What is Quiet Title? I ask this question to get the reader to think about the two faces of Quiet Title. First, Quiet Title is an equitable Cause of Action that many homeowners’ use to identify who may have an enforceable equitable claim to their title. The reason many homeowners file a lawsuit for Quiet Title as a cause of action is because they believe there is a cloud on the title to their property and that this action would “quiet” any challenges or claims to the title.

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What does this mean? This term is heard time and time again however I believe that few have an understanding of what is being said. In layman’s terms it literally means “a matter judged.” Res judicata is the principle that a matter may not, generally, be relitigated once it has been judged on the merits. If you have additional issues that were not brought forth prior to the case being adjudicated on the merits then you will be barred from bringing any additional issues. Holding your cards close and worrying that the opposing side will get an advantage if they see all of your cards will hurt you more than help you. This is called Claim preclusion.

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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.

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Now that more and more parties are coming forth with complaints for Declaratory Relief we need to have a more precise understanding as to what is that we are asking the courts to declare. First, one needs to understand, what is the end result the Plaintiff is looking to walk away with? This is not about Equity. This is about law.

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Laying the proper foundation is essential before one can begin building upon it. This applies to almost everything in life. It is no different in issues pertaining to foreclosure. Whether going on the offense or defense. When one desires to start building they need to make a determination as to what ingredients to use. Should I use straw or bricks? In a foreclosure action declaratory relief could be considered a brick and is a good start. A Declaratory judgment is a judgment of a court which determines rights of parties as well as establishing status quo. Unfortunately it is not used as much as it should be in this writer’s opinion. Many times this action will resolve some or all of the issues in the matter at hand. This determination refers to parties’ rights of issues presented.

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