Deeds Transferring Title to Fidelity Land Trust Company, LLC Are Rescinded, Deemed Null and Void
The Fidelity Land Trust Company, LLC (unrelated to Fidelity National Title Insurance Company) that obtained certain titles to homeowners’ residences may be clouded and deemed null and void based on a ruling from a Broward County, Florida, Circuit Court.
A Final Judgment has been issued against Fidelity Land Trust in the case of Office of the Attorney General v. Edward Cherry, et al, Case No. 12-269807(12)(17th Jud. Cir.), a case which involves a scheme that resulted in the execution and/or recording of a large number of quitclaim deeds or warranty deeds that have since been declared null and void.
The ruling of Office of the Attorney General v. Edward Cherry, et al may affect real property deeds recorded in many of the Clerk’s Offices in Florida, and therefore a copy of the Final Judgment has been recorded in each of Florida’s 67 County Clerk’s Offices.
Cherry and others were principals in Fidelity Land Trust. Fidelity Land Trust solicited Florida homeowners to enter a program it offered that would allegedly allow the homeowners to cancel their current mortgage in return for the payment of thousands of dollars in upfront fees. Once in Fidelity Land Trust’s program, the homeowner was required to deed his or her home to Fidelity Land Trust, which would then file a quiet title lawsuit that claimed that the existing mortgage was not valid. Many of these quiet title actions have since been held to be frivolous and without merit in numerous state and federal court decisions, and homeowners who deeded their properties to Fidelity Land Trust are finding that they have a cloud on the title.
On December 17, 2013, Broward Circuit Judge Michael Gates ruled that: 1) Fidelity Land Trust’s acts and practices are unfair and/or deceptive in violation of the Florida Deceptive and Unfair Trade Practices Act and 2) all quitclaim deeds or warranty deeds executed and/or recorded subsequent to January 1, 2010 in the State of Florida transferring title to The Fidelity Land Trust Company, LLC as grantee in fee simple or as trustee or in other fiduciary capacity, are rescinded and deemed null and void ab initio (from the beginning). The Court entered a permanent injunction against Fidelity Land Trust enjoining any further attempts by Fidelity Land Trust to cancel previously recorded mortgages. The effect of this Final Judgment on title to real estate deeded to Fidelity Land Trust is significant.
The Office of the Attorney General’s Consumer Protection Division announced the alert.
Assistant Attorney General Fulvio Joseph Gentili reported on the cases.
Landmark Court Ruling Declares Deeds to Fidelity Land Trust Company Null and Void, Raises Concerns Over Homeowners’ Titles
In a significant development, a Broward County Circuit Court in Florida has issued a final judgment rescinding and deeming null and void all deeds transferring title to the Fidelity Land Trust Company, LLC. This ruling, in the case of Office of the Attorney General v. Edward Cherry et al, brings to light a scheme that involved the execution and recording of numerous quitclaim and warranty deeds. Homeowners who participated in this program now face a cloud on their property titles.
The Fidelity Land Trust Company, LLC, although unrelated to Fidelity National Title Insurance Company, had enticed Florida homeowners to join their program by promising to cancel their existing mortgages in exchange for upfront fees. Once enrolled, homeowners were required to transfer ownership of their properties to Fidelity Land Trust, which would subsequently file quiet title lawsuits claiming the invalidity of existing mortgages. However, many of these quiet title actions have been deemed frivolous and lacking merit by both state and federal courts.
On December 17, 2013, Broward Circuit Judge Michael Gates ruled that the acts and practices of Fidelity Land Trust were unfair and deceptive, violating the Florida Deceptive and Unfair Trade Practices Act. The court also declared all quitclaim and warranty deeds executed and recorded after January 1, 2010, transferring title to Fidelity Land Trust as grantee or trustee, to be rescinded and null and void from their inception. In addition, a permanent injunction was issued against Fidelity Land Trust, preventing further attempts to cancel previously recorded mortgages. This ruling has significant implications for homeowners who had deeded their properties to Fidelity Land Trust.
As news of this court ruling spreads, homeowners who find themselves caught in this unfortunate situation are seeking assistance to protect their rights and challenge any foreclosure proceedings that may arise. One potential resource available to them is FRAUD STOPPERS Chain of Title Analysis (COTA). This powerful tool can play a crucial role in helping homeowners prevail in foreclosure cases.
