California Homeowner in Foreclosure Wins Quiet Title – It’s a Free House!

 

Well, just when I thought I’d seen everything…

 

A Riverside, California homeowner, Denise Saluto, who was in foreclosure filed for quiet title against Deutsche Bank National Trust, as trustee for Long Beach Mortgage, and its successors and/or assigns, and Washington Mutual Bank, successor in interest to Long Beach Mortgage Company… and won by default.  (And Washington Mutual, turned into JPMorgan Chase.)

 

That’s right… neither Deutsche Bank nor JPMorgan Chase responded to the lawsuit.

When this happens, the Plaintiff still has to present his or her case, but it’s unopposed so it’s not exactly the highest of hurdles.  After considering the evidence presented by the Plaintiff, the court entered judgment in favor of Plaintiff and against the Defendants, thereby voiding her Trustee Sale and the Deed of Trust.  So, presto-change-o… no more mortgage… as in… it’s a free and clear house!  Ms. Saluto may still owe the debt, but the mortgage company is now like Visa or Mastercard, insecure because they’re unsecured.  And no one wants to be unsecured, especially in bankruptcy court.

 

Now, some will say that Deutsche Bank/JPMorgan Chase didn’t respond because they just forgot or whatever, but I don’t know whether that’s the case or not.  In fact, when their lawyer tried using this excuse, the judge was quick to point out that the file had been with the lawyer for NINE MONTHS before any efforts were made to get the default judgment set aside.

 

When a party loses by default like that, assuming it was an oversight of some kind, they usually appeal the decision as soon as they’re notified of the judgment by coming back into court to ask the judge to set aside the default judgment, claiming they weren’t properly served or something like that.  And depending on the reason they defaulted, and almost certainly in the case of a bank and a foreclosure, the judge will set aside the default judgment and let the case start over. 

 

As a matter of fact, if it’s within six months of the default, and the lawyer takes the blame, the court MUST vacate the default judgment.  It’s actually the only time you ever get to see a lawyer willingly accept blame for anything.

 

So, in this case, as one would think, Deutsche Bank did appeal the decision, but the thing is, they waited almost a year to do so, in legalese… the bank, “failed to establish diligence in bringing their motion for relief.”

 

“On February 5, 2009, Saluto filed a complaint against JPMorgan Chase Bank and Deutsche Bank to set aside a trustee sale for violations of title 15 of the United States Code section 1601 et seq. and 12 Code of Federal Regulations part 226.1 et seq., to cancel the trustee deed upon sale, and for quiet title.

 

Defendants failed to respond to the complaint, and on March 16, 2009, Saluto served a request for entry of default on defendants.  The next day, Saluto filed the proofs of service and the request for default with the trial court. The trial court entered default on each defendant on March 17, 2009.” An entry of default just means that the defendant cannot file a response.  The Plaintiff still must file a “default judgment package,” which contains evidence supporting their claims.

 

In July 2009, Saluto filed a request for entry of default judgment, and on December 15, 2009, default judgments were entered.

 

 

Then… a year went by before…

 

“On June 15, 2010, defendants filed a motion to set aside the defaults and default judgments under section 473, subdivision (b), which allows relief from an action taken against a party through mistake, inadvertence, surprise, or excusable neglect when the motion for relief is made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

 

To support the motion, defendants filed the declarations of their attorney, Jenny L. Merris; a vice-president of Deutsche Bank, Ronaldo Reyes; and a research analyst of JPMorgan Chase Bank, Harold Galo. The declarations stated that defendants had no record of receiving service and were not aware of the lawsuit until March 2010.”

 

So, on October 28, 2010, Judge Mark E. Johnson heard the banks’ motion.

 

At the hearing, Judge Johnson stated:

 

“Im going to deny the motion. I do believe that I am outside of the six-month limit. . . . I also dont see the due diligence. So if you want to re-bring it under [section] 473.5, I will look at that, but at least as to this ground I have before me, [section] 473 subdivision (b), Im denying the motion.

 

On December 3, 2010, defendants filed a motion to set aside the defaults under section 473.5. Defendants submitted new declarations of Reyes, Galo, and Merris in support of the motion.”

 

Deutsche Bank claimed the bank had “no actual knowledge of this action until in or around early April 2010 when JPMorgan Chase Bank’s counsel informed it that Plaintiff had recorded the Default Court Judgment against this property.”  Deutsche Bank’s declaration claimed, “This was the first time that Deutsche Bank became aware of the existence of this action.”

 

JPMorgan Chase claimed that it “had no actual knowledge of this action until on or around March 2010 when JPMorgan was informed that Plaintiff was seeking to refinance the property . . . and that Plaintiff had recorded the Default Court Judgment against this property.”

 

This time, Commissioner Barkley granted the motion brought by the banks thereby vacating the default judgment the Plaintiff had obtained about a year earlier. Saluto then appealed the decision to California’s Court of Appeals, Fourth District, Division Two, contending that the defendants’ motion under section 473.5 was, in essence, a motion for reconsideration, and defendants failed to comply with the procedural requirements of section 1008. (Don’t worry about section 1008 for a moment.)  Saluto also argued that Commissioner Barkley simply got it wrong, and that the default judgment should have been upheld.

