Notes are not debts. They are merely paper vehicles to enforce a debt.

without contesting the legal presumptions arising from the law of negotiable instruments, the presumption becomes fact for the case.

We don’t need to eliminate the trust altogether although it probably doesn’t exist. All the homeowner needs to show is that neither the trustee nor the trust owns any obligation from the homeowner that is owed to the trustee or trust.

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The problem here is as much with the homeowner as with anyone else. The homeowner is so insistent that his transaction was a loan that he/she cannot imagine how it could be otherwise and where his/her debt may have gone. And then if the homeowner gets an inkling, he/she is told that it is too steep a hill to climb in court. It isn’t steep but here is a hill. It starts with the questions/interrogatories as follows:

  1. Is it your contention that Defendants/homeowners owe a financial obligation (hereinafter the Obligation) payable in U.S dollars to the named Plaintiff (Defendants in nonjudicial states) in this court action?
  2. Is it your contention that the Obligation is currently established or entered as a category or label under accounts receivable (hereinafter the Account) on accounting ledgers that reflect financial transactions in which Plaintiff has been a party?
  3. Is it your contention that the Account is maintained in accordance with Generally Accepted Accounting Principles?
  4. Is it your contention that the Account was created as a result of Plaintiff paying money or other value?
  5. Is it your contention that the Account was created as a result of a legal conveyance of the Obligation from a settlor or trustor?

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In processing evidence that means that when you ask for evidence (to rebut the legal presumptions) they won’t be able to establish the existence of an account receivable and therefore won’t be able to establish ownership and therefore cannot complain of any loss resulting from any action by the homeowner. In plain language, they don’t have a case or issue in a controversy that can be recognized by the court. In legal words, it is a lack of jurisdiction.

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Much is made of the myth of moral dilemma, letting a homeowner go free from debt and keeping the home at the cost to and expense of investors. Those are all also assumptions, based upon pure myth.  Nobody loses money on the “loan” when a scheduled homeowner payment is not paid. In all the cases I have won or been instrumental in the homeowner winning against “all odds” we simply kept undercutting the presumption of the existence, ownership and authority over the debt. In each case, the judge phrased it as insufficiency of evidence but in some cases, the judge went further saying that there was no possible way the trustee or the trust ever acquired any obligation owed by the homeowners.

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Homeowners are not getting away “scot-free.” They are injured victims of a rapacious ruse. They were paid to play a concealed game and then after they played, they were tricked and tortured into paying back the incentive they had received. Adding insult to injury they weren’t paid enough to absorb the concealed risk, and the net consideration is below zero if you factor in the lie that enabled the labels “interest” and “fees” to be used. In plain language, homeowners were screwed in all of these deals.

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The fact that many have not yet seen the losses that were hidden by the scheme does not remove the presence of concealed risks and the homeowner’s entitlement to be paid for being duped into a scheme wherein the homeowner received less than nothing and the so-called “securitization” group kept all the revenues and profits.

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Notes are not debts. They are merely paper vehicles to enforce a debt. If there is no account receivable on any accounting ledger then there is no debt. If there is no debt, there is nothing to enforce, much less by the forced sale of homestead property.
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But without contesting the legal presumptions arising from the law of negotiable instruments, the presumption becomes fact for the case. Most homeowners have lost by either default or failure to understand how legal procedure works in the courtroom.
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So they deny the existence of the debt or ownership or authority, but they produce nothing to rebut the legal presumptions that apply because they are essentially arguing that the legal presumptions should not be applied. That argument can ONLY be addressed to the legislature that adopted the UCC verbatim. The courts have no choice but to apply the laws and the presumptions as they currently exist.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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7 Responses

  1. Agree with everyone here. But there are no banks involved in “crisis” foreclosures – only non-bank servicers. When attorneys represent something like — U.S. Bank, N.A., trustee for BS trust — the trustee is not represented. And, neither is the trust, because the trust cannot be represented without the trustee. A valid trust is distinct from the bank trustee. They are separate. I have only seen one case challenge this, and that case was settled. What the heck does “not in its individual capacity really mean?” Also, the trusts are non-compliant with Regulation AB — so if they claim to exist, it is without any justification or authority. It is the attorneys who lie about representation, and when questioned, the judge does nothing. Heard one judge say — “well the trustee name is there.” That is meaningless. The attorneys get away with it because the courts ignore.

  2. Unfortunately, judges as a group are immune from suit, and no judge sitting on a suit against a Judge is going to deny the immediate Motion to Dismiss. So that is not likely fruitful.

    However, what you can do is Grievance the Judge, by filing a Complaint with the Judicial review Committee, which each State has. But you have to be careful and measured and calm in your Grievance, or it gets shrugged off. Attorneys will not Grievance a judge, simply because they have to appear before that judge in other cases, and they will simply burn you before jeopardizing their relationship with the Court. It is a sad commentary, but hey, you are not going to change that clubby atmosphere. Now, if you write the Grievance in dry, cautious tone, then it makes the judge look bad to his reviewers, which include other judges and occasionally lay people. No judge likes to receive a trail of criticism, as that gets looked at when the Legislature goes to re-appoint sitting judges for another term. I have seen judges with 15 grievances not get re-appointed, so if that is part of the goal, get the other litigants to also write Grievances. It makes that Judge look bad.

