Lost deed of trust

[IHREDRIDER]

What is the name of your state? Tn

I refinanced my home in 2005, The lender failed to file a deed of trust with the court house. The old dded of trust was revoked. Now the lender wants me to sign a new deed of trust. I don't see were it is in my best interest to accomidate this request. Please let me know if it is in my best interest to sign a new one.

[seniorjudge]

...Please let me know if it is in my best interest to sign a new one....


Did you get any money out this deal?



(Yes, you should sign a new deed of trust BUT insist on a release of the old, unrecorded deed of trust being recorded in the land deed records of the county where the place is located. Yeah, that's weird, but it's been done before, believe me.)

[IHREDRIDER]

Ok, Why is it in my best interest to sign a new one? I understand why the lender wants me to sign a new one. It seems to me that they screwed up and did not do what I paid them to do, why should I accomidate them? I think that if the roles were reversed they would not help me.

[danno6925]

SJ: I agree in theory. I would agree to sign, since this is a simple clerical error. However, how would they release a lien that was never valid? If it wasn't recorded, it didn't exist in the county records.

My advice, check those records at the courthouse. If there's a DOT on record for your property, tell the lender to go pound sand, or as another poster likes to put it - tell them to bite rocks, you ain't signing squat until you see a RECORDED satisfaction piece.

[IHREDRIDER]

Update.

Apparently the lender/title Company have both lost the following documents.

deed of trust
correction of errors form
who knows what else.

They did not file the new deed of trust with the court house.
They did release the old deed of trust with the court house.

Where do I stand?
Can they force me to sign a new one?
What does it really mean to me and the lender if a deed of trust is not filed at the court house?

Thanks.

[seniorjudge]

Update.

Apparently the lender/title Company have both lost the following documents.

deed of trust
correction of errors form
who knows what else.

They did not file the new deed of trust with the court house.
They did release the old deed of trust with the court house.

Where do I stand?
Can they force me to sign a new one?
What does it really mean to me and the lender if a deed of trust is not filed at the court house?

Thanks.

An unrecorded deed of trust is still a lien on your real estate. Thus, it needs to be released.

Are you saying that the SECOND deed of trust is now lost?

[danno6925]

An unrecorded deed of trust is still a lien on your real estate. Thus, it needs to be released.

IMHO, a lien doesn't exist until it's on record at the courthouse. Is there case law to support the unrecorded lien position? If this is true, anyone could claim a lien on anyone else's house, just by producing a DOT that never made it to the courthouse.

IHREDRIDER:
Yikes. So the old DOT is still on record, meaning it might not have been paid off. Contact the holder of the old DOT - the one that's still on record - and find out if they ever received their payoff from the new lender. If they DID receive payoff, inform them that they are in violation of federal law regarding lien release. They had 45 days to remove the lien beginning the day they received the payoff. Tell them to remove it or you will sue for its release.

Wait, lemme get this straight - The lender no longer has the DOT or the errors and omissions paperwork that would compel you to sign a new DOT? This is the point where you laugh at them during the conversation and start asking "Uhhh, what deed of trust are you talking about, sir? ...Nope. No recollection of that one - you sure it was me who signed it?"

Seriously though, you're eventually going to have to provide them with a signature for that DOT. That doesn't mean you can't put the screws to them a little before you do. My first call would be to contact that new lender and ask them just how in the hell they expect to instill any kind of consumer confidence in you when they can't keep a single document safe long enough to get it to the local courthouse for recording? Offer to give them directions to the courthouse when they finally find these lost documents. Reinforce that they had better find them, cuz you only sign documents ONCE. When they do find it, maybe you could offer to ride along with them to make sure no one strays away from his task at hand like a five year old on a field trip - AGAIN.

I'd call the title company to rattle their cage a little too. Let them know in no uncertain terms that they had better find that DOT, cuz you ain't gonna sign another one without a court order,(their face will do something like this: when you mention the court order...) recorded releases for the one that's already on record AND the one that the moron at their company already lost. When the time comes, insist they come to you and on your time. After the DOT is signed, go with their representative to the courthouse, and make certain the nimrod actually gets there this time. Once it's recorded, go on your merry way like it never even happened.

If you REALLY wanted to have some fun with them, tell them you're considering refinancing at the end of the month, and that they'd better hurry up and fund that lost DOT.

[IHREDRIDER]

I think there's a little confusion. let me try to clear it up.