 

Now, this gets kind of technical, but Section 473.5 says that when service of a summons fails to result in actual notice to a defendant in time to defend the action… and therefore a default or default judgment is entered… the defendant may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.

 

Section 473.5 says that the notice of motion has to be served and filed within a reasonable time, but not exceeding the earlier of two years after entry if a default judgment, or 180 days after service of a written notice that the default or default judgment has been entered.

 

 

Basically, because JPMorgan Chase Bank said it discovered the default in March 2010 and Deutsche Bank said it discovered the default in early April 2010, but they didn’t file their motion under section 473.5 until December 2010, the appeals court found no evidence that the two banks acted “diligently” in bringing their motion for relief under section 473.5, and therefore the trial court should not have granted the motion that set aside the default judgment.

 

As far as complying with the procedural requirements of section 1008, mentioned above, the court said the following…

 

“Because we have found reversible error based on defendants failure to establish diligence in bringing their motion for relief, Salutos additional contentions are moot.”

 

So, that’s that for Denise Saluto… she won, quieted her title and now she has no mortgage on her home.  She may still owe the money to some entity, but the debt is unsecured… like credit card debt… whatever she owes it’s no longer tied to her home.

 

Pretty amazing, right?  If you would have asked me last week, I would have said there’s absolutely no chance that filing for quiet title will result in your loan being unsecured.  And I would have been entirely wrong because Denise Saluto just did it.

 

And again… did it happen because Deutsche Bank and JPMorgan Chase somehow let this slip through the cracks?  Maybe.  Or, was it that the banks weren’t prepared to defend the quiet title action… as in, they couldn’t find the note, or the assignment was a forged and fraudulent mess.

 

Honestly, I have no idea what happened here, and I don’t think anyone else can know for sure either.  All we can know is what happened.

 

So, what could happen next?

 

I started thinking about what could happen from here for Denise Saluto.  Would she simply walk away with her free and clear home and that would be it?  Or, would the banks have another move on the chessboard that would reverse the decision and cost Denise her home?

 

I called around to various lawyers and other experts, asking if the banks could somehow get the decision reversed?  The answer: No.  The decision by the Court of Appeal is essentially final.  Sure, the California Supreme Court could overturn a decision by this court, but I’m told that the chances of that happening are so remote that it’s not worth considering.

 

So, there are no legal maneuvers that will change what’s happened, but I can’t believe that the bankers are just going to give up and go home on this either.  Maybe they will, but maybe they won’t, right?  So, what else could happen next to threaten the title to Denise’s home?

 

Ooops, we forgot… we sold it to someone else?

 

I’m not saying this is going to happen, but it occurred to me that a “new owner” of Denise’s note could show up on the scene with paperwork showing they bought it from the prior owner, either Deutsche Bank or JPMorgan Chase, before all this transpired.

 

You know, like a surprise owner that just happens to have appropriately dated paperwork showing that they are the owners of Denise’s loan and therefore the quiet title doesn’t apply… she’s behind on her payments, and therefore they are moving to foreclose.

 

Would this be fraud?  I would certainly think so.  Would that stop the bankers from doing it?  I would certainly think not.  And would it work and cause Denise to lose her home?

 

The lawyers, however, all tell me the answer is no.  None of that would happen… it simply wouldn’t work.

So, Denise Saluto does now own her home free and clear.  However, it seems very likely that she still owes the amount of her mortgage as an unsecured debt.  Lawyers have told me that she could potentially have the debt discharged in a Chapter 7 bankruptcy, but it would depend on a few things lining up just right, including the value of her home being less than the homestead exemption.

 

In general, a judgment creditor cannot force the sale of your home unless your home can be sold for an amount that would satisfy all superior liens PLUS the amount of your homestead exemption.  It looks to me like equity of up to $75,000 is exempt if you’re under 65 years of age, and $150,000 if over 65, and if you’re married it’s higher still.

 

But, as with everything having to do with the law, there are plenty of caveats, limitations and nuances.  I found many of them in the California Code of Civil Procedure Section 704.730, but as always, check with an attorney before assuming anything because my experience has been that just because it says one thing doesn’t mean that it doesn’t mean another.

 

Okay, so what does this mean to me?

 

Well, in my opinion… that’s an interesting question.

 

For one thing, filing quiet title did work out well for Denise Saluto, and since I would never have predicted it happening in her case, I’m certainly not going to tell you it won’t happen again in yours, because as I said earlier… I don’t know why it happened.  It might have slipped through cracks, or might have been caused by other factors.

 

Ever since yesterday when I started reading the decision by the California Court of Appeal, I’ve been trying to come up with a reason not to file one myself.

 

The lawyers I spoke with all told me that you have to have legitimate doubt about who holds title to your home, or else you’d be filing fraudulently, but I don’t see that as being a problem for me or anyone else in this country whose been paying attention to the news these last few years.

 

I mean, since I do know that Mickey Mouse has been signing the Assignment of the Deed of Trust in most cases, and Donald Duck has been notarizing it, and since the President of the United States recently told the country that there have been thousands of fraudulent foreclosures, and with countless lawsuits alleging that Mortgage-backed securities are in fact, less filling, as opposed to tasting great… let’s just say that I would not want to be asked under oath who owns my note.

