The difference between paper instruments and real money

Posted on January 4, 2017 by Neil Garfield

There is a difference between the note contract and the mortgage contract. They each have different terms. And there is a difference between those two contracts and the “loan contract,” which is made up of the note, mortgage and required disclosures.Yet both lawyers and judges overlook those differences and come up with bad decisions or arguments that are not quite clever.

There is a difference between what a paper document says and the truth. To bridge that difference federal and state statutes simply define terms to be used in the resolution of any controversy in which a paper instrument is involved. These statutes, which are quite clear, specifically define various terms as they must be used in a court of law.

The history of the law of “Bills and Notes” or “Negotiable Instruments” is rather easy to follow as centuries of common law experience developed an understanding of the problems and solutions.

The terms have been defined and they are the law not only statewide, but throughout the country, with the governing elements clearly set forth in each state’s adoption of the UCC (Uniform Commercial Code) as the template for laws passed in their state.

The problem now is that most judges and lawyers are using those terms that have their own legal meaning without differentiating them; thus the meaning of those “terms of art” are being used interchangeably. This reverses centuries of common law and statutory laws designed to prevent conflicting results. Those laws constrain a judge to follow them, not re-write them. Ignoring the true meaning of those terms results in an effective policy of straying further and further from the truth.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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So an interesting case came up in which it is obvious that neither the judge nor the bank attorneys are paying any attention to the law and instead devoting their attention to making sure the bank wins — even at the cost of overturning hundreds of years of precedent.
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The case involves a husband who “signed the note,” and a wife who didn’t sign the note. However the wife signed the mortgage. The Husband died and a probate estate was opened and closed, in which the Wife received full title to the property from the estate of her Husband in addition to her own title on the deed as Husband and Wife (tenancy by the entireties).
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Under state law claims against the estate are barred when the probate case ends; however state law also provides that the lien (from a mortgage or otherwise) survives the probate. That means there is no claim to receive money in existence. Neither the debt nor the note can be enforced. The aim of being a nation of laws is to create a path toward finality, whether the result be just or unjust.
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There is an interesting point here. Husband owed the money and Wife did not and still doesn’t. If foreclosure of the mortgage lien is triggered by nonpayment on the note, it would appear that the mortgage lien is presently unenforceable by foreclosure except as to OTHER duties to maintain, pay taxes, insurance etc. (as stated in the mortgage).

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The “bank” could have entered the probate action as a claimant or it could have opened up the estate on their own and preserved their right to claim damages on the debt or the note (assuming they could allege AND prove legal standing). Notice my use of the terms “Debt” (which arises without any documentation) and “note,” which is a document that makes several statements that may or may not be true. The debt is one thing. The note is quite a different animal.
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It does not seem logical to sue the Wife for a default on an obligation she never had (i.e., the debt or the note). This is the quintessential circumstance where the Plaintiff has no standing because the Plaintiff has no claim against the Wife. She has no obligation on the promissory note because she never signed it.
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She might have a liability for the debt (not the obligation stated on the promissory note which is now barred by (a) she never signed it and (b) the closing of probate. The relief, if available, would probably come from causes of action lying in equity rather than “at law.” In any event she did not get the “loan” money and she was already vested with title ownership to the house, which is why demand was made for her signature on the mortgage.
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She should neither be sued for a nonexistent default on a nonexistent obligation nor should she logically be subject to losing money or property based upon such a suit. But the lien survives. What does that mean? The lien is one thing whereas the right to foreclose is another. The right to foreclose for nonpayment of the debt or the note has vanished.

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Since title is now entirely vested in the Wife by the deed and by operation of law in Probate it would seem logical that the “bank” should have either sued the Husband’s estate on the note or brought claims within the Probate action. If they wanted to sue for foreclosure then they should have done so when the estate was open and claims were not barred, which leads me to the next thought.

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The law and concurrent rules plainly state that claims are barred but perfected liens survive the Probate action. In this case they left off the legal description which means they never perfected their lien. The probate action does not eliminate the lien. But the claims for enforcement of the lien are effected, if the enforcement is based upon default in payment alone. The action on the note became barred with the closing of probate, but that left the lien intact, by operation of law.

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Hence when the house is sold and someone wants clear title for the sale or refinance of the home the “creditor” can demand payment of anything they want — probably up to the amount of the “loan ” plus contractual or statutory interest plus fees and costs (if there was an actual loan contract). The only catch is that whoever is making the claim must actually be either the “person” entitled to enforce the mortgage, to wit: the creditor who could prove payment for either the origination or purchase of the loan.
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The “free house” mythology has polluted judicial thinking. The mortgage remains as a valid encumbrance upon the land.

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This is akin to an IRS income tax lien on property that is protected by homestead. They can’t foreclose on the lien because it is homestead, BUT they do have a valid lien.

