Wednesday, February 15, 2012

Securitization Audit - A Waste of Foreclosure Victim Money

Securitization Audit – A Waste of Foreclosure Victim Money

By Bob Hurt, 15 February 2012

Clearwater, FL                                                  For Immediate Release

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NOTE (added on 4 June 2015):  Go to these web sites to learn how securitization auditors and their gimmicky sales outfits spread the Black-Hearted LIE that their worthless products have some value:

  1. http://MortgageAttack.com 
  2. http://LivingLiesTheTruth.com  
As the article below and my comments in response to naysayers prove, securitization audits give ZERO value to mortgage victims and foreclosure victims.

I give my phone number and email contact at the end of the article.  USE it if you have a mortgage problem and face foreclosure.  READ the content at the two sites I linked above.

Remember:  you are an idiot if you waste money on a securitization audit.  I made this point gently more than 3 years ago, and the point has even more truth today because I HAVE WARNED YOU.

DON'T be an idiot.  DEMAND a refund.  Report the auditor as a scammer to the state Attorney General.

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A truly crazy craze has hit the foreclosure defense communities of America.  It goes by the name of “securitization audit” or some variation thereof.  The nature of the securitization audit service is such that only the crazy will foolishly waste money on it.

Okay, so we cannot fairly call ignorant foreclosure victims “crazy.”  Why?  Because they cannot easily know that a securitization audit is just another scam intended to bilk them out of yet more money they cannot afford for a service they cannot use.  Except perhaps to replace the old Sears Catalog in their outhouse.

So, let’s just say most foreclosure victims are uninformed about the uselessness of securitization audits.  Obviously.  Otherwise they wouldn’t keep wasting money on them.

So, we have undertaken this “press release” to inform the uninformed so they will not waste their hard-earned money on useless Securitization Audits.

Let us start by explaining the nature and alleged purpose of the securitization audit.  Then we shall analyze its achievement of the purpose.

What is Securitization? Securitization is the financial practice of pooling various types of contractual debt such as residential mortgages, commercial mortgages, auto loans or credit card debt obligations and selling said consolidated debt as bonds, pass-through securities, or Collateralized mortgage obligation, to various investors. The principal and interest on the debt, underlying the security, is paid back to the various investors regularly. Securities backed by mortgage receivables are called mortgage-backed securities, while those backed by other types of receivables are asset-backed securities.

What is a Securitization Audit?  The securitization audit consists of the activity of compiling a report of the rules and agreements regarding securitization, and the trail and timing of assignments of beneficial interest in the note and mortgage from the loan originator to the party foreclosing the loan for non-payment.

What is the Purpose of a Securitization Audit?  The audit service provider alleges that foreclosure victims can use the audit to stop the foreclosure or cloud the title by proving that the foreclosing party does not have the right to foreclose.

Does the Securitization Audit Fulfill this Purpose?  NO, it does not, Statistically, NEVER.
Why Doesn’t the Securitization Audit “work”?  The Securitization Audit does not work because it does not change the essential facts of the case:

  1. The borrower signed a note and mortgage giving the lender the right to sell the loan and the owner of the loan to foreclose the loan for non-payment and force a foreclosure sale of the mortgaged realty
  2. The lender lent the funds to the borrower
  3. The borrower used the funds to buy residential realty
  4. The borrower took possession of the residential realty and occupied it.
  5. The borrower started paying payments according to the note’s requirements
  6. The borrower stopped making timely payments
  7. The loan servicer called the note due and payable, giving notice to the borrower
  8. The note assignee or mortgagee have the right to foreclose according to the terms of the note and mortgage.


What Vital Thing Doesn’t the Securitzation Audit Do?  The Securitization Audit does not question whether or to what extent the following “Deal-Killer” flaws underlie the Note and Mortgage:

Tortious conduct of the lender or agents in making the loan.  Examples:

  1. Loan application tampering by the mortgage broker;
  2. Over-valuation of the realty by the appraiser.
  3. Breaches of the note or mortgage contract by the lender or lender’s agents.
  4. Violation of any a variety of laws/regulations that justify fine or rescission of the loan.

You see, the Securitization Audit service provider claims that the foreclosure victim can use the audit to stop the foreclosure dead in its tracks.  Some providers imply the foreclosure victim can get the house free and clear.


Why Does the Securitization “Miss the Boat” for Foreclosure Victims?   The Securitization Audit ignores the factors that could constitute a cause of action against (reason to sue) the lender.  Such a cause of action, equivalent to predatory lending, could make the lender squeal for a settlement to avoid a nasty, noisy lawsuit.  The lender knows that a public lawsuit would tarnish the lender’s reputation and make other victims clamor for suit or settlement awards.

What is the Core Problem of the Securitization Audit Strategy?  The securitization Audit service provider tries to focus the foreclosure victim’s attention on the problems with the foreclosure of the loan rather than the problems with the loan itself.  It presumes the loan has validity, a terrible strategic and tactical blunder.  Personal injury attorneys can much more easily prevail against a predatory lender who cheated the borrower when making the loan, than can foreclosure defense attorneys prevail against the lender for some foreclosure flaw.

