Monthly Archives: July 2011
Al West Quiet Title Actions California
Comment on Mass Extinction of Pools Becomes Clearer by Dave Krieger
| Dave Krieger
Avirani and Indigo …
I have been working on a book about this whole mess for quite some
time and it is about to be published. The book presents several angles
on attacking the lenders. Your takes on WITHOUT RECOURSE are a
blessing, since you are citing case law.
All of these posts (pertaining to anonymous) do come with a caveat.
Bear in mind when you post that the banks are reading this blog too. I
happen to know of a few law firms right now (foreclosure mills) that
read this blog on a daily basis. I also know of a few judges that are
reading this blog as well. All of this I know through direct contact
with clients, as well as assisting their attorneys as a paralegal with
case work.
RE: UCC … every case is state specific. You can’t quote the federal
UCC because the states have adopted it into their own versions and
altered it to please the political machinery. Max Gardner told me
this. In my research for the book, I have talked to hordes of
attorneys about this stuff and they are very candid when they say that
these foreclosure mills, all part of the grand scheme, are fully
briefed by the banking community as to how to answer these suits and
what they can and cannot get away with. The mavericks that tend to
become arrogant (like Stern) get caught bringing fraud on the court.
Aside from that, the individual attorneys I have spoken with admit
that they do not have the resources to share information as readily as
the foreclosure mill networks do. This is why we have a problem.
Attorneys have egos and the more successful ones know that if an
outside source brings them something credible that sounds plausible
enough to win with then there’s a chance the homeowner is going to get
results.
Seemingly expected … not all of the stuff I share with the hosts of
this blog get shared with the community. When you know that the “other
side” is watching what homeowners are posting on this and other
related blogs, you will find bits and pieces of interjections that are
designed to sway the reader or as in a court case, “get them off
point”. The best way for a defendant lender to win is to get the
Plaintiff homeowner off point, to where the plaintiff goes off on
serious, unproven, unchartered, unsupported (without case law)
conspiracy theories that have no merit because they are just that,
theories.
This is true … your allegations of disinterested counter parties
lodging false information on these blogs has merit.
One can only verify through (1) research; and (2) discovery.
This is why I wrote my book on quiet title actions (along with
everything else in the kitchen sink). In order to weaken the other
side, thousands of lawsuits a week are going to have to get filed,
because there are NOT enough foreclosure mills to defend them. True,
the court system will be clogged like a sewer with these actions.
True, a lot of these banks will typically get their attorneys to
remove the case to federal court, thinking they can get a slam dunk on
diversity jurisdiction (multiple defendants from other states makes in
federal according to their rationale) so they can get a 12(b)(6)
ruling. This is why the entire cause must be centered around quieting
title.
Instead of going after all of these counts, as I have seen in the
past, take only the quiet title as your lead cause and build your case
using key points (not as counts, but as predicators) … this is what I
have seen the good attorneys do in their pleadings … and believe me …
these class actions inure to the benefit of the attorneys that file
them and because of the class, only one law firm needs to take it on.
If you’ve got thousands of homeowners filing quiet title suits in
state court (sticking to state statutes) the lenders do not know how
to react. They usually are in the driver’s seat, foreclosing on the
homeowners. They have a scheme for that. They have a tested
methodology that has worked up to a point. They know what they can get
away with … at least up until now. You will notice that the suits that
are winning are individually filed or individually defended.
If you do not have the Federman decision … I would be happy to send it
to you, as it doesn’t seem to be posted on here. The last paragraph of
the order invites Bank of America and MERS to come forward and produce
documentation to prove agency. Hon. Arthur Federman is a very smart
and highly regarded bankruptcy judge. It’s just too bad that people
don’t read his decisions BEFORE filing bankruptcy. (I sent the Order
to Neil but I haven’t seen any reference to it being posted on here
yet. hint hint)
The banks either (1) can’t produce the note; or (2) tie themselves in
some way through contract to prove agency. I write about that in my
book. These flaws are NOT hard to prove. I have talked to attorneys
who say that the banks’ attorneys come into court with a pomposity
that reeks when they walk in the door. They are not expecting any
attorney to be able to wade through the gobbledygook of paperwork and
arguments they present, because generally, the homeowner has hired a
lawyer that doesn’t know his a** from a hole in the ground. (Neil is
right on that point.)
