Time: Sat Dec 06 19:23:47 1997
To: <brendamc@admin.hilconet.com>
From: Paul Andrew Mitchell [address in tool bar]
Subject: need to talk

Hi Brenda,

I have put in approx. one hour so far,
reviewing the file you arranged so nicely, 
in proper chronological order.  Writing
this message has taken another 45 minutes,
or so, to think and draft.

I would like to speak with you on the
telephone, asap, about the theory
of your case.

Here are some observations, without going
to the next level of analysis:

The "quit claim" event is crucial.  Situate
it at Time 1 ("T1"), as follows:

       |          |          |
       |          |          trust owns land
       |          |
       |          quit claim
       Vernor owns land

For Vernor to prove that the trust had
allodial title at T2, he must be able
to carry his burden of establishing:

1.  allodial title at T0
2.  lawful (not fraudulent) conveyance
    of allodial title to the trust, at T1

Now, without answering this question, consider
the point in time at which Vernor took out the
loan of $100,000.  If that loan was made BEFORE
T1, then Vernor relinquished his claim to 
allodial title thereby.  If that loan was made
AFTER T1, then the trust relinquished its claim
to allodial title thereby.  As we say in the
legal profession, equity is brutal, and a bank
loan, using real property as collateral, is a
contract enforceable in equity.  The District
Court of Texas was convened in equity, and it
was asked to enforce a contract, and that is
exactly what it did. 

If Vernor no longer had allodial title at any 
time prior to T1, then he could not have
conveyed allodial title to the trust, because
it was not his to convey;  the title was 
clouded by a lien on that real property, 
which was put up as collateral to secure
the loan.  The bank is merely foreclosing
on its security interest, which appears to
be a lawful interest, at this point.

Likewise, if the trust no longer had allodial
title, after obtaining allodial title via the
Quit Claim, then the title was still clouded
by a lien on that real property, which was
put up as collateral to secure the loan.
Again, the bank is merely foreclosing on its
security interest, which appears to be a 
lawful interest, at this other point in time.

I am telling you these things in order to make
you aware of the major weaknesses which I see
in the case, thus far.  These weaknesses must
be overcome, or you probably will lose at the
appellate level, in my opinion.

Failing to appear is your biggest weakness,
all things considered.  If Vernor, either
as an individual or as a Trustee, now wants
to argue that the bank never loaned anything
of value, the bank can argue that he was
estopped by his failure to appear, in 
either capacity.

I understand that he did not record the 
Quit Claim, and this appears to have caused
some confusion, since the bank foreclosed
against the owner of record, who was not
the real owner any longer.  But, again, your
case is weak, because the complaint was brought
against Vernor in his individual capacity, 
in addition to his capacity as Trustee for
the trust.

I think he must make a really good case 
justifying his failure to answer the 
complaint and/or appear in court for any
hearing(s), since they were suing him
in both capacities (individual and Trustee).
What I seem to be missing are the full set
of documents he may have filed in that
court AFTER the judgment was entered.
Please correct me if I am wrong about this.

Did he object timely to improper service
of the original complaint?  The judge
found that service had been proper.
If you can prove that the judge made
an error here, you have something on
which you can hang your case.  However,
the judge only had before him, the facts
as presented by the Plaintiff, and those
facts were not controverted in any way.
Put yourself in the shoes of the judge:
a failure to appear by the named defendant(s)
is usually grounds for a default judgment,
and that is exactly what happened.  I do 
find it hard to fault the judge for what
he did, given all the apparent facts
before him.

If he wanted to prove allodial title,
he might be able to argue vagueness in
the pertinent Texas state statutes,
since it is not clear what people must
do with the property records still extant
in the County Recorder's office, if and
when a title reverts to allodium.  
As Trustee for the trust, he may have
been negligent for failing to perfect
the record in this regard -- hence,
another major weakness in his position.

Last, but not least, how would Vernor 
answer the objection that he did not
have authority to relinquish allodial
title, by offering the land as collateral?
I also think his position is somewhat
weak on this point, and we need to address
this privately, so that we are prepared
to answer it, if and when it should come up.

So, we are back to this crucial question:
was the loan obtained before, or after, T1
in time?  And, was Vernor aware, or should
he have been aware, that he probably 
relinquished allodium when the loan was

Please reply here with a time at which you
can call me tomorrow, and I will do my best
to be at the telephone right at that moment;
otherwise, let me know exactly when, and 
where, I can return your call, okay?

Please don't be discouraged by what I have
written here.  I must take care of the
problems I have identified above, before
we can decide on the most promising
appellate strategy.

Good night, Brenda!  And Thank You!!

/s/ Paul Mitchell,
Candidate for Congress
Counselor at Law


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