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Constructive Notice

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Equal Rights

Saturday, January 7th, 2012

Fraud victims compete for priority.

SOUTH GATE, CA–On Thursday, August 28, 2008, Ms. Kyung Ha Chung gave a deed of trust against her property on Roosevelt Avenue. It all went so smoothly she repeated the process that day, eventually signing six deeds of trust against the same property, in favor of six different lenders and witnessed by six different notaries.

The property in question, or 'modus operandi'

The next day, August 29, Ms. Chung signed a seventh deed of trust. Each lender believed it had a first mortgage. All told, the seven deeds of trust secured loans totalling $1,827,500. The property was worth maybe $300,000.

Of the seven deeds of trust, the first three submitted for recording were received by the Los Angeles County Recorder’s office in batches from different title companies around 6:00 a.m. on September 4, 2008. One was in favor of First Bank, another in favor of East West Bank, and another in favor of Flagstar Bank.

The L.A. County Recorder’s office processes thousands of documents each business day. Once received, each document is referred to an examiner to make sure it’s suitable for recording, and then to a cashier to collect applicable fees. If accepted the document is stamped with a recording date and time, and an instrument number. It is later indexed and becomes part of the official land records.

All three deeds of trust were accepted and stamped as recorded on September 4, 2008. As is done in most California counties, the Recorder gave the documents an 8:00 a.m. time stamp because they were deposited before office hours. The East West deed of trust was indexed before the others, at 11:26 a.m. that day.

Los Angeles County Registrar-Recorder/County Clerk's building at Norwalk, California. This is the Recorder's main office; there are five branch offices

It should come as no surprise that all seven loans defaulted, and the lenders discovered they’d been scammed. Some commenced foreclosure, and a dispute arose as to which lender had priority.

Eventually, First Bank filed suit for a court order that the three deeds of trust should have equal priority because they share the earliest recording date and time. But East West opposed the suit, claiming it alone should have priority because its deed of trust was indexed before the others.

The trial court ruled in favor of First Bank, and East West appealed.

The Court of Appeals affirmed the trial court, based on California’s “law of priorities.”

The Court explained that, under state recording laws, priority of interests in land depends on a combination of factors. One gains priority by (a) acquiring an interest as a bona fide purchaser, for valuable consideration, without actual or constructive notice of (b) a previously created competing interest of another party, and (c) being first to record his interest in the land records. This is commonly known as a “race-notice” system, to be distinguished from “pure race” rule giving priority to the first to record.

In this case the Court deferred to the Recorder’s administrative system of assigning recording dates and times, and said the First Bank and East West deeds of trust were recorded “simultaneously” at 8:00 a.m. on September 4. Indexing, the Court said, is a separate function done not to affect recording times but instead to impart constructive notice. Since “both trust deeds were executed on the same day and are deemed recorded simultaneously,” and neither lender had notice of a competing interest, the Court concluded the deeds of trust have “equal priority.”

Moral: This decision gives a good explanation of California’s race-notice recording laws, and is a case study of how the rules apply. Flagstar Bank did not participate in the appeal, due to some procedural issue, but it should benefit by this decision.

What’s curious is how the scammer was able to pull this off. Most lenders and title companies now have systems to detect redundant loan applications and open title orders involving a single property. This plot should have been foiled before the loans funded.

And what do we know of Kyung Ha Chung? It’s possible she was an impostor, using an alias or stolen identity–although the Court seems to believe otherwise.

The case is First Bank v. East West Bank, 199 Cal.App.4th 1309 (Cal. App. 2011).

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Foreclosures / Haunted Houses

Friday, October 28th, 2011

First there were bad mortgages, now it’s dud foreclosures.

HAVERHILL, MA–Francis Bevilacqua was a cash-for-trash real estate investor.

When he bought this duplex in 2006 the chain of title was, let’s say, not perfect.

The property in question, at Haverhill, Massachusetts

A prior owner was Pablo Rodriquez. In March 2005 Rodriquez gave a mortgage against the property to Mortgage Electronic Registration Systems (“MERS”), as nominee for the originating lender, Finance America. MERS, remember, is the privately owned database created by the mortgage banking industry to track mortgage loan ownership and servicing rights throughout the U.S. The mortgage bankers save lots of money on recording fees by registering with MERS instead of local county recording offices.

