Stopping a Foreclosure – Adjunctive Relief
Here is an alternative way to stop foreclosure we recently came across.
Let us know how you do with it, leave comments below this article. If you deem it appropriate for your situation (not legal advice).
Adjunctive Relief of Deed of Trust
There has been a degree of discussion on some of the other forums on getting alternative actions accepted by the county recorders. This brings to mind a number of alternative actions that I and others have attempted to use over the years to protect property against foreclosure or at least to raise inconvenient issues you can take into court they cannot afford to allow to receive due process and equal protection of the law for real adjudication lest their scam on the American people be exposed in case law or a case record. And so they must violate your rights to keep you from making the issue and then that becomes the issue if you know how to use it.
Some will recall we recently posted of a settlement for one of the people we were working with that was predicated exactly on this. We posted about an upcoming trial that had issues of discharge of the debt that obviously took place. We presented the oral argument on that part of the defense showing how to focus on the issues the court and other attorney wanted to avoid. She received an offer of $100,000 off of her $200,000 mortgage to drop her case. This illustrates the position they were in.
The particular action I am referring to now is to record a rider on the trust deed which you take the position was inadvertently left off, which because of certain facts and the principles of law and equity which by law accompany any contract made in the state, you still have the right to add to the trust deed and which ultimately allows you to release the lien.
RIDER TO TRUST DEED
ADDED AND EXECUTED BY SOLE GRANTOR
Excerpts from the rider entered and recorded reads as follows:
The Following Rider is added this date __________ 2015 to the existing Deed of Trust, dated, _______ recorded, _______ Record ________ Book____________ ,,,etc
NON-UNIFORM COVENANTS RIDER: Borrower further covenants and agrees as follows:
Protections and remedies to the Borrower: In accordance with the Uniform Commercial Code 1-103 and Mississippi Code 75-1-103 (do some research for your local similar code), unless specifically waived by the parties to this agreement, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, Bankruptcy, or other validating or invalidating cause shall supplement its provisions.
Accordingly, whereas, the asset of Borrower’s note, brought to the transaction by the Borrower, has funded or offset the funding of the loan he received so that in equity the Borrower is placed in the position of the equitable source, Principal and Originator of the loan, the Settlor of the loan under the laws of equity, and, the lender and creditor in equity, for the loan secured by this trust;
And, whereas, he was not so designated in that portion of this Deed of Trust signed by the Grantor on [date];
And whereas, in the principles of equity referenced in Mississippi Code 75-1-103 noted above, with regard to a loan agreement, the party who provides the financial vehicle or asset that funds the loan, if he is not so designated in the written contract, an implied, equitable constructive trust precedes and runs along with the written instruments of the agreement as may be necessary to protect the interests of the equitable source, Principal and Originator of the loan, the Settlor, who provided the consideration for the loan and was the equitable source and originator of it, such that [bank name], or its assigns and successors, thought beneficiary of this deed of trust in name, which is to collect the principle and interest on the loan from the Borrower, as debtor under the written note, [bank name], or its assigns and successors, in the equitable constructive trust adhering with it, is and has, in fact, been collecting the principle and interest for the Borrower as true beneficiary, equitable source, Principal and Originator and Settlor, who provided the equity and consideration for the loan, and which collection of payments is due in full to the Borrower as Settlor and beneficiary of the actual and constructive trust in operation for his protection upon completion of the contract or at whatever point the grantor and settlor of the trusts would chose to terminate this agreement.
Accordingly, in accordance with such equitable constructive trust adhering with this Deed of Trust, Borrower here states as a non-uniform covenant to that portion of this Deed of Trust signed by the Grantor on [date], Borrower Covenants and Affirms that [bank name], or its assigns and successors, which is to collect the principle and interest on the loan, as beneficiary under said constructive trust, is collecting the principle and interest for the Borrower as true beneficiary, equitable source, Principal and Originator and Settlor of this trust agreement, who provided the equity and consideration for the loan, and which collection of payments is due in full to the Borrower as Settlor and beneficiary of such actual and constructive trust in operation for his protection upon completion of the contract or at whatever point he, the grantor and settlor of this trust, would chose to terminate this agreement.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any rider(s) executed by Borrower and recorded with it.
You of course sign the rider. Remember, you were the only one who executed it in the first place. The lender had no part in it, so you can amend it without their permission.
