What happens when you can't find the note?

[ArthurWankspittle]

Er, thanks for bumping my thread, I think. Unfortunately all your posts bar the last fall into the tl;dr category of sovereign cititards. (The last, as already pointed out, just shows your lack of reading comprehension.)
So, I'll keep it simple and hope the reply is equally brief. If the whole system is so rigged by the government, lawyers and the banks, why is a judge suddenly going to break ranks, and say to some sovereign citizen : "ooh you are right, most of the legal system, banking system, constitution and case law are completely wrong"?

[rumpelstilzchen]

If the whole system is so rigged by the government, lawyers and the banks, why is a judge suddenly going to break ranks, and say to some sovereign citizen : "ooh you are right, most of the legal system, banking system, constitution and case law are completely wrong"?

Over here in the UK the freemen on the land frequently refer to anecdotal court cases in the US where the judge confronted with a FOTL and his "legal" arguments, is suddenly "frozen with fear" and "flees, panic stricken from the court". Strangely, everytime I have pressed for specific information, court locations, case numbers, etc. I have been informed by the teller of the story that the court has erased all evidence of the case from its records.

[Judge Roy Bean]

Over here in the UK the freemen on the land frequently refer to anecdotal court cases in the US where the judge confronted with a FOTL and his "legal" arguments, is suddenly "frozen with fear" and "flees, panic stricken from the court". Strangely, everytime I have pressed for specific information, court locations, case numbers, etc. I have been informed by the teller of the story that the court has erased all evidence of the case from its records.

You're not alone in that assessment. Anecdotal mythology is useful to the promoters and even garners credence among the ignorant.

We live in a world where Internet hit counters are sources of ego nourishment and all the loonies have to do is visit and contaminate as many sites as they can find to post links to drive up the numbers.

The good news is, if you step back away from the screen and the keyboard, the only people who even know the dim bulbs are out there are a handful of like-minded (?) crackpots; in the grand scheme of things they're the sociologically-insignificant lunatic fringe.

[ashlynne39]

Look the word PERSON up in Blacks Law Dictionary - You can certainly try to be sincere all you like, though your sincerity is no guarantee for any truth.

Does anybody here own a copy of Blacks? There is one in the library at work, which we never really use unless the internet is down or we fell like doing things old school,but as to blacks, I only use it when there is something I feel is so simple that I should know but don't. The last thing I looked up in Blacks was Etux that was 15 months ago, I don't think I have seen anyone else use it.

To our new um...friend(?) Blacks is not authority.

Well, I do. I borrowed it from someone in Law School and somehow it never made it's way back to the owner. As I recall he bought a newer edition and I kept the old one. I certainly don't consider it authority though and am always amused by the sovereigns who do.

[rumpelstilzchen]

This article has been posted up on a Freeman On The Land website which the woos will view as their get out of jail card:

http://www.sltrib.com/sltrib/news/51006 ... csp?page=1

It appears to show that a homeowner has managed to obtain clear title to his property even though there was a mortgage outstanding. Apparently the owner has subsequently sold the house and kept the money.
Is this really happening in the US?

[wserra]

Is this really happening in the US?

Hard to say. Pet peeve: reporters whose idea of an "investigation" is to sit at their desks, call people and write what they say. The damn property is in Utah, the courts are in Utah, the newspaper is in Utah, and it appears that nobody even pulled court papers - something that should take fifteen minutes - let alone link to the actual docs and attempt to figure out the below issues. Why bother to have an online edition? Quatloos does much better than that.

From the lame-ass article, these are default judgments. That means that the parties served never answered. A default judgment isn't worth the paper it's written on if the party procuring it didn't serve the proper defendants. Who needs to be served is typically a matter of state law. In the case of a quiet title on real estate, that generally - caveat: I don't know Utah law - means the real parties in interest, the owner(s) and lienholder(s), and a trustee in a "trust deed" state like Utah. Were the proper parties served here? No way to know from the information available.

If they weren't, the default will be vacated if and when the proper parties show up. That means that the mortgage is still in effect, any subsequent conveyance is void for lack of clear title to convey, and any title insurance company that wrote a policy on that subsequent conveyance is on the hook.

I would like to see whether anyone has prevailed on these theories in a contested Utah action. If in fact the service on the trustee title companies is sufficient under Utah law, that's possible. Of course, the article doesn't tell you whether that has ever happened or not. That would require investigation.

[Judge Roy Bean]

... any title insurance company that wrote a policy on that subsequent conveyance is on the hook.

Indeed.

[Prof]

Is this really happening in the US?

Hard to say. Pet peeve: reporters whose idea of an "investigation" is to sit at their desks, call people and write what they say. The damn property is in Utah, the courts are in Utah, the newspaper is in Utah, and it appears that nobody even pulled court papers - something that should take fifteen minutes - let alone link to the actual docs and attempt to figure out the below issues. Why bother to have an online edition? Quatloos does much better than that.