Reconstructed Chronology of Events

Had a DOT with company "X", recorded at QH.
Refinanced with company"X". May 2005
Company "X" released there DOT for the old loan. July 2005
Title company never recorded DOT for the new loan at the QH.
Title company lost all copies of DOT, and correction of errors form, and possibly others.
Company "X" lost all copies of DOT, and correction of errors form, and possibly others.



Now I wonder If Company "X" even has a copy of the Promissory note.
I talked with the Title company, they are very worried about the whole affair. They can't even file an affidavit at the QH cause they don't even have a copy to of the DOT to use.
I talked with the register of deeds at the QH. He said my house is free and clear as far as me selling it.

I told them I would be happy to sign what ever they needed as long as it was in my best interest. They seemed to think that I have something wrong with me for wanting to protect my interests.

Danno. you said I'm going to have to sign the new DOT anyway. Why? what other tools do they have to make me do that?

Senior judge. Yes the second (refinance) DOT is lost. and the correction of errors form to go with it. and possibly the entire file. What does this mean to me?

Thanks for your help

[danno6925]

OK, I'm a little more lucid about this now. You refinanced with the same company.

I talked with the Title company, they are very worried about the whole affair

Damn right they're worried. They're probably the ones who lost the mortgage in the first place. This is the nightmare ofd all nightmares at a title company. Lost or destroyed original docs that have not yet been to the courthouse for recording is the worst possible scenario for a title clerk.

More likely than not, what happened here is the DOT was placed into someone else's file, and now they can't figure out which one.

I talked with the register of deeds at the QH. He said my house is free and clear as far as me selling it

That's nice, but it doesn't reflect reality. You do have a mortgage, they (title co / lender) somehow lost it.

You would have the potential for a fraud conviction on your hands if you were to sell the house right now. There's that whole business over knowingly making statements you know to be false that they get all uptight about.

You said I'm going to have to sign the new DOT anyway. Why?

I'll glaze over the obvious answer that it's the right thing to do, and get right to the penalties they could levy against you. You could be indicted for fraud if you sold your house before this is resolved. See my answer above to clarify why this would be fraud.

what other tools do they have to make me do that?

They can (and probably will) petition the court to order you to sign another one. If they take that route, you will almost certainly be billed for their attorney fees/court costs - doesn't necessarily mean you would have to PAY those bills, but you would have to go to court and argue your case for not paying them.

You're in decidedly uncharted territory, so I'll make this the first time I'll say it - You should get an attorney to review this case. An attorney will have the foresight to make the lender/title company sign a document waiving any right to the legal fees or court costs, since you're such a swell guy and signed all the docs again.

I don't know the intricate ins and outs of TN property law, but it's entirely possible that a good lawyer can get you around this whole mess, and keep you from having to sign again. I am not a lawyer. You need genuine legal advice, and not the opinion of some guy who's worked in title insurance for less than a decade.

[IHREDRIDER]

Danno,

Thanks for your advise. I would like to make it clear that I am NOT going to sell my house. I was simply interested in the exact legalalities of the situation I am in. I would also like to be perfectly clear on this point, I am NOT going to defalt on my financial obligations. Only a worm would do that. That being said, one never knows the future and I could lose my job and be put in a finacial bind for a time. It is nice to know that if that were to happen, no one could easily come in and yank my house away from me.

Well I think I'll deal exclusively with the lender from now on. They are the only ones I am obligated to. Besides that I feel that I was defrauded by the title company. I paid them (refinancing fees) to do a job (file documents) they failed to deliver and they took my money. They can deal with the lender as will I.

Thanks for your input.

[danno6925]

Besides that I feel that I was defrauded by the title company.

They would have defrauded you if they told you everything was fine, the docs are recorded and don't worry. They just did a sh!tty job for you. If anyone asks you to pay for the recording of the DOT again, direct them to the title company. You've already paid them to record these documents once before.

Call them (title co) find out who their underwriter is and file a complaint with them. The title company you dealt with is (more likely than not) simply an agent for the actual title insurance company. A call to the actual title insurer would likely cause the insurer to impliment an audit of ALL of the title co's files. Big time PITA for everyone who works there, but who knows - they might just find that DOT!

Again, make them come to your on your time. This ain't your mess, and you've fulfilled your part of the bargain already! Just don't stop paying that mortgage.