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Monday, January 10, 2011

Foreclosures and the Failure of the American Land Title Recording System

I have just posted an essay to SSRN entitled "Foreclosures and the Failure of the American Land Title Recording System."  In it, I argue for the federalization of the land title recording system.  Here is my abstract:

In this essay, Marsh argues that the current foreclosure crisis should serve as a wake-up call for a long-overdue modernization of the American land title recording system.  Lenders invented the Mortgage Electronic Registration System (MERS) because the land title system, developed in a far different time and place, failed to meet the needs of the modern real estate industry.  But a private MERS-like system is not the answer.  Instead, Marsh argues that the federal government should implement a solution that replaces both the existing local land title system and MERS. 

An ideal system should be organized around some clear principles.  It should be transparent.  It should be easy to search, through dynamic, robust indexing, and easy to access, preferably through the Internet.  Documents in PDF form should be downloadable.  Electronic filing should be facilitated.  There should be uniformity and consistency in the rules governing the form and substance of documents eligible for recording.  The system should be public.  Establishing and protecting a clear registry of property interests is and should continue to be an essential function of government.

Any feedback would be greatly appreciated!

Tanya Marsh

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http://lawprofessors.typepad.com/property/2011/01/foreclosures-and-the-failure-of-the-american-land-title-recording-system.html

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Comments

MERS fails because it is proprietary and has NO audit capability ,, that was intentional to hide the footprints.. I think the land title systems need a standard set for electronic records but I don't see paper records being obsoleted, I want a thick paper file to always be archived as the "gold standard" because ANYTHING electronic can and will be FAKED.. I have a property in a county in Illinois (Hancock County) with no electronic access ,, it's all on paper.. I think that is an absurdity as there is no real backup in case a tornado or flood hits the courthouse.. However I have been in IT since the early 1980's and have seen how poorly the fedgov runs computer systems under it's control ,, often with enormous undisclosed data losses (I personally saw many datamanagement errors by the gov't that explain the $9Billion missing at BIA ,, and that was in the 1980's when a Billion was REAL money)...

Posted by: brian tracy | Jun 15, 2011 9:55:28 PM

WRONG ! WRONG ! WRONG !
State Rights would vanish. The Fed would find a way to completely screw it. On a national level, we have seen what Wall St. has done to the country with their Securitization of home loan schemes. Land does not move quickly, it's immobile, but home loans are manipulated at the speed of light. Look what MERS has done to Titles.

Posted by: Eugene Villarreal | Jun 16, 2011 5:37:50 AM

The internet is not a robust system... Security of the internet is an illusion... Hard copy documents must be preserved in a multitude of places for the system to be anti-fragile... A robust system is necessary but not sufficient... No fire, flood or war can wipe out all of such a redundant hard copy system... Hard copies cannot just disappear... As anyone who spends much time infront of a computer screen knows...Electronic copies can and often do disappear.. That is a given... Under extreme circumstances all electronic records could be wiped and unrecoverable... Electronic security is an oxymoron...
See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1864633

Posted by: John Casey | Jun 16, 2011 7:14:20 AM

The American land title system has straightforward goals. In conjunction with related state statutes, it is designed to establish a clear priority in title. To this end, the system is highly transparent.

Posted by: property deed | Jun 27, 2011 4:47:29 AM

What ever the future may bring, one rule of law must always apply and that is the Common Law regarding title transfer. It is not always possible to have access to pen and paper much less a computer. With that said, I am totally in favor of title "recording" on the net, but kept to a "County" and "State" format and the net record must be verifiable with a properly recorded paper document which could be a copy of what is filed on the net.

The recording of ownership to a anything regardless if it be in relation to land or a 1957 Chevrolet the method used should be totally understandable and accessible by all. It should be done under statues of fraud and nothing in the instrument worded or phrased in a misleading manor.

Like all legal issues, the jurisdictional questions must always be complied with. The county where the land or property is fixed to the land should continue to have jurisdiction over all "land title" within that county. The county should always be the record keeper to fixed property located in the respective county. The county would by law have jurisdiction over any issues in regard to ownership and the proper place for filing liens and recording mortgages.

The way it is nationwide at present, all land titles are held by or in each State Capital, and only "Deeds" or "Mortgages" or "notes," "liens" etc. are recorded at the county level. I have tried to record a "land title" at the county level and they simply refuse to record it. Since the "New Deal" and the NRA [National Recovery Act] of the 1930s all land titles were shipped off to the State Capital. There the real land titles are used to back “bonds” and to pay off such bonds we have an excise tax called a “property tax” which is not a tax on the land but a tax on the mortgage, the negotiable instrument.

The first "Fraud" that should be addressed in relation to "land" is the difference between a deed and a Bill Of Sale, a Land Title, Fee Simple Title, or the better perfected ownership of "land patent."

All "devices" related to ownership or invested interest in land or other forms of property should clearly show WHO or WHOM possesses the actual title at issue, if the true title is being held for security purposes only regardless the true owner if any should be clearly understood. If no party has a clear and complete title then that should be understood. A "DEED" only shows that each party mentioned has an invested interest but does not disclose how much each party has invested.

With all that said, the recording of "private title" to any real property should never be mandated by man made laws. I don't see how such mandates could be constitutional. It is no ones business who owns a thing, just as it is no ones business what ones given name is. We can be arrested under John or Jane Doe. Divine Right of Kings should never be encroached upon by their public servants or neighbors.

The Divine Right of the Sovereign American citizens to have access to a public record utilized to record ownership to any property should be provided and maintained by their public servant, but only used, should the Master desire the service, never mandated. Good honest public understandable records should be mandated for all "loans" "notes" "bonds" etc effecting the public's interest.

The recording of private loans or notes should never be mandated, but if the individual wished to record for all to see, then a public record system should be accessible by all the citizenry. The private sector is just that, their devices selected to safeguard their private transactions are of their own making and concern.

Land can not be easily moved or hidden like a automobile which can cause a damage and then flee from the seen of the damage. Recording the ownership of automobiles and placing a visible “number” on the vehicle so any victim can easily trace the owner has become a recognized and constitutional process.

But with the automobile and the land title, true ownership to either is hidden in the devices of record. One can not easily and publicly record ownership of their privately owned 1957 Chevy, they must “register” the 1957 Chevy as a “Motor Vehicle” as if it were used in interstate commerce. Thus the fraud, and the Police Powers Act come into play in regard to the now motor vehicle.

With land owner ship it works the same. With no loan against the land and complete ownership is undisputed, that person can not record the “title” to his land or property. They must record the land title in the form of a “deed” which brings into play the Police Powers Act and now the owner is not free to enjoy his own land without the State claiming to have an invested interest to protect. Zoning and building codes apply only to land where the State has a Compelling Interest.

Last but not least, land records should never, ever be placed into the hands of any Private Corporation to place their bonds and liens against. I personally think the Federal Reserve Corporation is the evilest of all beast created by man. Most see it as our government when it is only a corporation in charge of currency. We the people are self governed. Only in America are the people sovereign with Divine Rights of Kings granted them in the form of unalienable rights.

In a Constitutional Republic like we have, any public records should be maintained by the people’s public servants for the people by the people and of the people. Never should public records be placed in the hand of any corporation. Private records such as medical records, banking records, utility records accordingly kept by the Corporation of interest but never shared with the public.
By Larry Milby for Southern Christian Ministries

Posted by: Larry Milby/Southern Christian Ministries | Sep 5, 2011 10:38:45 AM

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