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Amicus Brief Rhode Island Foreclosures

Amicus Brief Rhode Island Foreclosures

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Published by chunga85
Very thorough foreclosure Amicus Brief.
Very thorough foreclosure Amicus Brief.

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Published by: chunga85 on Sep 14, 2011
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07/08/2013

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF RHODE ISLANDIn re: Mortgage Foreclosure Cases Misc. No. 11-mc-88-M-LDAAMICUS BRIEF IN OBJECTION TO THE ADOPTION OF THE REPORT ANDRECOMMENDATION ISSUED BY MAGISTRATE MARTIN
The United State District Court for the District of Rhode Island issued a solicitation foramicus briefs or memoranda from interested parties so that it could hear multiple positionsregarding the adoption or rejection of the Report and Recommendation in the cases of Fryzel v.MERS, et al, CA No. 10-352-M, and Cosajay v. MERS, et al., CA No. 10-442-M currentlybefore the Court. Of particular interest to the Court pursuant to its Order of August 16, 2011 iswhether or not, pursuant to Rhode Island Statutory Law and Case Law, a homeowner/mortgageehas standing to challenge both the alleged assignments of mortgage and the alleged foreclosuredeeds that appear in the Records of Land Evidence in the towns/cities wherein the real propertywhich forms the subject matter of these lawsuits is situated.The Plaintiffs have claimed that the Defendants do not have the right to foreclose becausethe assignments and foreclosure deeds are either invalid or void as a matter of law. ThePlaintiffs further contend that mortgage assignments are, pursuant to Rhode Island Law, transfersof an interest in real estate, and as such, the homeowner/mortgagor is a party to thosetransactions thus giving them standing to challenge the validity of the assignments. TheDefendants have argued that, as a matter of law, that the homeowner/mortgagors are not partiesto the "contracts" and do not, therefore, have standing to challenge their validity. It is theposition of the amicus that the Plaintiffs do have standing to challenge the assignments and that
 
 2their standing has its roots in §34-11, Form & Effect of Conveyances. In particular §34-11-1
1
,§34-11-12, §34-11-21 & §34-11-24
2
of the Rhode Island General Laws as well as §34-16-4
3
of the Rhode Island General Laws support the position of the Plaintiffs and of the amicus.
1
Form & Effect of Conveyances:
Conveyances required to be in writing and recorded.
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Every conveyance of lands, tenements or hereditament absolutely, by way of mortgage, or oncondition, use or trust, for any term longer than one year, and all declarations of trustsconcerning the conveyance, shall be void unless made in writing duly signed, acknowledged ashereinafter provided, delivered, and recorded in the records of land evidence in the town or citywhere the lands, tenements or hereditaments are situated; provided, however, that theconveyance, if delivered, as between the parties and their heirs, and as against those taking bygift or devise, or those having notice thereof, shall be valid and binding though notacknowledged or recorded. A lease for the term of one year or less shall be valid although madeby parol. Leases for terms of more than one year may be recorded with a memorandum of leasein writing rather than the original lease; provided, however, that the memorandum shall containthe names of the parties to be charged, a description of the real estate, the duration of the lease,including renewal options and purchase options.
History of Section.
 (G.L. 1896, ch. 202, § 2; G.L. 1909, ch. 253, § 2; G.L. 1923, ch. 297, § 2; G.L. 1938, ch. 435, §1; G.L. 1956, § 34-11-1; P.L. 1979, ch. 231, § 1; P.L. 1981, ch. 380, § 1.)
2
 
Effect of assignment of mortgage.
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An assignment of mortgage substantially following theform entitled "Assignment of Mortgage" shall, when duly executed, have the force and effect of granting, bargaining, transferring and making over to the assignee, his or her heirs, executors,administrators, and assigns, the mortgage deed with the note and debt thereby secured, and allthe right, title and interest of the mortgagee by virtue thereof in and to the estate describedtherein, to have and to hold the mortgage deed with the privileges and appurtenances thereof tothe assignee, his or her heirs, executors, administrators and assigns in as ample manner as theassignor then holds the same, thereby substituting and appointing the assignee and his or herheirs, executors, administrators and assigns as the attorney or attorneys irrevocable of themortgagor under and with all the powers in the mortgage deed granted and contained.
History of Section.
 (P.L. 1927, ch. 1056, § 15; G.L. 1938, ch. 436, § 14; G.L. 1956, § 34-11-24.)
3
 
Action brought by person claiming through conveyance, devise, or inheritance.
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Anyperson or persons claiming title to real estate, or any interest or estate, legal or equitable, in realestate, including any warrantor in any deed or other instrument in the chain of title to the realestate, which title, interest, or estate is based upon, or has come through, a deed, grant,conveyance, devise, or inheritance, purporting to vest in the person or persons or his, her, or theirpredecessors in title the whole title to such real estate, or any fractional part thereof or anyinterest or estate therein, may bring a civil action against all persons claiming, or who may claim,and against all persons appearing to have of record any adverse interest therein, to determine thevalidity of his, her, or their title or estate therein, to remove any cloud thereon, and to affirm andquiet his, her, or their title to the real estate. The action may be brought under the provisions of this section whether the plaintiff may be in or out of possession and whether or not the action
 
 3This Court is in position to hear over one hundred (100) cases involving allegedly invalidmortgage assignment and foreclosure cases over the next several years. The pending cases,similar to the ones currently before the court, involve matters that were never thought to existonly a few short years ago. The advent of the Mortgage Electronic Registration System("MERS") is at the forefront of many of these matters. That is not to say that there is not amyriad of other title matters that are lurking, but it is MERS that is at the forefront of these cases.The amicus is fully aware that this knowledgeable Court knows by this point what MERSis, what it does, what it is supposed to do and what it cannot do. The amicus will not belaborthose issues when it is clear that standing is the true issue at hand. The amicus will suggest tothe Court, however, that land evidence records in the Cities and Towns of Rhode Island are beingsaturated with fraudulent and (as this amicus argues), void documents, all of which underminethe very purpose of the Real Estate Recording Statute. The City and Town Clerks are not awareof the legality or illegality of what is being recorded in their Town Halls. Until a very small, yetdetermined group of lawyers and fraud examiners began to bring this to the forefront,foreclosures took place with no one ever proving that the sales were based upon validdocuments. That is where we stand today. As stories of false and manufactured documents fillthe news, and the proof of their existence becomes the groundwork for hundreds of thousands of lawsuits, it becomes vital that this Court take up the issue before it and rule that documents thatdo not comport with the Statutes governing real estate conveyances in the State of Rhode Islandare void and cannot be used to foreclose on Rhode Island homeowners/mortgagors.might be brought under the provisions of § 34-16-1 or under the provisions of any other statute.
History of Section.
 (G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; P.L. 1941, ch. 1005, § 1; G.L. 1956, § 34-16-4.)

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