ISSUE:

            Many Californians in default on their mortgage and facing foreclosure have filed quiet title and wrongful foreclosure actions. What is a quiet title action against a lender, and are plaintiffs successful in California?

BRIEF ANSWER:                                                                                                         

            A quiet title action in California to determine the owner of property does not generally allow a mortgage borrower in default on their payments to claim title to the land free of liens. However, the action when combined with a wrongful foreclosure claim is often successful in extending the amount of time a defaulted borrower can remain in the house. While in essence, this is simply prolonging the inevitable, it can give a borrower a temporary feeling of control over their own destiny.

DISCUSSION:

Quiet Title Actions as a Defense to Foreclosure

A cause of action to quiet title seeks to determine adverse claims to real or personal property. (Cal. Code Civ. § 760.020.) The action is commonly commenced by homeowners when a lender wrongfully forecloses on their property. My research has not found a favorable California decision quieting title in a mortgage borrower challenging foreclosure. The filing of quiet title actions only prolongs the amount of time a borrower can remain in a house after defaulting.

Theory behind the current suits

The UCC governs negotiable instruments such as mortgages, and it defines a loan as a transferable, signed document that promises to pay the bearer a sum of money at a future date or on demand. Most mortgages are made by investment banks, who then package many similar loans into a mortgage backed security and sell the securities. To convert the mortgages into stocks, each mortgage note must be destroyed. A mortgage and a stock certificate cannot exist at the same time. This creates a gap in the chain of title, and theoretically making the loan invalid. As a result, homeowners can fight foreclosure through a quiet title action and receive clear title. The current trend to argue a break in chain of title is weak, because a “plaintiff may recover only upon the strength of his or her own title, however, and not upon the weakness of the defendant’s title.” (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 706.)

A promissory note is usually secured by a deed of trust in the real property. The trust names the security owner as the beneficiary and a loan servicer as the trustee. A trust is a form of ownership in which the legal title of a property is vested in a trustee, who has equitable duties to hold and manage it for the benefit of the beneficiaries. (Restatement of Trusts, Second, §2 (1959).) The trustee under a valid trust deed has exclusive control over the trust property. Usually, the lender records a deed of trust with the county to secure the loan to the debtor. The deeds identify the trustee, and most often identify Mortgage Electronic Registration Systems (MERS) as the nominal beneficiary.

Challenges to MERS

MERS is a company created by the banking industry to bypass recording statutes and filing fees. MERS records who currently owns the notes on a mortgage. A foreclosure may be brought in the name of MERS, and the trustee may act on behalf of MERS to effectuate a non-judicial foreclosure. MERS may also directly initiate a foreclosure proceeding, and California’s “statutory scheme (§§ 2924–2924k) does not provide for a preemptive suit challenging standing.” (Robinson v. Countrywide Home Loans, Inc., (2011) 199 Cal. App. 4th 42, 46.)

The MERS system of foreclosure has been upheld in California based upon two rationales. First, courts have held that MERS, acting as the agent of the beneficial owner, does not need to prove authorization by the beneficiary to foreclose. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 55-56.) Second, contract law legitimizes the system, because recent deeds of trust require that the borrower agree that MERS can proceed with foreclosure in the event of default. (Id. at 1157.)

Procedural Requirements for Plaintiffs

California mortgagors must file in the Superior Court, which has the authority to grant the equitable relief of quieting title in an individual. (Cal. Code Civ. §760.040.) Once a party has filed the action, they must file a notice of pendency with the office of the county recorder. (Id. §762.010(b).) This notice puts all other parties who are claiming the party on notice that the plaintiff is claiming the land as his, and stops any transfers of the property during the lawsuit.