 

As far as my having legitimate doubts as to the holder of title to my home, I could assure any court under oath that when it comes to my hizzle, my doubt is rizzle… it’s legit.  Word.

 

(That was me trying to be “hip,” but let’s not tell my daughter because she will be so embarrassed.)

 

This decision got me thinking about all sorts of possibilities, truth be told.  Like, what if many thousands of people all filed for quiet title around the same time… like maybe a million homeowners… LOL.  I would definitely have to go pay-per-view to see that shiznit go down.

 

If JPMorgan Chase and Deutsche were caught bo janglin in Denise’s case, I’d have to wager that many thousands of quiet title filings would leave them in a tizzle(Oops, I did it again.)

 

So, realizing that I wouldn’t be the only one thinking this way, I went online to see how many sites there were offering to teach homeowners how to file quiet title, or represent homeowners who want to file for quiet title… and not surprisingly, there were plenty of them… some want thousands of dollars for their services, and some want anywhere from many hundreds to a couple thousand dollars for a kit that claims to help you do it yourself.

 

And because, even though I think it’s a long shot, I don’t think it’s more of a long shot than winning the lottery or having a slot machine pay off, so I got together with some lawyers and other experts and am putting together a comprehensive guide to filing quiet title, which won’t cost more than $100, and will offer everything the more expensive versions have to offer, and probably even more.

 

Will it work?  I have no idea, and I’d have to guess that the answer will be no a lot more often than it’ll be yes.  But, if you’ve decided to try it, at least this way you won’t have to spend a lot of money doing so.  For a hundred bucks, you can spin the wheel and if it doesn’t work… oh well.  And if it does… well, then… Woohoo!

 

(Look for the new site in the next few days at www.filequiettitle.com and www.quiettitlecalifornia.com)

 

If you want more information on the Mandelman Guide to Filing Quiet Title, email me at mandelman@mac.com and I’ll send you an email response with more details.  The guide will be packed with easy to understand insight and instructions, tricks and tips, rules and limitations, and even sample templates to make it easy to file your own complaint with the court.

 

It will help you do it right… do it cheap… and do it safely.  And I’ll be consulting with lawyers in each state, so I’ll have the specifics for your state included, if applicable.

 

I’m not saying you should do it… and after Denise Saluto’s outcome, I’m sure as heck not saying you shouldn’t.  All I am saying is that I’m going to make sure that you don’t need to spend a bunch of money trying it.  And it shouldn’t become the primary strategy to keep your home, because no one knows why it worked in the Saluto case… or whether it will work for you.

 

But, it does prove one thing fo’ shizzle… when it comes to the foreclosure crisis, no one knows what will happen tomorrow, because the only thing that’s consistent about this mess is its glaring and scandalous inconsistencies.

 

Mandelman out.

 


Comments

  1. lanik says

    Amazingly Well Written. Sign us up!

  2. lanik says

    Amazingly Well Written. Sign us up!

  3. Amicusman says

    I wasn't able to locate the case, but something stinks to high heaven.

    "The Legislature has not left anything to the imagination about whether a trial court can enter a default judgment in a quiet title action. 'The court shall not enter judgment by default' is unequivocal." HARBOUR VISTA v. HSBC MORTGAGE SERV. INC., G044357 (Cal.App. 12-19-2011).

    Moreover, to bring an action to quiet title a plaintiff must allege he or she has paid any debt owed on the property. (Shimpones v. Stickney (1934) 219 Cal. 637, 649 [28 P.2d 673] ["[A] mortgagor cannot quiet his title against the mortgagee without paying the debt secured."].)

  4. ppulatie says

    Martin,

    After reading the decision and after having seen far too many court actions, I must conclude that in this particular instance, the lawsuit simply fell through the cracks for the lender. Nothing else would make sense.

    Once a lender at the "litigation section" receives a "service", the lender will immediately assign and send notice to the law firm who handles their litigation. Since this appears to not have happened, it would certainly suggest that each branch office screwed up, unbelievable as that might seem.

    What is of note is that the judge only ruled on a "default motion" and granted the homeowner relief, and as a result, the actual allegations were never challenged. So, this litigation only affects a very few cases.

    Now, if I was the lender, I would review the case file to determine whether the home value was greater than the exemption. Most likely, it is. Then, I would file a lawsuit for payment of the debt, and wait for the borrower to file BK. Then, I force the sale of the home.

    As to your idea of offering the Quiet Title program, I must say that I do disagree with the action. You would be simply offering hope to a homeowner that does not really exist, since the occurrence of such events is so uncommon.

    Now, as to overwhelming a lender with large numbers of homeowner lawsuits so as to achieve default judgements, I find this idea to be unpleasant at the least.

    The simple fact is that all but a few homeowners who file actions are in default, and have not made payments for months or years. Foreclosure actions have not "prejudiced" or harmed the borrowers, because there is usually no equity in the home, or any equity left has been "eaten up" by the lack of payments. So there can be no harm, and hence, the methodology is not a factor in the outcome.

    Of course, I do expect that you will disagree.

  5. lanik says

    ppulatie is obviously connected to the banking industry in some way... either a current or former attorney, employee, investor, etc. I'm sure ppulatie sees your program as a threat in some way, and so responds with the canned language prevalent in defense against wrongful foreclosure. The courts have been buying this language to date... but the end of that time is coming soon. The right arguments are starting to be made in California... finally.