In quiet title actions, supporting state case law is very relevant,
because the judges’ law clerks can research it and apply it to your
case. If you start putting in federal questions, you give the other
side cause celebre to remove it to federal and slam dunk you. Quiet
title actions are a state right and no federal judge can quiet title
to property sitting in state jurisdiction. The filings are in the
county recorder’s offices (and I seriously doubt that 99.9% of all
borrowers signing the Deed of Trust even knew what the hell they were
signing).
The theories of who loaned who credit and who got paid first and who
got screwed second is NOT the crux of your case. It’s the original
documentation that created the fraud and the subsequent filings in the
county courthouse that become part of your quiet title action. You
see, most states declare in statute that as long as you retain
possession at the time you file a quiet title suit, you can move
forward, even if you are in foreclosure. Some states even allow quiet
title actions to be filed POST FORECLOSURE, POST EVICTION! Again, this
is state specific, where federal law and rules cannot be applied. This
I know from research. I cannot give this out as legal advice
obviously.
Blogs are great sharing tools provided the information being shared is
credible and can be verified.
The lenders’ foreclosure mills shrink up like a man with erectile
dysfunction when placed under this kind of stress, because of the
burden of proof is virtually split between the Plaintiff, who makes
allegations supported by case law and the Defendant lender that has to
tie all of the ends together. Once the quiet title action is filed the
lender can’t go back in and record documentation after the fact to
perfect their security interest … they have to bring it into open
court, where you can impeach it. I have two successful quiet title
actions under my belt personally, so I know how they work.
I also happen to know what the “four corners” rule/doctrine is. It’s
the entire content of the page taken as a whole versus the specifics
contained therein. This is very useful in wrongful foreclosure
actions. Couple a wrongful foreclosure action with quiet title … and
then find your state statute that makes it a state jail felony to file
such fraud with the county court clerks/recorders/register of deeds …
bring the local county recorder and the DA into your case; show them
the docs; show them where they are suspect; get them on your side; the
judges ruling on your cases are more likely to see reason because you
have the county working with you to stomp out fraud. Even as a pro se
Plaintiff (which I shudder to think could pull this off, but could) it
would lend a lot of credibility to your case if you have outside
sources with credibility jumping into the fray. This is how County
entities that record documents, such as deeds of trust, become aware
as to WHY they are being deprived of income because of MERS. … and let
me tell you here and now MERS ain’t no Viagra. If you look at your
original deeds of trust and see who the players are, you will figure
out WHY the whole thing is a fraud, without me having to get on here
and tip my research to the banks who are wondering the same thing.
Comment on Mass Extinction of Pools Becomes Clearer by gwen caranchini
Today, July 30, 2010, 13 hours ago | gwen caranchini
This is a great post from Dave who I am using myself to help me in my
pro se case–I am a former trial attorney of some 30 yeasr in civil
rights cases in Fed and State Courts so “pro se” for me is a bit
different. Dave is always right on with his case law and his theories.
The def are attempting to remove my quiet title action to fed ct and I
am objecting. I have also filed a complaint with the FBI alleging the
fraud in the HAMP program based upon what is going in in my case and
the fraud in the MERS filings which when you look at all the docs at
the courthouse TOGETHER the fraud becomes clear in several different
ways. Dave is the brightest paralegal I have ever met and should be a
lawyer. I have never had one thing he sent me prove to be wrong–this
guy has also got the common sense approach to this and is not out
there with legal theories that are hard to prove. He knows too what
dis we need. You all would do well to listen to him, get his posts and
use his services.
Comment on Mass Extinction of Pools Becomes Clearer by gwen caranchini
Today, July 30, 2010, 11 hours ago | gwen caranchini
Stupendous Man–the case Dave is referring to is “In Re Box” decided
June 3 before Arthur Federman in the United States Bankruptcy Court
for the Western District of Missouri. I sent dave that case. It is a
wonderful decision, especially the last page. A bit of an update on
that case as I spoke to the Trustee’s office as a followup. Apparently
BAC continues to ask to be heard at creditor’s meetings on this matter
even after relief from stay was denied BAC. The trustee is refusing to
acknowledge BAC has a position at the creditor’s meeting because it
has not proved it holds the note in question as Judge Federman found.
