What is the difference between the note and the debt? What difference does it make?

Posted on May 13, 2019 by Neil Garfield

NOTE: This case reads like  law review article. It is well worth reading and studying, piece by piece. Judge Marx has taken a lot of time to research, analyze the documents, and write a very clear opinion on the truth about the documents that were used in this case, and by extension the documents that are used in most foreclosure cases.

Simple answer: if you had a debt to pay would you pay it to the owner of the debt or someone else who says that you should pay them instead? It’s obvious.

Second question: if the owner of the debt is really different than the party claiming to collect it, why hasn’t the owner shown up? This answer is not so obvious nor is it simple. The short version is that the owners of the risk of loss have contracted away their right to collect on the debt, note or mortgage.

Third question: why are the technical requirements of an indorsement, allonge etc so important? This is also simple: it is the only way to provide assurance that the holder of the note is the owner of the note. This is important if the note is going to be treated as evidence of ownership of the debt.

NY Slip Opinion: Judge Paul I Marx carefully analyzed the facts and the law and found that there was a failure to firmly affix the alleged allonge which means that the note possessor must prove, rather than presume, that the possessor is a holder with rights to enforce. U.S. Bank, N.A. as Trustee v Cannella April 15, 2019.

Now the lawyers who claim U.S. Bank, N.A. is their client must prove something that doesn’t exist in the real world. This a problem because U.S. Bank won’t and can’t cooperate and the investment bank won’t and can’t allow their name to be used in foreclosures.

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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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Words actually matter — in the world of of American Justice, under law, without words, nothing matters.
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So it is especially important to presume nothing and actually read words without making any assumptions. Much of what we see in the language of what is presented as a conveyance is essentially the same as a quitclaim deed in which there is no warranty of title and which simply grants any interest that the grantor MIGHT have. It is this type of wording that the banks use to weaponize the justice system against homeowners.
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There is no warranty of title and there is no specific grant of ownership in an assignment of mortgage that merely says the assignor/grantor conveys “all beneficial interest under a certain mortgage.” Banks want courts to assume that means the note and the debt as well. But that specific wording is double-speak.
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It says it is granting rights to the mortgage; but the rest of wording  is making reference only to what is stated in the mortgage, which is not the note, the debt or any other rights. So in effect it is saying it is granting title to the mortgage and then saying the same thing again, without adding anything. That is the essence of double speak.
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In the Cannela Case Judge Marx saw the attempt to mislead the court and dealt with it:

The language in RPAPL § 258, which this Court emphasized—”together with the bond or obligation described in said mortgage“—stands in sharp contrast to the language used here in the Assignment—”all beneficial interest under a certain Mortgage”. If such language is mere surplusage, as Plaintiff seems to believe, the drafters of RPAPL § 258 would not have included it in a statutory form promulgated for general use as best practice.

So here is the real problem. The whole discussion in Canella is about the note, the indorsement and the allonge. But notice the language in the opinion — “The Assignment did not go on to state that the referenced debt “…. So the Judge let it slip (pardon the pun) that when he refers to the note he means the debt.

