Don't ask for the true identity of the "holder of the note." Ask instead for the identity of the holder in due course or the creditor.

Nov 18, 2022

The point is not the identity of the “holder” of the note. The point is the identity of the party who owns and maintains an unpaid loan account receivable that is due from you to that party. The problem with asking for the identity of the holder of the note is that there is a legal presumption that arises from the mere allegation of delivery of possession of the promissory note.

The presumption is that

(1) it was delivered by somebody who was authorized to make the delivery,

(2) that the delivery came from someone who owned the note or had authority from the owner,

(3) that it was accompanied by a grant of authority to enforce the promissory note and

(4) that the new possessor accepted the delivery as the new holder in due course or new “holder.” Current American jurisprudence has magnified these presumptions as though they were on steroids.

The last point is especially troublesome in the world of false claims of “securitization of debt.” It is one of those things that is so obvious you forget to ask. When (for example) U.S. Bank, as trustee, is named as the new possessor of the note or assignee of the mortgage lien, nobody thinks to ask whether U.S. Bank has actually executed any document or performed any action that indicated that it accepted the endorsement or assignment or delivery.

POSSESSION IS ALWAYS “CONSTRUCTIVE”

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In fact, when you get into the discovery phase of litigation, the assignee or endorsee or apparent bearer will NOT affirm its receipt or ownership or even interest in the loan account, note or mortgage and will NOT affirm or corroborate that they ever physically received any note or any original papers from the transction conducted with a homeowner.

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They will also deflect inquiries abot whether they have any records regarding the loan account.

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They will direct all inquiries to the “servicer” without saying that they own the loan account and without saying they appointed the servicer.

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IMAGINE: Someone sues you for injuring them and you ask them to show you their injuries. Their answer is “No, and that information is private and proprietary and subject to trade secret restrictions. But my friend here will tell you all about it.” THAT is what is going on in foreclosures and the banks have been selling that BS for 25 years.

As such, third-party (i.e., lawyers representing foreclosure mills whose client is a regional foreclosure mill) actions taken on the strength of the fabricated assignment, delivery or endorsement are subject to later disclaimer by U.S Bank who will assert that any illegal action was performed without its consent or knowledge.

Or, they will challenge the ability of any suing party to proffer sufficient evidence to establish that US Bank knew anything about the deal, the transfer, or any of the legal actions taken by the “servicer”, or “trustee” on deed of trust or lawyer. It is all a game.

But it’s possible that you could correct your statement in two ways. First, you could ask whether the designated creditor is a holder and due course, and if not, ask which legal elements of a legal holder in due course are absent. And/or you can ask for the identity fo the creditor who owns and maintains an unpaid loan account receivable due from you.

PRACTICE NOTE: If you ask for the “holder,” there are about 10,000 arguments under which the responder could justify giving you a name and even contact information of a party who has never heard of the homeowner, the law firm, or the “servicer.” You also are admitting that the status of “holder” is important in foreclosure litigation. It isn’t. Foreclosure is about the lien, and the lien is about the mortgage or deed of trust. Those are different instruments and are subject to different legal elements and analyses.