QUIET TITLE IS NOT A DEFENSE — IT IS OFFENSE AND IT IS A HIGHLY EFFECTIVE LAWSUIT

2 Aug

Posted on August 1, 2011 by Neil Garfield
I WRITE THIS BECAUSE WITH SO MANY PRO SE LITIGANTS AND UNINFORMED LAWYERS WEIGHING IN IT IS SOMETIMES NECESSARY TO CLARIFY THE ISSUES.
Quiet Title is not a defense. If used defensively you will most likely lose your case and also unintentionally waive rights that you might not even know you had. The fact that it is being used as a defense it testament to the number of bad decisions we get. They are not really bad. They are inevitable because “quiet title” was presented incorrectly.
You can say what you want about the rules being burdensome, but rules are necessary to make sure that everyone is doing the same thing in the same way. Otherwise there would be chaos.
So here is the deal: Quiet Title is a lawsuit, also known as a cause of action. There are numerous example of quiet title lawsuits in the forms on this blog and in the articles. I think there are even some forms in the comments.
You are seeking the Court to enter an order in which the Judge signs a piece of paper (Final Judgment) that declares the TITLE rights of the parties with respect to a particular piece of property.
The Judgment is entered in civil court clerk’s office but then you must also record it in the title registry.
Normally, homeowners seek to have their title determined to be unencumbered by the claims of one or more defendants who have either expressed their claim somehow or who appear in the title record but actually (factually) lack any interest in the particular piece of real property that is the subject matter of the lawsuit.
Typically, and most easily you have a Plaintiff or Petitioner, as it may be called who files the lawsuit. That is usually the Homeowner but it could be another lien-holder who believes that the title encumbrances to be either invalid or inferior to their own lien (see articles on HOA liens for assessments).
The Petitioner Homeowner is asking the Court for a declaration that says the Petitioner’s title is in fee simple absolute and that it is not encumbered by the lien that appears in the title registry by way of a mortgage deed or deed of trust.
The Petitioner must tell the court why that lien that is recorded in the title registry is not valid or has a lower priority than the title of the homeowner. Normally the reason is something like the fact that the record contains a lien in favor of Company X but that no money is owed to Company X and that therefore there is no obligation, which therefore means that there is no note that could be introduced as evidence of a non-existent obligation and in turn means that the mortgage lien is securing an obligation that does not exist, possibly never existed. There are other reasons too that you can use. See articles on this Blog.
The target should most likely be the originating lender as that would destroy the chain of title FROM the originating lender, unless there are already assignments recorded. If there are assignments recorded you may want to name those who hold those assignments as Defendants or respondents, as they be called, to clear their supposed interests, based upon robo-signing or any number of other reasons.
Quiet Title is not about the obligation and does not wipe out the obligation. It merely declares that one or more liens cannot be enforced and should be removed from the title registry. You will see some cases where pro se litigants lost — because they did not plead or prove their case correctly. If you look at quiet title actions in which both sides are institutions you will find plenty of support for what you are doing

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