*

The courts are using “the debt” and “the note” as being interchangeable words meaning the same thing. I would admit that before the era of false claims of securitization I used the words, debt, note and mortgage interchangeably because while there were technical  difference in the legal meaning of those terms, they all DID mean the same thing to me and everyone else.
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While a note SHOULD be evidence of the debt and the possession of a note SHOULD be evidence of being a legal note holder and that SHOULD mean that the note holder probably has rights to enforce, and therefore that note “holder” should be the the owner of a debt claiming foreclosure rights under a duly assigned mortgage for which value was paid, none of that is true if the debt actually moved in one or more different directions — different that is from the paper trail fabricated by remote parties with no interest in the loan other than to collect their fees.
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The precise issue is raised because the courts have almost uniformly assumed that the burden shifts to the homeowner to show that the debt moved differently than the paper. This case shows that might not be true. But it will be true if not properly presented and argued. In effect what we are dealing with here is that there is a presumption to use the presumption.
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If Person A buys the debt (for real) for value (money) he is the owner of the debt. But that is only true if he bought it from Person B who also paid value for the debt (funded the origination or acquisition of the loan). If not, the debt obviously could not possibly have moved from B to A.
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It is not legally possible to move the debt without payment of value. It IS possible to appoint agents to enforce it. But for those agents seeking to enforce it the debtor has a right to know why he should pay a stranger without proof that his debt is being collected for his creditor.
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The precise issue identified by the investment banks back in 1983 (when securitization started) is that even debts are made up of component parts. The investment banks saw they could enter into “private contracts” in which the risk of loss and other bets could be made totalling far more than the loan itself. This converted the profit potential on loans from being a few points to several thousand percent of each loan.
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The banks knew that only people with a strong background in accounting and investment banking would realize that the investment bank was a creditor for 30 days or less and that after that it was at most a servicer who was collecting “fees’ in addition to “trading profits” at the expense of everyone involved.
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And by creating contracts in which the investors disclaimed any direct right, title or interest in the collection of the loan, even though the investor assumed the entire risk of loss, the investment banks could claim and did claim that they had not sold off the debt. Any accountant will tell you that selling the entire risk of loss means that you sold off the entire debt.
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* Thus monthly payments, prepayments and foreclosure proceeds are absorbed by the investment bank and its affiliates under various guises but it never goes to reduce a debt owned by the people who have paid value for the debt. In this case, and all similar cases, U.S. Bank, N.A. as trustee (or any trustee) never received nor expected to receive any money from monthly payments, prepayments or foreclosure proceeds; but that didn’t stop the investment banks from naming the claimant as U.S. Bank, N.A. as trustee.
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**So then the note might be sold but the alleged transfer of a mortgage is a nullity because there was no actual transfer of the debt. Transfer of the debt ONLY occurs where value is paid. Transfer of notes occurs regardless of whether value was paid.
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US laws in all 50 states all require that the enforcer of a mortgage be the same party who owns the debt or an agent who is actually authorized  by the owner of the debt to conduct the foreclosure. For that to be properly alleged and proven the identity of the owner of the debt must be disclosed.
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That duty to disclose might need to be enforced in discovery, a QWR, a DVL or a subpoena for deposition, but in all events if the borrower asks there is no legal choice for not answering, notwithstanding arguments that the information is private or proprietary.
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The only way that does not happen is if the borrower does not enforce the duty to disclose the principal. If the borrower does enforce but the court declines that is fertile grounds for appeal, as this case shows. Standing was denied to U.S. Bank, as Trustee, because it failed to prove it was the holder of the note prior to initiating foreclosure.
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It failed because the fabricated allonge was not shown to be have been firmly attached so as to become part of the note itself.
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Thus the facts behind the negotiation of the note came into doubt and the presumptions sought by attorneys for the named claimant were thrown out. Now they must prove through evidence of transactions in the real world that the debt moved, instead of presuming the movement from the movement of the note.
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But if B then executes an indorsement to Person C you have a problem. Person A owns the debt but Person C owns the note. Both are true statements. Unless the indorsement occurred at the instruction of Person B, it creates an entirely new and separate liability under the UCC, since the note no longer serves as title to the debt but rather serves as presumptive liability of a maker under the UCC with its own set of rules.
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And notwithstanding the terms of the mortgage to the contrary, the mortgage no longer secures the note, which is no longer evidence of the debt; hence the mortgage can only be enforced by the person who owns the debt, if at all. The note which can only be enforced pursuant to rules governing the enforcement of negotiable instruments, if that applies, is no longer secured by the mortgage because the law requires the mortgage to secure a debt and not just a promissory note. See UCC Article 9-203.
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This is what the doctrine of merger is intended to avoid — double liability. But merger does not happen when the debt owner and the Payee are different parties and neither one is the acknowledged agent of a common principal.
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Now if Person B never owned the debt to begin with but was still the payee on the note and the mortgagee on the mortgage you have yet another problem. The note and debt were split at closing. In law cases this is referred to as splitting the note and mortgage which is presumed not to occur unless there is a showing of intent to do so. In this case there was intent to do so. The source of lending did not get a note and mortgage and the broker did get a note and mortgage.
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Normally that would be fine if there was an agency contract between the originator and the investment bank who funded the loan. But the investment bank doesn’t want to admit such agency as it would be liable for lending and disclosure violations at closing, and for servicing violations after closing.
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***So when the paperwork is created that creates the illusion of transfer of the mortgage without any real transaction between the remote parties because it is the investment bank who is all times holding all the cards. No real transactions can occur without the investment bank. The mortgage and the note being transferred creates two separate legal events or consequences.
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Transfer of the note even without the debt creates a potential asset to the transferee whether they paid for it or not. If they paid for it they might even be a holder in due course with more rights than the actual owner of the debt. See UCC Article 3, holder in due course.
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Transfer of the note without the debt (i.e. transfer without payment of value) would simply transfer rights under the UCC and that would be independent of the debt and therefore the mortgage which, under existing law, can only be enforced by the owner of the debt notwithstanding language in the mortgage that refers to the note. The assignment of mortgage was not enough.
Some quotables from the Slip Opinion:

