(1) you want someone, anyone who will attest to the fact that they are the owner of an unpaid loan account that they maintain on their books and records (don’t specify the name of any person or entity);
(2) you want that “creditor” to execute a satisfaction and release and an acknowledgment that the unpaid loan account described in the first paragraph is being satisfied in full upon payment in cash of the amount demanded, which must be the amount due as reported on their books and records ( I.e., the books and records of the “creditor”);
(3) if they want the payment to be sent to anyone other than themselves, the creditor must attest to that fact and give notice that the company appointed to receive the payment is acting on behalf of them as a creditor;
(4) you want an authorized officer of the creditor to execute the satisfaction and release of the mortgage and the return of the canceled original note;
(5) if you are being told that a person or company other than the “creditor” is executing the satisfaction and release, then you want an acknowledgment and attestation by the creditor recorded in the official records of the county in which the property is located appointing a third-party to issue such documentation on behalf of the “creditor.”
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(6) you want an authorized officer of the alleged creditor to execute an acknowledgment that the law firm purportedly acting to enforce a debt is acting on behalf of the creditor and that the servicer that is providing documents to the court is providing copies of records of the creditor (i.e., all the debits and credits to the alleged unpaid loan account that is maintained as an asset of the creditor).
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In my experience, you will never find any person or any company willing to attest to the fact that they are the owner of an unpaid loan account that they maintain on their books and records. I find that most lawyers and homeowners are stuck on this point. It does not seem logical to them that this is a good strategy, tactic or approach. Yet it is the only one that I know of that produces a satisfactory result for the lawyer and the homeowner.
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We are talking about “foundation,” which is required for all the other things that happen in a transaction that pays off an alleged mortgage loan and all the other things that happen in a legal proceeding that supposedly forecloses an interest in an alleged mortgage loan.
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It is also required for the successful conclusion of mediation or modification. If there is no loan account, there is nothing to mediate or modify. If you execute such a document, you implicitly grant a new right to administer, collect and enforce a new liability.
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PRACTICE NOTE: All of this is nothing more than a restatement of established law, which is to say, legal doctrine and statutes that have existed for centuries. Although the banks have successfully blurred many English definitions, distinctions, and legal doctrines, it remains logically and legally true that you only owe money to the person who owns your debt. If the person who owns your debt wants you to pay someone else, they must say so in a notice to you that complies with the statute. It is legally insufficient (without foundation) for a third party to claim that they have been appointed to administer, collect or enforce a debt without a concurrent notice from the owner of the debt.
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If you want to prove this to yourself, simply cut-and-paste the phrases and sentences contained in this article into Google or any legal research platform. Among the legal research platforms that I have tested, I find that CaseText is the easiest to use and most economical.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
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