    This person, as with all connected to the industry, know full well that banks attorney's don't let foreclosure cases "slip through the cracks" by accident. Their intent here is to allow a default judgment so they won't "lose" a case they feel they might lose... as losing a case on the merits puts the banking industry in a place they cannot, under any circumstances, tolerate. Allowing a default judgment in lieu of losing a case outright has the effect they want... it gives them the excuse that it was only a procedural loss and not an "actual loss". Some of the comments speak to that.

    Horsepucky!!! This debt, formerly secured, is now worth 25 cents on the dollar... at best- and worth nothing under a chapter 7 discharge. Banks don't let that happen without a reason.

    The fact is, homeowners have been severely prejudiced by the "Big Five" lenders and others. Their actions in illegally making multiple negotiations of notes without the corresponding public recordings of the security instruments, required by local, state, and federal laws in order to maintain the viability of those instruments, have rendered these instruments null and void. Every Deed of Trust, or mortgage, contains the requirement to abide by existing laws. Deeds of Trust, or mortgages, are contracts... and failure to follow the terms of a contract has consequences... just like the borrowers failure to follow the terms of the contracts regarding the notes puts them in default. The consequences of not following the terms of the Deed of Trust Contract is its nullification.

    By ignoring these basic laws regarding interests in real property, the Big Five were able to process millions of loans with the strokes of a few keyboards. Had they followed the law... as they promised the investors whose money they loaned that they would... the sheer volume of loans would not have been possible. At least 3 physical recordings would have had to be performed for each loan in each county the property was located, along with 3 endorsements of the original note. Everyone knows the rest of the story- the existence of easy credit at low rates... for anyone with a heartbeat at the push of a button...jacked up the price of real estate in way never before accomplished. The crash severely prejudiced borrowers, however no one loan caused the problem... all of them together did. Borrowers could not possibly have anticipated a 50% across the board reduction in property values due to these actions- except maybe the Las Vegas stripper who bought 5 condos with no money down (see The Big Short, by Michael Lewis).

    Lack of prejudice my *&%. Those debts lost their security... and the banking industry knows it... and does anything and everything it can to hide it. The industry is worse than the mafia... at least the mafia had some honor- among thieves. The banking industry siimply hides behind its slick, high paid, speak with forked tongue attorneys. They present this squeaky clean image to the public when in reality they are low down, dirty slime bags- worse than any Don ever was.

    What I can't figure out is how people like ppulatie sleep at night... knowing that they are responsible for the incalculable misery of millions of innocent citizens at their (unclean) hands. What goes around comes around. ppulatie will get his or hers- as will all of the crooks who continue this devastating farce of illegality. Evidence the San Francisco County Audit for statistics of rampant issues of fraudulent "mistakes" and clouded titles (84%).

    Thanks, Martin, for helping to keep this fight alive. The big banks know the end of the road is coming sooner rather than later. Now they will rely on their bought and paid for politicians to bail them out... again.

    Keep up the good work.

  6. H.S.Thompson says

    It is pretty much impossible that Denise Saluto could have gotten a free house.
    The real world doesn't work that way.

    For a homeowner to get a free house they would need to have made no down payment and never made a single note payment.
    For a bank to get a free house just attend any of your local trustee sales and watch it happen again and again.
    Almost 100% of homeowners have paid something on a house and it is impossible for them to actually receive a free house.

    Few big name banks ever paid a dime (actually they were paid on the front end, credit default gambling & bailouts in the middle, and finally stealing the house for profit) for the house they steal at a trustee sale. Therefore the banks get free houses by the gross.

    If you believe the banks are the ones paying the majority of $25 billion in AG bailout money I have some swamp land for sale...
    =
    Amicusman:
    _ As I understand it HARBOUR VISTA v. HSBC MORTGAGE SERV. INC was a true default judgment, no hearing held. The story with Denise Saluto sounds like there was a hearing on the merits as required by statute and the defendant failed to participate. I call that a judgment not a default judgment.

    (Shimpones v. Stickney (1934) "Here plaintiff is appealing as an actor to a court of equity to obtain affirmative equitable relief and she is bound by the well-known rule that he who seeks equity must do equity. It is settled in California that a mortgagor cannot quiet his title against the mortgagee without paying the debt secured."

    _ These days it is more about finding out who the heck the party asserting claims really is. The Deed of Trust and the Promissory Note have never seen each other since the closing if they even did then. It isn't a divorce. They were never even married! It is unclear as to how Harbour Vista or Shimpones cases are a concern for quiet title actions in CA but I defer to those that have won such matters in California.
    =
    ppulatie: "Now, if I was the lender, I would review the case file to determine whether the home value was greater than the exemption. Most likely, it is. Then, I would file a lawsuit for payment of the debt, and wait for the borrower to file BK. Then, I force the sale of the home."
    _ Might work if the "lender" can find a robosigner willing to sign the B10 Proof Of Claim for that missing and/or fabricated Promissory Note. As the B10 form states mid-page on page 2, "Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment for up to 5 years, or both. 18 U.S.C. §§ 152 and 3571." Hardly seems worth it on a $150k home or even a $1 million dollar one IMHO.

