In part one of this article we discovered how to identify and define who all of the players are. In part two we discussed what went wrong with the mortgage and in this the final piece to this article we will discuss some of the remedies available to an injured party, the homeowner.
Void Security Instruments: Being that every county recorder/registrar has a duty to protect the integrity of the public land records, all states have a means to which someone can challenge the validity of a lien instrument that has been filed into the county/public land records. For the purpose of illustration in this article I will refer to Texas Government Code §51.903. Subsection (c) of this section of code provides an alleged “debtor or obligor” an opportunity to challenge a lien instrument such as a Mortgage, Deed of Trust, or Substitute Trustee’s Deed or other lien instruments as follows.
• A motion under this section may be ruled on by a district judge having jurisdiction over real property matters in the county where the subject document was filed.
• The court’s finding may be made solely on a review of the documentation or instrument attached to the motion
• and without hearing any testimonial evidence.
• The court’s review may be made ex parte
• without delay or notice of any kind.
• An appellate court shall expedite review of a court’s finding under this section.
Yes you read that right, in Texas there is a built-in appellate process in this section of code and it is the only section of code that does so far as I know.
If the Security Instrument or lien instrument is rendered void there is no party that can use this instrument in court without having committed fraud upon the court.
Void Negotiable Instruments: if the Note is void a challenge to its authenticity, eligibility for negotiation, force and effect can be made in a court of competent jurisdiction, and if recognized by the court as invalid or “void” the instrument becomes of no force or effect, there is no longer any alleged debt associated with the instrument, and there are no rights under the instrument that can be asserted in any court, by any party.
If the negotiable instrument is void by means of judicial recognition the Security Instrument is void as an operation of law because the Security Instrument is nothing more than an alternative means of collection of the alleged debt obligation that would be associated in a valid Note, as where if the Security Instrument alone is successfully challenged and the Note survives, then so does the alleged debt associated by the Note until the Note is successfully challenged.
All of this is wonderful news but at the end of the day it all boils down to one question that must be proven to the court and that is, “How did this harm the homeowner?”
What you create is your property. If you created a Negotiable Instrument with your signature is is your personal property and that personal property have a face value denominated in US Federal Reserve Notes (dollars). If you make a deal with a lender to borrow money and allow the lender to hold your Note for ransom until such time the Note is paid in full or by operation of law otherwise discharged, whoever holds your personal property must return the ransomed instrument, “IT’S YOURS”. However f whoever you allowed to hold it destroys your personal property they would owe you the face value of that property.
Here is a partial list of Causes of Action that may be available to someone in a situation where a party attempts to enforce terms under a void Negotiable Instrument.
• Wrongful Foreclosure
• Unfair /Deceptive/Unlawful Business Practices
• Violations of Consumer Protection Laws
• Unjust Enrichment
• Fraudulent Filing of Void Instruments
• Breach of Contract
• Breach of Covenant
• Breach or Fiduciary Duty
• Identity Theft
• Notary Fraud
• Securities Fraud
• Quiet Title
• Trespass To Try Title
• Slander of Title
There are many more, but as with any cause of action they all have their own elements and all elements must be satisfied in order to successfully seek remedy under each cause. A homeowner in any given situation may have multiple causes of action, and it is the duty of any litigant to perform their own due diligence to see if they have a valid cause of action under any statute.
Check the cause, read the statute, check the elements, compare to your situation. If everything lines up and your situation meets all of the elements of any given cause of action, you can plead that cause of action, and get the remedy you seek.