To survive a demurer, A plaintiff must file a verified complaint that includes: (1) A legal description and street address of the subject real property; (2) The title of plaintiff as to which determination is sought and the basis of the title; (3) The adverse claims to the title of the plaintiff against which a determination is sought; (4) The date as of which the determination is sought; and (5) A prayer for the determination of the title of the plaintiff against the adverse claims. It is highly likely that a claim merely alleging that the plaintiff has an interest in the land will not make it past a demurer. (See Mangindin v. Washington Mut. Bank, 637 F. Supp. 2d 700, 712 (N.D. Cal. 2009) (Dismissing claim merely alleging plaintiff had an interest in land foreclosed upon by bank).)

Tender Rule

A plaintiff seeking to quiet title in the face of a foreclosure must allege tender, which is “an unconditional offeror an offer of performance of their obligations under the Note, made in good faith, with the ability and willingness to perform.” The “Tender Rule” is derived from several cases involving disputes between junior and senior lienholders. (See Arnolds Mgmt. Corp. v. Eishen (1984) 158 Cal. App. 3d 575, 580; FPCI RE-HAB 01 v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1022.)

The policy behind the rule is that it would be a useless act to set aside a foreclosure sale based upon a procedural defect when a mortgage borrower cannot redeem the property in absence of that defect. (Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 118.) Some courts interpret the Tender Rule to only require that the mortgage borrower tender delinquent pre-foreclosure payments prior to any claim of quiet title. (Id. at 117; Ghervescu v. Wells Fargo Home Mortg., Inc., 2005 WL 6559918.)

Recently, defendants have successfully demurred to plaintiff’s complaints for quiet title for failure to allege valid tender. (Vasquez v. OneWest Bank, FSB (Cal. Ct. App., Nov. 4, 2011, B225624) 2011 WL 5248294; Dupree v. Merrill Lynch Mortg. Lending, Inc. (Cal. Ct. App., Oct. 24, 2011, B225150) 2011 WL 5142051 (Affirming demurrer and denial of leave to amend complaint).)

Successful cases

Success is dependent on the goals of the plaintiff. The objective of gaining title to land free of any liens is rarely achieved, and has not been achieved in California. However, California debtors have used the action to remain in their homes for years after defaulting. (Ghervescu v. Wells Fargo Home Mortg., Inc., 2005 WL 6559918 (Dissolving preliminary injunction restraining trustee from delivering deed to winning purchaser at trustee’s sale).)

Wrongful Foreclosure, AKA Free rent cases

A wrongful foreclosure action alleges an “illegal, fraudulent or willfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust.” (Munger v. Moore (1970) 11 Cal.App.3d. 1.) These actions work best when brought prior to the non-judicial foreclosure sale. To prevent the sale, the plaintiff must apply for an injunction and convince a judge that they are entitled to the injunction and that without it they will suffer irreparable harm. (Cal Code Civ. Pro § 526.) If the injunction is successful, the debtor can stay in the home for the duration of the lawsuit.

In Ghervescu v. Wells Fargo Home Mortg., Inc. (Cal. Ct. App., Nov. 16, 2010, E048925) 2010 WL 4621734, a borrower used the above procedural strategy to keep his house for over eight years after his default on the loan. After default, Ghervescu arranged a forbearance agreement with his lender, and some time shortly thereafter applied for a loan modification causing confusion with the lender. The lender failed to put the foreclosure proceedings on hold, and Ghervescu failed to make his payments on time.. The bank did not follow up on the pending application, and held a trustee’s sale prior to promised date of sale. Ghervescu quickly filed for a preliminary injunction to restrain the trustee from delivering the deed to the winning purchaser of the house at the trustee’s sale. The granted injunction prevented the foreclosure sale from constituting the final adjudication of the borrower’s rights. (See Smith v. Allen (1968) 68 Cal.2d 93, 96.)  He lost at trial, and his motion to amend complaint and denied. The case bounced around through three trials and two appeals, finally ending in judgment for the bank.

