Posted: Feb 08, 2013 5:11 PM CST Updated: Feb 08, 2013 6:17 PM CST
By Dave Elias, NBC2 Investigator

LEHIGH ACRES, FL – A Pennsylvania couple recently purchased their retirement dream home in Lehigh Acres by using an online auction company. Ralph and Linda Donley paid $65,000 cash for the home only to discover an eviction notice on their front door months later.

“They say we own the house free and clear.  I said we can’t. We’re getting evicted.  How can it be ours?” said Linda Donley.

It turns out a second mortgage on the property surfaced and the home went into foreclosure.

“The title company didn’t do their job at all.” said Ralph.

The Donley’s did have title insurance. While they’re expected to get their money back they will not get money for upgrades they made to their home.

“I put new hurricane shutters on the home. That cost me $2,000.” said Ralph Donley.

Allen Olofson-Ring, a Realtor at Coldwell Banker, said he has never seen anything like this happen.

Donley, 81, has until Monday to vacate the property. The best advice to avoid this type of situation is to make sure you have title insurance when you purchase a home.

Title insurance MAY NOT save you if the mortgage isn’t recorded (see Schedule B for details) in the real property records. As to the last sentence of this story … I love it when TV news people hand out legal advice when they’re not attorneys. Online auction companies are NOT to be trusted due to the fact most of them disclaim accuracy for the information they post on their websites and further, most of them insist you indemnify them from all liability when purchasing property on their website!  What kind of a “deal” does one expect to get when a prospective purchaser can’t even be bothered to check the real property records BEFORE making a purchasing decision?  This is one reason why chain of title assessments are necessary. Smart investors know this!  This is one reason why title companies are going to end up getting sued in the future. Can you imagine the negligence claims pouring into the E&O carriers?

By Dave Krieger, Managing Member, DK Consultants LLC, San Antonio, Texas

GEORGETOWN, TEXAS – Williamson County Clerk Nancy Rister just issued a news release pertaining to an audit she commissioned last October of the real property records of her county.  You can obtain a copy of her press release by CLICKING HERE.

The release comes on the heels of an announcement made by Jack Conway, Attorney General for the Commonwealth of Kentucky, who has filed suit against MERSCORP Holdings, Inc. and its subsidiary, Mortgage Electronic Registration Systems, Inc. for alleged violations of his State’s recordation statutes.

Austin area attorney David Rogers and I will be appearing before the Williamson County Commissioners’ Court on Tuesday, January 29, 2013, beginning at 9:30 a.m. to explain the results of the audit, which will be released the evening prior to our appearance before the Court. The media is welcomed to attend and it is our understanding that numerous residents of Williamson County also plan to fill the Court chambers.

Those who are not included on the list of email recipients for this audit report (over 140 pages including the legal opinion) are welcomed to access the .pdf version on this site on January 29, 2013.  It will be provided in a separate announcement.

Any questions regarding the results of the audit or media inquiries may be directed to Dave Krieger through the email link on this website.

By Dave Krieger, Managing Member, DK Consultants LLC
Author of The Credit Restoration Primer, 5th Edition

The Minnesota Attorney General’s office has released the Consent Judgment involving the case of State of Minnesota by its Attorney General, Lori Swanson v. Midland Funding, LLC and Midland Credit Management, Inc., Court File No. 27-CV-11-11510. You can download a copy of the Consent Judgment here! Kudos and salutations to Lori Swanson and her staff!

Upon reviewing this document, you’ll see that Ms. Swanson’s office was involved in countless hours of litigation on behalf of consumers in her State, resulting in over 200 sworn depositions and several rounds of discovery in anticipation of a trial.

Among other conditions, the Defendants have to vacate any judgments they were awarded against any consumer wherein their audit investigations (as of May 19, 2005) confirm that the person sued ever owed the debt in the first place (they can’t sell the debt to another debt collector either if that’s the case); in addition to coming into complete compliance with the Fair Debt Collection Practices Act. There is a complaint form that Ms. Swanson’s office has made available on its consumer website that consumers can fill out if they need further information about this judgment or involving any other debt collection matters.

While debt collection issues are not summarily the active concern of my consulting firm, the cause and effect of foreclosure cases is tainted credit files. The repositories (Equifax, Experian, Trans Union and Innovis) get their file information from the creditors. Unlike MERS however, which has no regulatory oversight, these repositories are under the regulation and jurisdiction of mandates established by Congress under the Fair Credit Reporting Act, which you can obtain a .pdf copy of at www.ftc.gov.

Concerning the actions of debt collectors, you can also obtain a copy of the Fair Debt Collection Practices Act on the Federal Trade Commission’s website. Generally, most if not all States have corresponding statutes that parallel (to a certain degree) the language proffered in the federal statutes. In some instances, like in California’s Rosenthal Act, that State drafted much of its own statutory mandates taken from the FDCPA; some with more “teeth” in them, some with less.

