Banks Flexing Their Muscle at Clerk's Offices

Call about our rescission package. 954-495-9867 or 520-405-1688.

This is not a legal opinion. Consult with an attorney licensed in your jurisdiction.

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I just had a client tell me that the Clerk accepted his notice of interest in real property but not the attachments to his Notice of Interest in Real Property,as specified by F.S. §712.05. .

*The grounds stated by the clerk was that the notice of rescission was an attachment but could not be recorded because the Clerk determined that the notice of rescission was barred by the statute of limitations (which by the way they got wrong); the Clerk said the attachment of the notice of rescission to a facially valid recordable document was wrong and the Clerk would not accept it because the notice of rescission had to be sent within three days of the alleged loan.

*The fact that we are in litigation before a court of competent jurisdiction (which is also contested) in which we are contesting whether consummation ever occurred and if so when, was ignored with the implicit finding by the clerk that notice of rescission was barred by a statute of limitations — explicitly arrogating to the Clerk, the power to decide substantive issues.

*This is so obviously wrong that we can only conclude that the banks are exercising a corrupt influence on the office of the Clerk.

It appears that the Clerk’s office are crossing the line between being a clerk and being a judge. In my opinion the analysis below would be true in Florida and from what I hear from other lawyers, in all 50 states.

*People filing rescissions in the county records should, if the recording is refused by the Clerk, write a letter to the head of the administrative organization that constitutes the recording office in each jurisdiction where this is happening. If necessary it should be escalated to the county attorney. And if that doesn’t work it should be escalated to the level of bringing suit against the Clerk’s office for acting like a judge or jury when they have no such statutory powers.

Every state has laws setting forth the the legal requirement for recording an instrument where deeds and mortgages are recorded in the public records.

*Every state has a system of clerk’s to review each document and determine whether the document facially meets the requirements for recording.

*Every state has a court system to decide issues concerning real property and everything else.

*A facially valid document that complied with statutory requirements for filing in the county records can NOT be refused by the Clerk based upon their opinion of substantive law or the effect that the document will have on title. Only Judges sitting in courts of competent jurisdiction can do that. To say otherwise would be to allow a clerk to decide the permits of an issue without going through due process of lawsuit, answer, verdict and judgment.

In my opinion and in the opinion of many other lawyers and judges, the Clerk’s office has NO authority to make a determination as to whether the notice of rescission was valid, effective, defective or anything else. If the notice of rescission is an attachment to a facially valid instrument affecting title to real property and if that facially valid instrument refers to the notice of rescission as an exhibit, then the Clerk has NO DISCRETION to refuse the recording, as long as the appropriate fees are paid.

Their authority is limited to whether the filing meets the statutory requirements for filing an instrument affecting real property in the county records. They are playing on the bank side, which is not what they are supposed to do.

Tags: disclosure, foreclosure offense, fraud, recording, securitization, TILA rescission
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