The last page of Federman’s decision told BAC that when they had the
note or claimed to have the note they could ask for an evidentiary
hearing that showed they had the note and could establish agency for
being able to seek foreclosure on the note. To date, some 7 weeks
later, they have yet to do so and given that the Trustee continues to
deny them the right to speak at creditor’s meetings.
Comment on Mass Extinction of Pools Becomes Clearer by Dave Krieger
Today, July 30, 2010, 11 hours ago | Dave Krieger
The basic quiet title actions follow to form and purpose. You use
whatever basis for your claim as necessary. There are a lot of
templates you can use out there. Many attorneys use ProDoc which have
state specific stuff in it. If you look at cases that are specific to
your cause and you go to the law library to look them up … find cases
that are specific to your area or where someone has filed pleadings in
a court near you. Then go to that court with the case # and get a copy
of the pleadings directly from the case file. You can then see how it
was formatted. Before you pay for pleadings though, make sure the
outcome was positive via the case cite. No sense pulling case
pleadings that were incorrectly plead. The case cite itself will tell
you whether or not the case was successful in the case of the
homeowner. My two quiet title actions were against a defunct
corporation in Arkansas over resort property I acquired from the
state. They did not challenge, thus I was awarded. I didn’t have to
prove fraud. This is part of how you make money on tax deed sales, by
quieting title BEFORE you sell. Since I invest in real estate, quiet
title actions have been a particular interest of mine for some time.
LFA are not attorneys and nothing herein shall be considered legal advice..
California Quiet Title
“If we wish to be free, if we mean to preserve inviolate those inestimable privileges for which we have been so long contending, if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained…we must fight!” – Patrick Henry
California Quiet Title (For MERS Loans)
Quiet title actions in California have a couple of hurdles not found in other jurisdictions. First lets discuss what exactly a quiet title action is. A quiet title action is an action to remove parasites from the land record who do not have any legal capacity to dwell on title in the record.
The advent of MERS and its use by the lenders to obfuscate who owns promissory notes and evade recording taxes provides a unique opportunity for a homeowner to use the fact that ownership is obfuscated to their own interest.
We found Walter Keane, a smart attorney in Utah doing just that. Utah is a non judicial deed of trust state like California, Virginia, New Mexico & Arizona and several others. Here’s how the attack works and why. On your deed of trust are
several named parties which are immediately changed upon the securitization of your note but these changes are not made public in the land record. Our program takes advantage of this mistake on the part of the geniuses behind MERS.
There is of course the trustee to the deed of trust. This party is typically a title company or perhaps a small law firm who performed the closing of your real estate transaction. Then, of course there is the lender who is typically the originator of your mortgage. Lets presume this party is Countrywide for this theoretical discussion. Then there is MERS who is
typically named on the deed as “nominee for the beneficiary” and at times as the actual beneficiary. Then there is you,
one of the trustors or grantors of the deed into the trust.
OK, stay with me. As soon as your mortgage is underwritten, your underwriter in cooperation with MERS places a MIN number on your deed of trust. Promptly, your promissory note, which was probably endorsed “in blank”, passes
through a depositor to a trustee and finally into a REMIC where pass through certificates are sold to investors. OK
heres the problem… Who does the original trustee have a relationship with? The true note holder has now
changed and the named lender on your deed is now obsolete. Making the trustee on your deed of trust now obsolete.
Well then why are they still in the land record? Why do you as a homeowner have to suffer having a party of no interest whatsoever in your real estate or in your promissory note effecting your title? So, get rid of them! File a suit against
these parties demanding that they remove themselves from the land record. The little title company purporting to be your trustee will probably not even answer the complaint. And VOILA!! Laughing diabolically…guess what happens now?
