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Quieting a Cloud on Title
What is it that we are saying when we state: A cloud is on my title? First off we must
understand what a Colorable Claim to Title is and what Title is as those are two distinctly
different things. Colorable claim as defined by the Legal Information Institute of Cornell Law
School is stated as: A plausible legal claim. In other words, a claim strong enough to have a
reasonable chance of being valid if the legal basis is generally correct and the facts can be
proven in court. The claim need not actually result in a win. The banks are hoping that the
hearsay claims to title that are recorded into public record will be enough to steal the home
from beneath the homeowners. As defined in Hocking v. Title Ins. & Trust Co., 37 CaL 2d
644,648 (1951), title is "A common meaning [of the word 'title'] is complete ownership, in the
sense of all the rights, privileges, powers and immunities an owner may have with respect to
land." The documents that are filed into public record are done to memorialize transactions;
they do not cause the transactions. When the document being either an Assignment of
Mortgage or an Assignment of a Deed of Trust is filed into public record the purpose is to
memorialize the transaction of a sale of a Tangible Negotiable Instrument as well as the
acquisition of rights to title, it does not cause the sale.
The sale is to be in accordance to of your states equivalence to the Uniform Commercial Code
Article 3. The filing of the document purporting to be an Assignment of Mortgage or an
Assignment of Deed of Trust is to let the world know that a superior claim to title has taken
place. Recording an eligible document into public record gives constructive notice to the world
as to what has happened. The legal question never asked should be i.e.; Is this document
eligible to be recorded?
In the majority of the foreclosure actions that are taken against homeowners, the claimed
holder in due course has not acquired complete and lawful ownership of title. Although
mortgage servicers are able to foreclose under local laws of jurisdiction, that ability derives
from a principal/agency relationship with the owner of the indebtedness and that of a
perfected right to the real property. Therein lies the problem. The properly perfected claimed
right has not been lawfully acquired. A third party attempts to exercise a right on the
homeowners property without lawful authority to do so according to statutory requirements
of laws.
When a Quiet Title suit is filed, that is a cause for equitable relief. You are going into a court of
equity when you should be going into a court of law. In going into a court of law there are a few
things to take care of first. Before you take any action there should be findings of facts and
conclusion. In regards to the true sale pertaining to title of real property, the following
questions need to be addressed prior to taking any action. What did take place? What did not
take place? When was this to take place? What was supposed to take place in accordance to
the statutory requirements of law? It is only upon using a correctly applied methodology
identify the party entitled to enforce the note that a determination can be made if there is a
Party Entitled To Enforce. Upon applying the correct methodology in ascertaining the facts, one
can then identify what course of action it is that one would need to apply in order to achieve
the desired results. Quieting the Cloud on Title means unraveling the facts and hearsay claims
of colorable title from the statutory requirements of law required to achieve properly secured
title with legal rights.
As there is controversy pertaining to superior claims to the Title of Real property it would only
make sense to this writer to have a determination of a court as to the legal position of these
parties making a colorable claim to the title of real property. One way to obtain the Status
quo of the parties involved in this controversy would be through the use of a declaratory
judgment which is the legal determination of a court that resolves legal uncertainty for the
litigants. The declaratory judgment is generally considered a statutory remedy and not an
equitable remedy in the United States,

and is thus not subject to equitable requirements.
Declaratory judgments can provide legal certainty to each party in a matter when this could
resolve or assist in a disagreement. Often an early resolution of legal rights will resolve some or
all of the other issues in a matter.
In looking at actions in which a Declaratory Judgment may have positive results, one would look
at the Enforceability of Security Instrument and Enforceability of Promissory Note as to the
current party claiming an interest.
Laying the proper foundation of findings of facts and conclusions gives teeth to the cause of
action of Slander of Title and for a Declaratory Judgment.
There is no such thing as a free house. It is only the loss of an alternative means of collection
that is lost. One cannot lose what one never properly acquired in accordance to statutory
requirements of law.
Respectfully, Joseph Esquivel Mortgage
Compliance Investigators Copyrighted 2014