From the lame-ass article, these are default judgments. That means that the parties served never answered. A default judgment isn't worth the paper it's written on if the party procuring it didn't serve the proper defendants. Who needs to be served is typically a matter of state law. In the case of a quiet title on real estate, that generally - caveat: I don't know Utah law - means the real parties in interest, the owner(s) and lienholder(s), and a trustee in a "trust deed" state like Utah. Were the proper parties served here? No way to know from the information available.

This is a default because the lawsuit was apparently served on the trustee named in the recorded deed of trust; administration had later been assigned to MERS, but the attorney for the Debtor seems to have pointed out that the record owner was still some trustee at a title company.

If they weren't, the default will be vacated if and when the proper parties show up. That means that the mortgage is still in effect, any subsequent conveyance is void for lack of clear title to convey, and any title insurance company that wrote a policy on that subsequent conveyance is on the hook.

Under these circumstances, I doubt that the default will be vacated, since the party with record title seems to have been served.

I would like to see whether anyone has prevailed on these theories in a contested Utah action. If in fact the service on the trustee title companies is sufficient under Utah law, that's possible. Of course, the article doesn't tell you whether that has ever happened or not. That would require investigation.

These and similara theories have recently prevailed before the Massachusettes Supreme Court. See U. S. Bank National Association, Trustee v. Ibanez from Jan. 7; no citation but availabale at Scribd.

I've been speaking and writing on these issues for a couple of years, now. I'm just surprised it took this long to get an authoritative opinion above the trial court level.

The securitization/MERS agency approach seems to ignore established statutory and common law concerning the transfer of notes (Art. 3, UCC) and state mortgage/deed of trust recordation requirements.

In a Deed of Trust state, like Texas, title is held by a trustee for the benefit of a lender; the Debtor holds equitable title until the property is "paid off." Only the trustee under the Deed of Trust can foreclose, and if that is not MERS, too bad. Of course, you have all heard me spout off on the lost/destroyed note issue. No note, no debt, even if the borrower did receive the money. Unwritten obligations of this type of course violate all known versions of the Statute of Frauds. Lost or stolen, under the UCC, at Art. 3, requires that the trustee under the indenture prove that he or she is a holder, or rather was a holder, at the time the note went missing. Usually, the Trustee cannot show holder (or alternatively) transferee status as required by the UCC.

PUT IT IN AN OLD, PERHAPS RACIALLY TINGED EXPRESSION: NO TICKEE, NO LAUNDRY.

[Dezcad]

These and similar theories have recently prevailed before the Massachusettes Supreme Court. See U. S. Bank National Association, Trustee v. Ibanez from Jan. 7; no citation but availabale at Scribd.

Here is a link to that opinion.

[wserra]

These and similara theories have recently prevailed before the Massachusettes Supreme Court. See U. S. Bank National Association, Trustee v. Ibanez

I just read Ibanez for the first time, and it said what I understood it to say. In the words of the court's conclusion,

For the reasons stated, we agree with the judge that the plaintiffs did not demonstrate that they were the holders of the Ibanez and LaRace mortgages at the time that they foreclosed these properties, and therefore failed to demonstrate that they acquired fee simple title to these properties by purchasing them at the foreclosure sale.

I don't necessarily see that as the same issue as in these Utah cases.

In these cases, the issue is whether the Utah mortgagors sued the necessary parties in order for the default judgments to survive subsequent attack. New York is not a deed of trust state, so I'm not very familiar with the device. I guess the legal issue whether it is sufficient to serve the trustee in a trust deed state, and, of course, the factual issue is whether those the plaintiffs served were in fact the appropriate trustees.

I would like to see a Utah court's opinion on those issues, and not just the press releases of the lawyers.

[Prof]

It is best to think of these as "standing" cases, I think. Federal and state rules require that a party with "standing" bring a lawsuit. In a state foreclosure proceeding, standing requires that the mortgage holder (or assignee) or the trustee (or substitute trustee), whose interests are of record (Statute of Frauds issues) bring a foreclosure action or an action on a note.

If the mortgagee is not of record, or the trustee is not of record, a "substitute" has no standing.

Conversely, if the mortgagee is of record, or the trustee is of record, but those persons no longer hold those interests, then service on the recorded mortgagee or trustee is appropriate and a default by those recorded parties will generally withstand any challenge based upon their failure to act if they had no duty to act -- that is, they had been replaced, but the replacement party had not been recorded.

These issues, in Ibanez and apparently in the Utah case, are -- to me -- standing issues.

However, only a holder or transferee can enforce the underlying debt. This is pure UCC Art. 3-- and if the trustee or mortgagee is of record (the MERS system), that entity must show that the person holding the debt instrument has declared a default--that is, the person in possession of the debt instrument or the person who can show title of a lost or stolen instrument (or who is a proper transferee under certain conditions) must have determined that the debt is in default and the default, failure to cure, etc., allows a foreclosure to proceed.

In a state like Texas, which has non-judicial foreclosure stripped to its most basic form (no public oversight and no judicial involvement whatsoever), these issues must be raised by the morgageor/beneficial owner.