Why Can’t a Foreclosure Defense Attorney Use the Securitization Audit?  The foreclosure defender has no use for the securitization audit for several reasons. 

  1. The judge focuses on the INJURY TO THE PLAINTIFF in a foreclosure lawsuit, or to the Defendant in a quiet title lawsuit in non-judicial foreclosure (deed of trust) states.  The judge will cause the court to redress the injury. 
  2. The typical Securitization Auditor cannot function in court as an expert witness, for want of qualification. So the audit’s information will not get entered into evidence because no expert can testify to it.
  3. The judge can plainly see any information about securitization which the SEC or lenders and others in the securitization process have posted on the world wide web for the whole world to see with a web browser.  Such “self-authenticating” evidence tells the story of who assigned the note to whom
  4. Whoever shows up with the note can foreclose it, so the Securitization Audit has no effect on that.
  5. Even if the judge dismisses a case for robo-signing, wrong plaintiff, etc, the bank ALWAYS corrects the documents and either re-files or appeals the case, and, statistically, the bank always wins the foreclosure regardless of what the foreclosure defense attorney does.
  6. The mortgage, which the borrower signed, plainly gives the lender or nominee (mortgagee) the legal right to force a foreclosure sale for no-payment of the note.
  7. In Deed of Trust states, the trustee will foreclose

Does the Use of a Securitization Audit Delay Foreclosure?  In a non-judicial foreclosure (deed of trust) state, the audit data will not stop or delay the foreclosure.  In judicial foreclosure states, the audit data might contains information about robo-signing or improper assignment.  In that case, the judge might dismiss the case.  But this only delays, and does not stop, the foreclosure.  Eventually, the foreclosure plaintiff will re-file the case after correcting the documents, and the court will grant the foreclosure. 

Do Foreclosure Defenders Successfully Argue Against Split of Note from Mortgage? Some Foreclosure defense attorneys will argue that the securitization splits the note from the mortgage, and that gives neither the owner of beneficial interest in the note nor the mortgagee the standing to force a foreclosure sale.  They argue that the mortgagee did not get injured by non-payment, and the note interest owner’s name doesn’t appear on the mortgage, and therefore the court can order foreclosure, but not sale of the mortgaged realty. 

Why Doesn’t The Court Buy that Argument?  Trial and appeals courts rule against this argument consistently. You can see why in this excerpt from the US Supreme Court in Carpenter v. Longan, 83 U.S. 16 Wall. 271 (1872):

“The mortgaged premises are pledged as security for the debt. In proportion as a remedy is denied the contract is violated, and the rights of the assignee are set at naught. In other words, the mortgage ceases to be security for a part or the whole of the debt, its express provisions to the contrary notwithstanding.

“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity”

Why Do Foreclosure Courts Nearly Always Grant the Foreclosure?  The Court MUST give relief and remedy to the injured party, the lender or assignee.  Period.  The borrower breached the note contract.  The breach injured the lender.  The mortgage requires that the borrower must pay off the note or forfeit the realty.  The Court will order the use of the proceeds of the foreclosure sale to pay off the note.  The Court will give the borrower the balance after payoff of liens, or it will award a deficiency judgment to the lender.

The Court MUST do this.

The Securitization Audit, even in the hands of a highly skilled attorney, cannot avoid this hard-core reality of contract law.  Look at just a few court rulings that prove this point:

  • "[S]ince the securitization merely creates a separate contract, distinct from plaintiffs' debt obligations under the Note and does not change the relationship of the parties in any way, plaintiffs' claims arising out of securitization fail."  Lamb v. MERS, Inc., 2011 WL 5827813, *6 (W.D. Wash. 2011) (citing cases); Bhatti, 2011 WL 6300229, *5 (citing cases);
  • In re Veal, 450 B.R. at 912 ("[Plaintiffs] should not care who actually owns the Note-and it is thus irrelevant whether the Note has been fractionalized or securitized-so long as they do know who they should pay.");
  • Horvath v. Bank of NY, N.A., 641 F.3d 617, 626 n.4 (4th Cir. 2011) (securitization irrelevant to debt);
  • Commonwealth Prop. Advocates, LLC v. MERS, 263 P.3d 397, 401-02 (Utah Ct. App. 2011) (securitization has no effect on debt);
  • Henkels v. J.P. Morgan Chase, 2011 WL 2357874, at *7 (D.Ariz. June 14, 2011) (denying the plaintiff's claim for unauthorized securitization of his loan because he "cited no authority for the assertion that securitization has had any impact on [his] obligations under the loan, and district courts in Arizona have rejected similar arguments");
  • Johnson v. Homecomings Financial, 2011 WL 4373975, at *7 (S.D.Cal. Sep.20, 2011) (refusing to recognize the "discredited theory" that a deed of trust " 'split' from the note through securitization, render[s] the note unenforceable");
  • Frame v. Cal-W. Reconveyance Corp., 2011 WL 3876012, *10 (D. Ariz. 2011) (granting motion to dismiss: "Plaintiff's allegations of promissory note destruction and securitization are speculative and unsupported. Plaintiff has cited no authority for his assertions that securitization has any impact on his obligations under the loan")

Do you see?  Securitization has no relevance to whether the borrower owes and must pay the debt or the mortgagee may force a foreclosure sale.

