You are on page 1of 5

Break in the chain of title Missing Projects Foreclosure Fraud Robo-signers Forgeries

How to Quiet Title


The information provided below is for a quiet title action in Florida. Your state may use different procedures. The best time to file for quiet title is when the statute of limitation has ran out and the case was dismissed. In Florida it is five years from the date of the first demand letter. It is very important to hold on to the letter of acceleration as evidence. If you have not received a letter of default (a.k.a letter of acceleration), the statute of limitation clock starts from the date the complaint was filed. If you file a quiet title action while the foreclosure action is ongoing, the foreclosure plaintiff must be served with the quiet title complaint. Once they become award of your QT action, they will put a strong fight to defeat it. It is not wise to file quiet title prematurely. You must understand that quiet title is not a silver bullet. The "lender" could still attempt to foreclose on the property, and you may have to defend it. It is very important to serve all potential defendants in order to strenghten the quiet title judgment. All parties to the mortgage and any party involved in any assignment of mortgage should be included in the QT action. Quiet title is proper when: a) The statute of limitation (5 years) has run out; b) The mortgage was defective at inception; c) The real lien holder is unknown. In order to file a quiet title action, you will need the following documents: 1) 2) 3) 4) 5) 6) Civil Cover sheet Summons Lis Pendens Complaint Exhibit-A: Copy of the Warranty Deed Exhibit-B: Rescission letter or court order if applicable

Cover Sheet The Civil Cover Sheet form is filed by the plaintiff or petitioner for the use of the Clerk of Court for the purpose of reporting judicial workload data pursuant to Florida Statute section 25.075. Summons This document is given to the sheriff or process server to be served on the defendant. If there is more than one defendant, additional copies will be needed.

Lis Pendens The lis pendens serves to put the public on notice that a case is pending concerning a specific property. Complaint The complaint should have a style case and signature block in compliance with Florida filing guidelines. The sample complaint complies with the guideline. Once the package of documents is ready, take them to the filing office at the county Court that has jurisdiction over your property. The filing fee may be a shock based on the value of the property. In 2009, Florida legislator passed new law dramatically increasing filing fee for foreclosure and quiet title actions. It may cost you a few hundred if not thousands of dollar. I dont think you should be discouraged by that. If you don't have the money, you can file for indigent status by filing the proper form. Your county clerk can give you the form. Once your case has been filed, the clerk will assign a case number and return to you copies of the summons, lis pendens and the complaint. You need to take them to the sheriff office for process service or choose a private process server company. It is possible that the summon cannot be served because the company is out of the business. If that's the case, notice should be published in the local law journal. Check with the clerk for a list of acceptable publication. The sheriff will charge about $40. Once the summons is served:

The plaintiff has 20 days to answer your complaint. If the plaintiff does not answer within that time frame, file a Motion for Default. When a default is entered, file a Motion for Default Judgment. File an affidavit in support of Motion for Default Judgment. Schedule a hearing with the judicial assistance after 20 days to have your motion for default judgment heard. Remember to bring a court reporter along. Prepare and bring with you a proposed order for Final Default Judgment Quieting Title. If your motion is granted, hand over the proposed order to the judge to sign. Once the judge signed the order, you will receive a copy by mail. The clerk will be ordered to record the judgment in the public record.

Youre done! You have quieted your title. For additional protection you may want to put the title under a living trust out of your name or record a new mortgage. As stated previously, quiet title is not a silver bullet; it is just another tool to protect your property. Any party can come later and try to vacate your quiet title judgment. For that reason, you need to make sure that you do it right. If a party who is entitled to service of process is not served, the judgment will most likely be vacated. Proper service of process is extremely important. Do not take it lightly. With the passing of time, the quiet title judgment becomes stronger.

Sample Quiet Title Case

Quiet Title Videos


http://youtu.be/sz7Up1HQHoA http://youtu.be/NNjnQ7tAKCY http://youtu.be/H8zX_cqn-ms