    The real risk for the banks in a large number of quiet title actions is a percentage will make it to discovery and the truth isn't a disinfectant for banks, it is embalming fluid.
    =
    Congratulations to Denise Saluto!

    May there be many more in her ranks for as long as the banks continue their fraud.

  7. mandelman says

    HI AMICUSMAN...

    In the Vista case the defendants appealed the default judgment in the quiet title action claiming that 764.010 prohibited such a ruling. The Appellate Court found that the default judgment was not void on its face, but was erroneous because the court did not hold an evidentiary hearing before issuing the default judgment.

    So, the court should have allowed for an evidentiary hearing and allowed the defendants to present any evidence they had. This is different than a typical default prove up, where a judge can enter a judgment on nothing more than declarations of the Plaintiff.

    In short, a Plaintiff can get a judgment against a lender for quiet title if and when the lender does not respond, assuming the Plaintiff is able to produce evidence to support his or her claim. That judgment would technically be a default judgment, but it's not one obtained merely through the default of the defendants, rather it's one obtained after an evidentiary hearing.


    TAKEN FROM THE VISTA CASE...

    Section 760.010 et seq. set out the process for quieting title in property. The statute that concerns us here, section 764.010, provides, "The court shall examine into and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law."

    (2) The Legislature has not left anything to the imagination about whether a trial court can enter a default judgment in a quiet title action. "The court shall not enter judgment by default" is unequivocal. Moreover, unlike the ordinary default prove-up, in which a defendant has no right to participate (see, e.g., Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479 [122 Cal.Rptr.3d 476]), before entering any judgment on a quiet title cause of action the court must "in all cases" "hear such evidence as may be offered respecting the claims of any of the defendants" (§ 764.010). Although the statute does not spell out who offers this evidence among the three possible candidates—the plaintiff, the court, or the defendant—the only sensible alternative is the defendant. (See People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224] (3) [statutes interpreted to avoid absurd consequences].)

    Yeung v. Soos (2004) 119 Cal.App.4th 576 [14 Cal.Rptr.3d 502] (Yeung) has been the leading case in quiet title default judgments since it was decided. In Yeung, the plaintiffs filed a complaint to quiet title, which the defendant did not answer. After a default judgment was entered against him, the defendant moved to set it aside on the grounds that it was a void judgment. The motion was denied, and he appealed from the judgment as being void on its face. (Id. at p. 579.)4

    The appellate court held that the judgment was not void on its face, but was merely erroneous, because the court had not held the evidentiary hearing mandated by section 764.010. (Yeung, supra, 119 Cal.App.4th at p. 582.) Defendant's motion to set aside the judgment was untimely, and the judgment was affirmed. (Id. at p. 583.)

  8. mandelman says

    Hello H.S. Thompson...

    Here, here. An excellent point, and very well said too. Also, nice work on the Vista case response as well.

    Just remember... and I believe Gonzo said it best...

    "In a nation run by swine, all pigs are upward-mobile and the rest of us are fracked until we can put our acts together: Not necessarily to Win, but mainly to keep from Losing Completely."

  9. Amicusman says

    I agree with ppulatie, anyone other than those that have drank the Kool-Aid, know quiet title actions are basically useless. BTW, most of the individuals/companies offering quiet title packages are scammers and/or legal illiterates, don't put yourself in that category.

    Why when these mortgage transactions (contracts) are rife (90%) with contract breaches, legal errors, andor tortious conduct would anyone waste their time with such nonsense strains credulity.

    Below are a few more cases, I could give you hundreds more.

    "Plaintiff's basis for claiming 'better title' is that securitization somehow altered her obligation to pay her mortgage. This argument is unrecognized in the law." HEROLD V. ONE WEST BANK (D. Nev. 9-29-2011).

    "A plaintiff cannot quiet title without discharging the mortgage debt. AGUILAR V. BOCI, 39 Cal.App.3d 475, 477 (1974) ("the cloud upon his title persists until the debt is paid"); KELLEY V. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., 642 F.Supp.2d 1048, 1057 (N.D. Cal. 2009). TRUSTY V. RAY, 249 P.2d 814, 817 (Idaho 1952) ("[a] mortgagor cannot without paying his debt quiet title as against the mortgagee").

    "Plaintiff's quiet title claim is based on the argument that, as a result of securitization, the trust deed has been split from the note and, therefore, the deed of trust should be declared a nullity. This Court has repeatedly rejected this argument. Recently, both the Utah Court of Appeals and the Tenth Circuit Court of Appeals have similarly rejected this claim. For the same reasons stated by all of these courts, this claim must be rejected." WINN V. BANK OF AMERICA (D.Utah 1-4-2012).

    "A quiet title claim seeks to extinguish interests in the property in favor of the interest of the plaintiff. Here, Plaintiff is seeking to extinguish the Trust Deed. 'To succeed in an action to quiet title to real estate, a plaintiff must prevail on the strength of his own claim to title and not the weakness of a defendant's title or even its total lack of title.' Plaintiff fails to assert her own claim to title. She does not allege that the Deed of Trust was not validly executed or that she is not in default under the note. Accordingly, the court rejects Plaintiff's argument and dismisses this claim." DOMINGO v. DIRECT MORTGAGE CORPORATION (D.Utah 9-21-2011).