You have nullified your trust deed and insulated your home from foreclosure. Your house is now free and clear. You owe somebody something on the promissory note…that is, unless they cannot produce the note with all of the endorsements made in accordance with the pooling and servicing agreement of the REMIC….which they probably do not have. No, you
do not have to notice the trust that purportedly owns your note of your law suit because… They are NOT IN THE PUBLIC RECORD! This method of filing quiet title in California needs to be done before the loan gets too far delinquent. The
reason is that part of the California foreclosure process is for the REMIC or MBS to file a substitution of trustee document
in the land record to change trustees to one that does have a relationship with the note holder. They cannot do this until
the loan is in serious default. This substitution of trustee corrects the very weakness that our quiet title method exploits.
Further complicating the process in California is the tender rule. If the foreclosure process is in full swing and your
action is viewed as a defense to foreclosure because the legal process was already in place, the judge may require
that you tender a bond in the amount of your principal balance to proceed with your California quiet title action. Do not
construe this article as legal advice as the author is not an attorney and is in fact pretty dumb. If you wish to discover
more about quiet title in California fill out the form and specifically request information on quiet title actions. We do have
an attorney who files quiet title actions in California.
CALIFORNIA QUIET TITLE LAW – A GENERAL OVERVIEW
The statutory provisions for Quiet Title in California can be found in the California Code of Civil Procedure Sections
760.10-760.060. A Quiet Title action is basically a legal action that seeks to “quiet title” to property where adverse claims are made against the property. For example, where a lender wrongfully forecloses on a property and claims the property
as their own, but the homeowner challenges this.
Here is the California Quiet Title Statutory Law (there are also cases interpreting these quiet title provisions). Bolded
and italics material are provided by me:
760.010. As used in this chapter:
(a) “Claim” includes a legal or equitable right, title, estate, lien, or interest in property or cloud upon title.
(b) “Property” includes real property, and to the extent applicable, personal property.
760.020. (a) An action may be brought under this chapter to establish title against adverse claims to real or personal property or any interest therein.
(b) An action may be brought under this chapter by parties to an agreement entered into pursuant to Section 6307 or 6357 of the Public Resources Code to confirm the validity of the agreement.
(c) Nothing in this section shall be construed to limit the right of members of the public to bring or participate in actions challenging the validity of agreements entered into pursuant to Section 6307 or 6357 of the Public Resources Code.
760.030. (a) The remedy provided in this chapter is cumulative and not exclusive of any other remedy, form or right
of action, or proceeding provided by law for establishing or quieting title to property.
(b) In an action or proceeding in which establishing or quieting title to property is in issue the court in its discretion may, upon motion of any party, require that the issue be resolved pursuant to the provisions of this chapter to the extent practicable.
760.040. (a) The superior court has jurisdiction of actions under this chapter.
(b) The court has complete jurisdiction over the parties to the action and the property described in the complaint and
is deemed to have obtained possession and control of the property for the purposes of the action with complete jurisdiction to render the judgment provided for in this chapter.
(c) Nothing in this chapter limits any authority the court may have to grant such equitable relief as may be proper under the circumstances of the case.
760.050. Subject to the power of the court to transfer actions, the proper county for the trial of an action under this chapter is:
(a) Where the subject of the action is real property or real and personal property, the county in which the real property,
or some part thereof, is located.
(b) Where the subject of the action is personal property, the county in which the personal property is principally located at the commencement of the action or in which the defendants, or any of them, reside at the commencement of the action.
760.060. The statutes and rules governing practice in civil actions generally apply to actions under this chapter except where they are inconsistent with the provisions of this chapter.
CALIFORNIA QUIET TITLE LAW SUMMARY
So, in short, the main purpose of a quiet title action is to establish title against adverse claims to real property or personal property. As set forth above, the remedy of quiet title can be combined with other causes of action or other remedies. And, in any action or proceeding in which establishing or quieting title to property is in issue, the court may, in its discretion and on the motion of any party, require that the issue be resolved pursuant to the California Code Of Civil Procedure provisions relating to quiet title actions.
In regards to proper jurisdiction for a California quiet title lawsuit, the quiet title lawsuit must be brought in the superior court of the county where the real property is located. Once the Quiet Title Action is before the court, the court has complete power to determine title issues.
NOTE: SECTION 761.020-761.040 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE SETS FORTH SPECIFIC PLEADING REQUIREMENTS AND LIS PENDES RULES WHEN FILING A QUIET TITLE LAWSUIT. THE RULES CAN BE FOUND HERE:
761.010. (a) An action under this chapter is commenced by filing a complaint with the court.
