There is no valid cause of action for foreclosure arising from the Uniform Commercial Code. There is a cause of action under common law contract — but nobody has alleged that in claims or defenses.

Jul 20, 2020

The only way that enforceability of the homeowner transaction can be preserved is through common law contract, in which UCC presumptions would probably not apply

I recently received a question from a paralegal asking a question I constantly receive — where do I find my loan. Or more specifically how to find out which trust owns my loan. the answer is that (a) you are asking the wrong questions and (b) you are admitting that the loan is actually in a trust. That simply is not true.

Here is my reply:

I appreciate the work you are doing. I think your work would be much easier if you concentrated on a more simple point.

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It seems like you are assuming that the loan is actually in a trust. in order for that to be true, one of two scenarios would have to be true.

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Either the named trustee of a valid trust has purchased the loan for Value in exchange for a conveyance of ownership of the underlying debt, note and mortgage or a trustor or settlor has conveyed ownership of the underlying debt, note and mortgage to the trustee or the trust. I am quite certain that you will find that neither one ever occurred.

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By examining various reports by the investment Banks with the goal of determining which some Trust owns the loan, you are admitting that securitization occurred. The truth is that securitization probably did not occur. For securitization to occur, an asset would need to be sold to multiple investors. No investor ever bought any debt, note or mortgage. Nobody else did either.

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Because you have not gone to law school, you might be missing will you find her, and more important, points in the litigation. Every case I have ever won was based upon the findings and conclusions of law published by a judge stating that the plaintiff or claimant in foreclosure have failed to produce evidence of ownership of the underlying debt.

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Ownership of the underlying debt can only be achieved through payment of value in exchange for a conveyance of ownership of the underlying debt. This is often presumed when the promissory note is issued and subsequently transferred. that presumption can often be easily rebutted both in Discovery and in objections at trial.

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The goal of securitization was to eliminate the role of the lender or creditor so that there would be no lender or creditor and therefore no liability for violations of lending or servicing laws. Without a company that has engaged in a transaction in which it paid value for the loan in exchange for a conveyance of the loan from someone who owns it, there can be no claim under Article 9 § 203 of the Uniform Commercial Code as adopted by all U.S. jurisdictions.

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I have written extensively on the result of this analysis.

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In cases involving false claims of securitization, there simply is no cause of action or foundation for initiating any foreclosure process based on presumptions arising out of the Uniform Commercial Code.

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The only way that enforceability of the homeowner transaction can be preserved is through common law contract, in which those presumptions would probably not apply.

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And the only way that a common law contract could result in enforceability of the obligation of a homeowner is to have the court create one by the process of reformation, using the doctrines of Quasi contract and Quantum Meruit.

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And the only way that the court could have any Authority or jurisdiction to impose a common law contract would be if an interested party filed a lawsuit asking for reformation.

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In the absence of such a request, the obligation of the homeowner is not enforceable under current law, which has existed for centuries. Forfeiture of a homestead cannot occur unless the claimant actually owns the debt and therefore can claim financial injury as a result of the action or inaction of the homeowner.

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In cases where the claimant arrives on the scene by virtue of language arising from claims of securitization, it has always been my opinion that such a Plaintiff or claimant probably doesn’t exist at all as a legal entity and most certainly does not possess any legal claim arising out of the Uniform Commercial Code, Article 3 or Article 9.

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As a result of my opinion that a common law contract would preserve the homeowner obligation (and the securitization infrastructure), I do not believe that final judgments or orders dismissing the Foreclosure or vacating a sale results in extinguishment of the debt, note or mortgage. Therefore I believe that quiet title does not apply.

Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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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Posted in Corruption, discovery, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, legal standing, Pleading |