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.

Interesting Links

I have recently updated my website:
www.jeffspell.com

For an interesting article on Heirs Property:

http://www.postandcourier.com/article/20110206/PC1602/302069940

for a good article on Heirs Property from Probate and Property magazine of the ABA:

http://www.americanbar.org/publications/probate_property_magazine_home/probate_2009_index/probate_may_june_2009_index/rppt_mo_premium_rp_publications_magazine_2009_mj_Pridemore_Tides.html

This is a link to the heirs property law center

http://www.heirspropertylawcenter.org/

This is a link to the SC Bar website where one could buy  a book on the law of tax sales:

http://miva.scbar.org/merchant5/merchant.mvc?Screen=PROD&Store_Code=scbcle&Product_Code=425&Category_Code=REAL

Welcome!

Welcome to the South Carolina Quiet Title Litigation Blog!
This blog will provide information regarding land title issues in South Carolina.
The primary focus will be on clearing title issues related to Tax Deeds and Heirs Property.

Other issues will include: foreclosure defense, mortgage modification restructuring, recasting, partition actions, property line disputes, etc..

HEIRS PROPERTY

When a person dies owning real estate and their estate is not probated, their real property passes to their heirs. Although the heirs are the true owners of the property, the property is most often rendered unmarketable. Unmarketable heirs property often can not be sold for full value, nor mortgaged or developed.

Often, heirs property can only be made marketable by a quiet title action.
Check back here, for more information regarding Heirs Property issues in South Carolina.

TAX DEEDS

When real property taxes go unpaid, county governments sell the property at auction to satisfy the taxes owed. The high bidder at a public tax sale will receive a "tax deed" from the master-in-equity or the tax collector. Although tax deeds are legal evidence of ownership, they are typically not insurable during the first 10 years after they are issued.

Often, tax deeds can only be made insurable and therefore marketable by a quiet title action.

Check back here for more information regarding Tax Deeds in South Carolina.

FORECLOSURE DEFENSE

The number of foreclosure actions in South Carolina is on the rise at an alarming rate. Homeowners facing foreclosure often have a range of legal options that changes almost daily. Banks appear to be more and more willing to work with homeowners facing foreclosure. Some options which may be available include: debt re-structuring, short sale or deed in lieu.

Check back here for more information regarding Foreclosure Defense in South Carolina.

For More information, please contact:

Jeffrey T. Spell
Attorney at Law
6650 Rivers Avenue
North Charleston, South Carolina 29406
(843) 452-3553
jtspell@comcast.net