect . . . a lien on the property.” Monterey S. P. P’ship, 49 Cal. 3d at 460.
  1. Now, the judge did consider the other arguments made by the Robinsons… things like:

  • MERS was not entitled to be named as a defendant because its status as a “beneficiary” under the Deed of Trust is a “fiction.”
  • Language in the Deed of Trust identifying MERS as a “beneficiary” contradicts language identifying MERS as “a separate corporation that is acting solely as the nominee for lender and lender’s successors and assigns.
  • MERS was not entitled to the payments owed by the borrower to the lender.
  • Despite express provisions to the contrary, MERS is not truly a “beneficiary” under the Deed of Trust, but instead holds “nominal beneficial status only.”
However, the judge pointed out that MERS’ right to be named as a defendant in the quiet title action does not turn on whether it was a “beneficiary” under the Deed of Trust. Rather, it turns on whether MERS had an adverse “claim,” and as discussed above, the Court concluded that MERS did hold such a claim.
The Court also pointed out that a second problem with the arguments being made by the Robinsons is that “one of the two cases they cite for support flatly rejects it.”
“In Fontenot v. Wells Fargo Bank, N.A., 198 Cal. App. 4th 256 (2011), the California Court of Appeal considered a deed of trust identical in all material respects to the one at issue here, and concluded: MERS was the beneficiary under the deed of trust because, as a legally operative document, the deed of trust designated MERS as the beneficiary. Given this designation, MERS’s status was not reasonably subject to dispute.”
The Fontenot court also said:
“There is nothing inconsistent in MERS’s being designated both as the beneficiary and as a nominee, i.e., agent, for the lender. The legal implication of the designation is that MERS may exercise the rights and obligations of a beneficiary of the deed of trust, a role ordinarily afforded the lender, but it will exercise those rights and obligations only as an agent for the lender, not for its own interests.
Other statements in the deed of trust regarding the role of MERS are consistent with this interpretation, and there is nothing ambiguous or unusual about the legal arrangement.”

HOWEVER… returning to the common sense part of deciding this issue, the judge basically said that excusing the Robinson’s failure to include MERS in the quiet title action on the grounds that the Robinsons dispute the validity of the interests asserted by MERS in the Deed of Trust… BECAUSE SETTLING SUCH DISPUTES IS EXACTLY THE POINT OF FILING A QUIET TITLKE ACTION.

The Court also addressed the remaining issues, such as “subject matter jurisdiction” by the Court, whether MERS has standing, and whether MERS is a “Real Party in Interest,” and although you’re certainly welcome to read the judge’s thoughts on those matters HERE, I see no percentage in my attempting to simplify anything… the sections addressing these claims are all short and to the point.
So, the bottom-line is… and just as can be found under the “Conclusion” heading of the written decision…

“For these reasons, the Court rejects (the Robinson’s) contention that they were not required to name (MERS) as defendants in the quiet title action…”

“… the Court finds that (Robinson’s) have failed to establish they are entitled to judgment as a matter of law…”

“Accordingly, (Robinson’s) motion for judgment on the pleadings is DENIED.”

So… three weeks ago when my article’s headline pertaining to this case asked the question, “Will Quiet Title Hold Up in California?”  We now have our answer, and make no mistake about it… it seems to be A VERY LOUD… NO.

Mandelman out. 

Tuesday, August 23, 2011

KANSAS ATTORNEY GENERAL DEREK SCHMIDT, YOU SAY YOU ARE COMMITTED TO FRAUD, SO PLEASE DO SOMETHING. LOOK INTO QUESTIONABLE MORTGAGE DOCUMENTATION FILED IN THE STATE'S REGISTER OF DEEDS OFFICES, PARTICULARLY THOSE LINKED TO DOCX, LPS, AND MERS -- JUST AS MICHIGAN ATTORNEY GENERAL BILL SCHUETTE, ALONG WITH CALIFORNIA, NEVADA, NEW YORK, MASSACHUSETTS, AND DELAWARE ATTORNEYS GENERAL HAVE COMMITTED TO DOING. WHAT DOES IT TAKE TO GET KANSAS INVOLVED?


