Lawyers & Pro Se Litigants
Price include copies of recorded chain of title documents. However, additional charges may be necessary if the subject property is located in county that does not offer free online access to land records such as Los Angeles County California.
TITLE AND ENCUMBRANCE REPORT & ANALYSIS
What is a Title and Encumbrance Report & Analysis?
This is a factual report based on documents obtained both from the homeowner and from public domains including actual recorded documents. Included in this report are opinions of Attorney Neil Garfield as an expert in investment banking culture and practices, securitization of debt and title issues. The information and opinions presented in this report reflect the facts as represented by the cited sources as of the date of the report, and address inconsistencies, clouds on title, and other issues which may affect ownership of the debt, the note, the mortgage (or deed of trust), the subject property --- or as is often the case, all of some of those categories.
A chain of title assessment does NOT identify problems with your mortgage loan; TILA and RESPA or HOEPA issues; issues with the Fair Credit Reporting Act or the Fair Debt Collection Practices Act; securities’ violations or any other federal questions that have nothing to do with chain of title. It strictly identifies issues with chain of title. There may be ancillary comments included however for the attorney to consider.
In the TERA that we currently produce, our mission is to set forth the following elements:
What do I do with this Title and Encumbrance Report & Analysis?
The Title and Encumbrance Report & Analysis serves as a basic reference tool for an attorney; much like an x-ray does for a surgeon. Before operating, isn’t it nice to know where the “cancer” is? The assessment can also be used to define the parameters necessary for litigation as well as to brief in part any title company looking to provide the homeowner with an owner’s indemnity policy. Since the assessment cannot be construed as legal advice, it is best to get the attorney to review the assessment to see how much they agree with, which then can be used to formulate a letter to the title company, requesting a commitment letter with exclusions and conditions for which that title company can rely upon in case it must decline providing a policy to the homeowner because the chain of title is flawed and clouded.
What if the TERA shows suspect clouds on title?
If in fact the assessment shows potential for clouds on title, an attorney must identify with particularity and specificity the individual problems and must determine whether the problems were intentionally created (or created by a circumvention of the land records via MERS) or were just simple recordation flukes. More than likely, in today’s foreclosure climate, the attorney will find the information very handy in framing a cause of action and even more so in determining damages and liability.
This report is not legal advice and should not be used as a substitute for legal advice. Any persons seeking to act on the contents of this report should first seek advice from an experienced attorney licensed in the jurisdiction in which the property is located. Mr. Garfield has been a licensed, practicing attorney for approximately 41 years, but he is only licensed in the State of Florida and the Federal Court system in Florida.
What if I've only owned my home for 3-5 years?
It would be advisable to extend your search and hone in on the former owner’s Warranty Deed and his first mortgage (if he only has one of them) and/or any refinances of the property to see if MERS is on any of those documents. If MERS is involved, check to see if a release of lien was filed on his behalf after you closed your loan. It may be that a robosignor signed his documents of reconveyance or release of lien, which would then put the former homeowner in a lurch because he may NOT have conveyed clear title to you!
Can I use the TERA as evidence at trial?
This report is not evidence without proper foundation and admission of the document into the court record as evidence. Generally speaking this report may not be used in lieu of actual testimony from a competent witness that provides the foundation for requesting the court to admit this report into evidence.
Can the Title Consultant be considered an expert witness at trial?
No. The Title Consultant is a “consulting expert” to attorneys but is not specifically a recognized “expert witness” (there is a distinct difference in terms and meanings). The Title Consultant in most cases is protected by attorney work-product privilege but can be retained by counsel to consult on cases and attend hearings and trials specific to the case when and where it becomes necessary. All the Title Consultant could testify to is the facts contained within the TERA, which would not qualify as an expert opinion. There are title attorneys however that can serve as expert witnesses. They can examine the TERA and use it to render a decision of insurability and also as to impairment of vendibility (due to suspect clouds on title).
Title and Encumbrance Report & Analysis
Additional charges may be necessary if the subject property is located in county that does not offer free online access to land records such as Los Angeles County California.