Rodriguez defaulted on his loan and in June 2006 the property was sold at a foreclosure sale. The foreclosing lender was U.S. Bank, as Trustee under a mortgage pooling and servicing agreement, and the successful bidder was also U.S. Bank. Weeks later, in July 2006, an assignment of the now-foreclosed mortgage from MERS, as nominee for Finance America, to U.S. Bank, was created (signed and dated). The assignment of mortgage was then recorded in the land records (Southern Essex Registry of Deeds).

Such were the circumstances when, in October 2006, Francis acquired the property by quitclaim deed from U.S. Bank.

MERS has headquarters in this building, at Reston, Virginia

By April 2010 Francis had converted the property into four condominiums and sold three units. At this point he had concerns about the title(s), so he filed suit to try title (akin to a quiet title action). He sought an order from the Massachusetts Land Court confirming his quitclaim deed, to rule out “the possibility of an adverse claim by Rodriquez.”

The Land Court ruled against Francis, even though Rodriguez could not be found and there was no opposition to the lawsuit. The court held Francis did not have standing to sue because the U.S. Bank foreclosure was void and his quitclaim deed was worthless. Francis appealed, and the Massachusetts Supreme Judicial Court agreed to decide the case.

The Supreme Court upheld the Land Court decision. The Court explained that at the time the foreclosure deed was created (June 29, 2006) its grantor (U.S. Bank, as Trustee) did not have an interest in the property according to “official” land records (the Southern Essex Registry of Deeds). Instead, U.S. Bank first appears in the chain of title by virtue of the assignment of mortgage (dated July 21, 2006). Since foreclosure can only be done by a mortgage holder, the foreclosure here was unauthorized, and void.

The Southern Essex Registry of Deeds, at Salem, Massachusetts

It follows the quitlclaim deed from U.S. Bank to Francis was ineffective to pass title.

Responding to Francis’ argument that he should be entitled to protected status of a bona fide purchaser, because he had no way of knowing all this, the Court disagreed saying the problem was apparent in the land records before Francis bought the property.

The Court concluded saying Francis may yet perfect his title if he can arrange a proper foreclosure to eliminate Rodriguez’s interest.

Moral: In recent years lenders and investors have relied heavily on MERS to evidence their mortgage rights. It’s been assumed an investor with superior rights can foreclose first and straighten out land records later. This decision upends such assumptions, at least in Massachusetts.

But what should such technicalities matter, when a borrower can’t afford property and abandons it?

According to the Supreme Court, it matters because the defaulting borrower continues to have a right to redeem the loan and reclaim the property, until the right of redemption is ended by foreclosure. It follows the borrower can still refinance or sell and, if he files bankruptcy, the property may be part of the debtor’s estate–tied up in bankruptcy proceedings.

Consequences of all this may seem illusory, but fear of clouded titles will cause some to avoid foreclosures entirely. And as for properties already foreclosed, and perhaps resold, no one knows how many could be in legal limbo.

State laws differ, so it’s unclear whether this view of faulty foreclosures will spread outside the Bay State.

The case is Bevilacqua v. Rodriguez, 995 N.E.2d 884 (Mass. 2011).

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Hiding in Plain Sight

Friday, October 7th, 2011

Enduring rights of parties in possession.

SPOKANE, WA–Clare House is a senior living community on the south side of Spokane. It has a 124-unit apartment complex, flanked by 28 “bungalow” units built in clusters much like attached homes.

Entrance to the Clare House community

The bungalows have been offered under a “Resident Agreement,” by which the buyer pays a lump sum at move-in for the right to occupy their bungalow and use common areas until they die or become unable to care for themselves. When occupancy ends, the resident or their heirs are entitled to repayment of 80 or 85% of the initial lump sum or, in some cases, 80 or 85% of the price received from resale of the bungalow. Each resident is also a member of the Clare House Bungalow Homes Residents Association, an association formed to represent their common interests.