A plaintiff in an action to foreclose a mortgage “[g]enerally establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default”. U.S. Bank Nat. Ass’n v Sabloff, 153 AD3d 879, 880 [2nd Dept 2017] (citing Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689; see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684). However, where a defendant has affirmatively pleaded standing in the Answer,[6] the plaintiff must prove standing in order to prevail. Bank of New York Mellon v Gordon, 2019 NY Slip Op. 02306, 2019 WL 1372075, at *3 [2nd Dept March 27, 2019] (citing HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983, 983-984; HSBC Bank USA, N.A. v Calderon, 115 AD3d 708, 709; Bank of NY v Silverberg, 86 AD3d 274, 279).

A plaintiff establishes its standing in a mortgage foreclosure action by showing that it was the holder of the underlying note at the time the action was commenced. Sabloff, supra at 880 (citing Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361; U.S. Bank N.A. v Handler, 140 AD3d 948, 949). Where a plaintiff is not the original lender, it must show that the obligation was transferred to it either by a written assignment of the underlying note or the physical delivery of the note. Id. Because the mortgage automatically passes with the debt as an inseparable incident, a plaintiff must generally prove its standing to foreclose on the mortgage through either of these means, rather than by assignment of the mortgage. Id. (citing U.S. Bank, N.A. v Zwisler, 147 AD3d 804, 805; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754).

Turning to the substantive issue involving UCC § 3-202(2), Defendant contends that the provision requires that an allonge must be “permanently” affixed to the underlying note for the note to be negotiated by delivery. UCC § 3-202(1) states, in pertinent part, that if, as is the case here, “the instrument is payable to order it is negotiated by delivery with any necessary indorsement”. UCC § 3-202(1) (emphasis added). The pertinent language of UCC § 3-202(2) provides that when an indorsement is written on a separate piece of paper from a note, the paper must be “so firmly affixed thereto as to become a part thereof.” UCC § 3-202(2) (emphasis added); Bayview Loan Servicing, LLC v Kelly, 166 AD3d 843 [2nd Dept 2018]; HSBC Bank USA, N.A. v Roumiantseva, supra at 985; see also One Westbank FSB v Rodriguez, 161 AD3d 715, 716 [1st Dept 2018]; Slutsky v Blooming Grove Inn, 147 AD2d 208, 212 [2nd Dept 1989] (“The note secured by the mortgage is a negotiable instrument (see, UCC 3-104) which requires indorsement on the instrument itself `or on a paper so firmly affixed thereto as to become a part thereof’ (UCC 3-202[2]) in order to effectuate a valid `assignment’ of the entire instrument (cf., UCC 3-202 [3], [4])”).

[Editor’s note: if it were any other way the free spinning allonge would become a tradable commodity in its own right. ]

The Assignment did not go on to state that the referenced debt was simultaneously being assigned to Plaintiff.

 

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, investment banking, Investor, jurisdiction, legal standing, MBS TRUSTEE, originator, Pleading, prima facie case, Servicer, sham transactions, standing, STATUTES | Tagged: , , , , , , , , , , , |

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16 Responses

  1. davidsnieckus2, on May 14, 2019 at 3:27 pm said:

    Not that the following will stand up in court BUT when you understand money and it’s creation you will not only know you can win because the truth will eventually rise to the top, but you will see that this statement that Neil wrote : “Simple answer: if you had a debt to pay would you pay it to the owner of the debt or someone else who says that you should pay them instead? It’s obvious.” is not quite right.