The FRAUD STOPPERS COTA is an extensive analysis of a property’s ownership history, examining all recorded documents and transactions related to its title. This comprehensive review helps identify any irregularities or fraudulent activities that may have occurred during the transfer of ownership. By uncovering any flaws in the chain of title, homeowners can strengthen their legal position and mount a robust defense against foreclosure.
The COTA process involves a team of experienced professionals, including attorneys, title experts, and forensic auditors, who meticulously analyze all relevant documents. They assess the legality and validity of each transfer, ensuring that all required procedures were followed accurately. If any fraudulent or improper actions are detected, the COTA report provides homeowners with valuable evidence to challenge the foreclosure and protect their property rights.
By leveraging the findings of the COTA report, homeowners can build a compelling case to defend against foreclosure. It enables them to present clear evidence of potential fraud or irregularities in court, raising doubts about the legitimacy of the foreclosure proceedings. Armed with this information, homeowners have a greater chance of successfully opposing foreclosure and preserving their homes.
In addition to the legal benefits, the FRAUD STOPPERS COTA offers homeowners peace of mind. It provides a thorough understanding of their property’s ownership history, helping them navigate the complex landscape of real estate transactions. This knowledge empowers homeowners to make informed decisions and take appropriate action to protect their interests.
As the ramifications of the Fidelity Land Trust court ruling continue to unfold, homeowners affected by this scheme can turn to resources like the FRAUD STOPPERS COTA for support. It offers a comprehensive analysis of their property’s chain of title, providing them with a fighting chance to prevail in foreclosure cases.
Mortgage Loan Instrument or Personal Property; what really got securitized?
We begin with the mortgage loan originator. Immediately after closing, the mortgage loan originator has taken possession of many documents of which only two (2) are required to be followed through to the securitization process. These two (2) documents are the Paper Tangible Promissory Note and the Paper Tangible Security Instrument (Mortgage, Deed of Trust, or Security Deed). The Promissory Note and the Mortgage (or Deed of Trust or Security Deed) together can be considered one tangible instrument. With a perfected Tangible lien of record securing a Tangible Promissory Note, this would then be in compliance to all applicable laws. As such, intangible and tangible laws apply granting the mortgage loan originator legal and equitable rights to the Note (tangible and intangible) as Holder in Due Course that would have legal and equitable rights to the security securing if the Note and security (tangible and intangible) are in compliance to all applicable law.
Assuming originating lender has complied with all applicable laws in origination of the mortgage loan; the originating lender could and routinely does offer up the mortgage loan to securitization by selling the payment stream interest to an Account Debtor (Sponsor/Seller) who then in accordance to an intangible contract swaps the intangible payment stream for certificates which are sold to investors. Such swap in legal parlance is considered to be a “True Sale”.
The “unknown fact” is that the monetary value contained within the Tangible Obligation, and the Security Instrument securing it, were offered for sale in the secondary market as an UCC Article 8 note (eNote/Transferable Record usually tracked on a national database [book entry system]), the book entry system tracks who is the UCC8 Intangible Obligee with rights to the UCC 9 security interest. Although, the electronic book entry system does not track who has a vested legal interest in the tangible security instrument that is reserved by statutory law governed by local laws of jurisdiction.
The instrument is an Intangible Obligation. Thus, a second (non- UCC Article 3) instrument was created. The existence of the (non- UCC Article 3) Intangible instrument is dependent upon the existence of the UCC Article 3 Tangible instrument. To provide a security interest to allow for an alternate method to collect value for the (UCC Article 8) Intangible instrument, the maker of the (UCC Article 8) Intangible instrument pledged as collateral the “Electronic Mortgage Loan Package”, evidenced by the UCC Article 3 Tangible instrument and its underlying security interest (instrument).
What should have happened:
For the UCC Article 8 Intangible Obligee (Trust) to have a perfected and continuous alternate method to collect via alternate tangible such as a true sale of real property (Alternate method of value for the Tangible Payment Stream); the UCC Article 8 transferable record Intangible Obligee (Trust) would need to have been assigned rights to the Tangible Security Instrument in accordance to laws of local jurisdiction securing the UCC Article 3 obligation in order to be in compliance with state and federal law.