The bungalows occupy a 2.68 acre parcel of land, which continues to be owned by the developer. Beginning in 2004, the developer took a series of loans from “hard money” lenders, secured by deeds of trust against the 2.68 acre parcel. The first of these loans was arranged by the Caudill Group, in the amount of $400,000, secured by a deed of trust in favor of the Caudill Living Trust. There were four subsequent loans, secured by deeds of trust totalling $565,000.

One of the Clare House bungalows

All of these deeds of trust were recorded in Spokane County land records. Prior to the first deed of trust, two of the Resident Agreements had been recorded, even though the bungalow residents did not have proper deeds conveying ownership of the real property.

All was well at Clare House until the developer filed bankruptcy. Then things got dicey. The lenders, headed by the Caudill Group, made known their wishes to foreclose against the 2.68 acre parcel, and oust the residents.

The Residents Association stepped in, and filed an adversary proceeding in the developer’s bankruptcy. The Association asked for a court order that the residents’ rights are superior to rights of the lenders.

The bankruptcy court ruled for the residents, in part. The court ordered that all members of the Residents Association (i.e., all those having a Resident Agreement with the developer) may continue to occupy their bungalows undisturbed by the lenders, even if the lenders foreclose and acquire the land. However, the court also held the residents’ rights to repayment upon termination of occupancy are contractual rights against the developer only, and are not enforceable against any lender.

Aerial view of the Clare House community, with apartment complex, lower left, and 2.68 acre parcel, highlighted

Citing “longstanding common law,” the court explained that one who acquires an interest in real property with actual or constructive notice of the rights of another takes subject to the other’s rights. In modern times, this rule has been refined by statute and case decisions so as to impose a duty on a subsequent purchaser (or encumbrancer) to inquire as to rights of parties in possession of land, “and a failure to inquire results in the new title holder taking title subject to whatever rights of occupancy existed.”

In this case, the court said a “casual observer” could see the bungalows were occupied as “single family residential units,” and inquiry would have disclosed the Resident Agreements. Likewise, these lenders who received financial information from the developer should have been aware of his “basic business model.” The court noted that two Residents Agreements were recorded in the land records, but this does not appear to have been decisive in the court’s reasoning.

So the residents win what amounts to a life estate in their bungalows, but must stand in line as unsecured creditors in the bankruptcy to recover what they can of promised repayments. For their part, the lenders can foreclose, but their security interests are subject to all Resident Agreements made with the developer–even those signed after deeds of trust were recorded.

Moral: Lessons here for everyone, since both residents and lenders now have much, much less than they bargained for.

The case is In re Clare House Bungalow Homes, L.L.C. (Clare House Bungalow Homes Residents Association v. Clare House Bungalow Homes, L.L.C.), 447 B.R. 617 (Bankr.E.D.Wash. 2011).

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False Security

Monday, September 12th, 2011

An unattested mortgage, even when recorded, fails its purpose.

ALPHARETTA, GA–On October 12, 2005, Bertha Hagler refinanced her home.

The property in question, center

She signed two security deeds (akin to a mortgage): A “first” securing repayment of $240,000, and a “second” for a lesser amount. But at closing somehow things got confused, and only the “second” got signed by the notary and witness who were there.

Weeks later when the security deeds were recorded no one noticed that the “first” was not properly attested to.

In April 2007 Bertha filed Chapter 7 bankruptcy, and a trustee in bankruptcy was appointed. The trustee noticed the defective security deed, and filed an adversary proceeding to avoid it as against Bertha’s home.

The trustee relied on Bankruptcy Code section 544(a)(3), the so-called “trustee avoiding power” or “strong arm” power. This code provision allows a trustee (or a debtor-in-possession) to avoid an interest in debtor real property that is not perfected as of the commencement of bankruptcy. (See our posting for 5/22/10, “Bankruptcy 101.”)

Fulton County Courthouse, where the questioned security deed was recorded and indexed in the land records

In this case, the trustee claimed the “first” was not entitled to be recorded in the land records, and thus “perfected,” because it did not comply with Georgia statutes requiring that a mortgage affecting real property be signed and acknowledged before a notary, attested to by the notary, and attested to by one additional witness, in order to be accepted for recording.