    It’s not so obvious but the simpler answer is really…. There is no debt to pay because the bank or mortgage company NEVER lent any money….so we just eliminate the “IF you had a debt to pay”…..NO debt no need to pay….

    All the paperwork, and All the securitization, and ALL the analyzing of the documents, and all the robo-signing, all the claims made by the pretend lenders, and all the documents presented to the court are just false, misleading, deceptive and unlawful and illegal.

  2. David Starkey, on May 14, 2019 at 10:33 am said:

    Thank you again Neil. Your understanding is certainly evolving. It is too bad the courts and judges are so corrupt. Your arguments are sound but all the judge has to do is say they are not sound and its over for you. Sure, you can appeal but the judges just repeat the process of saying you are wrong. The fact is that the judges no longer have to follow the law. They don’t even have to bow to the decisions of the supreme court. Its a farce.

  3. ANON, on May 14, 2019 at 9:52 am said:

    Bob G —Agree – and the trade agreements did much damage to U.S. manufacturing. The trade wars need to fought. My point is that the victims of financial crisis never spoke out as a group – a large group. The fraud is massive.

    Cementboots — good luck with your tests. Hope you are OK.
    Point is — if the note was not paid off by the borrower at refinance, the note is not valid. .

  4. Bob G., on May 14, 2019 at 8:07 am said:

    ANON…I have no sympathy for the farmers. I’ve paying their corn to ethanol subsidy at the gas pump and at the butcher counter for many years now. The tariffs may hurt them, but they help increase U.S. manufacturing jobs. The U.S. was doing fine before we started importing close to a trillion dollars a year from China and before farmers had an export market to China. And by the way, one third of the U.S. corn crop now goes to ethanol production. And we were doing fine before ethanol gas was introduced. Suck it up farmers…it’s your turn.

  5. barney fife, on May 14, 2019 at 12:24 am said:

    @ cement boots – is that why you lost your house? What a nut,.

  6. CementBoots, on May 13, 2019 at 9:52 pm said:

    LANGUAGE ALERT (for the 15,000th time)

    Any Investor or Lender might be the Issuer of a LOAN (UCC9)
    A general loan on it’s own is INSECURE and dischargable in bankruptcy.

    ONLY a Titled Property Owner (on the county or state record) can be the Issuer of a SECURITY INSTRUMENT, MORTGAGE or DEED OF TRUST (UCC3) in support of a lender’s foregoing rights.

    The Borrower Grants the Mortgage to the Lender – Not The Lender to the Borrower!

    DO YOU GUYS GET THAT YET?
    DO YOU GUYS GET THAT YET?
    DO YOU GUYS GET THAT YET?

    If in the moments before your purchase, when you are directed to sign a mortgage or DOT agreement prior to the fulfillment of your purchase, you don’t legally own (have title to) the property in question at that time. YOU cannot issue a Mortgage or Deed of Trust against that property as a security instrument to secure a loan or anything else until after you legally own it and are on the title recorded in the county or state office. Until then you are a stranger to the property.

    None of the documents at closing state anything in the “future tense” like for example; Upon completion of this loan and purchase agreement and my taking legal possession of the underlying property, I pledge to grant a security interest in the form of a Mortgage or DOT to Lender A for the amount of $xxxxxx”… That would be the truth.

    You have been directed to constitute a fraud for the benefit of the paperwork junkies on the other side of the table.

    If an alleged assignor does not hold legal title or a lien to the property because of the underlying, incentivized fraud that the home buyer was lured into, they cannot issue an assignment of mortgage or DOT to any other person… or as Neil says “it is like a quit claim deed extending no rights whatsoever”.

    I could go on but I’m tired right now and have to go to the hospital for tests in the morning…

    Best always
    greg

  7. ANON, on May 13, 2019 at 9:03 pm said:

    OHH — forgot – I am paying. And, to who knows where???????

  8. ANON, on May 13, 2019 at 8:49 pm said:

    Thanks Neil. Cement — HAH — good one.