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In this case the mortgage remains a valid lien BUT the Wife cannot be sued for a default UNLESS she defaults in one or more of the terms of the mortgage (not the note and not the debt). She did not become a co-borrower when she signed the mortgage. But she did sign the mortgage and so SOME of the terms of the mortgage contract, other than payment of the loan contract, are enforceable by foreclosure.

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So if she fails to comply with zoning, or fails to maintain the property, or fails to comply with the provisions requiring her to pay property taxes and insurance, THEN they could foreclose on the mortgage against her. The promissory note contained no such provisions for those extra duties. The only obligation under the note was a clear statement as to the amounts due and when they were due.  There are no duties imposed by the Note other than payment of the debt. And THAT duty does not apply to the Wife.

The thing that most judges and most lawyers screw up is that there is a difference between each legal term, and those differences are important or they would not be used. Looking back at AMJUR (I still have the book award on Bills and Notes) the following rules are true in every state:

  1. The debt arises from the circumstances — e.g., a loan of money from A to B.
  2. The liability to pay the debt arises as a matter of law. So the debt becomes, by operation of law, a demand obligation. No documentation is necessary.
  3. The note is not the debt. Execution of the note creates an independent obligation. Thus a borrower may have two liabilities based upon (a) the loan of money in real life and (b) the execution of ANY promissory note.
  4. MERGER DOCTRINE: Under state law, if the borrower executes a promissory note to the party who gave him the loan then the debt becomes merged into the note and the note is evidence of the obligation. This shuts off the possibility that a borrower could be successfully attacked both for payment of the loan of money in real life AND for the independent obligation under the promissory note.
  5. Two liabilities, both of which can be enforced for the same loan. If the borrower executes a note to a third person who was not the party who loaned him/her money, then it is possible for the same borrower to be required, under law, to pay twice. First on the original obligation arising from the loan, (which can be defended with a valid defense such as that the obligation was paid) and second in the event that a third party purchased the note while it was not in default, in good faith and without knowledge of the borrower’s defenses. The borrower cannot defend against the latter because the state statute says that a holder in due course can enforce the note even if the borrower has valid defenses against the original parties who arranged the loan. In the first case (obligation arising from an actual loan of money) a failure to defend will result in a judgment and in the second case the defenses cannot be raised and a judgment will issue. Bottom Line: Signing a promissory note does not mean the maker actual received value or a loan of money, but if that note gets into the hands of a holder in due course, the maker is liable even if there was no actual transaction in real life.
  6. The obligor under the note (i.e., the maker) is not necessarily the same as the debtor. It depends upon who signed the note as the “maker” of the instrument. An obligor would include a guarantor who merely signed either the note or a separate instrument guaranteeing payment.
  7. The obligee under the note (i.e., the payee) is not necessarily the lender. It depends upon who made the loan.
  8. The note is evidence of the debt  — but that doesn’t “foreclose” the issue of whether someone might also sue on the debt — if the Payee on the note is different from the party who loaned the money, if any.
  9. In most instances with nearly all loans over the past 20 years, the payee on the note is not the same as the lender who originated the actual loan.

In no foreclosure case ever reviewed (2004-present era) by my office has anyone ever claimed that they were a holder in due course — thus corroborating the suspicion that they neither paid for the loan origination nor did they pay for the purchase of the loan.

If they had paid for it they would have asserted they were either the “lender” (i.e., the party who loaned money to the party from whom they are seeking collection) or the holder in due course i.e., a  third party who purchased the original note and mortgage for good value, in good faith and without any knowledge of the maker’s defenses). Notice I didn’t use the word “borrower” for that. The maker is liable to a party with HDC status regardless fo whether or not the maker was or was not a borrower.

“Banks” don’t claim to be the lender because that would entitle the “borrower” to raise defenses. They don’t claim HDC status because they would need to prove payment for the purchase of the paper instrument (i.e., the note). But the banks have succeeded in getting most courts to ERRONEOUSLY treat the “banks” as having HDC status, thus blocking the borrower’s defenses entirely. Thus the maker is left liable to non-creditors even if the same person as borrower also remains liable to whoever actually gave him/her the loan of money. And in the course of those actions most homeowners lose their home to imposters.

All of this is true, as I said, in every state including Florida. It is true not because I say it is true or even that it is entirely logical. It is true because of current state statutes in which the UCC was used as a template. And it is true because of centuries of common law in which the current law was refined and molded for an efficient marketplace. But what is also true is that law judges are the product of law school, in which they either skipped or slept through the class on Bills and Notes.

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9 Responses

  1. Robert, on August 4, 2017 at 6:35 am said:

    So the bank can take the note which is a promise to pay and treat it as a draft (check; an order to pay) if it meets the definition of both no matter what the title of the instrument is ( it could be titled money order) for instance. So after the bank takes the note at the closing the paperwork declares the “borrower” to be “lawfully seized” as the owner of the property. Since the bank has not yet made the loan due to the truth in lending law (3 day wait) the borrower could not be the owner of the home with the right to pledge it to the bank ( in return for a loan I have received) as the banks paperwork claims. Unless the note was converted into a payment in full for the home the borrower could not have pledged the home to the so called lender.

