Reaction to a post at Living Lies today in which Neil Garfield said:
“If the owner can’t be known, are we really saying that the borrower still owes the money on the fictitious debt that was described in ether note and mortgage? We have law that covers this. If he the debt was not adequately represented at closing on he the note and mortgage and note, then we can agree that a debt exists, but it not to any of the parties in he the existing paper train.”
I have said this for a while now and made this argument in my own (losing) lawsuit: THERE IS NO “NOTE HOLDER” AS THAT TERM IS DEFINED IN THE NOTE ITSELF. That is, due to “securitization,” there is no person (corporate or natural) that meets the note’s two criteria for earning the title “note holder”: 1) entitled to payments due AND 2) taken the note by transfer. The “note holder,” by the terms of the note, MUST meet BOTH of those criteria. It’s very simple. You need not be an economist, a bankster, an attorney, a judge, or some other sort of “expert” to understand that.
Who among the foreclosing entities meets both of these criteria? In my case, NONE of the defendants (BoA, Fannie, MERS, Recontrust) met BOTH criteria. Supposedly it was the investors in Fannie MBS that were entitled to payment, BUT they had not taken the note by transfer. How do I know that? Because Michele Sjolander testified under oath on two separate occasions that the note was sitting in a Recontrust vault in Simi Valley, CA. Therefore, the note was not under the control and neither in the constructive nor actual possession of Fannie Mae or investors in Fannie Mae MBS. Actual possession is required, by the way–so says the judge in Kemp v. Countrywide.
So while Garfield may be correct that there IS a debt (which I personally dispute, but that’s a subject for another time) that exists, the existence of that debt becomes moot if there is no person in existence to whom that debt is owed. And such a scenario–i.e., a non-existent note holder–is NOT the fault of the borrower, it’s the fault of the banks. Because it is not difficult to fulfill the two criteria required to be a note holder. All one would have to do is have the note properly endorsed AND physically possess said note. That’s supposed to be the reason for banks; such simple requirements should be a no-brainer for them. And since THEY screwed it up, all penalties and inconveniences should fall on the banks, not on the homeowner.
This is why they want the note to follow the mortgage!
So if there’s no note holder, how can there be a foreclosure? That’s the rub, isn’t it? Perhaps that’s why no bank and no court wants to follow the law of the land, i.e., Carpenter v. Longan which states that mortgages follow notes and assignments of mortgages separate from notes are a nullity. This is why there has been so much focus on MERS and the MERS assignment of deed of trust/mortgage–they’re trying to make the note follow the mortgage precisely because there is no note holder! And if there is no note holder, who should we pay? My vote–cancel the “debt!”
IMPORTANT NOTE/DISCLAIMER: The above article is not legal advice and was not written by an attorney. It is merely a collection of common-sense, rational observations written by a sane, rational layperson with common sense. It is recommended that you consult with an attorney for any and all legal advice and/or action.