Legal Question in Real Estate Law in California
Quiet Title Action Question:
I am current on my mortgage
it is a MERS mortgage
California Sigle Family Home
If my lender lost the note can I remove the lien on my home with a quiet title action
3 Answers from Attorneys
By all means a quiet title is designed to remove liens and other encumbrances that are on title when the should not be there. I am handling such cases.
No. First, the lien on your home is evidenced by the recorded deed of trust. You could not overcome that evidence of a lien by means of a quiet-title action; that's a loser. Also, you'd be called as a witness at trial and would be placed in the position of having to commit perjury when asked questions about the existence of the lien if you tried to deny its existence. Finally, a lender can surmount the requirement to produce the original promissory note. Commercial Code section 3309 deals with "Enforcement of lost, destroyed or stolen instrument" and has been held by the California Court of Appeal (in an unpublished case) to apply to the situation here (beneficiary of deed of trust unable to produce the original promissory note).
You would have to explain to the court why you made payments on a loan and then came to court and tried to claim that it did not exist.