The bankruptcy court ruled in favor of the trustee, avoiding the mortgage and relegating the lender to status of an unsecured creditor for the $240,000 debt. The lender would stand in line for cents on the dollar.

The lender appealed, arguing that despite its flaws the mortgage was in fact recorded and correctly indexed in the land records. Anyone who searched the records should find the mortgage and readily understand it was intended to encumber the property. The lender relied on case law holding that a defective instrument once recorded may impart constructive notice of its contents.

The federal district court entertaining the appeal said the issue involved “an unclear question of Georgia law,” and asked the Georgia Supreme Court to decide whether, in Georgia, a recorded security deed with a “facially defective attestation” can provide constructive notice.

The Georgia Supreme Court building

The Supreme Court sided with the bankruptcy court. The Court allowed that a “duly recorded” albeit defective instrument can provide constructive notice, but said this security deed was not duly recorded because a lack of required attestations was apparent “on the face” of the instrument. Instead, the Court cited “longstanding law” that a mortgage recorded with “facial defects as to attestation” may not impart constructive notice.

The Court concluded saying the lender’s position would relieve it and other lenders “of any obligation to present properly attested security deeds.” It would “risk an increase in fraud,” and “shift to the subsequent bona fide purchaser and everyone else the burden of determining (possibly decades after the fact) the genuineness of the grantor’s signature.”

Moral: Another example of section 544(a)(3) at work, and a reminder (if we need one) that legal formalities matter.

The case is U.S. Bank National Association v. Gordon, ___ S.E.2d ___, 2011 WL 1102995 (Ga. 2011).

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Nine Points of the Law

Monday, October 25th, 2010

The mysterious rights of a party in possession.


KOKOMO, IN–When Park P, LLC, bought this 254-unit apartment complex they expected to inherit about 250 tenants. But there was an unexpected problem.

The Park Place apartments at Kokomo

Within the complex are two laundry rooms, housing 45 commercial, coin-operated laundry machines. In each laundry room there was a sign saying the machines were owned and operated by Commercial Coin Laundry Systems “pursuant to a written lease.” Each machine also bore a 3×5-inch label with the same information. The signs and labels included Commercial Coin’s logo, office telephone number, and a 24-hour toll-free service number.

Park P had purchased the complex in April 2005. Several weeks later, the owner of Park P wrote a letter to Commercial Coin complaining about maintenance of the machines and hazardous conditions in one of the laundry rooms. The owner said he was willing to honor “the agreement” that Commercial Coin had with a prior owner, but wanted Commercial Coin to agree in writing to “accept full liability for any eventual accident.”

Inside, some of the 254 units

Commercial Coin did not respond to the letter, but continued to operate the machines and pay rent to Park P. So it happened that, in February 2008, Park P filed suit for trespass, based on Commercial Coin’s refusal to remove its machines and vacate the premises.

Commercial Coin answered, saying it has a written lease giving it rights to operate without interference by Park P.

Problem is, the lease was not recorded, and Park P claims it is not legally bound by the past agreement.

On a motion for summary judgment, the trial court ruled in favor of Park P, saying the new owner was not subject to terms of the off-record lease. The court cited an Indiana statute, providing that a lease of real estate for a period longer than three years must be recorded in order to bind a subsequent good faith purchaser.  Commercial Coin appealed.

The Court of Appeals reversed, and remanded the case for further proceedings.

The Court reasoned that a good faith purchaser, of the type protected by the statute, must be one without notice of rights asserted by a party in possession. The court explained that notice sufficient to bind a purchaser could be actual, constructive (imparted by county land records), or implied (imparted by occupancy or possession of the land). In this case, the question for trial would be whether Commercial Coin’s occupancy was so apparent that Park P should have inquired to discover its alleged rights under the off-record lease.

Moral:  Possession, they say, is nine points of the law.

The old saying, rooted in English common law, has little meaning today except as shown by this case.