Servicer Sues LPS-DOCX OVER ROBO-SIGNING

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EDITOR’S NOTE: I find it interesting that LPS continued to fabricate and forge documents after AHMSI told them to stop. It could only mean that they were really taking orders from someone else. The ankle biting is escalating.
AHMSI sues LPS and DocX over ‘surrogate’ signing scandal
by KERRY CURRY
Tuesday, August 23rd, 2011, 10:43 am
[[Update 1: Changes terminology from robo-signing to surrogate signing.]]
Lender Processing Services Inc. (LPS: 17.045 -2.43%) and its DocX affiliate causedAmerican Home Mortgage Servicing Inc. to lose millions from the robo-signing of mortgage documents, a lawsuit filed Tuesday contends.
Coppell, Texas-based AHMSI filed suit in a Dallas district court against Jacksonville, Fla.-based LPS alleging more than 30,000 residential mortgages across the country were affected by  “improper execution, notarization and recording of assignments of mortgage.”
LPS could not immediately be reached for comment.
The lawsuit comes on the heels of AHMSI’s unsuccessful attempt to recover its losses during more than a year of talks with LPS. AHMSI said the defendants first promised to indemnify AHMSI and then later claimed it had no duty to do so because the contract involved with the faulty assignments had already expired.
But AHMSI contends the “defendants conveniently ignore that they created tens of thousands of assignments of mortgage and accepted hundreds of thousands of dollars in payment in accordance with the terms of a supposedly nonexistent contract.”
The lawsuit seeks a declaratory judgment that the contract between the parties is binding and an order compelling LPS and DocX to arbitrate AHMSI’s claims of breach of contract and indemnification. It seeks an unspecified amount of damages, but puts the figure in the millions.
“DocX prepared, executed and recorded lien releases, assignments of mortgage and related documents for AHMSI from April 2008 through November 2009,” AMSI said.
Certain DocX and LPS employees were appointed by AHMSI’s board of directors as “special officers” of AHMSI with powers limited to executing mortgage-related documents, according to the mortgage servicer.
“However, in late November 2009, LPS informed AHMSI that from March 2009 through October 2009, a substantial number of assignments of mortgage were executed by ‘surrogate signers,’ that is, by individuals who were not designated as special officers, but who signed in the name of one or more of the designated special officers. At no time did AHMSI sanction or know of the ‘surrogate signing’ practices of LPS and DocX,” AHMSI said.
The servicer said it terminated its contract with DocX after the revelation and conducted a 50-state remediation effort to correct affected assignments.
“Defendants practice of ‘surrogate signing’ has forced AHMSI to address a myriad of legal issues, problems and proceedings in venues across the country,” the lawsuit alleges.
AHMSI is one of the largest mortgage servicers in the country. It manages nearly $72.5 billion in loan servicing, representing about 384,000 customers, the company said.
In October, LPS said varying signature styles from its subsidiary, DocX, resulted from a DocX practice that has been discontinued and only affected two lenders/servicers, but did not identify those servicers. LPS said at the time that it had not executed affidavits with substantive information on behalf of its clients since 2008, and said it has been mischaracterized in the media in terms of its default-related services.
Since then, LPS and DocX have the the source of several investigations. In April, Michigan Attorney General Bill Schuette said he would look into questionablemortgage documentation filed in the state’s Register of Deeds offices, particularly those linked to DocX.
Also in April, LPS signed a consent order with the Federal Reserve to settle a federal investigation into foreclosure practices at the firm and major mortgage servicers. LPS was required to boost oversight of its processes.
Write to Kerry Curry.
Follow her on Twitter @communicatorKLC.

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Tuesday, August 9, 2011

JURISDICTIONARY SHOWS YOU HOW TO WIN YOUR CASE WITH, OR WITHOUT, A LAWYER!






Lawsuit Self-Help ... Step-by-StepTips & Tactics


 
Video   |   Learn More   |   American Justice Foundation
 


 
 
 



How to Cite Controlling Law ...

Jones v. Smith, 287 So.2d 145 (Fla. 4th DCA, 1998)

CORRECTION SEE BELOW!

Do you want to win in court?Shelf of Law Books
You must learn citation rules!
What are all those numbers?
What do they mean?
Does it seem complicated?
It's really simple.
Simple, that is, once you see how we explain it for you.
I'l tell you a few things today in this Tips & Tactics and leave the rest for you to learn with my affordable, official, 24-hour Jurisdictionary "How to Win in Court" step-by-step self-help course.
The first part is easy, of course.
The names of the parties are separated with a "v." This means "versus" (as you already know), just as it will be Yankees v. Boston Red Sox in the 2011 World Series.
Right?
There may be other parties (more than just "Jones" and "Smith" in the fight) but a citation is still good if it names the prominent parties.
Now, what about "287 So. 2d 543"?
This is also simple (just like everything I explain in my affordable, official, 24-hour Jurisdictionary "How to Win in Court" step-by-step self-help course you should order today, if you haven't already).

CORRECTION HERE:

The first number is the book where the "Jones v. Smith"written appellate court opinion appears. Tough? Not at all. It's just a book number. Nothing more. See? It's easy!
The second number is the page where "Jones v. Smith"appears in book number 287.
No excuse. Just got in a hurry to get this out and didn't go back and EDIT as I always teach others to do. The FIRST NUMBER (287) IS THE BOOK NUMBER IN THE SET OF VOLUMES. THE SECOND NUMBER (543 in this example) is the PAGE NUMBER.
And, "So.2d" between the two numbers?
That's just an abbreviation for a particular set of books known as "reporters" (i.e., books that "report" opinions of appellate court justices that control trial judges and their lower level decisions). In this example it stands for the "Second Edition" of the Southern Reporter. These contain written opinions of appellate courts in Alabama, Florida, Louisiana, and Mississippi. A complete set of the Southern Reporter, Second Edition will cost you around $14,566 but you don't need to buy all those books once you know what I teach in my affordable, official, 24-hour Jurisdictionary"How to Win in Court" step-by-step self-help course.
And that's just the Second Edition. If your case were in one of these states (before the internet) you'd have to have access to the First and Third Editions. And, in addition (no pun intended) you'd need nearly $50,000 worth of National Reporters to have complete access to all federal cases, including U.S. Supreme Court cases, to be "in the know".
Ahhh. How sweet the internet, because today we have access to all of this for pennies ... and it's all searchable using Boolean operators (also explained in my course).
Alright, what about "(Fla. 4th DCA, 1998)"?
That's even easier! The case is clearly in the appellate courts of Florida. It is from the Fourth District Court of Appeal (operating from West Palm Beach). The case was decided in 1998.
See? I do know how to make this stuff easy! Right?
Who said law is too hard for pro se people to learn?
If someone said that to you, it's probably because they just didn't know that my course exists and is affordable!
YOU WILL LOSE ... if you don't learn how to cite "legal authority" as explained clearly in my official step-by-step, 24-hour Jurisdictionary "How to Win in Court" course!
The only opinions that count in court are the recorded opinions of appellate justices who stand in judgment over trial level judges and have power to reverse them if they disagree with the appellate courts' decisions in any way!
Your opinions of law count for nothing in court.
You must know how to (1) find appellate court opinions that control your judge and (2) know how to properly cite those cases in the papers you file and the statements you make in open court.
Show the judge the law so he knows the appellate court will reverse his decision if he rules against YOU!
This is how smart pro se people win!

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