What If I Want to Buy a Securitization Audit Anyway?  Securitization issues have such an esoteric and arcane nature that NO FORECLOSURE VICTIM SHOULD EVER PURCHASE a securitization audit.  Only the foreclosure defense attorney should obtain a review and analysis of securitization issues, IF and ONLY IF the attorney considers it  necessary to advance the client’s cause. 
What Do Foreclosure Defense Attorneys and others Say?

  • Matt Weidner, Matthew Weidner Law Firm, St. Petersburg, Florida

We all need a real discussion here about whether loan audits have any value at all.  Let me be clear, 100% clear again….

IF A LOAN AUDITOR OR REVIEWER CANNOT BE QUALIFIED AS AN “EXPERT” BY A JUDGE AN AUDIT HAS ZERO VALUE

Too many clients have blow thousands of dollars on something that is totally worthless…if the person who prepared the report cannot be qualified as an expert over the strenuous objection of counsel, it just does not get in. And getting an “expert” qualified is next to impossible in this area.
We’re all like scientists cracking a very complex code.  Now, too many people get involved with loan audits or securitization reviews THAT HAVE ZERO VALUE.  ZERO VALUE. ZERO VALUE.
One thing everyone must keep in mind is that if whomever does an “audit” (whatever the heck that means) cannot be qualified as an expert in a court of law, THE AUDIT HAS ZERO VALUE.  The court will not consider one single word on the page.  So for everyone out there selling audits and for everyone out there thinking about using any of this garbage, you must ask whether the report can be qualified as an expert.

  • Mark Stopa, Stopa Law Firm, Tampa Florida
I asked for a copy of the audit, and, weeks later, I received literally dozens of pages of incomprehensive gobbley-gook.  It wasn’t even written in English – it was random numbers thrown together in a completely nonsensical way.  There’s no way any judge could read those documents and see that the Note/Mortgage had been 85% paid.  Heck, I couldn’t read those documents and conclude as much, and neither could my client.
My point, simply, is that before any homeowners rush out to pay for an audit, they should be aware of what’s required for that audit to do them any good in their court case.

  • Brian Caputo, Canupp Law
In the last 6 weeks I have met with three families that had paid up to $2,100.00 for an audit.  All three of these “audits” were three ring binders filled with documents from the Securities and Exchange Commission Home page and articles from the newspaper detailing successful mortgage defense decisions.  These products are problematic for a number of reasons:

  1. The documents from the SEC are free and available to the public.
  2. The newspaper stories, while informative, cannot be used as precedent to a judge.
  3. The analysis does nothing to breakdown what has happened with your payments after they were received by the Mortgage Company.
  4. The “expert” who is rendering the opinion would never be accepted by a court to testify in an expert capacity.
  5. The analytical process supporting the audit conclusion is flawed and that leads to an impossible opinion.
  6. None of the analysis brought to me by clients have included a review of the money paid by the homeowner.
As of today most judges in state courts and bankruptcy courts have not had a chance to fully grasp the ongoing fraud regaring the securitization process and the documents necessary to forclose upon a home.  Arguments made on “note ownership” alone often prove to be unsuccessful in court.  However, when you appear before the judge and you are able to support securitization or note ownership arguments, with evidence that also supports shenanigans with the loan payments– your legal hurdles will be much easier to cross.  As a rule, judges and juries do not have to be taught about why the misapplication of money is illegal!


Scambusters
Fraudsters are using a documents-checking process known as a mortgage securitization audit as a means of scamming foreclosure-threatened homeowners… Even when the process is legitimately carried out, the Federal Trade Commission suggests it's worthless.

How Do I Choose between Securitization Audit and Mortgage Fraud Examination?  Imagine yourself as a foreclosure victim, or a homeowner with an “under-water” mortgage, one where you owe the mortgage company more than the value of the house.  You have $1500.  You want to spend it wisely to fight the foreclosure.  Where to you spend it?  Do you spend it on a mortgage fraud examination service, or on a securitization audit?
As the foregoing expose’ has revealed, only a fool would spend it on the audit because the audit will not stop the foreclosure and will not get you the house free and clear or a cash settlement, and the typical foreclosure does not have the skill to select a good service provider, determine the merit of the audit, or use the audit effectively if at all in a foreclosure defense.

Do Foreclosure Defense Attorneys Commit Malpractice?  Some professionals in the mortgage-related industries believe attorneys defending a contract breach complaint commit malpractice IF they don’t aggressively examine the mortgage-related documents for evidence of fraud, tortious conduct, contract breaches, and other violations.  It takes a lot of work and skill to do that, skill most lawyers don’t have.  So, most foreclosure defense attorneys only want to drag out or delay the foreclosure, a violation of the rules regulating the bar and simple business ethics.  Typically such “pretender defenders” charge $1500 to $2500 “retainer” (gift) to get started, plus $500 to $1000 a month for as long as they keep the foreclosure victim in the house.  They typically know the victim will eventually lose the house within 6 to 24 months.  The victim could have saved that money and took a keys-for-cash deal from the lender without paying a lawyer, and had enough money altogether to buy a house free and clear at a foreclosure auction. Foreclosure victims don’t need a lawyer to do that.  

