Monday, August 13, 2012

The Myth of "Quiet Title" as a Defense to Foreclosure

I've been getting a lot of calls from people facing foreclosure who believe that a quiet title action can somehow help their case.  A quick look around the internet and the culprits are clear.  Apparently there is a rising trend among scammers to sell people on the notion that if you are facing foreclosure you can sue your bank and keep your home without paying for it.  All of this can be done by a quiet title action, they claim.

Please know that in South Carolina, I do not think this will help.  Furthermore, I doubt it will help in any jurisdiction.

As best as I can tell, this nonsense has grown out of the Massachusetts case of Bevilacqua v. Rodriguez (to read the briefs filed on appeal, see http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-10880).  In the underlying case, and perhaps others, the focus became whether the Mortgage was properly assigned and whether the Plaintiff Bank in the foreclosure action could prove that it has a legal right to bring the action.

There also seems to be a belief "out there" that if M.E.R.S. was servicing your loan, then the foreclosure is likely to be flawed because the Plaintiff can not prove it "holds the paper."  While these theories might have some shred of soundness, the reality is that most foreclosure actions will go through and the Defendant/Borrower will lose the property.

Here's the bottom line (or lines): If you can not afford to pay for your home and have stopped making payments, you should probably accept that there is a legal mechanism to take your home from you and that eventually that mechanism will work.  I would encourage those facing foreclosure to speak with an attorney about their options and do not waste much time, energy or money on websites where non-lawyers are trying to sell the notion that foreclosures can be defeated by bringing quiet-title actions.  If you want to save your home and have the means to put together a plan to get caught up on your payments, I would encourage you to work with your lender (on your own or with an attorney) to explore your options.  Your options might include: loan modification, backloading arrearages, partial foregiveness or refinancing the obligation.  If you are unable to keep the property, you should consider a short sale to avoid a deficiency judgment.

In my experience, it is very rare that a borrower has a defense to foreclosure which is based around true wrongdoing by the bank (like predatory lending or robo-signing for example).  Although lenders are notoriously unscrupulous in their practicies, chances their practices have not caused you to be in the situation where you can not afford to pay your obligations related to your home.  If you think you have been the victim of lender abuse, I would encourage you to see an attorney who works in the area of mortgage foreclosure defense.

The most important thing is to seek advice from a professional and do not fall victim to a web-site selling an idea which really (simply) does not work.

I hope to come back here and clean this up and round it out over time but for now just wanted to get some of these fresh thoughts down.

If I can help, please call (843) 452-3553 or visit www.jefffspell.com, thanks.

1 comment:

Roland said...

I was almost victimized by the scammers that you mentioned. Good thing that a lawyer from Boca Raton helped me on real estate questions that I had during that time. I was able to avoid such scam, in turn.