Don’t Ask Who Holds the Note, Ask Who REALLY Owns Your Debt

One of the most important things I learned from Neil Garfield in the time he was mentoring me and preparing me to take over his practice is this: When you’re trying to figure out who has the rights to your home loan, don’t get caught up asking about who has the paper note. Instead, focus on who truly has a claim on the money you owe.

Why? Because there’s a tricky part in the law. If someone just shows they have the note, people might assume:

  1. They got it from someone who had the right to give it.
  2. That person really owned the note.
  3. They can now ask you for the money.
  4. They accepted the role of being the new main person in charge of the note.

But Judges have been making these assumptions too easily, especially when alleged creditors legal standing in cases is not being challenged early in the process. Making assumptions can inadvertently validate a baseless claim.

For example, if U.S. Bank says they now control your note, no one really checks if the bank truly accepted that responsibility.

Having the note doesn’t mean they REALLY have it. Often, when you start digging deeper, these companies don’t even admit they have the note or any papers related to your loan. They avoid questions about records and just point you to someone else who’s supposed to be managing the loan.

Imagine if someone said you hurt them, and when you ask to see the injury, they just point to their friend and say, “Ask them.” That’s the kind of runaround happening with home loans.

So, when these companies act based on fake papers, big banks like U.S. Bank can just wash their hands and say they didn’t know anything.

If you change your approach, you could ask if the claimed debt owner really has the legal right as the main person in charge. Or, you could ask who really has a claim on the money you owe.

Don’t get lost in the wrong details. If you focus too much on who holds the note, you might miss the real issue. Foreclosure is all about the claim on your home. The note and the mortgage are different, and they’re treated differently by the law.


In summary

These issues are critical in your foreclosure defense and are important to be addressed in any discovery process that’s part of any lawsuit. Don’t mistakenly admit that the alleged creditor that is trying to take your home has a right to do so. Challenge their status as a holder in due course or creditor. If discovery is done correctly, and an accurate forensic loan audit is performed and submitted as evidence with expert declarations, the fraudulent parties trying to take your home won’t succeed. They won’t even be able to respond properly in the discovery process. That’s why knowing how and when to act when the discovery window is still “open” is so important. Reach out to us to early in your process when the most important defenses are still open to you. Early actions like debt validation letters, complaints to the CFSB (consumer financial protection bureau) and the follow ups are so important as they lay the groundwork for future defense efforts. These can be accessed by our Administrative Strategy. Submit your case analysis form here for free insights as to how best to proceed in your individual circumstances. Or call us toll free at 844.478.6774 to learn how best to access our services in helping you defend you home.

Remember, your home is your castle and we help you defend it.

3 Responses

  1. This case you reference only ruled in Idaho in specific circumstance where the “Bank” had already foreclosed and taken title to the property. That is why we urge our clients to not wait until the eve of a foreclosure sale, especially in a non-judicial state, to defend yourself effectively. Lance Denha esq.

  2. Unconstitutional, because of a more recent Ruling in :
    2020 ) Where the Judge rules that a Citizen HAS a Constitutional Right to a Trial by Jury, for any ” ISSUES OF THE FACTS “. And WHO LAST ADVANCED THE FUNDS, is Certainly an ISSUE OF THE FACTS.
    The ruling starts as an issue for renters, but then includes Idaho Statute 45-1506 ( Foreclosures ).

  3. In Idaho, the Court does Not Care about this. InFact, they made a seemingly Unconditional Ruling, stating that THIS INFORMATION DOES NOT NEED TO BE DISCLOSED.
    In the Idaho Supreme Court Ruling for :

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