Why Should I Buy a Mortgage Fraud Examination?  You ought to spend the money on a mortgage fraud analysis because with the evidence in the corresponding report, the court might rule that the lender or lender’s agent defrauded you or breached the contract.  If so, the Court might order the lender to pay you treble damages.  Why?  Because the Court must redress YOUR injury.  The damages award might provide you with enough money to justify a rescission order by the court.  If it does, you might get your house free and clear to settle the damage claim, or a hefty cash award to reduce your loan balance.  And the jury might award you punitive damages sufficient to let you retire at a young age. 

For proof, see the West Virginia Quicken Loans case where the court ordered the foreclosure victim punitive damages of $2.1 million, plus the house free and clear, and all attorney fees paid.

How Do I Find a Competent Mortgage Fraud Examiner?  You find a competent mortgage fraud examiner by calling me, Bob Hurt at 727 669 5511, or just Email Me.  The Chief Examiner, a personal friend of mine, has 38 years’ experience examining and analyzing legal documents in order to find fraud, tortious conduct, breaches, and other violations and flaws.  Nobody on the planet does a better job of examining the mortgage and foreclosure related  documents and preparing a report that any competent attorney can use to demand a settlement from or sue the lender.

Can I Use the Mortgage Fraud Examination Report Even if My House is in Foreclosure?  Yes, you can.  In fact, it makes a lot of sense to do so if you have purchased or refinanced your home within the past 10 or 12 years.  People who can make a mortgage payment can also usually feel less financial pressure, so they can typically find a way to pay an attorney for a couple of hours of work to negotiate a settlement with the lender.

What Kind of Attorney Should I Use To Settle or Sue?  If the examination report reveals a cause of action sufficient justify suing, you should seek out a competent personal injury attorney to negotiate settlement with or to sue the lender.  It makes more sense to negotiate the settlement, and then to sue only as a last resort.

How Do I Order my Mortgage Fraud Examination Report?  To order your examination and report, CALL for a Mortgage Fraud Examination at this number NOW:


Bob Hurt
727 669 5511 
Click Here to E-mail Me

Learn how to attack the validity of the loan at http://MortgageAttack.com.

Monday, February 13, 2012

Benefits of Adverse Possession - Sample Letter to Owner of Realty Abandoned in Foreclosure 20120213

I have attached and appended below the text for a proposed letter to the owner of record of a home for which you have just filed a notice of adverse possession.  I wrote this one for Florida.  You can adapt it to your state.

My buddy Storm sent me this excerpt from a treatise on Adverse Possession:

ACTUAL, OPEN AND NOTORIOUS POSSESSION The trespasser must actually be in possession of the property and treat it as if he were an owner. This means there must be a physical presence on the land. It's not enough for someone just to make a claim, orally or in writing, of ownership. The words "open and notorious" simply mean that it must be obvious to anyone, including an owner who investigates, that a trespasser is on the land. Actual (physical) possession is usually open and notorious. Someone out in the field harvesting crops is obvious, as is a person pruning the rose garden that she planted on a strip of the neighbor's back yard. Similarly, a neighbor who just put a fence up slightly on the next-door property is obvious. So is the one who just poured a concrete driveway two feet over the boundary line. The point of this requirement is to let the owner know someone is occupying the land, so something can be done about it. An owner who allows someone to trespass for years without giving permission, complaining or taking action, the theory goes, loses the rights to the land.

 

Storm insists that an adverse possessor is a trespasser, and I disagree.  He knows a lot more about the law than I do, but I still disagree. I maintain that if the owner does not post a "Get off" notice or tell you to get off the land, or tell the sheriff/police to move you off the land, you are not a trespasser.  I maintain that only the equitable owner, lessee, agent, or (with written warning from the owner, lessee, or agent) law enforcers have the right to move an adverse possessor off the land.

Storm has told me that the adverse possessor must tell the owner about the adverse possession.  I disagree.  I believe openly taking adverse possession will be "obvious to … an owner who investigates" and if the owner does not investigate and does not hire someone as agent to remove trespassers in his absence, the owner has thereby waived notice.  Don't listen to me, though.  I'm not a lawyer (see notice at bottom).

My point here is that you can't even trust people knowledgeable in the law on points like this because they have NEVER LITIGATED A MATTER LIKE THIS and can only guess what the courts will say. That explains why I encourage would-be adverse possessors to find a lawyer and sue the various state officials for declaratory judgments to declare the rights of the adverse possessor and enjoin government officials to leave them alone unless the owner initiates a request without government tampering to remove the adverse possessor from the owner's realty.

