Foreclosure Defense Starts with One Question: What Obligation?

Disclaimer: This article is for educational purposes only. It is not legal advice. Consult with a licensed attorney before acting on anything discussed here.

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The Common Mistake

Most pro se litigants — and even many attorneys — begin their foreclosure defense with: “Yes, but…”

The stronger defense begins with a far simpler and more powerful question: “What obligation?”

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Why the Mortgage Isn’t the Debt

• The mortgage is not evidence of the debt.

• At best, it is evidence of an agreement to provide collateral — security for payment on an underlying obligation.

• If there is no enforceable duty to pay, there is no enforceable lien, no matter how cleanly the mortgage is executed and recorded.

Yet, many courts mistakenly treat mortgages as if they were promissory notes. They aren’t.

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When Does a Legal Duty Exist?

For any enforceable legal duty, two parties must exist:

1. A person required to perform (the homeowner), and

2. A person entitled to receive that performance (a creditor).

If the “creditor” vanishes, the duty vanishes with it.

That’s where homeowners and courts alike get trapped:

• They assume that because a homeowner promised to pay, someone must be entitled to collect.

• But in the world of securitization and investment banking, that assumption is often false.

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The Presumption Problem

Courts presume that the designated claimant is owed money. But that presumption often collapses when challenged:

• The Note may be introduced as evidence of an underlying obligation and its terms.

• Possession of the Note raises a presumption of ownership of the obligation.

• But the presumption can be rebutted when the claimant cannot show it ever carried the obligation as an asset or received payments as income.

The core question remains: Does the homeowner owe money to the party trying to foreclose?

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How Successful Defenses Work

Winning defenses don’t deny the promise to pay. Instead, they contest whether the claimant has any right to enforce that promise.

Two possible revelations expose the truth:

1. Admission (rare): the claimant never booked the loan as an asset and never received payments.

2. Stonewalling (common): the claimant refuses or fails to answer discovery requests — interrogatories, requests for admission, or document demands.

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Turning Refusals into Evidence

The refusal to answer becomes valuable only after persistence:

• Multiple motions to compel

• Motions for monetary sanctions

• Motions for evidentiary sanctions

• Motions in limine to exclude unproven exhibits

• Objections at trial

In other words: the successful defense is not just about asking the right question — it’s about relentlessly forcing the other side to admit they don’t have the answer.

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Key Takeaway

Foreclosure defense is not about “Yes, but I missed payments.”

It begins and ends with: “What obligation, and to whom is it owed?”

If the claimant cannot prove they hold the obligation, they cannot enforce the lien — no matter what papers they wave in court.

Posted in foreclosure defenses, Foreclosure Questions |