Semantics Make a Difference — CREDITOR and NON-BANK

Since I am making the point repeatedly in emails and calls I thought I might bring it up on the blog.I have changed one of my suggested strategies and I no longer recommend the immediate introduction of the term “pretender lender.”

THERE IS A DIFFERENCE BETWEEN THE USE OF THE WORDS “CREDITOR” AND “LENDER”.

THERE IS A DIFFERENCE BETWEEN THE USE OF THE WORDS “LENDER, “SERVICER”, “REAL PARTY IN INTEREST” ETC. AND “NON-BANK.”

Here’s the deal. If you use the word “lender” you are already conveying the sense that this is a legitimate loan, that your opposition is a party “in interest” who has advanced funds to the homeowner borrower, and that you are trying to dance your away around the inevitable. Anything you say after that is an attempt to regain ground you already lost. So object when they use the wrong terms and don’t fall into the trap of using the wrong terms yourselves.

It is far more accurate to refer to your opposition as a non-bank participant in the securitization scheme.

It is often the case that the parties seeking foreclosures are NOT banks or any kind of financial institutions. But even if the opposition says they represent “Wells Fargo” you should remind the court that Wells Fargo is acting in a non-bank capacity — they neither advanced funds nor processed the loan.

Then when you say you are seeking the identity of the creditor, the court won’t be confused. And by pounding on your opposition with the correct statement that they are a non-creditor seeking to enforce the mortgage without any interest in the note, it becomes clearer to the court as well.

Words make a difference. If you want to use the term “pretender lender” bring it up AFTER you have properly introduced the subject. This is a CHANGE FROM PRIOR SUGGESTIONS I HAVE MADE. Experience reported to me from lawyers and pro se litigants in court indicates that the words “pretender lender” are cute and might make a point, but not until you are fairly sure that you have the judge on your side or at least wavering.

18 Responses

  1. KM,
    Why don’t you hire a lawyer? You are going to need one for your appeal because it seems you have a tainted judge.

    The old adage seems to apply here.

    Good legal help ain’t cheap and cheap legal help ain’t good.

  2. ok that would be great if you can send it, so it can be referenced? Big loss today ——Plaintiffs motion to dismiss counterclaims was sustained…. Judge VERY RUDE stated…. you need to be very careful digging around on the internet for your case law and I will not hear any argument as I have already made my decision by presented briefs (and this is what he states at the beginning of each docket) …… Counterclaims — Count 1 TILA violations — Count 2 FDCPA violations…. he continued to state that cases cited have been reversed, remanded or otherwise and continued to dismiss my counterclaims…..case law used WHITE V WMC MORTGAGE, 2001 U.S. Dist LEXIS 15907, at * 5 (E.D. Pa. July 31, 2001) and WILLIAMS V GELT, 237 B.R. 590,598099 (E.D. Pa. 1999) and SEMAR V PLATTE VALLEY FEDERAL SAVINGS AND LOAN, 791 F. 2d 699 (9th Cir. 1986) and some others. These are all the cases used and referenced in many many foreclosure defense sites and information. I am sure since I am pro se – he didn’t even give my response the time of day.