Present it to the clerk with the accompanying memo:
Date: _______ 2015
To whom it may concern:
The following provision was inadvertently omitted from the Deed of Trust granted and signed by me as my act and deed on ____________________to __________________Trustee in behalf of _________________________ (assigned to ______________________________________)
As indicated in the document noted above, by signing it and any rider(s) executed by Borrower and recorded with it Borrower accepts and agrees to the terms and covenants contained therein. Please attach to previous Deed of Trust copy accordingly.
This makes it appear you are taking more burden on yourself, which the clerk nor the bank would object to, when actually this is giving you the right to release or cancel the trust deed yourself.
I think I may have posted the elaborate argument putting pressure on the clerk to record it because as we said there:
- According to this Deed of Trust I granted it says I am the lawfully seized, clear titled owner of the property when I gave it to them. I had no written obligation here requiring me to do that.
- I am the only one making the agreement here (a trust), the only one signing and granting anything in it.
- According to state law 75-1-103 unless specifically waived by the parties to this agreement, the principles of law and equity supplement its provisions.
- In other words this provision has been there the whole time according to law.
- Here is my sworn affidavit of my position in the overall contract that establishes the provision for the inclusion of this rider in equity.
- There is nothing in the deed of trust that excludes the addition of such a rider or such provisions of equity applying here.
- When I signed it the first time it said, BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any rider(s) executed by Borrower and recorded with it.
- The people that recorded it attached no notice or claim this was all there was and that nothing else could be added that I the maker and grantor of the trust in the first place could not choose to grant or that such a principle in equity did not apply here.
- In other words I am giving you something to record on to a legal document I was the only signer and grantor of, that says I did not have to grant it in the first place. I was already the clear titled owner, and that the law says this provision has been there the whole time,
I have given you a sworn affidavit saying that it is,
COMMENT: There is no provision in the document excluding any further riders or that such a principle in equity does not apply here. There is no dispute over my right to add such a rider that is already there by those who recorded it. The document even says I am the one accepting and taking responsibility to keep the terms of the agreement or any riders executed by me and recorded with it.
After it is recorded in a few days you can go back in to record your release, which the trust deed now gives you the right to do.
RELEASE OF DEED OF TRUST
TO THE CLERK OF THE CHANCERY COURT OF _____________COUNTY, WASHINGTON
You are hereby authorized and directed to cancel and release of record in your office the deed of trust executed by___________________________________, in favor of
_________________________________________ (Beneficiary of the written trust), acting under the implied, constructive trust that precedes and adheres with it in the laws of equity [and in accordance with the NON-UNIFORM COVENANTS RIDER recorded with this Deed of Trust providing for the same] in behalf of and representing ___(your name)________________________________:(Beneficiary in equity, Principal, Trustor, and Settlor of the trusts, both constructive in equity and written), recorded in Trust Deed Book ________, Page________, of the records of your office, and having been assigned to ______________________________________.
The indebtedness secured by said deed of trust has been executed, the loan discharged and cancelled by operation of law or otherwise, and this trust associated therewith is hereby terminated.
WITNESS MY SIGNATURE on this, the ____day of March, 2015.
By:_______________________________ ________ 2015
Beneficiary in Equity, Principal, Originator, Trustor
and Settlor of this Deed of Trust.
STATE OF __________________
COUNTY OF ________________
PERSONALLY APPEARED BEFORE ME, the undersigned authority in for the said county and state on this the ____day of March, 2015, the within named ____________________
____________________________and executed the foregoing.
Witness my hand and seal:
We have an argument to get the release recorded, but there is finally not much they can say given what the rider says that is now a part of the trust deed. It is really not the recorder’s fight anyway. The bank’s lawyers can deal with it. And they will. There is no idealism here that this is the end of it. When the bank realizes their trust deed has been released they will sue to get it reinstated. But you will have the opportunity to make public and documented in the record why you have the right to do what you did, which rights you really do have in equity (a place they don’t want to go), and that is what you will do if you know how, unless they come to terms with you to keep it from being brought up. THAT is the real opportunity to win. You have all the leverage.
This is really too much to post here and there are other things you can get into the public records that give you other rights that they don’t want to face either, but we will stop here to make sure there are no misconception in what we have said and see what questions there are.
On another very important subject let me add something.
Most people don’t understand this, but God was in Christ paying for all our sins on the cross and its over and done and finished and He’s not angry with us about anything anymore. The Bible says, He is for us, not against us.