Forget about the stories of the American Revolution that you learned in school. While there may be some truth to the whole religious freedom thing, the reality is religion was just one part of the story and frankly not the most critical part. Religion was more the colorful back story, idealistic propaganda more easily packaged and sold to unsuspecting kindergartners. The truth is the lido decks and first class cabins on the Nina, the Pinta and the Santa Maria were not filled to capacity because our ancestors were looking for a new church to go to, these luxury ocean liners and those that would follow were filled with tough and grizzled farmers and laborers who cared far more about their own prosperity than their own salvation. Indeed, a far more compelling reason that got our founding forefathers and mothers jumping on the New World conga line was to escape the oppressive and corrupt economic conditions that existed in the Old Country.
Now one part of the American Gothic story that is indisputably correct is that early American settlers were a hard-working, enterprising and wildly opportunistic bunch. Broken free from the shackles of an oppressive and corrupt economic system, they quickly farmed every square inch of the new country and worked 26 hour days. And here’s the most interesting thing. All this enterprise and commerce, all this farming and work was done in land that had no boundaries, that had no title records or history at all. Chaos and conflict ensued when one farmer asserted “his” land covered 10 square miles, while the adjoining landowner asserted his boundary followed the natural boundaries of say, the Potomac River. Now remember, not longer than 150 years ago, the United States weren’t really united at all. In fact we were much like today’s third world countries and our states were very much divided…many times divided over disputes over property lines and territory.
So this amazing little new patch of dirt called America had no property records, no land or lot lines yet every single square inch of this land was being farmed or mined or wrestled in order to feed the massive economic engine that was now roaring all across this New World. Disputes broke out all across the ‘hood, this farmer smiting out that farmer, this miner poppin’ a cap in that miner for exploiting “his” land. Squatters and homsteaders expanded outward making up the rules of ownership and the lines of property as they saw fit…and not surprisingly, the records of ownership and the actual lines of ownership rarely matched.
Our young country was exploding…both in economic output and in internal conflict. Chaos reigned across the land and because of the land from the gold rush miners in California to the farmers on the fertile east coast and everywhere in between. Forget about all other areas of the law, the laws that were most essential to our country’s development were the laws relating to real property because if we were unable to develop a stable and integrated system of property ownership, the explosive growth simply could not continue. And so that is exactly what happened in this country. Early in our young nation’s existence we developed a new and radical form of property ownership. In fact the “fee simple” manner in which most American’s own their property today was the very first private contract right that was established in the United States of America when it emerged in 1787. The absolute and unfettered manner in which our legal system evolved to allow Americans to own property is, more than any other factor, the reason we were propelled to such greatness.
Property Rights- The Real Story Behind American Exceptionalism?
You know how we’re all infected with the notion that America is greater than any other country on earth? Well, we’re all appropriately revisiting that national anthem in the midst of our current disease, and as we continue to experience the consequences of a law and an economy that has come completely unglued from any dose of reality, we will all be forced to come face to face with the undeniable truth that our entire country really is in the most dire and critical peril that perhaps we’ve ever faced, primarily because of a $14 trillion dollar deficit, exacerbated by a government run by the corporations that is only accelerating our drive off the economic cliff and sending our perverse reality into oblivion. But all that’s the future, let’s stick with the past.
The fact of the matter is the principle explanation behind America’s dominance, economically at least, was the system of real property ownership that was developed in this young country’s infancy. Never before had a people…all the people, been given an opportunity to tap into the greatest capital in the universe…the riches of the land. The system of property titling and ownership developed in the United States, for the very first time in the history of mankind, allowed all people to clearly and confidently own the land and because their ownership was absolute, they wrestled and worked and exploited that land with a fury and intensity never before seen. This was the spark that started the economic engine and the stable ownership was the foundation that kept the economy and the society stable for hundreds of years.
The essential character of the US property ownership extended far beyond our agrarian beginnings, carried us firmly through the industrial age and remained an absolute essential element straight through to the collapse we find ourselves in today. Along with clear and distinct ownership came an innovative new economic tool that had never before been used with such universality, the ability to borrow against the property that was so clearly owned. This aspect has allowed countless generations of Americans to tap into the immense value of the property they owned. Not just farmers, but budding industrialists in city centers and entrepreneurs in towns all across the country. Our nation’s entire banking and finance system has always been grounded in the stability and universality of our property records and ownership system. And, wait for it….here it comes…..the entire system is now coming unglued because the stability that our entire country’s economy was based upon…real property records has been completely trashed.
Our economy was in trouble in the late 1990’s, jobs were vanishing (remember what Ross Perot warned as about) and there was no fire left in our economic engine. So what did our policy makers do? Did we re-tool the factories or retrain workers like other industrialized nations did? No. Did we inspire and create with a new Moonshot? No. We turned to back into the stable past, back to the land and developed a way to once again wrestle from the dirt all that she had left to give. The overheated credit bubble was in many ways like a farmer overfarming his land, sucking out the last bit of nutrients, with no regard whatsoever for the future until nothing at all was left…and now nothing at all is left. We created nothing new, just an economy based on paper and vapor. We didn’t add anything new, just credit and derivatives and evil machinations of bankers and policy makers whose world only exists in spreadsheets. And along the way we decimated the critical foundation of this country….our system of real property ownership.