    "quiet title is not a remedy available to the trustor until the debt is paid or tendered. Plaintiff has not paid the loan amount, nor has Plaintiff alleged that he is ready, willing and able to tender the full amount owed. See Farrell v. West, 114 P.2d 910, 911 (Ariz. 1941) (refusing to quiet title until and unless the plaintiff tenders the amount owed, as required in equity). Instead, Plaintiff asks this Court to invalidate the claims of the beneficiary under the deed of trust. The Court will not indulge this inappropriate use of an action to quiet title.

    “Plaintiff's argument that the assignment to U.S. Bank was void, and that U.S. Bank and MERS are not beneficiaries fails to support Plaintiff's claim for quiet title. As discussed above, an assignment of a deed of trust does not need to be recorded in order to be valid, and under the terms of the Deed of Trust, Plaintiff was not entitled to notice of any such assignment." FRAME v. CAL-WESTERN RECONVEYANCE CORPORATION (D.Ariz. 9-2-2011).

  10. mandelman says

    Patrick and Amicusman...


    (BTW, Amicusman... Based on your follow up comment, I've realized that my earlier response to your comment was not appropriate and I apologize. I did not mean to say that there weren't numerous decisions against quieting title, I was only referring to your reference to the Vista case specifically. Now, as I should have done the first time, I'll respond to the essence of your comment as opposed to any specific case.)

    Okay, I do understand what you're saying, but I think you guys are missing the point here...

    We now have a homeowner in foreclosure who files QT and wins her "Free House," in the sense that she no longer has a mortgage... her debt is unsecured.

    So, homeowners across the country, over 30,000 a day before this case, are searching for information on QT. And many will end up spending a few grand or even more to get the information, tools and/or assistance they seek.

    Search online for QT and you'll see the plethora of products and services being offered. Throw a dart at page one and you'll get ripped off for a few grand for sure.

    And I wanted to do something to stop that from happening.

    One thing I did was write about the case, making very clear what had happened... that she won because ultimately neither Deutsche nor JPMC showed up, or responded in a timely manner.

    Why? I really have no idea. It's certainly possible that it slipped through the cracks, but what do I know? It seems to me that their waiting for nine months after learning of the default judgment, when it's well-known that defendants must be diligent when asking for such relief is not easily explained.

    Regardless, my article is very clear as to the basis for Saluto's win, I think you are mischaracterizing it to say that it provides anyone with false hope. My article makes very clear what happened, how it happened, and certainly never implies the outcome to be anything close to commonplace.

    And if someone, after reading my article, wants to spin the QT wheel of fortune, I'm certainly not going to be able to stop them. They'll just search online until some con artist tells them what they want to hear and separates them from their cash, or they will try it on their own and potentially get themselves into a mess.

    I decided that since I couldn't tell someone not to do it, what I could do is offer to give them comprehensive information that's entirely accurate, expert insight into the process and the risks, the tools they would need to do it, and do so at a price that prevents them from spending more than a few bucks.

    You also have to realize that in my QT guide, there will be an entire chapter dedicated to the risks involved and how to avoid those risks.

    I want homeowners, who after reading my article, still want to take a shot at quieting title, to have the best information possible at the lowest cost possible.

    To give you an idea of why I say this... I posted my article on Monday morning and by Monday evening I had received a couple hundred emails requesting my guide to filing QT... at least 200. What does that tell you about the demand for the product?

    But you know what else... the scammers online waiting to charge people thousands of dollars for QT related products and services, won't have my readers as customers.

    In general, this coming year I feel that I have to do more to prevent homeowners from being robbed. In light of the Saluto decision, the contents and commentary in my article... plus my written guide and tools to help them file QT safely and at the lowest possible cost seems the most effective way to do it.

    Now, one last thing... Patrick... as mentioned in my article, I suppose it's also possible that many homeowners will file QTs en masse, thus making it possible for lots of cracks to open up, and through which Lord only knows how many replies by banks and Servicers will slip through.

    You say that you find this idea to be "unpleasant at the least," but honestly, I can't imagine why. If that were to happen, as far as I'm concerned... more power to them.

    Unpleasant at the least is dramatic understatement for describing what's been allowed to happen to homeowners, and continues to be allowed... in fact, beyond unpleasant, it is unforgivable. And as a nation we don't even have a program on the drawing board with the potential to stop what homeowners are being forced to endure every single day, or to mitigate the damage being caused by the foreclosure crisis. Considering it's year six... well, it is unconscionable by any standard.

    At this point I'd have to say this is a no holds barred situation. Heck, if enough people decide to do it in an attempt to overwhelm the courts and the banks abilities to respond, I'll join them out of solidarity alone.

    If the courts and/or bankers don't like it... well that's just tough cheese. Homeowners aren't the ones that ignored the rules of engagement pertaining to this situation, the banks and our government did that... and if our government was able to figure out how to put Japanese Americans into internment camps during WWII, then it seems obvious that they can fix the situation anytime they want to fix it.

    And Patrick... with all due respect... your "simple fact" about "no harm" being done to homeowners because of some relationship you see to a home having "no equity" is complete and utter nonsense. There's no relationship between equity and harm, as you're stating. Homeowners trying to save their homes aren't screaming in agony over their monetary losses.