  2. Rhody, on January 4, 2017 at 5:36 pm said:

    Please write to your State senators to protect yourself from illegal foreclosure and multiplicative recoveries such as crooked banks getting deficiency judgements.
    All states in the United States must be anti-deficiency judgment states after foreclosure as11 states in this nation already are anti-deficiency states. Under the constitution this is discriminatory.

  4. losingmyhomeinflorida, on January 4, 2017 at 4:16 pm said:

    deadly clear you are right on . at the time we bought our home in 2006 my husband was on unemployment so I am the only one on the note. our credit scores were the same. wow so this is getting even deep er crap. his investor fraud. maybe………..also maybe with one person on the note later it would be easier to fake the signature than 2 people? remember we became gambling chips. default insurance on our home was probably so high because my credit score was so good.

  5. Deadly Clear, on January 4, 2017 at 3:10 pm said:

    It would appear, looking back on these types of transactions, that this is another example of lender fraud by showing only one spouse or marital partner on the note. The reason for limiting signatories on the note was the credit scoring could be diminished if the other partner had a lessor credit score and the computer program would not approve the loan. It was a standard practice – but that does not necessarily make it legal or ethical.

    Let’s face it, if the loan officer advised a customer to use only one partner (alone) with the highest score knowing that the pair together would not score high enough – wouldn’t the loan officer actually be defrauding the investors?

    Fortunately for the homeowners there was no disclosure about investors, securitization, the computer programs or other outside entities involved in the loan or reuse of the collateral. Homeowners thought they were dealing with the primary bank; they also thought that any advice they were given by the lender was approved by the bank who (they thought) had fiduciary duty to protect their interests and assets.

  6. Shadowcat, on January 4, 2017 at 1:32 pm said:

    KC as One Half of the Estate
    As Husband & Wife
    Tenancy by the Entirities

    Not a Maker…Nope!
    Granny is a Baker whose been And still remains Happily Married to the same man 35 years. ❤

    My Cookie Jars.

    Purchase & Sale Contract
    Reverse Purchase & Sale into Trust

    Two liabilities for the maker…oh yeah!
    But how did Grandma become a borrower?

    Many Blessings to All.

    Remember … Honesty is the Best Policy !
    Misrepresenting is Lying.
    & I Can Not Tell A Lie.

  7. losingmyhomeinflorida, on January 4, 2017 at 1:23 pm said:

    correct ronda. we own nothing. you have watch the movie zeitgeist addendum 2 on you tube to understand our true money system. it actually goes way way back to the British thrown, this movie will show that we live in what is called perpetual debt slavery. our birth certificates form some type of trust and that anything we purchase for credit is paid for by this trust and then “we” pay back the money with interest. then they got greedy and buy insurance on the debt that we will default especially on mortgages. then cause people to default like lose documents for a modification, telling homeowners not to pay ect. and then when the mortgage defaults the insurance pays. in the movie he explains its like buying insurance on your neighbors house because you know his 10 yr old kid is a pyromaniac. then you go and buy a lighter and give it to the kid and then the insurance pays you when the house burns down. same thing going on here. LPMi, Pmi, bail out money, fnm an ffdmc insurance, credit default swaps (see the movie the big short and this will be explained. I think it is on Netflix now) all pay for the homes 100’s of x over. the banks are just trying double dip. if you fight long enough (able to go pro se or have a lawyer that charges reasonable amount of many many years) the bank stops collecting default money and if the cant win the sell to the debt collectors. then it starts allover again. sad place for homeowners to be in. education is the key. each piece of new info helps us understand. knowing that we are chattel for a system helps you get angry and keep fighting for justice. we are very much part of the matrix.

  8. Ronda Scott, on January 4, 2017 at 12:26 pm said:

    When a bank sells a default asset to another collector does that qualify as a “sale” to collect the FDIC loss share insurance?

    The way I’m seeing things the bank has an opportunity to profit in many ways by creating a strategic default. My list includes: extorting high interest , stealing equity, charging inspection and appraisal fees, selling mortgage to a debt collector, filing for FDIC insurance. Am I missing anything?

    Ronda Scott

    Sent from my iPhone

    >

  9. Ronda Scott, on January 4, 2017 at 12:16 pm said:

    Thank you for helping me understand the difference between debt collector placing a lien on the property and a right to foreclose by a mortgage holder.

    I was wondering whether a lien holder could foreclose. I did not understand that foreclosure applies to mortgage holders to include collectors who purchased the mortgage at a reduced amount.

    Now I understand the confusion about the free house theory. It’s not free since the lien stays on the property and title cannot be cleared unless lien is paid. It’s not a free house in that the owner can’t sell the property without clearing the title.

    I suppose banks are in the business of generating debt on a home so that when the owner dies the estate is cleaned out by the bank.

    This way the bank owns all assets and individuals are slaves owned by the bank.

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