(b) Immediately upon commencement of the action, the plaintiff shall file a notice of the pendency (THIS IS THE “LIS PENDENS” WE HAVE TALKED ABOUT THIS IN OTHER BLOG ARTICLES) of the action in the office of the county recorder of each county in which any real property described in the complaint is located.
LIS PENDENS NOTE (NOW CALLED THE NOTICE OF PENDENCY OF ACTION): This lis pendens puts other parties on notice of your claim to real property and usually stops anyone from buying or selling your real property while the lawsuit is pending. The lis pendens can later be removed, or dissolved by Court order. Please note, there are very specific requirements for filing a lis pendens that you will need to be familiar with (google “vondran lis pendens” for more information).
761.020. The complaint shall be verified and shall include all of the following:
(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
(b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.
(c) The adverse claims to the title of the plaintiff against which a determination is sought.
(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.
(e) A prayer for the determination of the title of the plaintiff against the adverse claims.
REQUIREMENTS OF THE DEFENDANTS ANSWER TO A CALIFORNIA QUIET TITLE LAWSUIT:
761.030. (a) The answer shall be verified and shall set forth:
(1) Any claim the defendant has.
(2) Any facts tending to controvert such material allegations of the complaint as the defendant does not wish to be taken as true.
(3) A statement of any new matter constituting a defense.
(b) If the defendant disclaims in the answer any claim, or suffers judgment to be taken without answer, the plaintiff shall not recover costs.
761.040. (a) The defendant may by cross-complaint seek affirmative relief in the action.
(b) If the defendant seeks a determination of title as of a date other than the date specified in the complaint, the cross-complaint shall include the date and a statement of the reasons why a determination as of that date is sought.
PARTIES IN A CALIFORNIA QUIET TITLE ACTION (PARTY ISSUES).
California Code of Civil Procedure Section 762.010-762.090 states that the when filing the Quiet Title Lawsuit, the Plaintiff must name as defendants all persons known or unknown claiming an interest in the property and other rules regarding proper parties in a quiet title action are addressed in these sections.
Here are those Sections:
762.010. The plaintiff shall name as defendants in the action the persons having adverse claims to the title of the plaintiff against which a determination is sought.
762.020. (a) If the name of a person required to be named as a defendant is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties all persons unknown in the manner provided in Section 762.060.
(b) If the claim or the share or quantity of the claim of a person required to be named as a defendant is unknown, uncertain, or contingent, the plaintiff shall so state in the complaint. If the lack of knowledge, uncertainty, or contingency is caused by a transfer to an unborn or un-ascertained person or class member, or by a transfer in the form of a contingent remainder, vested remainder subject to defeasance, executory interest, or similar disposition, the plaintiff shall also state in the complaint, so far as is known to the plaintiff, the name, age, and legal disability (if any) of the person in being who would be entitled to the claim had the contingency upon which the claim depends occurred prior to the commencement of the action.
762.030. (a) If a person required to be named as a defendant is dead and the plaintiff knows of a personal representative, the plaintiff shall join the personal representative as a defendant.
(b) If a person required to be named as a defendant is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative:
(1) The plaintiff shall state these facts in an affidavit filed with the complaint.
(2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as defendants “the testate and intestate
successors of ____ (naming the deceased person), deceased, and all persons claiming by, through, or under such decedent,” naming them in that manner.
(3) Where it is stated in the affidavit that such person is believed to be dead, the plaintiff may join the person as a defendant, and may also join “the testate and intestate successors of ____ (naming the person) believed to be deceased, and all persons claiming by, through, or under such person,” naming them in that manner.
762.040. The court upon its own motion may, and upon motion of any party shall, make such orders as appear appropriate:
(a) For joinder of such additional parties as are necessary or proper.
(b) Requiring the plaintiff to procure a title report and designate a place where it shall be kept for inspection, use, and copying by the parties.
762.050. Any person who has a claim to the property described in the complaint may appear in the proceeding. Whether or not the person is named as a defendant in the complaint, the person shall appear as a defendant.