Other Jurisdictions

Contrary to California’s ruling in Gomes, a MERS has come under fire in Utah. In Harvey v. Garbett Mortgage, Utah 3rd Dist. Case No. 100907587 (2010) (unpublished) (Herinafter Harvey),  quiet title action resulted in a deed clear of any liens because the trustee, the legal title holder, did not have any idea who the beneficiary was, did not have physical possession of the mortgage note, and did not know whether a split of the note and trust deed occurred. The plaintiff quickly sold the property after the ruling, and thus has no interest in the land. The loan is now unsecured, and the plaintiff is still liable to the lender to pay the debt. An interesting procedural note about the Harvey case is that the plaintiff did not name MERS as a defendant in this case, even though MERS was the nominal beneficiary, because MERS did not have any actual interest in the property. However, this strategy would not be successful in California, because MERS has standing to foreclose, has a statutory created interest in the land, and a quiet title proceeding is final and binding only upon named defendants.

CONCLUSION:

In California, a quiet title action brought by a mortgage borrower in default against a lender will not result in free property. Courts quickly dismiss quiet title actions without any allegation of wrongful practice by the lender. However, a quiet title action in conjunction with a claim of wrongful foreclosure can allow a homeowner stay in their house for an extended period. A debtor in receipt of a notice of default must act quickly if they want to stay in their home. The first steps of filing a complaint and applying for an injunction require technical legal knowledge and sharpened persuasive ability; two characteristics that cannot be learned by the homeowner fast enough to prevent eviction. The homeowner should seek counsel from an experienced attorney regarding the possible benefits and costs of offensive legal action.

If you or someone you know is considering this sort of action, please contact our firm at 858 499 8954 to schedule a free consultation and case evaluation.

Drafted by Alan Shepard

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Senate Bill 458 has passed and now provides that a second mortgage lien holder who agrees to a short sale of the property over which they hold a lien, can no longer pursue the Borrower for the deficiency.

What we expect to see is fewer Short Sale Approvals. If the Borrower is or was considering Bankruptcy to absolve themselves of the obligation, this should now be done in advance of the short sale.
What we accordingly expect to see is fewer and fewer second mortgage holders agreeing to the short sale. Alternatively, they will agree to the short sale but ask the Borrow

In the state of California, when a business is shutting down, the Secretary of State requires that an officer of the Corporation sign on to be responsible for the debts of the company. This leaves many small business owners wondering what is the point?

The answer to this problem is to place a defunct business into Chapter 7 Bankruptcy. The creditors of the company will be notified that the business is in Chapter 7, and is no longer able to pay it’s debts. The business will be shut down.

It is important to talk to an experienced Bankruptcy Attorney before it is too late. Creditors will often seek to pierce the corporate veil and pursue the business owner for the debts of the company.

Call 858 499 8951 to schedule a free consultation.

Active duty military persons and defense industry people are often required to have a security clearance for their jobs.

Many of these people fear that if they file for bankruptcy, they will lose that clearance, and accordingly their position or rank.

More often than not these people are in debt, behind on a mortgage or both. The principal fear is that if it is known that they are in financial trouble, they are susceptible to foreign bribery.

Whether filing a case under Chapter 7 or Chapter 13 of the Bankruptcy code, the debtor will be discharged of their debt and left in a financially sound position: hence no longer susceptible to foreign bribery.

To get more information on how a bankruptcy filing can protect your job, rank and position, call 858 499 8951 for a free consultation.

When considering whether or not to remove the lien over a residence held by a 2nd mortgage or HELOC, there are several important factors to consider.
In order to remove the second lien, the house or residence must appraise at a value that is less than the value of the lien held by the first mortgage.

When trying to determine what the value of the first mortgage is, one must look at the principal balance, add any deliquency and also any escrow shortage. Provided the house or residence appraises at a value lower than this number, the second lien can be removed in a chapter 13 bankruptcy filing.

Thus, for a homeowner struggling to keep up with house payments, the removal of the second mortgage can provide a great deal of relief on the monthly budget.

To determine whether or not you will be able to do this, it is imperative that you speak with a qualified and experienced Bankruptcy Attorney. Call 858 499 8951 to schedule an appointment. The consultation is free.