A Tangible Paper Promissory note denotes two distinguishing values, one of legal rights contained within which is routinely stripped out as an intangible obligation thus leaving the second value to be only the value of paper and ink being that of tangible property without legal rights but limited to that of being of personal property of the party that stripped the rights value (legal and monetary).
Thus, a Tangible Obligee may or may not be a holder in due course of a secured UCC 3 Instrument, whereas when distinct and separate laws applying to the tangible security instrument have not been followed, even if Tangible Obligee was entitled to enforce the UCC 3 Instrument does not mean that the Tangible Obligee is a party entitled to enforce security instrument [party to enforce the tangible note and the tangible security instrument].
When an Intangible claim (Payment Stream) or lien created by an Intangible security agreement extends to the Tangible Note and the Tangible Security Instrument, such actions must be in compliance with all applicable law. Signatures on Intangible Security Interest, Tangible Note and the Tangible Security Interest (Security Instrument) are not governed by Uniform Commercial Code Article 9 or State equivalent. The collection rights are governed under UCC 9 but the transfer of an intangible is governed under UCC 8; therefore negotiation of the Article 8 Instrument cannot be negotiated with an electronic signature attempting to effect transfer and thus the Security Interest falling under UCC 9 is also not transferred.
Legal guidance for signatures under ESIGN Act – 15 USC §7003 – clearly excludes instruments governed by the Uniform Commercial Code Article 3, 8, & 9 or the State equivalent so the Intangible Claim cannot be negotiated electronically. The Tangible Personal Property Security Interest (Tangible Note and continuously assigned perfection of the Tangible Security securing the Tangible Note) can only be pledged as an intangible interest in the payment stream as a UCC8 instrument. As such the Intangible Payment Obligation can only be negotiated in paper form. The Intangible Security Interest cannot be sold as an electronic transferable record.
What Did Happen: Outside Applicable Law
To provide a security interest to allow for an alternate method to collect value (Payment Stream) for the (UCC Article 8) Intangible instrument, the maker of the (UCC Article 8) Intangible instrument pledged as collateral the “Electronic Mortgage Loan Package”, evidenced by the UCC Article 3 Tangible instrument and its underlying security interest (instrument). This “Electronic Mortgage Loan Package” is simply an intangible interest in personal property (Intangible Payment Obligation). As future legal actions were unanticipated, the paper documents were either placed in storage (Custodial and Non-Custodial Custody) or deliberately destroyed.
It’s important to understand Standard Operating Procedure in regards to the conveyance of a securitized mortgage loan; specifically the conversion of a Tangible Mortgage Loan Instrument into an Intangible, electronic “eNote” Form, which is typical in this new world of Electronic Securitization. Illusion of legality is the key to this scheme.
Upon the loan closing, the paper Promissory Note and the Security Instrument are scanned into an electronic digitized graphics package. The data from both sets of documents is converted to an electronic data file and paired with the electronic version of the Promissory Note and Security Instrument, along with all other closing documents which is called a “Mortgage Loan Package”. Where this “Electronic Mortgage Loan Package” is routinely addressed as the “Mortgage Loan Package”, it is nothing more than an interest in the [monetary] Intangible Payment Obligation, whose source of funding is captured by the payments made regarding the Tangible Promissory Note Obligation. The “Electronic Digitized Mortgage Loan Package” is now falsely represented as the legal “Mortgage Loan Package”.
The electronic version of the Warranty Deed may have been electronically submitted to be filed in Public Records by a third-party submitter as approved by the state; as the Warranty Deed contains the information that transfers the title (legal and equitable) of the property from the Seller to the Buyer (Homeowner). Title to the property is required to offer the property as security in the Security Instrument as collateral for the paper Promissory Note. The Warranty Deed is required to be filed in Public Records. The Warranty Deed is not governed under the Uniform Commercial Code or State equivalent and would be allowable under ESIGN Act to be filed in electronic form.
The electronic version of the Security Instrument is then electronically filed in Public Records. If the Obligee attempts to apply UCC Article 9 laws of perfection to support legal claims within the Security Instrument, then this filing would be unlawful. If the Obligee uses the laws of local jurisdiction to support perfection, then the filing would be lawful.
