Archive for December 2nd, 2013

Quiet Title? Eliminate a Mortgage? Read This.

Over the past few years, I’ve been able to get many hundreds of foreclosure cases dismissed.  I’d like to think I’ve had a successful foreclosure defense practice, and I feel like I’ve made a difference for homeowners.  It hasn’t always been easy, but it’s been a rewarding, enjoyable career path.  For many homeowners, though, it’s not enough.  A dismissal without prejudice means the bank can re-file, and they want more.  ”Quiet title.”  “Eliminate my mortgage.”

Part of it is an unfortunate offshoot of the robo-signing fiasco and securitization debacle.  “The banks committed fraud.”  “The loan wasn’t securitized properly.”  Many people mislead themselves into thinking this entitles them to a free house.

Part of this is natural.  After all, who wouldn’t want a free house?  I would, and I’ve heard judges admit they would in open court.  I can’t even call this “greed,” really.  Everyone likes free stuff.

What’s frustrating when I encounter these homeowners is their inability to be pragmatic.  They’re not in court every day like I am.  They don’t understand the climate of the judiciary.  They don’t know how the law works.  They don’t know how loathe judges are to ever rule this way.

Take a look at the Third District’s November 20, 2013 ruling in BAC Home Loans Servicing, Inc. v. Gamarra.  In that case, the trial court entered an Order granting the homeowners a quiet title judgment.  Free house … right?  Wrong.  The Third District did not mince words when it overruled the lower court’s decision.  As if to give a warning shot to any attorney seeking such a result for homeowners, the court began the opinion with the following:

A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”; or “(4) offer evidence that the lawyer knows to be false. . . .” R. Regulating Fla. Bar 4-3.3(a)(1), (4). Despite the clear and unambiguous directive of Rule 4-3.3(a), counsel representing the defendants, Mary Gamarra de Headley and Todd Headley (“the Headleys”) in this foreclosure action, made material misrepresentations in the Headleys’ motion for final judgment, resulting in the issuance of a final judgment that granted relief which was not pled.

Read on.  It only gets worse from there.

This is why I don’t talk about quieting title.  I don’t blog about it, and I’m loathe to ever discuss such relief with homeowners, much less seek it.  No, I’m not afraid of getting my hand slapped.  Quite simply, it’s almost always a complete waste of time and money, and it creates false hope/expectations for homeowners.

Let’s put it this way … don’t you think if there were a realistic way to quiet title for Florida homeowners that I’d be doing it regularly?

Quieting title is not impossible, but it’s close.  So everyone reading this who perceives that as his/her goal needs to re-assess.  “Quieting title” isn’t a goal in foreclosure defense.  As for any lawyers trying this, you better be prepared.  When the appellate court starts an opinion about quieting title and eliminating a mortgage by citing a Bar rule, this is a path upon which you must tread carefully.

Mark Stopa

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