Affirmative Defenses
This is a collection of possible affirmative defenses. Some of the defenses may not apply to your case; therefore do not blindly cut and paste them into your pleading. Carefully analyze each to ensure that it fits your situation. If you just received a foreclosure summon, do no rush to file an answer. You should ask for more time from the judge by filing a Motion To Enlarge Time. A Motion to Dismiss will also toll the time for filing an answer. Use that extra time to research your case. Learn as much as you can the foreclosure procedure in your local area. Standing. The Plaintiff is not registered to do business in the State of Florida and therefore unable to maintain this action and the court does not have jurisdiction. See Fla. Stat. 607.1502(1) and 607.1501(a), (g) and (h). The complaint fails to join indispensable parties, specifically the loan originator and the loan servicer(s) and the complaint fails to adequately show the chain of title demonstrating that Plaintiff is in fact the real party in interest with standing to bring this action. Violation of Unfair and Deceptive Trade Practices Act. Upon information and belief, in addition to the facts alleged in the preceding paragraphs, the Plaintiff and/or Plaintiff and/or its predecessor(s) in interest also violated the Unfair and Deceptive Trade Practices Act, F.S. 501.201, et seq. by: a) Failing to promptly and/or properly pay taxes or insurance premiums when due, so that the maximum tax discount available to Defendants could be obtained on Defendants' property and so that insurance coverage on the property would not lapse. b) Failing to provide Defendants with an annual statement of the escrow account kept for payment of taxes and insurance. c) Failing to properly disclose at or prior to closing all costs, fees and expenses associated with the loan;

d) Charging excessive fees and making payments of fees to parties not entitled to receive them; e) Obtaining a yield spread premium (YSP) based upon the "selling" of a higher interest rate, and/or non disclosure of the range of interest rates for which Defendants qualified. f) All such actions by Plaintiff and/or its predecessor(s) in interest are unconscionable acts or practices, and/or unfair or deceptive acts or practices in the conduct of trade or commerce in violation of 501.204, Florida Statutes, and entitle the Defendants to a setoff, recoupment or civil penalty, nominal and actual damages, attorney's fees and costs. Failure to Join Indispensable Party. Plaintiff has failed to join an indispensable party. Willey v. W. J. Hoggson Corporation, 90 Fla. 343, 106 So. 408 (1925), contends that since the note and mortgage involved in this litigation are payable to a business trust, any action on those instruments must be brought by all the members of the trust-not just the trustees.

TILA Rescission. The mortgage and note which are the subject of this action have been rescinded and therefore the mortgage(s) and note(s) are void. Unclean Hand. Plaintiff has unclean hands due to its actions described below and therefore is prohibited from obtaining equitable relief of foreclosure. As a matter of equity, this Court should refuse to foreclose this mortgage because acceleration of this note would be inequitable, unjust, and unconscionable. Plaintiff has waived the right to acceleration due to intentionally misleading and reckless conduct for which it is liable. Lack of Jurisdiction. This court lacks jurisdiction over the subject matter. It appears on the face of the complaint that a person other than the Plaintiff was the true owner of the claim sued upon at the time this action was filed and that the Plaintiff is not the real party in interest and is not shown to be authorized to bring this foreclosure action. Failure to Provide FDCPA Notice. Plaintiff brought this action without providing notice to Defendant of Defendant's right to dispute the debt, pursuant to the Fair Debt Collection Practices Act. As indicated in the Notice attached to the Complaint, filed September 1, 2007, but not served upon Defendant until April 13, 2008. Plaintiff is required to notify Defendant, pursuant to 15 U.S.C 1601, et seq., that Defendant may dispute the debt and Plaintiff is required to provide verisifcation fo the debt. Defendant hereby disputes the debt and demands that Plaintiff verify the debt in accordance with the Fair Debt Collection Practice Act. Plaintiff is required to suspend litigation until verification of the debt at issue. Failure to State a Claim for Which Relief May Be Granted. a) Plaintiff filed a claim to re-establish a lost note. b) Plaintiff claims the right to re-establish such note under Fla. Stat. 673.3091.

c) Fla. Stat. 673.3091 provides only for re-establishment of negotiable instruments as defined under Fla. Stat. 673.1041. d) The note at issue is not a negotiable instrument as defined under 673.1041 because it does not contain an unconditional promise to pay and/or other requirements to qualify as a negotiable instrument. e) Therefore Fla. Stat. 673.1041 does not apply to transfer or enforce the promissory note at issue in this foreclosure action. f) Therefore, Plaintiff has failed to state a claim for which relief may be granted. 18. Failure to Timely Serve Complaint. a) Complaint was filed on February 13, 2008. b) However, Defendant was served on July 3, 2008. c) Pursuant to Fl. R. Civ. Pro. 1.070(j), Defendant is required to be served within 120 days after filing of the initial pleading. d) Plaintiff served Defendant approximately 170 days after filing the initial pleading. Fraud in The Inducement. i. Plaintiff alleges ownership of the note and mortgage in question. ii. Plaintiff is liable for actions of ABC Mortgage and/or its agents. iii. ABC Mortgage and/or its agents made false statements and/or omissions regarding a material fact; iv. ABC Mortgage and/or its agents knew or should have known the representation was false; v. ABC Mortgage and/or its agents intended that the representation induce plaintiff to act on it; vi. Mr. Doe suffered damages in justifiable reliance on the representation.