Conveyance of an “eNote”:
If Mortgage Electronic Registration Systems (hereinafter “MERS”) is involved, registration on the
MERS system is required, and when this registration occurs, an 18-digit Mortgage Identification
Number “MIN” is created. The first seven (7) digits identify the registering lender and the last digit is a checksum number. If the “Electronic Mortgage Loan Package” is registered in the MERS Registry, there is no physical transfer of the “Electronic Mortgage Loan Package”. The MERS Registry is updated as to who has control and ownership rights of the electronic digitized file identified as a non-lawful and intangible form of the electronic Promissory Note “eNote”.
The First Electronic Sale / Assignment (Investment Vehicle as Example, Fannie/Freddie Similar) occurs when The “Loan Originator” (Assignor, Tangible Obligee) offers the “Electronic Mortgage Loan Package” to a perspective buyer (Intangible Obligor) to offset a prearranged line-of-credit by intangible obligee (Lender). In this scenario, Recipient (Assignee, Seller/Securitizer) of the Investment Vehicle,
Intangible Obligee) of the “Electronic Mortgage Loan Package” has already conditionally agreed to accept the (conveyance) as a tender of funds has already occurred leaving only taking control of the
“Electronic Mortgage Loan Package” as a transferable record, unbeknownst that it is a transaction not supported by law.
There are counties that identify on the face of the instrument that the instrument was submitted for recording in electronic form from the submitter, where the submitter has received from an intangible obligee an instrument that is to be recorded. If a “Notice of Assignment” reflecting this “electronic negotiation” is NOT filed in Public Records, as such a filing would be unlawful. There is no law that requires notice to be filed of Public Records upon the selling or purchasing of an electronic Promissory Note “eNote”. As such, an “eNote” would only apply to personal property (Article 8 Intangible payment obligation) and not real property (Article 3 negotiable instruments), in order to be in compliance with UCC Article 9, ESIGN Act and UETA.
The First Transfer of Personal Property (Payment Intangible) differs from the first Electronic Sale as the Intangible Obligation (Payment Stream, rights to future payments, or beneficial interest) has been bifurcated from the Tangible Obligation (Paper Promissory Note), and in accordance to UCC Article 3-3203(d), rights to enforce the Tangible Obligation have not been negotiated to the Intangible Obligor (Seller/Securitizer), the only rights conveyed are rights to simply hold and possess the Tangible Paper Obligation.
The Second Electronic Sale / Assignment happens when the “Seller/Securitizer of the Investment Vehicle,” (Assignor/Intangible Obligor), sells/assigns the “Electronic Mortgage Loan Package” to the
Buyer (Depositor of the Investment Vehicle / Subsequent Intangible Obligor). The recipient (Assignee,
Depositor of the Investment Vehicle / Subsequent Intangible Obligor) of the “Electronic Mortgage Loan Package” under the terms of the trust accepts the transfer and takes control of the “Electronic Mortgage Loan Package”.
The Third Electronic Sale / an Assignment happens when the “Depositor of the Investment Vehicle”
(Assignor) sells/assigns the electronic loan package to the Trustee of the Investment Vehicle. The recipient (Assignee, Depositor of the Investment Vehicle) then takes control of the “Electronic Mortgage Loan Package”. The “Depositor of the Investment Vehicle”, in compliance with the Investment Trust’s documents, takes control of the Investment Trust’s Electronic Certificates in exchange for selling/assigning the “Electronic Mortgage Loan Package”.
It is not uncommon to find in Public Records a “Notice of Assignment” filed reflecting a transfer of lien rights from the Original Assignor (Tangible Obligee) to a 3rd subsequent Intangible Assignee (Subsequent Intangible Obligor) of the Intangible Obligation, usually the Trustee or Mortgage Servicer). In this scenario the perfection of lien rights (Perfected Chain of Title) does not match the match the
“Chain of Negotiation” of the Paper Promissory Note shown by indorsements, and, as such, proves the Paper Promissory Note is no longer secured by the Security Instrument as the Security Instrument has become a “Nullity” by operation of law. These filings in public records are fraud upon public records.
As an illusion, to allegedly provide a security interest to allow for an alternate method to collect value for the (UCC Article 8) Intangible instrument, the maker of the (UCC Article 8) Intangible instrument pledged as collateral the “Electronic Mortgage Loan Package”, evidenced by a digitized copy of an UCC
Article 3 Tangible instrument and its underlying security interest (instrument), not perfected of record in the intangible purchaser's name. To further the account debtor's deception, claims are made that Account Debtor was executing a true sale of the tangible note and it's security to the purchaser of the intangible obligation, this is a legal impossibility Intangible purchaser never obtained legal rights to alternate tangible method of payment.