    If you really believe this to be the case, you simply don't have an adequate understanding of the situation from a homeowner's perspective. In fact, I don't think you'd find even a single homeowner caught in this crisis that would agree with you. Based on what you're saying, no one underwater would still be paying their mortgage.

    This country's homeowners have been raped, their communities ravaged by a global financial and credit crisis that was caused by Wall Street's bankers operating in an entirely unregulated environment.

    With home prices now effectively down by 50%, real unemployment now over 20% and incomes down by over 10% nationally, and well over that amount for millions of Americans... those drowning today are victims... and they're the only victims paying for this crisis who were offered no help to get through it.

    And besides all that, if my approach to QT shocked you... then I can only imagine how you'll react when I announce the release of my upcoming book:

    Remodeling for Foreclosure:
    Mandelman's Guide to Destroying Your Home Before You're Forced to Leave It.

    It's beautifully illustrated, fun for the whole family, and it makes a lovely gift. In it you'll find:

    [list=]Grandma's Concrete Recipe-So when you pour it down your drains it'll go all the way to the curb before it hardens.

    Fun with Front Yard Swimmin' Holes.

    How to convert your guest bedroom into a salt water aquarium.

    All in all it's just another fish in the wall.

    Mr. Science Loves Insects -There's always time for termites.

    Uncle Wally's Way With Wiring.

    Family Fun - Painting with Feces.

    Installing a bathroom you're particularly proud of in your front yard. [/list]

    And much, much more! Only $9.95, limit 100 copies per homeowner. Why not mail one to your elected representative today!

    Should I send you an autographed copy?


    :wink:

  11. H.S.Thompson says

    Amicusman: "Why when these mortgage transactions (contracts) are rife (90%) with contract breaches, legal errors, andor tortious conduct would anyone waste their time with such nonsense strains credulity."
    _ Denise Saluto is probably happy with her "time wasting" and "Kool-Aid" drinking. One case does not mean the floodgates are open or the faucet is even turned on.
    Since QT just "wastes their time" what are you suggesting that works better and is not the "non-sense that strains credulity" that works for repairing these "mortgage transactions (contracts) are rife (90%) with contract breaches, legal errors, andor tortious conduct"?

    It would be interesting to see how case law from before the rampant fraud that started around 2004, which deny granting QT based on equity, is applied to contemporary cases if the court is presented with evidence of fraud. Demanding equity with unclean hands might prove troubling for the banks to get and the courts to give.

    The more recent anti-QT case cites have to be dealt with by looking closely at what actually transpired and what the decision actually said. It would be fascinating to see a case where the court has been presented with evidence of fraudulent documents supporting the banks claim to title. We know they cannot fix their fraud so they are paddling up a waterfall that the court will likely be unable to assist them in overcoming. Once the court has the presumption that the banks documents are fraudulent then the game will have changed for QT.

    Martin: "I want homeowners, who after reading my article, still want to take a shot at quieting title, to have the best information possible at the lowest cost possible."
    _ There is likely no such thing as cookie cutter litigation for complex issues (strict statutes like FDCPA being a possible exception). An engaged and persistent homeowner (with or without representation) is a critical piece to any success to be had in remedying the blatant bank fraud. I believe we see that with Denise Saluto.
    An educational guide to keep homeowners from harmful scammers and one that paints a true picture of what their state's QT litigation looks like (successful and unsuccessful) and whether they would want to proceed sounds like a good idea.

    There are no silver bullets. It seems like everyone that should be assisting in remedying the systemic fraud has been bought off. Even the harassed homeowner's neighbors believe that the homeowner is a bad guy causing harm. Homeowners are on their own. Any success those homeowners have will assist their neighbors and strengthen communities. Denise is looking like a hero in this war with enemies and "neutrals" all around.

    Scorecard:
    Savings and loan scandal of the 1980s
    ~$120 billion taxpayer cost
    800+ bank officials went to jail
    Charles H. Keating Jr. (Lincoln Savings and Loan) and his ilk blamed for scandal

    Wall Street mortgage scam of the 2000s
    Many trillions of dollars lost in global economic crash
    0 Wall Street executives sent to jail (Lee Farkas chairman of Taylor Bean & Whitaker Mortgage Corp. Ocala FL sentenced to 30 years in prison. Probably should have had his business on Wall Street and/or not get caught selling a boatload of the same mortgage notes more than once.)
    U.S. Homeowners mainly blamed for the crash

  12. mandelman says

    H.S. Thompson... That's right, there's no cookie cutter, which is one of the points in the guide I'm working on, all I can do is package all the information from experienced and credible sources in an actionable format that people can understand and absorb... and make it available at the lowest cost possible. To me, that's a win.

  13. Amicusman says

    Now the question is why would a homeowner choose a modality that has a 99% failure rate, over a modality that has a 90% success rate. Because "experts" are suggesting that they do. BTW, wasn't it the so-called "experts" who said the world was flat?

    So what will be the outcome for "flat worlders" and Kool-Aid drinkers wasting their time on such nonsense? Foreclosure, when they could have used a modality with a 90% success rate.

    Tragically, in the end, who is the banks greatest ally-- the "expert"!

  14. mandelman says

    Well, fair enough, and you may rest assured that I would never recommend anyone do what you're describing and will go to great lengths to ensure that no one does as a result of reading the guide.

