Two Legal Outrages

blind justiceProperty Title Theft

The latest twist in identity theft is a variation called Property Title Theft. Here’s how it works: The criminal acquires some compelling evidence that they own your house or business property (corporations are not immune to this con). This can be done by hacking land titles records, or forging documents and then using them to register a transfer of title to your property, or by using phony ‘power of attorney’ documents (having someone impersonate a family member or signing officer of your company). The criminals generally prefer to do this on mortgage-free properties, because if there are other claims on the property there is a risk that, when the mortgage-holder is called to verify their consent to the transfer of title, they’ll blow the whistle on the scam. The irony is that if you own the property mortgage-free, and the land titles office thinks they’re talking to the owner or owner’s legal representative, there’s no way for you to find out about it until it’s too late.

Now the criminal sells your property out from under you to an innocent third party, and disappears with the proceeds. And more than likely, the unsuspecting ‘buyer’ of your property takes out a big mortgage on your property to finance the deal. So now you’re out of house and home, and your property is saddled with a large mortgage, the innocent buyer is out the cash s/he put down on the property, and the mortgage company is out the mortgage funds. With the criminal long gone, which innocent party has to pay for the losses?

That all comes down to local laws and legal precedent. Where I live, in Ontario, precedent is on the side of the innocent buyer and mortgagor. Put yourself if their shoes — if you bought or funded the purchase of a property and, having laid out the money, then discovered that it was ‘sold’ to you by someone who didn’t really own it, wouldn’t you think it unfair to just kiss your money, and dreams of home-ownership, goodbye? So that means as the true owner of the property, you’re out in the street. You are no longer the legal owner of your own home, and have received nothing for the ‘sale’. Even if you have title insurance, you get compensated for the value of the property in cash, but you’re still evicted from your own home. Outrageous, no?

After recent investigations, a large number of Ontario real estate agents and real estate lawyers have been charged and/or disbarred for complicity in these crimes. In some cases they conspired in the frauds by putting through phony ‘quick-flip’ transfers of these properties at inflated prices (not hard to hide in the recent red-hot real estate market here), and using those phony prices as the bases to secure mortgages well in excess of the value of the property. In other cases, these agents have just been dupes taken in by genuine-looking paperwork or computer fraud.

So what can you do? There are laws in preparation in some jurisdictions to shift the burden of loss from the ‘seller’ to the ‘buyer’ and mortgagor, but that merely ruins the life and livelihood of a different victim of the fraud. There is no simple answer. Title insurance will keep you financially whole, but won’t save you losing possession of your house or business property. Registering a line of credit secured by your house with a financial institution (which would have to be notified if the house was sold) might work, depending on how diligent the bank offering the line is about questioning changes of ownership or new charges against the property. Doing an annual title search and an annual personal credit search might turn it up, if your timing is right, especially if identity theft is also involved. But, alas, in this big modern high-tech impersonal world, there is no sure-fire way to prevent this crime.

Bush’s New Xenophobic Detention & Torture Law

Equally outrageous is the new ‘two-tier’ detention and torture law that Bush pushed for and signed today, after Congress approved it with the help of a bloc of redneck Democrats. The new law basically protects the constitutional rights of American citizens against illegal detention and torture of the kind that has become commonplace under the Bush Regime. But it makes legal the unlimited detention without notification or charge and without limit on duration, and sleep deprivation, water-boarding and other forms of torture, of any citizen of any other country. The vaguely-worded law pays lip service to banning extreme forms of torture but leaves the decision on which forms of torture to use up to the president’s discretion.

That means that, as a Canadian, if I am visiting the US, or just passing through a US port, I can be arrested and sent to Guantanamo or any of the other secret US/CIA prisons abroad, without charge, or access to lawyers, and tortured for the rest of my life, on the say-so of any little American bureaucrat who decides he doesn’t like the look of my face. My only right would be to, eventually, have my ‘case’ heard by a closed-door military kangaroo court. I could go through what my countryman Maher Arar went through, and it would be completely ‘legal’.

The new law has already been applied to challenge hundreds of lawsuits filed by tortured and illegally detained prisoners in Guantanamo, as Bush tries to have the new law applied retroactively to ‘legalize’ its previous illegal acts.

The new law also poses a huge threat to US troops and citizens overseas. Any country that basically strips foreigners of the right of due process, and deprives them of Geneva Convention rights, can fully expect to have its citizens treated with the same contempt and disregard for their rights by foreign countries, especially those that are not particularly fond of the US government to begin with (and the number of such countries swells by the day under the Bush regime).

Outrageous. It is chilling that a large majority of US law-makers support this barbaric, xenophobic law, and the endlessly abusive treatment of illegally confined prisoners, nearly all of them innocent, that has gone on since 9/11. Foreigners traveling or stopping down in the US, or even thinking of going there for a weekend shopping trip — be very afraid.

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3 Responses to Two Legal Outrages

  1. Spencer says:

    I think the burden should be on none of the above, but on any attorney who facilitates the bogus title deal representing an ID thief. Counsel can and should do due diligence on the ID of any party effecting a transfer of title by simply doing some extra leg work to see if anyone else is connected to the identity claimed. Ask: Are these the complete set of documents you have to establish your identity? Then ask for more to be produced. See the last listed address of the owner, get the phone and call them. Putting a burden on the attorney to vouch for the identity, and covering that effort as a standardized closing cost would ensure that the criminal was flushed out early.

  2. Geez in the places I work with First Nations across Canada, that whole property title theft thing is old hat. It has been happening ever since Europeans arrived and claimed title on North America. In British Columbia much of the province remains in this state where the original owners, who had no mortgage or other “claim” on the land that was recognized in common law had their lands sold out from under them. And true to your post Dave, they were forced off their lands, in most cases on to reserves, the vast majority of which were later reduced in size by a government commission called the McKenna-McBride commission. When First Nations come to “claim” their title back, it is the non-Aboriginal owners who are deemed the aggreived party, and First Nations, according to the landmark Delgamuukw-Gisda’wa decision, are required to prove their title. So it has been going on for a while, that scam.

  3. Dave Pollard says:

    Spencer: I’d like to do that, but the lawyers who do this kind of shit are also the kind to find ways to weasel out of responsibility for everything. It’s their home turf, unfortunately.Chris: Yes, absolutely! It’s the model that underlies how we’re treating the problem today (i.e. the ‘innocent’ buyer is favoured over the robbed ‘seller’). The ideal answer, of course, is to acknowledge that the land belongs to no one (we belong to the land), and that none of us has any ‘rights’ to property, but only responsibilities for good stewardship of it. Perhaps one day we will be able to say this without getting a chorus of raised eyebrows in response.

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