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If the assignment of a security deed is...

Resolved • Response time -45 minutes

5 Nov 2013

If the assignment of a security deed is forged or otherwise not properly attested to, it is voidable. I don't suppose the exact action matters, but generally it may come up in a wrongful foreclosure action. Question is, upon a showing of proof that the assignment was not properly attested to, can you simply move the court to declare it void, or do you have to file a quiet title action to have the assignment voided? My guess is that you can move the court to do so, and a positive ruling would give you a leg up on a subsequent quiet title action. If you can move the court to void the instrument, part B of the question would be does that make it possible to do a "back door" quiet title within the action. To keep it simple, consider that the assignment being declared void was the only hurdle to obtaining clear title. In addition to only voiding the assignment, could the court grant you clear title? In essence, it appears you would be getting the result of a quiet title action without having to jump through the extra hoops, were that allowed. So I guess the question is can you get an instrument voided without filing a quiet title action, and is it possible, upon tightly drawn parameters, to get that court to grant clear title, with the controlling issue probably being when is a quiet title action required?
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5 Nov 2013

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Real Estate Lawyer's response
5 Nov 2013
Irwin Law
Irwin Law
In order to "move" the court to do anything, it must be done within the context of a pending suit. If there is no suit pending, then you would have to file for a declaratory judgment as to the validity of the deed or assignment that you wish to challenge. I hope that this information is helpful. If you need further information, please just send me a reply asking for clarification. After that, I hope you will enter a positive rating so that I will be credited for assisting you. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using this service. Your business is appreciated.
5 Nov 2013
Customer reply
5 Nov 2013
It does not appear that you read my question. To cover what you did not respond to, I would have to retype the entire question, which I see no need to do. Please read and re-answer or pass it on to someone else, please.
5 Nov 2013
Real Estate Lawyer's response
5 Nov 2013
Ely
Ely
Counselor at Law
Hello friend. My name is XXX, XXX welcome to Pearl. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my reply. Your other expert has opted out and I have opted in. If the assignment of a security deed is forged or otherwise not properly attested to, it is voidable. I don't suppose the exact action matters, but generally it may come up in a wrongful foreclosure action. Not necessarily. It does matter. To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one. So here, one really only has two causes of action: 1) Declaratory Judgment under O.C.G.A. § 9-4-1 et seq, where the Court has the right to decide on unclear issues and confirm individuals' rights and duties under it, or 2) A Quiet Title action. Or, BOTH. In fact, asking for a declaratory judgment AND a quiet title is best. The declaratory judgment only voids the assignment. Then the Quiet Title request "mops up" the matter by asking for a clear title. For the purpose of the answer, I will call both the DJ and the QT simply "quiet title." Question is, upon a showing of proof that the assignment was not properly attested to, can you simply move the court to declare it void, or do you have to file a quiet title action to have the assignment voided? One has to move the corut to declare it void. It would be a whole suit. There is no "quick" version. However, the suit may be won on a Summary Judgment motion, perhaps, if there is no question of law or fact. My guess is that you can move the court to do so, and a positive ruling would give you a leg up on a subsequent quiet title action. One would have to file a Quiet Title lawsuit, and then file a Summary Judgment motion and perhaps win it, thus, winning the suit without even having to go through the whole thing. If you can move the court to void the instrument, part B of the question would be does that make it possible to do a "back door" quiet title within the action. To keep it simple, consider that the assignment being declared void was the only hurdle to obtaining clear title. In addition to only voiding the assignment, could the court grant you clear title? As you can see, there is no back door here, unfortunately. In addition, one has to specifically ask the Court for a clear title at the time. It is not automatic. This is why the suit is best to be then a combination of two actions: declaratory judgment (to void the assignment) and quiet title (to get clear title). In essence, it appears you would be getting the result of a quiet title action without having to jump through the extra hoops, were that allowed. So I guess the question is can you get an instrument voided without filing a quiet title action, and is it possible, upon tightly drawn parameters, to get that court to grant clear title, with the controlling issue probably being when is a quiet title action required? See above. Unfortunately, there is no back door. The best way to go about this is: 1) File a Declaratory Judgment / Quiet Title suit, 2) Attempt to win at Summary Judgment (best), and if not, then 3) Seek a win in regular trial. I hope this helps and clarifies. Good luck. Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize. Gentle Reminder: Please use the continue the conversation button to keep chatting, or rate and submit your rating when we are finished.
5 Nov 2013
Customer reply
5 Nov 2013
Thank you for that. To slightly clarify; I'm racing the clock in fed, already dismissed/refiled, it's bare bones and I need to quickly amend before one of the defendants answers. Literally yesterday, I read through the requirements for quiet title, which requires a fair bit if info to be included, and my complaint encompasses four different properties. Considering my time problem, I'd prefer to leave off the quiet title and file it separately, so I don't screw it up or have it drag me out and not getting it right before someone answers. I've got notary fraud and forgery, among other things, as part of my existing complaint, so with time not allowing me to add quiet title, and you say I cannot get quiet title on the back of simply getting a dec judgment voiding the deeds, my plan was to move for summary judgment on the proof of forgery and improper attestation in order to get the deeds voided, and then use that as the basis for a quiet title action, as well as staving off foreclosure on the last property I have left, as I don't think they CAN foreclose once the security deed assignment has been voided. Will that work, or is quiet title a prerequisite to getting a deed voided?
5 Nov 2013
Real Estate Lawyer's response
5 Nov 2013
Ely
Ely
Counselor at Law
Thank you for your follow up. Unfortunately, I cannot tell you if that would work. Every case is different, as you of course understand. So I am hesitant to give you a "yes" or "no" here. One may need the quiet title to get clear title. Without it, the Court may void the assignment, but then the title is not 'clear' per se, and what is more, has been involved in a suit, so there is a potential cloud. Considering my time problem, I'd prefer to leave off the quiet title and file it separately, One can, but honestly, if possible, it is best to include this into an amended complaint, if at all possible. Either that, or perhaps have to file a separate case just for the quiet title. Sorry friend. Gentle Reminder: Please use the continue the conversation button to keep chatting, or rate and submit your rating when we are finished.
5 Nov 2013
Customer reply
5 Nov 2013
I got you on that - based on your first answer, I don't expect to get quiet title off the voided instrument; just wanted to make sure, and based upon my own personal "pucker factor" and should I decide it's too risky taking the time to add QT, that I can get the instrument(s) voided without QT being part and parcel of the same complaint, and that I can file the QT separate and with the judgment voiding the instruments in support, should I get that ruling that ruling.
5 Nov 2013
Real Estate Lawyer's response
5 Nov 2013
Ely
Ely
I think you have the general idea from your statements. However, I am cautious to use verbiage like "will" or "should." More like "possibly can." In the end, the Judge has a lot of discretion here, and of course one does not know which way the Court will rule, and/or, what the other party may claim. But, looks like you have a good idea, indeed. Gentle Reminder: Please use the continue the conversation button to keep chatting, or rate and submit your rating when we are finished.
Customer rating:
Ely
Ely
Counselor at Law
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5 Nov 2013
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