Module 7b: Preliminary Title Report

Disclaimer: This is purely for educational purpose. Nothing on this site can be construed as giving legal advice. You are using this information at your own risk. You are to seek legal counsel in these matters.

In a civil action, the burden of proof is with the plaintiff.   It is your job to provide as much concrete evidence as possible to support your civil action.  Remember, the court is not moved by theories, conjectures and allegations.  The courts are moved by

a) the law

b) evidence.

It is your job to bring these to the judge’s attention.  Anything else is useless chatter and will be dismissed.  That said, you should be prepared to stand by everything you present to the court.  If required, you should be willing to defend your points.  So, you better know what you are doing before submitting your civil action.  Once you proceed, the clock starts ticking.  My advice to you is to do your homework first.  Be prepared.  Don’t sign/write/submit anything you don’t believe, understand or otherwise.  My template is there to guide you, but ultimately, you need to own it.

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One of the points of our civil action is the bifurcation clause.  To illustrate bifurcation, you have to prove that it took place.  Here’s how we prove it.  Let’s say you closed your loan with CountryWide.  And then at a foreclosure, the Substitution of Trustee is done by ABC Trust, there is an assignment that took place here.

Country Wide -> ?? -> ABC Trust

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Therefore, if we go to the county record and look up the assignment, we should see the assignment of the deed of Trust to reflect this movement.  If not, we have a separation (bifurcation).

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Most likely, what you will see is that there was no assignment.

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Therefore, what I need you to do is to go to the county recorders office, and ask for a print out of the CERTIFIED county record for your property.  We will then enter this as evidence in your civil action.  This will be entered as Exhibit F in the petition.

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Alternatively, you could contact a local title company and pay a small fee to have them do this for you.  Ask for a “preliminary title report” from the date of closing of your loan to today.  Have them certify it.

Surviving a Demurrer

It is worth reiterating.  I HIGHLY recommend you do a forensic examination.  It is a standard practice for a bank to respond with a Motion to Dismiss/Demurrer or in Oral Arguments to dismiss your case.

You need to bring as much evidence to the case as possible to survive the motion before it may proceed to the Discovery phase of your action.  If your case is dismissed…then it will not see the light of day…and you will have to start all over again.  Worse still…your house could be sold while this is happening.

The forensic exam will bring any evidence of TILA and RESPA violations to the case.  It will show a) What the Law is.  b) Where the bank broke the law c) The exhibit where the violation occurred.  And, the auditor will be willing to testify if need be on your behalf of the violation.

To order the examination, please click on the link below and send your information to Tom.

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Please note, the fee is per loan. If you have a first and second, this will be two audits.

DOWNLOAD THIS

If you plan to proceed with the examination, please download and fill this out. Forensic Loan Examination Document Checklist (1).

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Once you have your examination back, it will list the area of law where violations occurred..you are to take each of these violations and add them individually as additional Claims in your petition/complain.  If you need help with this, I recommend hiring a paralegal to help you prepare your papers.

(No. I can not do it for you.  No, I don’t have anyone to recommend.)

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Good News About MERS

If you have MERS, in your loan, you have cause to celebrate (to find out, look at your Deed of Trust (DoT) or Mortgage document.  It should say “Mortgage Electronic Registration Systems is the nominee”  somewhere on the first or second page.

Let us use an analogy.  There’s two “things” involved in a loan.  A Deed of Trust (or Mortgage) and the promissory Note. The critical “thing” is the Note.  The DoT protects the note.  He who controls the note controls the DoT.  He who controls the DoT controls nothing.  The analogy is the Note is the dog and the DoT is the tail.  He who controls the dog controls the tail.  He who controls the tail does not control the dog.  Read the following case law:

In CARPTENTER V. LONGAN, 83 U.S. 271 (1872), it was ruled that:

The note and mortgage are inseparable; the former as essential, the latter as an incident.  An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.

All the authorities agree that the debt is the principal [Note] thing and the mortgage [Deed of Trust] an accessory.  Much more.

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This is why we want to make the argument to the court to illustrate the point of “who owns the note?”  He who owns the note is the real party of interest and only that person has the power to enforce the note.  A servicer only has the presumption of the law.  The servicer is who you would call the “pretender lender”.  He did not put any of his money at risk and the money did not come from him…yet he wants to foreclose on the property so he can do it again to someone else.

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If you have received a Notice of Default and a Substitution of Trustee, then you will likely see that “Mortgage Electronic Registration Systems assigns ABC Bank as the Beneficiary.”  This is totally invalid as per our previous point.

a) MERS is not a real party of interest, and therefore can not assign anything.

b) Even if MERS can assign the Deed of Trust….it still does not answer “who owns the note”.

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We have lot’s of cases in the “Reference” file in Module 1 (please download and read these if you haven’t already done so.).  I have read literally thousands of documents and saved the very best for you in this Reference file.  Within Reference, you will also see a number of cases regarding MERS.  Pay particular attention to: mers-citibank-not-real-parties-CA.pdf.

Take a look at this post:http://privateaudio.homestead.com/MERS.html.  It has a lot of good notations about who MERS is and what they can and can not do.  This is very important for you to understand if you are going to defend your points in court.

To See if your loan is being serviced by MERS, come here: https://www.mers-servicerid.org/sis/

Who is the Investor?

There is a good chance Fannie Mae or Freddie Mac owns your loan.  If you can find your properties here, then you can present this as evidence that your servicer (so called “lender”) is not a real party of interest.  This is critical evidence to bring forth in your civil action.  You must include this as a claim in your suit.

To find out whether Fannie Mae owns your note, please come here.

Freddie Mac’s database is here.

IMPORTANT: DO THIS NOW.  Research whether these guys own your note.  If so, then you have a crucial piece of evidence to bring to court.

NOTE TO CALIFORNIANS

I do not believe Bifurcation applies to California.  Please refer to /reference/ProduceTheNote-CaliforniaStyle.pdf for more information.  Specifically page 25 and onwards.  You come to your own conclusion.  Also, if you are in CA, you definitely want to study mers-citibank-not-real-parties-CA.pdf.