  15. Amicusman says

    Mandelman, remember you're a highly respected commentator, and readers especially homeowners, are unsophisticated for the most part.

    Therefore, when you comment on a particular subject, it's taken as gospel by your readers, without really understanding the subject-matter. So, your suggestion of "going to great lengths to ensure that" your readers, reading your guide, are fully informed is necessary and imperative.

  16. mandelman says

    No question about that... it's really why I decided to write the guide. Had I left it alone, they would have run off half-cocked... at best. This way, I can at least make sure they have a 360 degree view of the situation.

    If you want to be a reader, I'll send you a draft copy and you can do a read through to make sure you think it's doing what it needs to do.

  17. H.S.Thompson says

    Martin: Thanks for all you do.

    While, as a respected commentator, the responsibility you bear for not causing harm to distressed homeowners is great, it is surely at least as high for those that are selling products and/or services to distressed homeowners for personal profit. IMHO

    Best wishes on developing a guide as you have described. May it help save homeowners money, get them educated and help them avoid the scammers.

    If it educates those similarly situated to Denise in preventing banks from stealing their house it will have accomplished a most worthy goal.
    If it helps some determine a QT filing is not for them and they avoid going down the wrong path more worthiness is achieved.

    A 90% success rate tool or idea is interesting. It might be that a certain attorney may have a 90% success rate in preventing the bank from stealing your home. If that means forcing the bank to accept $850 vs $1000 per month payments and that works for the homeowner then I suppose the bank did not get to steal a home (yet) and we see a high success rate for the moment. Without principal reduction (assuming an underwater home) it would be questionable as to the long term viability of this particular arrangement when a medical or other emergency hits the household and there is no equity cushion.

    Leverage can be bought through various legal and research means as BankRoaches dislike the light. Knowledge of the limitations and benefits of QT, forensics, skilled attorneys, and the various states changing legal environments can permit the few homeowners that will and can take action to do it more effectively.

    The battle won't be won by only having only a hammer and seeing everything as a nail. If there is a solid 1% success rate with QT, people need to do more of what the 1% are doing and less of what the 99% are doing. Multi-pronged attacks are likely the best solution. Identify the fraud and use it to show the banks "title" documents cannot be presumed valid by the court in a QT (haven't seen a case with that but haven't looked at hundreds of failed QTs). Might be forensic data is your proof of fraudulent title docs. There is no silver bullet, we have to learn and take action and re-adjust from the results. There will be pain and losses on the field. If homeowners want to spend no time and no money and not risk anything they can just roll over and send in their jingle mail to the bank. Otherwise it is recommended they join the fight, expose the scammers, learn what they can from reliable sources, and take persistent non-stop action using all available resources within their reach.

    If the homeowner has the evidence to prove that there are contract breaches and tortuous conduct and the bank knows they have the goods why would the bank show up to fight a QT filing? The only real solution has always been the rule of law. Barring that the only other practical option is to force the banks to decide to do the right thing.

    With considerable expense and risk, the voyage of Columbus, and a few decades later Ferdinand Magellan's circumnavigation, proved the earth was not flat. There is no free ride. We must be adults and start thinking intelligently. There will still be mistakes and blood spilled.

    While we slept, the banking lobby has created a very comfortable legal environment for themselves. With their pervasive crimes, how they are ever permitted to rely on equity as a remedy is a crime in and of itself.

    There is only one guarantee in this fight: if you don't engage you have already lost and not just you and yours but your neighbors and their children.

    To paraphrase Smokey Bear, "Only You Can Prevent Banks From Getting Free Houses."

    Arizona appears to have solved the 90%+ success rate method to get a favorable loan mod, kill a bank lawsuit against oneself, or get a principal reduction. It involves three steps:1.) Get elected to the AZ legislature and 2.) Introduce (or threaten to introduce) a bill requiring banks to back up their foreclosure documents 3.) Wait for your bank to call to discuss your 50% principal reduction (and of course kill the bill). :roll:

  18. mandelman says

    H.S. Thompson...

    Well, I largely agree with what your saying, in fact conceptually, I agree completely. What I find to be missing far too often is clear reporting on outcomes... and the presentation of divergent views. I call lawyers all over the country every month to find out what's been effective and what's not. And I keep track to see if any real trends emerge. I think people need to know what others are experiencing so they can build on whatever happened yesterday.

    I'm thinking about how I can add value to the homeowner's plight in more tangible ways, including providing such data and steering people away from scams whenever I can.

  19. Amicusman says

    Mandelman:

    I appreciate the offer to read a draft of your guide.

    However, what I would really like to do is have a opportunity to explain the methodology we suggest for helping homeowners, putting an end to the advantage the banks have had.

    Why have the banks been overwhelmingly successful in their efforts to defeat the borrower? Because of the failure of the legal community to realize the transaction between the borrower and the lender is simply a contract, with contract breaches, legal errors, and/or tortious conduct identifiable 90% of the time.

    Again, why would anyone with this knowledge, choice a loan mod, QT, or stall arguments, "produce the note," "MERS," "assignment," etc., etc., as a defense?

    Answer, they wouldn't!

    Mandelman, I guarantee once I fully explain to you the methodology, you won't even waste your time writing the guide.

    I made this offer to you once before, and if you truly want to help homeowners, it's time you took advantage of it!

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