  3. “This is a Great Day 4 me”. I wish I had money to support this site and the people who are giving so much help to all of us!
    I am at the stage of all motions filed to date “motion granting” Docket Text: ORDER granting [ 14 ] Motion to Stay Certain Pretrial Dead lines. Parties participation in a Rule 26( f ) conference Stayed until sixteen ( 16 ) days after Defendant pleads to Plaintiff’s ( us ) Amended Complaint. Initial disclosures and a joint preliminary report and discovery plan deadline stayed until ( 30 ) days after Defendant pleads in response to Plaintiff’s Amended Complaint. Sign By Magistrate Judge so and so Jan. 2010.
    I was so blessed to have had another Attorney spend exactly 51m 07s for free listen and give me his time free of charge. I am very concerned at this point primarily because In order for me to stay the coarse with my present council I just don’ t know if the atty. gets it. I have followed this site since around JAN.-FEB,
    2009.
    Biggest concern is to “Establish the Identity of the Creditor” right of the Bat Point out to the Judge that the Defendant Atty. is not sworn in and is not a witness and lacks the authority to ( I think this is were I need help I want to be sure that this is the best wording for the Judge to have favor with us….. ) (foreclose ) because the real parties in interest are not in Court and that they have ignored our request’s for any affirmative information be it a “Notice of Rescission”, second notice of Rescission, the Identity of the creditor ( non bank ) and the only response from them was an answer to our Original Complaint” filed with the This Court.
    Here is were I get fuzzy and sick to my stomach.
    Please let me know if I am headed in the right path so when I meet with my Attorney on next Monday that the above is perhaps the best strategy? I have only 30 minuets and hope it only takes 10.
    I have read the Civil Rules of Procedure and I am not an Attorney, never have I been and am not familiar in a Federal Court and it is quite intimidating.
    From all I have read on this “Greatest Blog in the whole World” Kudos to Neil and every one. I am so broke, and my credit so trash ( 786, 798, 814 ) avg 798. ( I am doing the score by memory) the economy has killed my business,not to mention a divorce on the top of the bubble, Damn it sucks to be me and ( just in this moment ). I have determined to “(L.O.L.) “Laugh out Loud” at every thing that is thrown my way.
    Any suggestions welcome Good or Bad.

    Thank you,

    Paul

  4. […] Semantics Make a Difference — CREDITOR and NON-BANK ? Livinglies’s Weblog […]

  5. to Robin Hood:

    Your Note is Non-negotiable. This means that if it was sold by the original lender party to another, that new purchaser does not have the authority to enforce the Note. The new man is just an Owner (if he paid for the Note) or a mere assignee, if he did not pay for the Note (called the “consideration” in legal-speak).

    If the Note is still with the first guy, the lender, then the Lender remains a Holder: he has the Note in his physical possession, and he has the authority to enforce the Note. Typically, notes are transferred (sometimes the same day, which presents further circumstances to attack on).

    Remember, a “Holder” is the only party that can enforce by filing suit in foreclosure, or by trust deed to sell the security (the house). To be a Holder, you have to be BOTH in physical possession of the Note AND have the authority to enforce. A non-negotiable note does not transfer the authority to enforce. That stays with the first guy. But since he is paid out, he loses the ability (not the authority) to enforce.

    If the Note were sold back to the first guy, then “maybe” he regains the ability to enforce. That does not appear to be your case (it would be highly theoretical, but not impossible set of events).

    This issue has been discussed at great length on this website. Poke around a bit in the comments sections and you will find lengthy discussions.

    If a “Trustee” tries to sell your house, e.g. by publication, IMMEDIATELY sue him in Quiet Title, alleging he is not a Holder as the Note is non-negotiable by virtue of its terms of reference to another document. The test is that the other document has to be referenced in order for the terms of the Note to be fully understood (“articulated” in lawyer-speak jargon). Include a Motion for Order to Show Cause (why injunctive relief should not be granted) with your suit, so the Judge can set an expedited Hearing Date; the trustee fellow has to show up and demonstrate to the Court that the Note is Negotiable, which he cannot do, and that he has the authority to foreclose, which he cannot do. And he has to provide the actual Original “wet-ink” note, which he probably also cannot do. Ask for big money damages, further alleging fraud, unfair trade practices, unclean hands, and whatever else you can toss at him. He will cave; his liability insurers will write you a nice check. be tough. They are abusing you.

    And to everybody else out there: don’t be shy about suing these clowns. Only when they (and the Courts) are buried in lawsuits from angry homeowners will this abusive nonsense finally stop. The the scum can go on to their next gigantic fraud – probably selling Russian Imperial Bonds.

  6. Confused & KM,

    I hate to seem less informed, but can you guys shed some light for me on the negotiable vs non-negotiable note?

    What are the pros & cons of both?

    I am located in the non-judicial Nevada… My note has a provision for the late charges of 5 % and also it is subject to the Security Agreement (Deed of Trust), which by the way was not properly & correctly dated by the notary…. So, I guess that makes my note non-negotiable? How does that help me in my home defense?

    I would appreciate any feedback on this.

