Why are you need to understand the difference between the mortgage and the note

Most pro se litigants and many attorneys start the defense with “yes, but”. But the successful defense starts with “what obligation?”

Technically speaking, the mortgage is not evidence of the legal debt or the underlying obligation. It might not even be evidence of the note. The note is evidence of an underlying obligation.

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The mortgage can only be introduced as evidence of an agreement to provide collateral for the performance of a duty: the duty to make payment on an underlying obligation. If there is no duty, there is no enforceable lien even if it is executed and recorded. There are several courts throughout the country that are making a mistake by treating the mortgage as though it was a note. It isn’t.
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A legal duty does not exist unless there is BOTH a person who is required to do something and a person who is entitled to receive the benefit of the performance of that duty. There are no exceptions to this rule in our legal system.
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Homeowners and their lawyers get confused because they know they have made a promise to pay which could create a legally enforceable duty if there was someone to whom the performance of that duty was owed. But at any time that the receiver vanishes, the duty ceases to exist. This leads almost everyone down the wrong path: “if the homeowner made a promise to pay, it must be due to someone.” In the world of investment banking that is simply not true.
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PRACTICE HINT THAT SHOULD NOT NEED TO BE STATED: IF THERE IS NO OBLIGATION OWED TO THE DESIGNATED CLAIMANT THERE IS NO ENFORCEABLE LIEN IN FAVOR OF THAT CLAIMANT. THIS IS 100% TRUE ALL OF THE TIME. 
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In other words, the idea that one could foreclose on a mortgage without owning a debt owed by the homeowner to the named designated claimant is pure rubbish. That idea has never been accepted in any court. The problem for homeowners is that the courts are presuming that the homeowner owes money to the designated named claimant when in fact that is not true. 
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The note could be introduced into evidence in court as proof of the matter asserted: that an underlying obligation exists. The note can be further used as proof of the terms upon which payment would be made by the maker of the note.
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And that is why possession of the original note raises the legal presumption that the possessor owns the underlying obligation. The key to all of this obviously is the underlying obligation. Does the homeowner owe money to the party that is claiming the right to be paid?
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Most pro se litigants and many attorneys start the defense with “yes, but”. But the successful defense starts with “what obligation?” They don’t deny that a promise was made to make scheduled payments. They simply contest the ability of anyone to enforce the promise. They are successful because the designated claimant is not owed any money from the homeowner.

From the point of view of evidence law, the fact that the designated named claimant is not owed any money from the homeowner is revealed by one of two things:

  • (1) an admission that the claimant carried no records of being owed any money from the homeowner on its accounting records and that it has never received the proceeds of any payment or forced collection (unlikely, in the extreme) or
  • (2) the inability or unwillingness of the foreclosure mill or the named claimant to answer interrogatories, requests for admission, or requests for production of documents.

Since every successful defense of foreclosure depends upon item #2, the reader should be aware that the evidentiary value of such a revelation is only useful to the homeowner after several motions to compel, motions for monetary sanctions, motions of evidentiary sanctions, motions in limine, and objections to the use of exhibits at trial.

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Neil F Garfield, MBA, JD, 74, 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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3 Responses

  1. “if the homeowner made a promise to pay, it must be due to someone.”

    The homeowners do not owe to the World at large, specially to someone who does not want to be present as a creditor {Wall Street Banks and their secretive lenders) but wants to pocket all money and properties anyway as tax-free revenue.

    GSEs are cover ups. They are probably some of undisclosed creditors from whom Wall Street Banks borrow money to pass to homeowners.

    Also, nobody will buy “securities” if they know that they are backed by a hologram image of an empty paper bag.

    GSEs agreed to provide their guarantees – with agreement that Wall Street Banks will idemnify them by taking guarantees from GSEs.

    This is that we all observe -GSEs dumped over $2 Trillion of their bogus “MBS” to Federal Reserve, a private company owned by owners of Wall Street Banks.

    And these owners currently massively forge documents to initiate a new foreclosures mill which will dwarf 2002-2008 robbery in Courts

  2. Well Neil, and Charles – both correct. And, Charles — what is the connection with Wells and WAMU? Well — think hard. And, clue – GSEs. Why can’t GSE’s provide an assignment to them? Because something happened AFTER that assignment – and they won’t disclose. Hence – WAMU and others conned GSEs – but they went along. It is so messed up. Yet, I really feel that those in control have no clue. But that is no excuse. The bottom line — came out of GSEs into WF — who somehow is connected to WAMU and others, and you ain’t get anything from GSEs as to how that occurred. They took direct GSE loans and master-minded them into someplace else. How? By false records. Is there any representative who will listen? Nope – I don’t think so. Very bad. In life, truth matters. We are not getting it. Power beyond us. Those records — you can’t get them.

  3. To show the point is taking a WAMU loan and show that the entity that made or purchased the loan does not have a way to claim the debt because it stop existing and there was no way to force the lien after Sept 25, 2008 as the Fed Gov declared it a “failed bank”! So when Wells Fargo Bank who was acting as the servicer had no authority on its own to foreclose it could not act for the lender in WAMU! The lien is in the name of WAMU.

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