    Going to judicial grievance is tricky and can backfire. Typically the judge will then recuse himself, so you don’t have to deal with that one again, but the substitute judge will know of the grievance and, if so motivated, will put in the time to screw you over.

    I know of one case where a banker’s realty empire got crushed by sham creditors. He fought back like all hell, which he could do as he was also a New York banker. So he is before the local court and the Judge says from the bench, on the Record, “Mr., you may prevail on your Motion here today, but I am going to see to it that you lose your house!” Where is this coming from? That old judge took a Calvinist religious approach to foreclosures: YOU did not pay the Note, so YOU are a deadbeat, and so YOU lose the house, and never mind that the entity claiming aggrievement is a complete stranger to the House and the loan! What is important to that type of Judge (and common enough) is that YOU are punished.

    With judges like that, there is no reasoning, so you might as well roll the dice and file a careful Grievance, and at least you get him off your case.

  3. Yes, sue them all. Start from Judges. They are actual highwaymen. They confiscate your property for non-existing “plaintiffs” to create a windfall revenue for Wall Street Banks. They torture you from the bench and ignore all your evidence – and even conceal it from you.

    Banks and their lawyers are under Judicial control, and if Judges will not allow them to commit crimes – no single bank or lawyer could be able to proceed.

    Even in default by homeowner, usually due to lack of service of process, judges STILL have no jurisdiction to rule for a non-existing party – or at least order them to file proof of existence.

    Now literally anyone who call themselves “bank” can steal anything through the Court, no questions asked.

    Its been over 20 years of non-stop highway robbery in Chancery Courts, accompanied by medieval tortures

  4. I once attempted the tactic of a “Motion for Proof of Authority” (to represent). The Judge actually replied from the Bench: “Well, they file an appearance, and we take them at their Word.”

    That is not an atypical response. However, unless the Judge issues an Opinion reciting specific facts, it does not deprive you of suing the attorney personally, in a separate action. “Res Judicata” does not kick in unless the Judge has previously Ruled on such a Motion and in his Ruling made a finding of specific facts. And he won’t do that.

    The reality is that homeowners are confronted with roving bands of attorneys acting as highwaymen, taking away home equity from victims just as if they held a gun to your head in the 16th century. If the roving attorneys looking for plunder are factually untethered to the named plaintiff as client, then I argue that no immunity from litigation can possibly exist. Let them produce their Retainer Agreement with the named plaintiff, and if that does not exist, you are already on the home stretch. Sue them all.

  5. Jan van Eck –this is the best post I have seen in awhile. You are absolutely right on!! You very eloquently state it as it is. And, representation is the first thing to challenge. But, most courts just ignore. Thank you. Thank you. Excellent!!!!!!

  6. Agreed Jan!!

  7. It is certainly true that the piece of paper with the word “Note” written on the top is not the debt. That said, the Note is treated as an articulation of the transaction, and/or as a recitation or memorandum describing the transaction. Neil goes further and declares that the “note” is not even that (an articulation), in that there is no accounts ledger to support the contention of debt.

    And that is likely true. The books that the so-called “Trustee” floats are not going to be ledgers that would pass muster as proper accounting records. But let’s remember that a “debt” is not necessarily the same as a “transaction” that would create a debt. The problem is that the judges assigned to foreclosure dockets are either retired old guys who are in a mental fog, or are younger appointees that grate against being sidelined to the foreclosure docket, and wreak that anger out onto the heads of hapless homeowners. And those two groups of judges will conflate “debt” with “note.”

    Going beyond Neil’s interesting and inherently logical attack on the plaintiff accounting records, I would set forth the proposition that the named plaintiff cannot reach past the obligations of the “note,” which involve the payment of monies to the Holder, into and to the Mortgage, which is pledged as a security for the actual debt, which is not the same thing as the note, itself a memorandum or articulation of the transaction (which itself, as Neil has argued, is likely not even a real transaction for the benefit of the homeowner, but instead a charade to be foisted upon deep-pocketed investors). The Note and the Mortgage are two different instruments, each issued for different purposes. the Note relates to the money; the mortgage relates to security for the debt.

    It is up to the named plaintiff to attempt to tie the two together. And they do that by bald-faced assertions in the pleadings, reciting their allegations as “facts.” And, typically, they get away with it.

    However, in lots of cases, if not all cases, the actual recited “Trustee” has no idea that some lawsuit is being promoted in its name, by some rogue attorney untethered to any client. You end up with the lawyer not attaching his Juris Number to the Complaint or the Pleadings, and not filing an Appearance in his own name but that of the firm, in some adroit attempt to be personally sued. I would contend that any attorney or law firm that represents to the Court that it is counsel for a Trustee when in fact it has been hired by some debt collector that tries to call itself a Servicer, is without privity to client, and thus the litigation privilege (of immunity to suit by the enraged homeowner) is not availing. So, short version, sue the lawyers. (Their insurers will be loathe to go to jury trial, so will write a big settlement check. I have seen checks over $100,000 written, by the insurers for that fellow Steven J. Baum out of Buffalo that ran a spectacular foreclosure mill until the Chief Court Administrator for NY got fed up with him). Sue them all.

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