    Bob — You will see many “sold” to PHH. PHH will demand that they are the mortgagee, but when go to foreclosure – the story changes.

    Ocwen/PHH claims to hold the note/mortgage IF you are paying. But, then when borrowers are in foreclosure – all changes. This is despite fact that the trustee should be the holder for private label trusts. Nope – they are not, and they were never there to begin with. Warehouse lenders – never paid.

    There can be no negotiable NOTE if the loan was charged off by GSEs before the refinance. This is because the borrower never paid off the prior debt by the refinance – even though the refinance claimed to do same by the borrower. It did not. .That is what is missing.
    Investors do not give mortgages. Period.

    These non -bank originations have NO “LENDER.” NONE. And, that is despite the fact the contract says there is one.

    Today, heard good word to be used. Trade agreement fallout. The farmers crying. They claim to be the “collateral” fallout. Yes. And, this is whether you agree or not that the trade wars must be fought. The people were the “collateral fallout” of the financial crisis just as the farmers (and others) are of trade wars. The government – right or wrong in position – does not care.about collateral fallout. Yet, the farmers cry foul – as a group. The people did not do this as group for the financial crisis, I urged this a decade ago with no response. Everyone does their own battle. Those battles would have been more easily fought if we first stood together. We failed as LOUD group. .

    How does it feel when the government forsakes you? To be “collateral fallout?” Not good.

    Thank you all for your input. And to Neil to allow us this avenue. Just wish we could come together. Neil????
    Thanks.

  9. Bob G., on May 13, 2019 at 7:38 pm said:

    just dropped those requests for admissions on deutsche bank last week, and got notice late this afternoon that they sold the note to PHH Mortgage.

  10. CementBoots, on May 13, 2019 at 6:18 pm said:

    “is that your son by your wife”? Y/N If no, then no standing, If yes, then discovery for DNA to prove the claim. Maybe stupid simple?

  11. ANON, on May 13, 2019 at 5:05 pm said:

    Bob G — LOVE IT!!!!

  12. Sharon Simpson, on May 13, 2019 at 4:06 pm said:

    OUR LAWS DON’T WORK BECAUSE WE HAVE CORRUPT AGENCIES THAT ARE NOT DOING THEIR JOB.

    ALL THE LEGAL DOCUMENTS, LAWS, ENFORCEMENTS, PLAYING AROUND WITH WORDS THAT WORK OR NOT, ARE NOT GOING TO DO US ANY GOOD AS LONG AS WE HAVE POLITICIANS, JUDGES, ATTORNEYS, PARTNERS IN CRIME PLAYING POLITICAL GREED.

    ..time to replace judges that follow and respect our laws.

  13. Javagold, on May 13, 2019 at 3:26 pm said:

    Bob G.
    My man. I am with you 100% on that wording. Awesome. I’m doing exactly that on my Discovery. Many Thanks.

  14. Bob G., on May 13, 2019 at 12:04 pm said:

    On another note, to my way of thinking, Neil’s exposition above has way too many moving parts. Try and make that argument to a judge either orally or in writing. His/her eyes will glaze over, and judgment will be rendered in favor of the plaintiff. Ya gotta keep it real short and simple in order to get the judge and his law clerk focused on your main defense, forcing them to give it due consideration.

    Also, I recently came up with a new approach (at least for me) for a Notice to Admit. Instead of trying to get plaintiff to deny, you get them to admit. So instead of saying “Admit that the Plaintiff never paid value or consideration for the note,” you want to say “Admit that the plaintiff DID pay value or consideration for the note.”

    They can’t deny that, because if they do, it’s game over. But if they admit it–which they must–then that sets them up for a document production discovery demand. And they won’t be able to prove via documentation that which they just admitted.

  15. Bob G., on May 13, 2019 at 11:56 am said:

    Fannie probably doesn’t own the note. I don’t think that Fannie or Freddie hold notes in default. I think that they sell them off in billion dollar blocks to private equity funds.

  16. Javagold, on May 13, 2019 at 9:20 am said:

    UNSECURED debt.

    But how are these Servicer debt collectors able to be named as a plaintiff in foreclosure complaint when Fannie Mae owns the note ???

    How is Fannie Mae allowed to hide and get away with this ???

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