762.060. (a) In addition to the persons required to be named as defendants in the action, the plaintiff may name as defendants “all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiff’s title, or any cloud upon plaintiff’s title thereto,” naming them in that manner.
(b) In an action under this section, the plaintiff shall name as defendants the persons having adverse claims that are of record or known to the plaintiff or reasonably apparent from an inspection of the property.
(c) If the plaintiff admits the validity of any adverse claim, the complaint shall so state.
762.070. A person named and served as an unknown defendant has the same rights as are provided by law in cases of all other defendants named and served, and the action shall proceed against unknown defendants in the same manner as against other defendants named and served, and with the same effect.
762.080. The court upon its own motion may, and upon motion of any party shall, make such orders for appointment of guardians ad litem as appear necessary to protect the interest of any party.
762.090. (a) The state may be joined as a party to an action under this chapter.
(b) This section does not constitute a change in, but is
declaratory of, existing law.
WHO BEARS THE BURDEN OF PROOF IN A CALIFORNIA QUIET TITLE ACTION? THE ANSWER WILL USUALLY DEPEND ON WHETHER DEFENDANT HOLDS LEGAL TITLE OR WHETHER TITLE IS DISPUTED.
In a California Quiet Title lawsuit (WHERE LEGAL TITLE VESTS IN DEFENDANTS), the Plaintiff must bear the burden of proof (this is the case in most civil lawsuits). The normal burden of proof in a civil lawsuit is “preponderance of the evidence.” However, in a Quiet Title action, the standard of proof is higher and the Plaintiff must establish its right to title by “CLEAR AND CONVINCING” proof. See California Evidence Code Section 662 which discusses the burden of proof in a Quiet Title case:
662. The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.
IF TITLE TO REAL PROPERTY IS “DISPUTED” (AS OPPOSED TO HAVING LEGAL TITLE HELD BY A DEFENDANT) THEN THE TYPICAL “PREPONDERANCE OF THE EVIDENCE” STANDARD WILL APPLY.
A JUDGEMENT IN A QUIET TITLE ACTION IS NORMALLY CONCLUSIVE ON ALL PARTIES KNOWN OR UNKNOWN WHO WERE PARTIES TO THE ACTION.
California Code of Civil Procedure Section 764.030 States:
764.030. The judgment in the action is binding and conclusive on all of the following persons, regardless of any legal disability:
(a) All persons known and unknown who were parties to the action and who have any claim to the property, whether present or future, vested or contingent, legal or equitable, several or undivided. Except as provided in Section 764.045, all persons who were not parties to the action and who have any claim to the property which was not of record at the time the lis pendens was filed or, if none was filed, at the time the judgment was recorded.
HOWEVER, A QUIET TITLE ACTION WILL NOT NORMALLY AFFECT TITLE TO PARTIES WHO WERE NOT A PARTY TO THE ACTION IF THEIR CLAIM WAS KNOWN, OR REASONABLY SHOULD HAVE BEEN KNOWN.
California Code of Civil Procedure Section 764.045 states:
764.045. Except to the extent provided in Section 1908, the judgment does not affect a claim in the property or part thereof of any person who was not a party to the action if any of the following conditions is satisfied:
(a) The claim was of record at the time the lis pendens was filed or, if none was filed, at the time the judgment was recorded.
(b) The claim was actually known to the plaintiff or would have been reasonably apparent from an inspection of the property at the time the lis pendens was filed or, if none was filed, at the time the judgment was entered. Nothing in this subdivision shall be construed to impair the rights of a bona fide purchaser or encumbrancer for value dealing with the plaintiff or the plaintiff’s successors in interest.
THERE ARE NO DEFAULT JUDGMENTS – EVIDENCE IS REQUIRED IN A QUIET TITLE LAWSUIT:
California Code of Civil Procedure Section 764.010 States:
764.010. 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.
Quiet Title Case: Mangindin v. Washington Mutual Bank, 637 F. Supp.2d 700, (N.D. Cal.) 2009.
QUIET TITLE IN THE FORECLOSURE CONTEXT: TENDER ISSUES
Under California law, a plaintiff seeking to quiet title in the face of a foreclosure must allege tender or an offer of tender of the amount borrowed. See Arnolds Management Corp v. Eischen, 158 Cal.App.3d 575, 578, 205 Cal.Rptr. 15 (1984). This may make Quiet Title a more difficult proposition in a foreclosure case.