Of late are the issues wherein lenders (as creditors) are being challenged for violations of the FCRA in cases where the lender or the law firm attempting foreclosure can’t show that the alleged lender, as Plaintiff in the foreclosure action, actually owns the note they’re foreclosing on. If the lender doesn’t own the note, then what right do they have to report details of the payment history on that note on your credit reports? This is going to be a huge “tag-along” issue in future foreclosure litigation, especially litigation permeating the federal court systems.

I will keep you posted as to when the new version of The Credit Restoration Primer will be available, for those of you who wish to review the latest credit restoration issues and concerns, including case law and an updated index. Keep checking this website for more information.

By Dave Krieger (Op-Ed) December 14, 2012

A lot of homeowners are reading my book Clouded Titles.  Many of them seem to appear disconcerted over whether quiet title actions actually work.  Of late, the diatribe I get from some is that I appear to be “blowing smoke up their asses”.

Well … I have news for you:

CLICK HERE TO DOWNLOAD AN ORDER QUIETING TITLE (MISSOURI CASE)!

For those of you who doubt this action works and that you can’t challenge foreclosures using quiet title actions, think again.  Just ask Missouri attorney Greg Leyh about the feasibility of such an action!  If you’ve read the latest edition of Clouded Titles, Greg Leyh is one of the attorneys who has commented on my work. I’m not tooting MY horn here. I’m congratulating Greg for a job well done!  Since you all wanted to see proof … now you have it! For every quiet title action my firm has been made aware of, there are probably ten quiet title actions we aren’t aware of.  Rhode Island attorney George Babcock has also gotten some QT wins of late as well. There are attorneys out there who understand the concepts necessary to engage the “enemy” using these strategies.

Finding Competent Counsel

Part of the issues with homeowners seeking these actions is finding competent counsel. This is one of the reasons that the burgeoning network of paralegals and COTA Preparers out there is vetting attorneys, trying to find counsel that is willing to accept our research and case law as part of our litigation support.  The attorneys call the shots here!  I am not a lawyer referral service and neither is any given COTA Preparer out there.  We are contacting attorneys and having conversations with them to determine: (1) whether there is any interest in pursuing this line of litigation; and (2) to provide counsel with contact information to help them succeed in winning these kinds of cases.

The foreclosure mills have support networks.  I talk about them in my book. They are given gobs of information, for which the intended use is to foreclose on homes in America by whatever means are available.  Unfortunately, new information has come to light that many of these mills aren’t “playing fair” and tend to “manufacture” documents using false swearing, robo-notaries and surrogate signing through the use of alleged hearsay information obtained through third-party information software platforms.  One of our tasks as COTA Preparers is to keep our attorney friends “plugged in” with this new information once we receive it! Even attorneys that have superegos love us, because we want them to win!  We are a team of dedicated professionals that seek to engage in “the fight” because we hold ideals true to the spirit and intent of what our forefathers fought for … liberty and justice for all!

This is why I conduct chain of title assessment (COTA) classes around the country.  Because of my hectic schedule this year (with audits and COTAs and such), I am limiting my COTA 101 Workshops to six (6) in 2013.  They are posted on www.cloudedtitles.com.

As part of the increased need for further training, I have extended the workshop to three (3) days instead of two days. This gives all COTA 101 attendees more hands-on applied advantages to actually performing the analysis necessary to put pen to paper. Attorneys have relied on COTAs in the past as part of case development. COTA analysis is extremely important, especially in determining the issues wherein potential clouds on title exist. Here is one such flow chart that I created as part of a chain of title assessment (this is a sample only and is not intended to be construed as legal advice):

NOTE: The alleged breaks in the chain of title are due in part to sloppy bank record keeping!

Bottom line … there are NOT enough COTA Preparers to handle the onslaught and this scenario is not going to get any better without people who want to learn and help others get “into the game and fight”. If you are interested in getting involved, your emails are always welcomed through this website, attorney or concerned citizen.

By Dave Krieger (Op-Ed)
Today marks the 49^th anniversary of the assassination of the late President John F. Kennedy. I’m quickly reminded of this point in time in our history because of the current state of the real property records in America. They’ve been assassinated too … only it wasn’t one quick pull of the trigger and it didn’t happen in one fleeting moment. It took years to achieve.

I can now successfully add former DOCX President Brown to the list of suspected economic terrorists (along with Kerri Panchuk from Housing Wire

“For the reasons so stated, the Defendants’ (MERS) Motion to Dismiss is granted as to Count II of the Complaint, alleging civil conspiracy, and denied as to the remaining counts.”