Security Interest to an alleged Account Debtor (rights to collect Future Payments pledged by the Account Debtor), which was to have been secured by the Payment Stream from the Tangible Obligation; where an alternate method to receive value was done via a properly attached and perfected real property security interest, could not have taken place legally under the current governing laws without having been in written tangible paper form. Real property Security Interests are governed by local laws of jurisdiction. UCC Article 9 governance for attachment and perfection of security rights to the intangible obligation is limited to personal property security interests such as goods and services.
A Tangible Obligor or Account Debtor may or may not be a holder in due course of an UCC 3 Instrument, where distinct and separate laws apply to the tangible security instrument have not been followed, even if Tangible Obligor/Account Debtor was entitled to enforce the UCC 3 Instrument does not mean that the Tangible Obligor is a party entitled to enforce security instrument (party to enforce the tangible note and the tangible security instrument). The trust has been conveyed a transferable record, leaving a Tangible paper UCC Article 3 Note LESS the rights securing it, as would have existed if the Security Instrument securing the UCC Article 3 Tangible Note had been assigned in accordance to laws of local jurisdiction!
Furthermore, by NOT assigning the Security Instrument securing the UCC Article 3 Tangible Note in accordance to local laws of jurisdiction, the UCC 8 Intangible Obligee has taken possession of an “Electronic Mortgage Loan Package” lacking legal rights to the tangible security instrument. Pursuant to local laws of jurisdiction, without the UCC Article 8 transferable record and the Intangible Obligee perfecting of record, (the tangible rights that are found in the Tangible Security Instrument include the power of sale) the UCC 8 transferable record Intangible Obligee is NOT a Perfected Tangible Obligee.
It is important to understand that UCC Article 9 does not distinguish a difference between negotiable UCC Article 3 (Tangible Negotiable Instruments) and non-negotiable (Intangible non-Article 3 instrument such as an eNote or Transferable Record), as transferable record instruments are governed by UCC Article 8; which is also exclusion of ESIGN Act and UETA. UCC Article 9 governance is limited to personal property security interests, such as goods and services. Personal property Security Interests are governed by UCC Article 9. Within the current process of securitizing real property mortgage instruments, it is not uncommon to notice an improper use of applying UCC Article 9 laws to real property security interests in Note transactions where such UCC 8 Transferable record Intangible Promissory Note transactions are in fact non-negotiable transactions.
This system of securitization has a serious legal flaw as it provides that the Account Debtor (Intangible Obligor) and the Debtor (Tangible Obligor) have to be one in the same which is a logistical and legal impossibility. As the Intangible Obligee is not perfected of record to the Tangible Mortgage (Tangible Security securing the Tangible Article 3 Note) and not having the Tangible Article 3 instrument negotiated from Tangible Obligee to Intangible Obligee as provided under UCC 3, the Intangible Obligee has no real property securing an Obligation created by the Account Debtor. Whereas UCC 3 allows proving up an Article 3 Tangible Instrument, such law does not extend to the Tangible Security that once secured the Tangible Article 3 Note made payable to the Originating Tangible Obligee.
NON-Holder-in-Due-Course Alleges Default: (Trustee/Mortgage Servicer)
- The Mortgage Servicer or the Trustee of the INTANGIBLE Investment Vehicle declares default.
- Numerous actions of fraud are readily identifiable.
- As noted in the four (4) electronic negotiations of the electronic loan package to securitization, there is a lack of supporting law to allow electronic negotiation. Only the Holder of the “Paper Promissory Note” entitled in the indebtedness has a right to collect payments.
- Lost Note Affidavits based on Electronic Records are Hearsay
- Introduction of fraud into the Securities Market
- Fraudulent creation of assignments in attempt to transfer lien rights from Originator to 3rd or 4th subsequent purchaser bypassing 1st and 2nd purchasers resulting in fraudulent filing in public records.
- Reader note: Specific details of client’s unique transaction history found in the Chain of Title Analysis and Mortgage Fraud Investigation will determine if a violation has occurred.