How to Make Your Point That Borrowers Only Owe Money to Parties That Actually Own the Debt

“First, as explained by the court in Bank of Miami Beach v. Fidelity Casualty Co. of New York (Fla. 1970) 239 So.2d 97, 99: “[A] mortgage lien and a mortgage debt are two entirely different legal concepts or `species.’ ” First Amer. Title Ins. v. Xwarehouse Lending, 177 Cal.App.4th 106, 118 (Cal. Ct. App. 2009)

If the foreclosure mill can’t come up with a party who actually owns the debt by reason of having paid for it then netiehr the law firm nor its presumed client has any claim to collect the obligation much less foreclose and force the sale of real property based upon the claimed existence of a default.

There is no default and none can be “declared” by a designee who has no financial stake in the outcome of the claim — other than the expectation of profit.

Too many lawyers are missing the obvious. And they are not performing their jobs if they advise clients wrongly based upon lack of knowledge and competence in the areas of foreclosure law and the factual predicate of securitization of debt.

As the California Supreme Court admitted in the Ivanova decision, the debt is not “just owed to anyone.” It must be owed to someone. That someone must be a legal person readily identified and confirmed. And that someone must have the authority to enforce. the banks have been getting away with creating the illusion of authority — even though that authority does not come from anyone who owns the debt  by reason of having paid for it, nor anyone representing the debt owner.

So people start asking me “How do we prove that? Do you have any case law on that? Because the court is just assuming that there is a creditor instead of asking about it.

So the answer is that it is your job to bring up the issue. The judge is there to call balls and strikes without regard to outcome. The judge calls balls and strikes based upon established laws, rules and custom and practice.

And all of that comes down to this: if you make a claim the first thing any court is going to do is assume you have a claim even if you don’t. If a claim is made against you and you don’t timely raise issues like the claim doesn’t exist, then the claim does exist and you lose even though there is no claim.

But in answer to that question here is an appellate court decision in California which merely recites obvious common sense logical argument as the basis for its decision:

We reject Access’s argument that the word “indebtedness” as used in the title insurance policy should be read as simply referring to the act of money changing hands, which would include Access’s transfer of funds through the escrows to CHL. The word “indebtedness” cannot be read in isolation as referring to any indebtedness. It must be construed in light of the surrounding words, namely, “the owner of the indebtedness secured by the insured mortgage,” or “the successor in ownership of the indebtedness,”

First Amer. Title Ins. v. Xwarehouse Lending, 177 Cal.App.4th 106, 115 (Cal. Ct. App. 2009)

First American’s title insurance policies insure only against losses “sustained or incurred by the insured by reason of . . . [t]he invalidity or unenforceability of the lien of the insured mortgage upon the title.” Access argues that it is the defects in the lien instruments which give rise to coverage in this case, and not the forged promissory notes. We disagree. Any losses suffered by Access are not due to defects in the title or mortgage liens, but are entirely due to the failure of an existing indebtedness between the named borrowers and CHL. (See Blackhawk Production Credit v. Chicago Title (1988) 144 Wis.2d 68 [ 423 N.W.2d 521, 526] [“If the interest held by [the insured mortgagee] was valueless without the superior lien, it cannot claim any lost value because the lien existed.”].) [e.s.]

First Amer. Title Ins. v. Xwarehouse Lending, 177 Cal.App.4th 106, 117 (Cal. Ct. App. 2009)

There are no negative references to this 2009 decision in any other case. And across the country there are many cases like it in the appellate decisions of every state. The fact that investment banks took advantage of loopholes to sell the loan data over and over again without ever transferring the debt is not the problem of the homeowner.

The law states that only those who own the debt can enforce it. And if the possessor of a note is not authorized by the owner of the debt, then the possessor is not a holder nor is it entitled to enforce the debt or the note or the mortgage by any other means.

Under all modern law there is only one way to own a debt: pay for it.

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