DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Legal Process Outsourcing Services (“LPO Services”) to licensed practicing attorneys. AMA will provide public information only and will not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.
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COMMENT NOTES: The article below discusses a business practice being harped on by players on the Webinar and Seminar circut that basically attempt to take advantage of what may be considered “loop holes” under the quiet title theory in the hopes lenders default. However once the banks actually answer and decide to litigate, these so-called trusts run into all kinds of problems. Most of these companies are crap shoots at best and have little to no experience in actual litigation experience against the banks once they actually answer a “quiet title” action.
It’s not hard to tell the title companies side with the banks and WILL NOT respect the order of the Court in a final judgment obtained by default. Old Republic’s position is clear and in the State of Florida, most if not all attorneys use and/or are required to use Old Republic so any client trying to get title insurance will run into a brick wall. SO what becomes the future of these “quiet title” actions in the hopes of default? Attorneys need to better educate themselves and clients need to look further than just a license to practice. I’ve said it before and I will say it again. YOU NEED A GOOD LITIGATOR TO STAND IN FRONT OF THE JUDGE! You dont just need an attorney who can file a pleading. You need one who has the gift of gab, can paint the right picture for the judge and bring it home. And you as the client, you need to be prepared to go forward with an appeal because even if your attorney can bring it home, you may be met by a judge that says “I’m not going to be the one to change the state of the real estate crisis!” This is a fight and in a fight you have to know that just because you knock down your opponent does not mean they won’t get back up and knock you out! You have to be more than prepared. You have to train and you have to be a few steps ahead of your opponent.
There are certainly a number of ways to address the securitization of the note and mortgage, the use of MERS and all the factual and facial fraud associated with a residential mortgage. The banks are not stupid and the judge likes to stay stuck on the did you make your payment argument. The opposition will always meet your lawduit with the “they’re just trying to get out of a legal debt your honor – this would be a windfall your honor…” The proper approach is bigger than simply having an attorney. It requires an experienced litigator who can convey the right message to the judge. There is an art to perfecting the “void the mortgage” and “attack the debt” lawsuit. There is an old maxim that says “many will come but few will be chosen”. Many will come and claim they have the answer and say “quiet title” is the answer however few will admit the failure of the approach. There are a number of steps you must take before even filing an action and having a leg to stand on in negotiation and let me tell you a securitization report is not the be all end all to getting there. This theory of telling the robber he robbed you, you know its him and you’re going to sue him if he doesn’t return your property is the essence of the unexperienced. Do you think you’re telling the banks something they don’t already know and haven’t prepared for? Blogs have been shut down while attorneys and advocates are under investigation by the Bar. You need the critical information and the map that takes you from A to Z.
Follow me on Twitter @AMAExpert and look for the up and coming Discovery Tactics Webinars and Seminars to not only learn the truth about Quiet Title actions but the real answers, tactics and strategies to “void the mortgage” and “attack the debt”. You can also get these tactics and strategies by obtaining the most advanced Securitization and Forensic Audit Analysis Reports that paint the right and easy picture for the judge at e-Logic Group (www.e-logicgroup.com).
|By Kimberly Miller, The Palm Beach Post, Fla.|
|McClatchy-Tribune Information Services|
July 01–WEST PALM BEACH– Alerts issued by two ofFlorida’slargest title insurers are drawing scrutiny to a complex bank bypass tactic that dozens ofPalm Beach Countyhomeowners are attempting by signing their deeds over to theFidelity Land Trust Co.
Old Republic National Title Insurance, which carries the largest share ofFlorida’smarket at 30 percent, according to theFlorida Land Title Association, first circulated its warning in November. It requires additional review for new policies on homes with a so-called “quiet-title” action in their history.
AnApril 19alert from theJacksonville-basedFidelity National Title Group, identifies the land trust by name, saying agents are not to close or process transactions from the company without written authorization from underwriters.
Title insurance protects homeowners and lenders against financial loss from defects in the title, liens, or if someone tries to challenge ownership. Most banks will not approve loans without title insurance.
Fidelity National Title Group, which carries 10 percent ofFlorida’stitle insurance market, has no relation to theFort Lauderdale-basedFidelity Land Trust Co.
The Palm Beach Postfirst wrote about the trust last month after it had quietly amassed more than 150 deeds inPalm Beach,BrowardandMiami-Dadecounties since it registered as a limited liability company in December.
The land trust is heavily solicitingSouth Florida’sunderwater homeowners through several marketing firms including theNorth Palm Beach-basedLincoln Property Consultants, previously calledLincoln Financial Group.
Under the land trust’s plan, homeowners sign their deed into a trust, with themselves as beneficiary, while also signing a contract to pay the trust an up-front fee of thousands of dollars. The trust then sues the homeowner’s lender claiming flawed or fraudulent loan practices in an attempt to cancel the mortgage and get a quiet title judgment naming the trust as owner.
At this point, the homeowner still owes the mortgage debt, or note, but because it is no longer secured by the home, the idea is the lender will be more willing to sell the debt for pennies on the dollar to the trust.
Some attorneys say what the trust is doing is an unproven tactic that relies on the banks not responding to the lawsuit within a 20-day period, which can result in a default judgment in favor of the trust. Default judgments are routinely overturned if the defendant can show good cause as to why they didn’t respond.
“The machinations engaged in by Fidelity and the property owner, including the quiet title action do not meet the requirements of marketable title,” saidClearwaterattorney and title insurance expertGregory Clark.
Paul Gellenbeck, managing director of theFidelity Land Trust Co., downplayed the title insurance alerts saying any home won in a lawsuit is subject to additional scrutiny by underwriters.
“Litigation will answer all questions that everyone is asking. We will leave everything up to the courts to decide,” Gellenbeck said.
Still, title insurance experts said the warnings fromOld RepublicandFidelity National Title Groupare red flags. Getting clear title on a property where the mortgage was canceled without a full trial may be difficult, they say. Neither title company returned phone calls for this story.
“I doubt very much that this kind of approach will be upheld when it is challenged,” saidAlan Fields, executive director of theFlorida Land Title Association. “There is a real risk the mortgage will be reinstated and the quiet title will be set aside.”
Marlyn Wiener, a real estate attorney with an office inBoca Raton, said title insurers fear they will have to pay off a reinstated mortgage if the cancellation is overturned.
“If a mortgage was extinguished through a full trial of the quiet title action and court order after a judge heard all of the arguments, I imagine that the underwriters would approve issuance of new policies,” she said. “What we have, ironically, is a quiet title action, which is supposed to clean up title issues, having the potential to cloud the title and create more issues.”
Gellenbeck said he has won two recent cases, including one where the bank unsuccessfully attempted to turn over a default judgment, but he would not reveal the names of the plaintiffs in the cases or the case numbers. He also said the cases were not filed in Fidelity’s name and were not inPalm Beach County.
“My clients do not want attention brought to them or their cases,” he said in an email. “The law is clear and on our side.”
(c)2012 The Palm Beach Post (West Palm Beach, Fla.)
Visit The Palm Beach Post (West Palm Beach, Fla.) at www.palmbeachpost.com