California and Federal Courts have been battling with the Conundrum of who is MERS and what rights if any does MERS have to Foreclose on a Consumer’s home.
The Mortgage Electronic Registration System, “MERS” was created in 1995. It is a private registry that tracks more than 65 million home mortgages nationwide. It is incorporated in Delaware, operates within a Reston Virginia shell corporation, lists its address as a post office box in Flint Michigan and has no employees.
MERS relies on its members to process documents and until recently to initiate foreclosures in its name.
Fannie Mae, Freddie Mac and other board members founder the MERS registry to bypass county recorder offices, thereby saving billions of dollars in fees and speeding the securitization process. Via the MERS system, transfers of beneficial interests in mortgages may occur many times, but they are not publicly recorded or even reported by Members.
County recorders were the first to rebel against the system. In 2001 the county clerk in Suffolk County New York simply refused to record and index MERS transactions.
After the housing crash, MERS began to face challenges in foreclosure proceedings from debtors demanding to know who owns the note. MERS both seeks to claim its position as “nominee” or “agent”, but then also as mortgagee. It is axiomatic that a company cannot be both an agent and a principal with respect to the same right.
The California Court of Appeal for the Fourth Appellate district ruled in February of this year that MERS, as nominee has no obligation to disclose documents prior to initiating a non-judicial foreclosure. It held further that California statutes give homeowners no private right of action to determine the identity of the true note holder.
Recently rulings in Federal Bankruptcy Court went differently. The Bankruptcy Courts are saying “MERS is just an agent of the lender-show me the agreement that you have the authority to act as beneficiary and to assign the note”. In a Los Angeles Bankruptcy case, Judge Samuel L. Bufford held that “MERS supports this relief from stay motion solely with evidence from a low level clerk whose only function is to compare the financial numbers on his evidentiary declaration with those on a computer screen.” The court found that the clerk was not competent to testify, the MERS had presented no admissible evidence, and that the law firm filing the motion on behalf of MERS should be sanctioned.
Here in the Southern District, the Honorable Margaret Mann recently held “Circumventing the public recordation system, is in fact, the purpose for which the MERS system was created. Creation of a private system is not enforceable to the extent it departs from California Law.
The above shows that the Bankruptcy Courts have become the refuge for the mortgage boom abused consumers. Chapter 13 filings will allow a debtor to strip off a second mortgage and force their primary lender to the table to determine who is the true party in interest.

Collier County, Florida — Have you heard the one about a homeowner foreclosing on a bank?
Well, it has happened in Florida and involves a North Carolina based bank.
Instead of Bank of America foreclosing on some Florida homeowner, the homeowners had sheriff’s deputies foreclose on the bank.
It started five months ago when Bank of America filed foreclosure papers on the home of a couple, who didn’t owe a dime on their home.
The couple said they paid cash for the house.
The case went to court and the homeowners were able to prove they didn’t owe Bank of America anything on the house. In fact, it was proven that the couple never even had a mortgage bill to pay.
A Collier County Judge agreed and after the hearing, Bank of America was ordered, by the court to pay the legal fees of the homeowners’, Maurenn Nyergers and her husband.
The Judge said the bank wrongfully tried to foreclose on the Nyergers’ house.
So, how did it end with bank being foreclosed on? After more than 5 months of the judge’s ruling, the bank still hadn’t paid the legal fees, and the homeowner’s attorney did exactly what the bank tried to do to the homeowners. He seized the bank’s assets.
“They’ve ignored our calls, ignored our letters, legally this is the next step to get my clients compensated, ” attorney Todd Allen told CBS.
Sheriff’s deputies, movers, and the Nyergers’ attorney went to the bank and foreclosed on it. The attorney gave instructions to to remove desks, computers, copiers, filing cabinets and any cash in the teller’s drawers.
After about an hour of being locked out of the bank, the bank manager handed the attorney a check for the legal fees.
“As a foreclosure defense attorney this is sweet justice” says Allen.
Allen says this is something that he sees often in court, banks making errors because they didn’t investigate the foreclosure and it becomes a lengthy and expensive battle for the homeowner.

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