 

 

I do concede, however, that the equitable owner, of record, whom I shall just call "owner" can become an adverse possessor's MOST POWERFUL ALLY when the owner has abandoned the realty in foreclosure.  Such owners usually feel frightened, worn out from moving, intimidated ty the foreclosure process, and fed up.  Such "abandoneers" usually hate that house and wish it would burn down so the lender wil only get scorched earth with a bucketful of ashes. 

Some, in spite of knowing that they ought to protect the land from vandals, termites, mold, etc,,  can't afford it and have lost all hope and motivation to care for the place. They have truly abandoned it with no thought of returning to it to care for it or occupy it.

The adverse possessor can put the owner's mind at ease by sending the below (and attached) letter.  It explains many of the benefits of adverse possession to everyone from owner to state government.  NOBODY LOSES, provided the adverse possessor behaves like a decent human being and responsible owner of real estate.

 

A similar letter to the sheriff or chief of police might have a beneficial effect.  They might actually start encouraging adverse possession instead of looking for reasons to arrest them.

 

I suggest a campaign of sending generic flyers to all of the state's legislators, judges, newspapers, radio stations, TV stations, and prosecutors, particularly those in the adverse possessors's county of interest.

For that reason, I encourage adverse possessors to seek one another out, meet and mingle, share experiences in meetings every week, 2 weeks, or month, and work together to inform the press, law enforcers and relevant  government officials, and attorneys about the benefits of AP.  Most lawyers need a re-education on the subject.

Tell your friends, family, associates, and church members about THIS adverse possession mailing list, and encourage them to join by sending email to

 

If you received this message from a source other than the adverse possession law advocacy group, click here to subscribe to the group:

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Or scan this QR code with your Smart Phone and use it to subscribe.

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Benefits of Adverse Possession –

Proposed Letter to Owner of Realty Abandoned in Foreclosure (20120213)

 

Date:         whenever

From:        Adverse Possessor
address

To:            Alleged Rightful Owner of Adversely Possessed Realty
address

Subject:     Adverse Possession of Residential Real Property (hereinafter "Realty") at address


Dear Alleged Rightful Owner of the Subject Realty:

Background.  I have attached a copy of my notice of adverse possession of the Realty. I filed the notice with the County Property Appraiser today.  I provide the copy to you as a courtesy formally to alert you of my intention to take adverse possession of your property at the above address because you abandoned it, possibly in response to the foreclosure the bank filed against you.

Purpose.  I intend to help you by protecting your property.  I write to you now to explain to you the adverse possession's financial benefits for you, your real property, your immediate neighbors, the neighborhood, the town, the County, law enforcers, the home owner association (if any),  and the people  and State of Florida.

What is Adverse Possession?  It is a means of someone taking and holding continuous, open (public), beneficial, possession of realty, paying taxes, government assessments, and any home owner association dues, demarking its boundaries with an enclosure if necessary, and maintaining and improving it, for a certain period of time, all without permission of the owner of record (in this case, you).  During this time, the owner of record can regain the realty by simply asking the adverse possessor to abandon it.

Overview of Benefits.  Many people consider it bold, audacious, and disrespectful to take adverse possession of real property.  They don't realize the ultimate good that always comes of it.  I want to explain that good to you.  Many benefits accrue to the above entities from adverse possession:

  1. Loving Care. A family who lives in the Realty dwelling treats it like their home, caring for it as they would their own in the hope that someday it will become theirs permanently.
  2. Mold and Mildew. Adverse possessors typically keep the air conditioning system running summer and winter.  This prevents dangerous buildup of mold and mildew that excessive humidity would cause if the A/C didn't operate for extended time.  As you know, mold constitutes a serious danger to health.
  3. Pestilence. Adverse possessors typically keep the dwelling free of termites, roaches, bedbugs, spiders, centipedes, rodents and other vermin that constitute a health hazard to humans and that actually damage the dwelling, often necessitating costly repairs.
  4. Druggies. Adverse possessors prevent drug dealers, marijuana grower, cocaine/crack/crystal meth addicts and other ne'er-do-wells from partying in and damaging the dwelling from neglect.
  5. Thieves.  An unoccupied house often falls prey to thieves who steal appliances, plumbing fixtures, doors, window coverings, copper wiring and plumbing, and flooring.  It costs the owner a small fortune to replace these and put the house in condition suitable for selling it.  Adverse possessors prevent thieves from stealing those things.
  6. Vandals.  Vandals and street thugs often see an unoccupied dwelling as a target of opportunity;  they break windows, destroy carpets, urinate or defecate on the floors, break holes in walls, destroy the roof, turn on the water and let water from stopped up sinks flood the floor, jam metal and other objects down into the plumbing, break toilet and sink porcelain, and so on.  Cleanup and repair can cost the owner a small fortune. Adverse possessors keep such damage from happening by increasing the vandals' risk of capture.
  7. Freezes and Hurricanes. Adverse possessors typically mind the effect of the weather on plumbing and windows.  They install protective coverings to prevent violent storms from breaking windows.  They wrap water pipes or let outside faucets drip during freezes to keep them from bursting.  An unoccupied house gets no such respectful care, and related repairs can become costly.
  8. Maintenance.  Residential realty always need routine maintenance such as lawn-mowing, hedge-trimming, edging, filling in of holes dug by dogs and other creatures, painting, landscaping, fixing broken windows, and so on..An occupant will typically do all this work, but the owner must pay to have others do it if no occupant lives there.
  9. HOA Dues.  Adverse possessors must pay Home Owner Association (HOA) dues.  The owner must pay them if no adverse possessor lives there.
  10. Taxes.  Adverse possessors must pay property taxes.  The owner must pay them if no adverse possessor lives there.
  11. Property Management.  Managing all the above constitutes a significant enterprise of work and attention to duty for the adverse possessor.  The associated management fees would similarly tax the rightful owner.  The adverse possessor saves the rightful owner from having to pay that cost.
  12. Property Values.  Because of the above realities, vacant residential realty invites wanton damage and undesirable lurkers, makes the neighborhood look deserted and unattractive, and reduces the curb appeal of the community.  Therefore, people will not want to live there.  That will diminish property values in the community in general.
  13. 7-Year Savings.  Adverse possessors can pay taxes, homeowner dues, repair and maintenance costs for up to 7 years, and the rightful owner can, just before the statute of limitations expires, have the sheriff remove the adverse possessors removed for trespass.  Thus, adverse possession might not pose a risk of any kind to the rightful owner who doesn't sleep on his rights beyond 7 years.
  14. Restored Realty Prices.  The adverse possessors can end up leaving the Realty AFTER property values have returned to their normally ridiculously high values because more people have jobs and the ability to buy them.
  15. Litigation Risk.  It costs an enormous amount of money to litigate against people with respect to questions of Realty ownership and title.  Adverse possessors save the rightful owner much of that cost because they admit that they don't have ownership rights until after seven years.  On the other hand, an adverse possessor with profound knowledge of mortgages, lending practices, securitization, and the recent Financial Crisis Inquiry Commission Report's details about abuse of authority and duty in both government and the lending and securities industries could make for truly messy litigation assisting the prior owner of record in challenging REAL titular interest in the Realty.  It could easily cost $100,000 or more in legal fees, and put the alleged rightful owner (and other parties joined to the action) at risk of disgorgement and treble damages, and possibly exorbitant punitive damagesin favor of the prior owner of record.
  16. Everybody Wins.  Adverse possessors keep the property in good shape, pay taxes and HOA dues, keep the community safer than otherwise, and help to increase property values.  I imagine that rightful owners of common sense will see adverse possessors as a boon, not a bane, to the rightful owner, to the adverse possessor's family, to the municipality, to the neighborhood, to the courts, and to law enforcers.

 
Check the Numbers.  If you have your accountant pull up your maintenance and cost records on residential Real Estate Owned for your review, you will find that adverse possessors can save you an enormous amount of money without putting you at risk losing the property permanently or having to spend substantially on ownership costs.

Permission: NO.  I do not ask your permission to possess the property.  In fact, I specifically deny having your permission.  I have ADVERSE possession of the Realty. 

Trespass.  At the same time, this letter should have helped you see the wisdom of  forbearance in accusing me of trespass.  I hope that you will communicate directly with me by telephone or mail if you intend to accuse me of trespass.  I believe we can settle the matter amiably and without law enforcement if you give me reasonable notice. 30 days' notice should suffice.  To reciprocate your kindness, I shall timely notify you of my intention to abandon the Realty. 30 days' notice should suffice. I shall provide you with an accounting on my expenses and costs associated with the adverse possession.

Adverse Possession - A Fine American Tradition Inherited from Britain.  Many people consider adverse possession a "something for nothing" scheme, scam, and con.    Some consider it grand theft and fraud.  Such thinking constitutes a delusion as you have seen from the foregoing presentation.  Adverse Possession actually protects property and puts it to the highest and best use for everyone concerned. 

Jurists have recognized this for centuries and the related facts show why the Florida Legislature enshrined adverse possession in Florida Statutes 95.12 through 95.18.  It ensures that the property receives reasonably good care, that it enjoys improvement, that the County receives related property taxes, and that the rightful owner has a HUGE window of opportunity to excise the adverse possessor from the land.  So it provides society with benefits such as I have explained above.  You get someone to look after your property and save you a ton of money, and it does not cost you a penny for 7 years. 

True, you could have fixed up the property and rented it out.  But you didn't.  You abandoned it to God-knows-what-fate.  The Legislature tends to favor adverse possession for putting realty to its highest and best use.  Therefore the Legislature has enacted the adverse possession laws to refine the statutory and common law of Britain that formed the basis of Florida's original state laws.

No Response Necessary.  You do not need to respond to this letter, but I shall appreciate it if you do. 

Memorandum of Law.  I have attached a memorandum of law for your reference.



Sincerely yours,

(Signature)

Intended Adverse Possessor


 

Memorandum of Law - Some Florida Laws Related to Adverse Possession

Florida Statutes as of 13 Feb 2012

95.12 Real property actions.—No action to recover real property or its possession shall be maintained unless the person seeking recovery or the person's ancestor, predecessor, or grantor was seized or possessed of the property within 7 years before the commencement of the action.

