FIRST DEFINE YOUR TERMS

Posted on January 18, 2023 by Neil Garfield

Plato said (maybe it was  Aristotle), first, define your terms. Unless you use the terms correctly- and not just the way you want to use them- you will not make sense in any court. As soon as you open your mouth, you will be revealing that you either don’t know or don’t care about the rule of law. And as soon as you do that, you are inviting the judge to give no weight to your argument or evidence. It’s not up to the judge to clarify what you are trying to say.

  • Mortgage= agreement to give access to the property as collateral for a financial obligation.
  • Note= acknowledgment of a financial obligation owed to the payee named in the note and an agreement to pay the financial obligation owed to the payee.
  • Financial Obligation= a legally recognized event causing one person to be liable to another. THIS IS THE “DEBT.”
    • Evidence of the existence of the debt is found in the note and the ledger of the creditor.
    • Evidence of the unpaid balance due is only found in the ledger of the creditor (payee or endorsee). The unpaid balance due to the creditor can only be proffered to the court by the creditor.
    • It cannot be proffered by testimony or documents from an agent (servicer), unless that agent is the person whose regular course of business is making entries on the books and records of the creditor. Everything else is hearsay.
This means that “mortgage” does NOT mean a note or a debt.
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It also means that “Note” does NOT equal or mean the debt. It is separate from the debt. The debt arises not because anyone wrote it down but because something happened, as opposed to some person or document saying it happened.
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“Actually happened” means something legally recognized by existing statute or common law, not something you want to make law. The “Note” does not equal or mean the mortgage lien — the agreement to grant access to the property as collateral.
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This is true even when the mortgage lien (agreement), as written, says it is securing the faithful performance of the note. Nobody is legally required to make payments under the promissory note if there is no balance due, even if the lien is still in the chain of title without a satisfaction and release. No creditor gets to be paid twice st because they illegally refused to return the note and record a satisfaction of the lien.
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It’s not just that the mortgagee cannot bring any action to use the lien to gain access to the property described as collateral. The property owner has a legally recognized right to force (mandatory injunction) the named mortgagee to execute and record a satisfaction and release and to return the note.
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And if a satisfaction and release is filed by mistake, it only means (a) that the named mortgagee cannot use the lien to foreclose and (b) that this can be corrected with an affidavit of scrivener’s error. The existence of the lien does not mean that the debt is still owed.
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And the release of the lien might be evidence of the receipt of payment, but it is not dispositive. If the payment was not actually made or the check bounced, the debt is still owed, and the debtor is still liable for collection.
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Foreclosures are about money, not paper. Each term has a specific reason, and there are separate terms because each carries different attributes — and incorporates different state and federal laws.
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CLICK TO DONATENeil 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 14 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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If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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2 Responses

  1. ANON, on January 19, 2023 at 5:42 pm said:

    This is correct Charles. Courts tossed the separation of mortgage and note quite some time ago. But the truth is – there is separation. This allowed for no funding. Just transfer of bogus debt.

  2. CHARLES REED, on January 18, 2023 at 9:15 am said:

    Where my confession is, as we sign a paper saying Note which is not a mortgage but we all refer to it as Mortgage Note. The Note list the amount borrowed the interest rate and payment! there is no other document that addressing this so we look at it as a bidding document. The Deed of Trust places a lien against the property. Now yes there is a separation of the Note and debt if the holder of the Note as in a blank endorse Note does not purchase the loan debt but relinquish the Note to another.

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