American courts uniformly hold that a purchaser of land, or a mortgage lender, may be subject to rights of parties in possession. It may be a lease, an option to purchase, right of first refusal, easement–whatever.

To know the condition of title to land, one should look not only to land records but to the land itself.

The case is Crown Coin Meter v. Park P, LLC, 934 N.E.2d 142 (Ind. App. 2010).

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You Be the Judge

Sunday, July 11th, 2010

The case of the misfit mortgage.

BESSEMER, AL–Davis & Associates, LLC,  was the owner of two lots in Jefferson County, Alabama.

Davis & Associates borrowed $43,000 from Frank Bynum, giving Bynum a mortgage against the lots.  The mortgage identified the borrower as “Davis Associates, LLC.”  The mortgage was recorded in the land records maintained by the Jefferson County Probate Office.

Later, Davis & Associates conveyed the lots to TMS Properties and, a few months after that, TMS Properties conveyed the lots to Angel Barker.  Ms. Barker purchased the lots with a loan secured by a mortgage held by GMAC Mortgage.

Meanwhile, Davis & Associates failed to repay the loan from Bynum, and Bynum threatened foreclosure.

But Barker and GMAC said they didn’t know about the Bynum mortgage.  So Barker and GMAC filed suit for a judicial declaration that they were bona fide purchasers of the lots, without notice of the Bynum mortgage, and not subject to it.

In court, Barker and GMAC said the incorrect name on the Bynum mortgage (“Davis Associates” rather than “Davis & Associates”) caused the mortgage to be mis-indexed in county land records.

As provided by Alabama statutes, the land records consist of a grantor-grantee index, containing names listed alphabetically, maintained by the county probate office.  In 1984, the Jefferson County Probate Office converted its paper index books to a computer database.  Expert witnesses testified that a search of the computer database for “Davis & Associates” does not turn out the Bynum mortgage, because of the missing ampersand.

Bynum argued that all duly recorded documents become part of the land records, and impart constructive notice whether or not they are properly indexed in the computer database.  It follows, said Bynum, that Barker and GMAC had constructive notice of the mortgage and are subject to its enforcement.

You’re the Judge:  How do you rule?

Jefferson County courthouse, Bessemer Division: Home to the land records and trial court

The Alabama Supreme Court ruled in favor of Barker and GMAC.

The Court reasoned that the county land records were set up and maintained in full compliance with state statutes.  Persons relying on this index should not be charged with notice of recordings that can’t be found by searching a correct name.

Since the missing ampersand caused the Bynum mortgage to go undetected, the Court held the mortgage was outside the chain of title for Davis & Associates.  So the mortgage did not impart constructive notice, and it cannot be enforced against Barker or GMAC.

The case is Bynum v. Barker, 39 So.3d 1013 (Ala. 2009).

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Bankruptcy 101

Saturday, May 22nd, 2010
There’s no crying in bankuptcy.

SANTEE, CA–Here’s a tale that starkly illustrates the avoiding power in bankruptcy.

Will and Jill Deuel were owners of a unit in the Lakeview Carlton Hills condominiums.

The Lakeview Carlton Hills condominiums

The Deuels purchased the condo in October 1999, giving a purchase money deed of trust for $106,700 to North American Mortgage Company.  At the same time, the couple borrowed an additional $3,300 giving a second deed of trust.  In June 2001, the Deuels refinanced giving a deed of trust for $122,400 to American Mortgage Express Financial.

In September 2002, the Deuels refinanced again giving a deed of trust for $136,000 to Chase Manhattan Bank.  Problem was, the Chase deed of trust did not get recorded in the San Diego County recorders office.  All that got recorded was a release of the $122,400 deed of trust paid off by the Chase loan.

So, as a matter of record, it appeared the Deuels owned the condo “free and clear.”

In 2004, Jill Deuel filed chapter 7 bankruptcy.  Her schedules filed in bankruptcy court showed the $136,000 debt to Chase as “secured,” but Chase now realized their deed of trust was unrecorded.  So Chase filed a motion in the bankruptcy for an order confirming the debt as a security interest in the condo, effective retroactively to September 4, 2002.