History.—s. 2, ch. 1869, 1872; RS 1287; GS 1718; RGS 2932; CGL 4652; s. 8, ch. 74-382; s. 521, ch. 95-147.

95.13 Real property actions; possession by legal owner presumed.—In every action to recover real property or its possession, the person establishing legal title to the property shall be presumed to have been possessed of it within the time prescribed by law. The occupation of the property by any other person shall be in subordination to the legal title unless the property was possessed adversely to the legal title for 7 years before the commencement of the action.

History.—s. 4, ch. 1869, 1872; RS 1289; GS 1720; RGS 2934; CGL 4654; s. 9, ch. 74-382.

95.14 Real property actions; limitation upon action founded upon title.—No cause of action or defense to an action founded on the title to real property, or to rents or service from it, shall be maintained unless:

(1) The person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of the person, was seized or possessed of the real property within 7 years before commencement of the action; or

(2) Title to the real property was derived from the United States or the state within 7 years before commencement of the action. The time under this subsection shall not begin to run until the conveyance of the title from the state or the United States.

History.—s. 3, ch. 1869, 1872; RS 1288; GS 1719; RGS 2933; CGL 4653; s. 10, ch. 74-382.

95.16 Real property actions; adverse possession under color of title.

(1) When the occupant, or those under whom the occupant claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely. If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after December 31, 1945, shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located.

(2) For the purpose of this section, property is deemed possessed in any of the following cases:

(a) When it has been usually cultivated or improved.

(b) When it has been protected by a substantial enclosure. All land protected by the enclosure must be included within the description of the property in the written instrument, judgment, or decree. If only a portion of the land protected by the enclosure is included within the description of the property in the written instrument, judgment, or decree, only that portion is deemed possessed.

(c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant.

(d) When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is to be considered as occupied for the same length of time as the part improved or cultivated.

History.—s. 5, ch. 1869, 1872; RS 1290; GS 1721; RGS 2935; CGL 4655; s. 1, ch. 19253, 1939; s. 1, ch. 22897, 1945; ss. 11, 12, ch. 74-382; s. 1, ch. 77-174; s. 1, ch. 87-194; s. 522, ch. 95-147.

195.18 Real property actions; adverse possession without color of title.

(1) When the occupant has, or those under whom the occupant claims have, been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied is held adversely if the person claiming adverse possession made a return, as required under subsection (3), of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.

(2) For the purpose of this section, property is deemed to be possessed if the property has been:

(a) Protected by substantial enclosure;

(b) Cultivated or improved in a usual manner; or

(c) Occupied and maintained.

(3) A person claiming adverse possession under this section must make a return of the property by providing to the property appraiser a uniform return on a form provided by the Department of Revenue. The return must include all of the following:

(a) The name and address of the person claiming adverse possession.

(b) The date that the person claiming adverse possession entered into possession of the property.

(c) A full and complete legal description of the property that is subject to the adverse possession claim.

(d) A notarized attestation clause that states:

UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT.

(e) A description of the use of the property by the person claiming adverse possession.

(f) A receipt to be completed by the property appraiser.

The property appraiser shall refuse to accept a return if it does not comply with this subsection. The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4) for the purpose of implementing this subsection. The emergency rules shall remain in effect for 6 months after adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.

(4) Upon the submission of a return, the property appraiser shall:

(a) Send, via regular mail, a copy of the return to the owner of record of the property that is subject to the adverse possession claim, as identified by the property appraiser's records.

(b) Inform the owner of record that, under s. 197.3335, any tax payment made by the owner of record before April 1 following the year in which the tax is assessed will have priority over any tax payment made by an adverse possessor.

(c) Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted.

(d) Maintain the return in the property appraiser's records.

(5)(a) If a person makes a claim of adverse possession under this section against a portion of a parcel of property identified by a unique parcel identification number in the property appraiser's records:

1. The person claiming adverse possession shall include in the return submitted under subsection (3) a full and complete legal description of the property sufficient to enable the property appraiser to identify the portion of the property subject to the adverse possession claim.

2. The property appraiser may refuse to accept the return if the portion of the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the portion of the property subject to the claim in order to submit the return.

(b) Upon submission of the return, the property appraiser shall follow the procedures under subsection (4), and may not create a unique parcel identification number for the portion of property subject to the claim.

(c) The property appraiser shall assign a fair and just value to the portion of the property, as provided in s. 193.011, and provide this value to the tax collector to facilitate tax payment under s. 197.3335(3).

(6)(a) If a person makes a claim of adverse possession under this section against property to which the property appraiser has not assigned a parcel identification number:

1. The person claiming adverse possession must include in the return submitted under subsection (3) a full and complete legal description of the property which is sufficient to enable the property appraiser to identify the property subject to the adverse possession claim.

2. The property appraiser may refuse to accept a return if the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the property subject to the claim in order to submit the return.