In a 35-page Memorandum and Order, U.S. District Court Judge James Curtis Joyner (E. Dist. Pa.) dismissed Montgomery County Recorder of Deeds Nancy Becker’s claim for civil conspiracy, but left intact her claims, as part of a putative class action on behalf of all other Recorders in Pennsylvania, that could force MERS and its member-subscribers to record every single missing document to every single MERS mortgage to perfect each property owner’s chain of title and pay the appropriate fees due at the time of recording.

You gotta love this woman’s chutzpah, to move forward and take on a multi-billion-dollar-a-year private electronic database that she alleges in her case, has wreaked havoc on over 130-thousand mortgage filings in her county alone.

In the Memorandum and Order Joyner issued October 19, 2012, Becker would be allowed to pursue a quiet title action against MERS and MERSCORP, Inc. and seek declaratory and injunctive relief to boot.  Becker filed the suit on November 7, 2011, alleging that “MERS was formed for the express purpose of avoiding fees traditionally due to county recorders of deeds when sales or assignments of mortgages were made.  She further pleads that the absence of these recorded assignments as part of the Defendants’ avoidance of recording fees both deprives her office and Montgomery County of revenue needed to support vital public functions and creates deficient property records.”  (Emphasis supplied here by the author herein)  This is what I’ve been alleging ever since I wrote Clouded Titles.  It’s not just about the money; it’s about the destruction of chains of title that every MERS mortgage or deed of trust ever touched.

Also cited in the Memorandum were the cases against MERS and MERSCORP in both Dallas County, Texas and Geauga County, Ohio, both of which are still in play.  MERS attempted through various ploys to get itself dismissed from the complaint in Dallas County by removing it to federal court; subjecting it to the Multi-District Litigation (MDL) backpanel in Arizona, only to find itself back in federal district court in Dallas in the same fashion, dismissed in part and denied in part.  There’s still the issue of a Texas statute at § 192.007 (Texas Government Code) that requires ALL subsequent assignments and transfers be recorded.

This author and his audit team just completed an audit of a county’s land records, to discover multiple issues that could spell fate not just for the Reston, Virginia-based MERS/MERSCORP, but also for multiple attorneys whose signatures appear as wide and varied as Linda Green, the infamous robosignor exposed in CBS’s 60 Minutes piece in April of 2011.  Like other counties, the audited county suffered the same dilemma as Pennsylvania Recorders in a drop of badly-needed revenue due to the lack of recordation of transfers and assignments once the initial MERS mortgage or deed of trust is recorded.

As usual, MERS’ attorneys argued a wide range of assertions, including their claim that Becker did not “invoke the availability of quiet title relief in her pleadings. Nor did she argue that the facts she pleaded state a quiet title claim.”

Alas, quiet title will out.  The Court took several pages of the Memorandum to discuss the construction and interpretation of what the Pennsylvania Legislature intended when it created the original quiet title statutes; repealed and revised same; and came up with enough conclusive discussion to keep MERS and MERSCORP locked into this lawsuit, concluding “that the Plaintiff (Becker) has pleaded sufficient fact to proceed on her unjust enrichment claim …”

I know it seems like there was a consortium of banks and mortgage associations out there that helped mold this electronic database into the monster that it has become in the legal arena and the nightmare that it has become in the land records, obfuscated by a largely unregulated, privately-held database that seems to work in opposition to the system of public recordation that has existed since the 1600’s.  In retrospect, the pleadings for civil conspiracy (as much as we’d like to form a lynch mob on this one) were insufficiently pleaded and for all intents and purposes were a “reach”; but hey, every other claim, including the discussion of 21 Pa. Stat. § 351, which would require recordation of all mortgage assignments, stuck.  On Page 14, the Court wrote:

“Accordingly, we conclude that “all … conveyances … shall be recorded,”

21 Pa. Stat. § 351, means that all conveyances shall be recorded.

How much more plain can you get?  The Court also concluded:

“Pennsylvania law permits any person in any manner interested in a conveyance,

(including the County Recorder of Deeds trying to preserve the land records)

            such as a mortgage assignment, to bring a quiet title action under Pennsylvania Rule

of Civil Procedure 1061(b)(3) to compel the person with the appropriate documents

in his or her possession to record them.”

What a novel idea … use quiet title to compel MERS (by and through its members) to record every single missing assignment to perfect every single land record in the State of Pennsylvania … and pay the recordation fees it should have paid in the first place to boot!  This suit may serve as a template for other counties and states to follow, especially if the outcome looks as promising as the content of this Memorandum.

And so case No. 11-cv-6968 in the Eastern District of Pennsylvania moves forward with all eyes watching, waiting for the checkmate.