In virtually every county seat or borough in this nation you can go and pull the property records and trace the transfer of ownership of land from the beginning of recorded history. For a very practical lesson in history, go into your county courthouse to see and touch these records. When you see and feel these records, you can appreciate just how real and tangible and absolute our country’s property ownership had been….from the beginning of time. These records and books were meticulously maintained by a professional and dedicated staff. The followed explicit rules and procedures which protected the integrity of the records….and which literally safeguarded the very foundations upon which all of our communities are built.
Even today the physical paper records are first sent to the county or municipal seat where they are indexed into the Official Records Book. The OR books record not just property ownership and mortgages, but records like marriage and death certificates and the other legal records that are deemed so crucial to our society that they can never be destroyed. The rules that developed among and between our country’s county recorders were fairly uniform and consistent and the entire system functioned with amazing accuracy and efficiency. Remember, these records are not just legal documents, they are the sacred texts upon which our entire economy and in fact the stability upon which our entire society is built. And they were treated as such by our property recorders….until just a few years ago.
Our sacred property records and the rules relating to them began to be desecrated right around the time the MERS monster came online and spread across this country like a latent virulent virus laying in wait in the early nineties. Prior to MERS, the title attorneys, notaries, title abstractors and the professional staff that were the keepers of our sacred records carried out their recording duties with the kind of solemnity and respect most societies reserve for religious texts. There was little notary and execution fraud, the keepers of the texts remained vigilant to keep this evil out of the temple. There was a relatively small known group of keepers of the texts.
The keepers of the records were our Knights Titular, the title knights and they swore a sacred oath to keep and protect the texts. In order to become a knight I was locked away in training inside a secure compound which held all the sacred texts for days on end. Over and over, it was pounded into me that I had a duty to protect the texts and that the consequences for failing that duty was death….professional death at least. After many days, in a formal ceremony I was given the keys to the sacred temple, the password to unlock all the sacred texts. The oath I took was an insurance bond to one of the major title underwriters. The secured compound was the title plant where all of Florida’s Official Records from the beginning of time are now digitized and stored and the passwords are my login codes to access these computer systems. But the solemnity and the training were all very real and very serious.
But again all that changed just a few short years ago. The MERS monstrosity began its machinations at the same time the securitization serpent slithered its way through the actual foundations of our country. These twin beasts, MERS and Securitization quickly overran the sacred temple that was our property records and ownership. No longer were professionals and gatekeepers minding the temple of our records. No longer were attorneys and notaries who were known preparing and personally presenting these sacred documents to the formal keepers of the texts. Instead anonymous robots with zero training were given the keys to the temple and they quickly overran the place. Gone were the formalities of execution and oath. Obliterated were the checks of personal knowledge and responsibilities. In the most egregious example of this system gone totally awry, in some counties across this country, actual physical documents no longer exist, the sacred texts are electronic documents, illusory and fragmented, mere bits and bytes whizzing around in a totally unregulated cyberspace
And what part have our courts played in all of this? Until just a few short years ago our courts were the sacred keepers of the keys to the temple. Indeed, literally from the beginning of our country’s Officially Recorded history (the OR Book and page kind) our courts enforced the rules of the sacred texts. Attorneys and the title knights were entrusted to ensure the integrity of the procedures and the texts and they did enforce the rules. But then came the MERS Monster, the Secuitization Serpents, the Foreclosure Mills and the Rocket Dockets. Our courts, especially here in the State of Florida, were convinced that they must abandon their role as the sacred keepers of the keys to the temple and instead serve as handmaiden to the business and financial services industries that have so thoroughly undermined the very foundation upon which our country was built. Juxtapose all my history about sacred texts with today’s robo signing and document milling and 5 minute Summary Judgment hearings. All of that shows you just how far off course our courts have gone.
But there was, and still is, another way. It’s long past time to reject all the evils wrought upon the foundations of our country by the machine that has so desecrated the foundation upon which our country was built. It’s time to absolutely and directly reject the practices and procedures of the document mills and foreclosure factories. It’s time to reject the surrogate signers, the anonymous affiants and the impossible assignments. Other states have started to recognize the primacy of our nation’s Official Records and are beginning to reassert the solemnity of our Sacred Texts. We should all look to Arkansas and Hawaii and South Carolina because each have very recently taken very bold and dramatic steps to reclaim the keys to the sacred temples, and are reclaiming the highest ground that should be maintained by our courts.
We all need to take a look at the much bigger picture that frames this current conflict and understand just how vital a role our real property system plays in the economic and social order of our country. To do otherwise merely propels us deeper into the abyss.
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But S&P analysts expect “extraordinary official assistance to large players in the U.S. financial sector” to be made to fix the housing market and the economy at large.