(b) Upon submission of the return, the property appraiser shall:

1. Assign a parcel identification number to the property and assign a fair and just value to the property as provided in s. 193.011;

2. Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted; and

3. Maintain the return in the property appraiser's records.

(7) A property appraiser must remove the notation to the legal description on the tax roll that an adverse possession claim has been submitted and shall remove the return from the property appraiser's records if:

(a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn;

(b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property appraiser, establishing title in the owner of record;

(c) The property appraiser receives a certified copy of a recorded deed, filed after the date of the submission of the return, from the person claiming adverse possession to the owner of record transferring title of property along with a legal description describing the same property subject to the adverse possession claim; or

(d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the property subject to the adverse possession claim during the period that the person is claiming adverse possession.

(8) The property appraiser shall include a clear and obvious notation in the legal description of the parcel information of any public searchable property database maintained by the property appraiser that an adverse possession return has been submitted to the property appraiser for a particular parcel.

History.—s. 7, ch. 1869, 1872; s. 6, ch. 4055, 1891; RS 1291; GS 1722; RGS 2936; CGL 4656; s. 1, ch. 19254, 1939; ss. 13, 14, ch. 74-382; s. 1, ch. 77-102; s. 523, ch. 95-147; s. 1, ch. 2011-107.

1Note.—Section 4, ch. 2011-107, provides that "[t]his act shall take effect July 1, 2011, and applies to adverse possession claims in which the return was submitted on or after that date, except for the procedural provisions governing the property appraiser's administration of adverse possession claims included in s. 95.18(4)(c) and (d) and (7), Florida Statutes, and the provisions governing the payment of taxes included in s. 197.3335, Florida Statutes, as created by this act, which apply to adverse possession claims for which the return was submitted before, on, or after that date."

95.191 Limitations when tax deed holder in possession.—When the holder of a tax deed goes into actual possession of the real property described in the tax deed, no action to recover possession of the property shall be maintained by a former owner or other adverse claimant unless the action commenced is begun within 4 years after the holder of the tax deed has gone into actual possession. When the real property is adversely possessed by any person, no action shall be brought by the tax deed holder unless the action is begun within 4 years from the date of the deed.

History.—s. 64, ch. 4322, 1895; GS 591; s. 61, ch. 5596, 1907; RGS 794; s. 2, ch. 12409, 1927; CGL 1020; ss. 1, 2, ch. 69-55; s. 1, ch. 72-268; s. 28, ch. 73-332; s. 1, ch. 77-174.

Note.—Former ss. 196.06, 197.725, 197.286.

95.192 Limitation upon acting against tax deeds.

(1) When a tax deed has been issued to any person under s. 197.552 for 4 years, no action shall be brought by the former owner of the property or any claimant under the former owner.

(2) When a tax deed is issued conveying or attempting to convey real property before a patent has been issued thereon by the United States, or before a conveyance by the state, and thereafter a patent by the United States or a conveyance by the state is issued to the person to whom the property was assessed or a claimant under him or her, and the tax deed grantee or a claimant under the tax deed grantee has paid the taxes for 4 successive years at any time after the issuance of the patent or conveyance, the patentee, or grantee, and any claimant under the patentee or grantee shall be presumed to have abandoned the property and any right, title, and interest in it. Upon such abandonment, the tax deed grantee and any claimant under the tax deed grantee is the legal owner of the property described by the tax deed.

(3) This statute applies whether the tax deed grantee or any claimant under the tax deed grantee has been in actual possession of the property described in the tax deed or not. If a tax deed has been issued to property in the actual possession of the legal owner and the legal owner or any claimant under him or her continues in actual possession 1 year after issuance of the tax deed and before an action to eject him or her is begun, subsections (1) and (2) shall not apply.

History.—s. 27, ch. 73-332; s. 201, ch. 85-342; s. 524, ch. 95-147.

95.21 Adverse possession against lands purchased at sales made by executors.—The title of any purchaser, or the purchaser's assigns, who has held possession for 3 years of any real or personal property purchased at a sale made by an executor, administrator, or guardian shall not be questioned because of any irregularity in the conveyance or any insufficiency or irregularity in the court proceedings authorizing the sale, whether jurisdictional or not, nor shall it be questioned because the sale is made without court approval or confirmation or under a will or codicil. The title shall not be questioned at any time by anyone who has received the money to which he or she was entitled from the sale. This section shall not bar an action for fraud or an action against the executor, administrator, or guardian for personal liability to any heir, distributee, or ward.

History.—s. 1, ch. 3134, 1879; RS 1293; GS 1724; RGS 2938; CGL 4658; s. 1, ch. 20954, 1941; s. 3, ch. 22897, 1945; s. 15, ch. 74-382; s. 1, ch. 77-174; s. 525, ch. 95-147.

 


 


 

 

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WARNING:     I do NOT function as  law practitioner, lawyer, licensed attorney-at-law, or legal advisor.  Construe my comments ONLY as speculation or general information, and NOT as legal advice for you or anyone else.  Consult a well-qualified attorney (good luck finding one) in all questions of legality or law.

 

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