QUICK SUMMARY OF CALIFORNIA QUIET TITLE LAW
(1) THE COMPLAINT AND ANSWER TO A QUIET TITLE ACTION MUST BE VERIFIED (ESSENTIALLY MEANING MADE UNDER OATH) AND NAME ALL KNOWN OR UNKNOWN PARTIES CLAIMING AN INTEREST IN THE PROPERTY.
(2) THE QUIET TITLE COMPLAINT MUST DESCRIBE THE PROPERTY WITH A LEGAL DESCRIPTION AND COMMON ADDRESS DESCRIPTION.
(3) PLAINTIFF IN A CALIFORNIA QUIET TITLE ACTION MUST SET FORTH WHAT THE ADVERSE CLAIMS (SETTING FORTH SPECIFIC FACTS) ARE AND WHAT TYPE OF DETERMINATION IS SOUGHT.
(4) QUIET TITLE ACTION MUST SET FORTH THE DATE THE DETERMINATION IS SOUGHT AND A PRAYER FOR RELIEF TO DETERMINE PLAINTIFF’S TITLE AGAINST THE ADVERSE CLAIMS.
(5) A QUIET TITLE LAWSUIT MUST BE BROUGHT IN THE PROPER COUNTY.
(6) ANY PERSON WHO CLAIMS AN ADVERSE INTEREST IN THE PROPERTY MAY JOIN IN THE LAWSUIT EVEN IF THEY WERE NOT NAMED AS A A DEFENDANT.
(7) A QUIET TITLE LAWSUIT REQUIRES PROPER USE OF THE LIS PENDENS PROCEDURE (NOTICE OF PENDENCY OF ACTION).
(8) IN A QUIET TITLE ACTION, THE OWNER OF LEGAL TITLE (CHECK THE TITLE REPORT) IS PRESUMED TO BE THE OWNER, AND THIS CAN ONLY BE REBUTTED BY A SHOWING OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY.
(9) GENERALLY SPEAKING, THERE ARE NO JURY TRIALS IN A QUIET TITLE ACTION AS THESE ACTIONS ARE “EQUITABLE” IN NATURE (NOT SEEKING MONEY DAMAGES) SO THE COURT WILL DECIDE PLAINTIFF’S CLAIM AND EQUITABLE DEFENSES MAY BE ASSERTED BY OPPOSING PARTIES. THE EXCEPTION WOULD BE IF PLAINTIFF IS OUT OF POSSESSION OF THE PROPERTY AND IS FILING THE QUIET TITLE ACTION TO REGAIN POSSESSION – IN THESE CIRCUMSTANCES THE CLAIM MAY BE DEEMED “LEGAL” IN NATURE AND A JURY TRIAL MAY BE REQUESTED. SEE MEDEIROS V. MEDEIROS, 177 CAL APP. 2d 69, (1960). THE PRUDENT PRACTICE IS TO ALWAYS REQUEST A JURY TRIAL WHEN FILING A PLEADING IF THAT IS WHAT YOU WANT. RAISE IT OR WAIVE IT IS THE GENERAL RULE.
(10) GENERALLY SPEAKING, A JUDGMENT IN A QUIET TITLE LAWSUIT IS CONCLUSIVE AND BINDING ON ALL PARTIES TO THE LITIGATION, BUT MAY NOT BE BINDING ON PARTIES NOT INVOLVED IN THE QUIET TITLE LAWSUIT BUT WHOS CLAIMS WERE KNOWN OR REASONABLY APPARENT. THERE ARE NO DEFAULT JUDGMENTS – CLEAR EVIDENCE IS REQUIRED.
(11) IN A QUIET TITLE ACTION IN THE FORECLOSURE OF A RESIDENCE, THE COURT MAY REQUIRE THE PLAINTIFF TO “DO EQUITY” OR TENDER AMOUNTS OWED OR IN ARREARS OR PAY THE ENTIRE BALANCE. A PARTY CANNOT USUALLY “GET EQUITY” IF THEY DON’T “DO EQUITY”.