Jacob Weinberger United States Courthouse, San Diego, CA

The bankruptcy court ruled in favor of Chase, but the federal court of appeals disagreed and held the deed of trust “avoided.”

The court based its decision on section 544(a)(3) of the Bankruptcy Code.  Section 544(a)(3) allows a trustee in bankruptcy (or a debtor-in-possession) to avoid an interest in debtor real property that has not been perfected as of the commencement of bankruptcy.

The purpose of section 544(a)(3) is to treat all of a debtor’s unsecured creditors equally, and prevent someone bound for bankruptcy from giving preferred (i.e., secured) status to a favored creditor.  It also discourages the debtor who might try to protect assets by slipping a deed to a relative or friend.

Section 544(a)(3) achieves its purpose by giving a trustee the legal status of a bona fide purchaser of debtor real property as of commencement of bankruptcy.  A BFP, without actual or constructive notice of off-record interests, can acquire property free of such interests.

In this case, the court reasoned a BFP would not be charged with constructive notice of the unrecorded deed of trust and, thus, would acquire the property free of the obligation to Chase.

Chase tried to argue that its deed of trust was as good as recorded, since Jill listed the debt as “secured” in her bankruptcy schedules, but the court disagreed saying “if schedules could defeat the trustee’s status as a bona fide purchaser…, a debtor could use simultaneous filing of (the) petition and the schedules to favor one creditor over others.”

Chase also argued it should at least have a security interest in the property to the extent of the loan it paid off (the $122,400 deed of trust), but again the court disagreed citing the overriding purpose of section 544 to treat creditors equally.

Moral:  This is a classic example of section 544(a)(3) in operation.  It is sometimes called the “avoiding” or “strong arm” power.

Seems harsh when you consider the Chase loan was, in a sense, purchase money; but there’s no crying in bankruptcy.

The result here benefits Jill’s unsecured creditors (a group that now includes Chase), and also benefits Jill to the extent her “homestead” may be exempt from claims in bankruptcy.  Since he is not a co-debtor in the bankruptcy, this decision does not affect Will’s interest in the condo (whatever that may be).

The case is In re Deuel (Chase Manhattan Bank v. Taxel), 594 F.3d 1073 (9th Cir. 2010).

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Typo 2

Sunday, April 18th, 2010

“There must be some mistake….”

David and Roshan were the first owners of this house in San Marcos, California.

A buyer stuck with his sellers' debt

Within two years the couple refinanced three times, and took out a home equity credit line. Then Roshan filed for divorce.

The court ordered that the house be sold. Since Roshan was uncooperative, David handled the details.

The buyer, Kirk, was quite happy with the home, but puzzled by letters he was getting about an old credit line deed of trust. It seemed the credit line remained open, and was in arrears. Worse, the deed of trust continued to encumber Kirk’s property and the lender threatened to foreclose.

Kirk notified his title company, and within days the mystery was explained.

When it handled Kirk’s purchase, the title company had searched the title but failed to find the problem deed of trust because of a typographical error in its description of the property. Mainly, the document described the correct lot number, but an incorrect map number. Instead of referring to Map No. 13915 (the correct number) the deed of trust made it Map No. 13925. Otherwise, the deed of trust had the correct property address and assessor’s parcel number.

The title company had relied on a search of their proprietary (privately owned) computer database.  This database is programmed with a geographical index.  So in this case the mysterious deed of trust was missed because the searcher entered Map No. 13915, the correct number, in the search field. If instead they had searched the grantor-grantee index in the county recorder’s office, the title company should have found the deed of trust and it would have been taken care of when Kirk bought the house.

In California, as in other states, recording laws state that a duly recorded document imparts constructive notice of its contents. So, legally speaking, Kirk acquired the property subject to the deed of trust, and it could be foreclosed against his ownership.

In other words, he was stuck with his sellers’ debt.

Title insurance paid $110,000 to obtain a release of the deed of trust, and the insurance company has only hopes of recovery from David and Roshan.

Moral: To meet customer expectations title companies have had to expedite real estate transactions through computerized processes and streamlined procedures. There may be new risks involved, but hidden risk has always been a reason for title insurance.

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