  7. KM,

    I do not have a statute. I have case law. I will send it to you if you would like.

  8. Do you have the statue for that? Addition of late fees to make it non negotiable? Thanks

  9. I’m still in hunter / gatherer mode here and will use the “non bank” approach as my case progresses. What I could use help with is, somewhere in this blog I saw a reference to the “trustee” (in my case BONY, the one foreclosing) as questionable as to whether they are registered and able to conduct themselves in the capacity of a trustee in a certain state (colorado). If they are acting simply as “trustee for the certificate holders of CWALT…………. do they have to be registered as a certain entity and if so what’s the difference between being registered as a bank in the state and registered as a trustee, etc. etc.?
    Hi Jan.

  10. KIM,

    There is case law stating that a prepayment addendum does not render a negotiable instrument as non-negotiable. The rule of thumb is that if the document is merely referenced in the note, the note is negotiable. If the note is subject to the provisions of another document so that in order to understand the note, you have to read both documents, then the note is non-negotiable.

    In the State of Florida, the addition of late fees on a promissory note renders it non-negotiable.

    On my note, there is a reference to the Security Instrument. Then it goes one step further by stating that “that security instrument describes how and under what conditions I may be required to make immediate payment…some of those conditions are as follows…”

    I am making the argument that the addition of this section makes the note subject to the security instrument and therefore renders the note non-negotiable. My note also contains a provision for the payment of late fees so even if I lose on this particular argument, I know that under well-established Florida law, my note is non-negotiable.

  11. It follows the automatic guilt prejudice of allowing them to call you a borrower or debtor. You are immediately thought to owe the money and such type of description should be objectionable until a full and complete accounting of the loan determines your position.

    Your answer or admission of borrowing the money is part of the problem. Did they loan money to you or did they fraudulently misrepresent the transactions in the documents you signed.

    Prove to me that a Loan was made from the deposits of the bank or that the transaction was as represented and I may let you call me a borrower. Prove that all parties involved followed GAAP and FASB in the recording of the transaction and maybe you can call me a borrower.

    Question everything, Deny everything until they prove it.

  12. what about negotiable vs non negotiable instruments, does a pre payment addendum to the note make it non negotiable now?

  13. to Neil and others:

    Neil is right on the mark, no surprise here. Words make a tremendous impact.

    But I would go a step further. Using “non-bank participant” still casts a veneer of legitimacy. How about something like:

    “the Entity of uncertain provenance”

    The first time you use it, how about: “the entity of uncertain provenance that seeks to step forward with an uncertain claim that it might stand in the shoes of another.”

    When you call it “the entity” (or, if you are daring, “the uncertain entity”) then that conveys a real murkiness of just who are these guys? And then you go on to demonstrate that the Entity is but a sham corporation, set up in Delaware or Nevada with no Officers or Directors, an address that is a postal box, no desk, no chair, no filing cabinet. And you go to that physical address that they claim and you take along your camera and take pictures of the building, the name board at the elevator (where they are not listed), the doorway to the supposed “suite of offices” (which is barren and locked and no name or someone else’s name) and, when you get in, a picture of the receptionist inside, and then you blow up all the pictures as 8 x 10 glossy color photos as in the famous Song about litter (I know, I am dating myself back to the 60’s) and you shovel it all at the Judge: see, they are a sham, a fake, they have no existence, and they are not the “owners” of anything….

    And yup, I have done all that. Sure throws sand in the gears.

    And then watch the fireworks.

  14. […] Semantics Make a Difference — CREDITOR and NON-BANK « Livinglies’s Weblog […]

  15. THE A MAN

    True, my statements only say BoA is a servicer of my loan.

  16. the entire process seems fraught with half-truths, misnomers, verbal inaccuracies and terminalogical inexactitudes. How’s that?

  17. THANK G-D FOR KEEPING IT SIMPLE SAM (DONT LIKE STUPID). THEY ADMIT THEY ARE NOT THE LENDER ON THEIR MONTHLY STATEMENTS AT LEAST BANK OF AMERIFRAUD.

  18. Neil UR the best!!!

    “non-bank participant in the securitization scheme.

    How sweet the sound!

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