Federal vs. State Is your Quiet Title Action getting shushed by a 12(b)(6)?

Lately this writer is seeing more and more Quiet Title complaints getting shot down before they even get off of the ground. Let us take a look at what exactly is going on. A complaint is filed into state court for a Quiet Title action that pertains to Title of Real Property. Within this Quiet Title complaint allegations are made that pertain to facts that will allow a legal remedy. It is the Cause of Action that is needed to justify the right to sue. The courts are asking the question: is there a proper cause of action being brought forth? While wrongful foreclosure, robosigners, and fraud all sound good, the truth is that these allegations are not a proper cause of action. The case that is filed into state court too often gets remanded immediately into federal court. Once remanded into federal court a motion to dismiss is filed and many times a 12(b) (6) ruling is given. This ruling states that there was a failure to state a claim upon which relief can be granted. This rule allows the court to dismiss a complaint before the development of a trial. A proper cause of action has not been given to the courts for which they can give relief. Within the Quiet Title complaint; the causes of action, at a state level, have been given. No federal causes of action have been entered within the Quiet Title complaint, thus no remedy can be given. Without concise specific arguments, using a proper federal cause of action, a dismissal will certainly be given. The goal is to get to trial; as the purpose of a trial is to test the facts. The defendants in the Quiet Title complaint file a Motion to Dismiss to test the law. The defendants objective is to deprive litigants of their right to trial by jury. Summary Judgment is one of the tools that are used to accomplish this. Many courts use summary judgment as a vehicle to implement a speedy and inexpensive resolution of litigation. In my opinion I would be looking at other avenues of action, as well as the state action simultaneously. A properly pleaded federal complaint can offer additional items that intend to run separately from the state action. A federal complaint would be for damages; in addition, there are other items that come into play. You would be playing offense verses defense. This is also a good venue to bring to light violations of federal statutes associated with improper conveyance of real property. In addition, I would be jockeying for a negotiable position by exposing the hearsay claims of improper parties that are coming forth claiming to be PETE: (Person Entitled to Enforce) in a foreclosure action.

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In this writers opinion one cannot have enough weapons in their arsenal to fight wrong doers. This is a war with many battles on many different fronts being played concurrently. Choose wisely your weapons in this fight.

Respectfully, Joseph Esquivel Mortgage Compliance Investigators Copyrighted 2014

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