About Wrongful Foreclosure

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Statutory Requirements for Establishing the Right to Enforce an Instrument

     Some research that may be of value.  Always validate new information.  After validation and comprehension of the information revealed below, please pass along the information to others who may be in jeopardy of losing their property for non-payment of mortgage installments.

References to the Uniform Commercial Code (UCC) are to the Federal UCC. Each state in the union, except Louisiana, has adopted the Federal UCC into its own law.  The Federal UCC can easily be cross referenced to your local jurisdiction.  When using the UCC in your jurisdiction, reference the version of the UCC adopted in that particular jurisdiction.

i.e.: UCC § 3-301  has been adopted in the Alabama Code at -- Ala.Code 1975, § 7-3-301.

The Cornell UCC state locator can be found here: LII: UCC - Locator

     Discovery is where the questions are asked about production of the genuine original Promise to Pay Agreement (PTPA).

     If the foreclosure claimant claims to produce the genuine original PTPA and that writing is not bound/attached to the genuine original mortgage writing, the two writings have been physically separated in violation of federal law which mandates the imperative that the note and mortgage are inseparable. (See Carpenter v. Longan, 21 L.Ed. 313, 16 Wall. 271, 83 U.S. 271, 274-275 (1872).

    "The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity."
   "All the authorities agree that the debt is the principal thing and the mortgage an accessory. Equity puts the principal and accessory upon a footing of equality,
and gives to the assignee of the evidence of the debt [ the "evidence of the debt" is the Promise to Pay writing] the same rights in regard to both. There is no departure from any principle of law or equity in reaching this conclusion. ... The mortgage can have no separate existence." Carpenter v. Longan, 21 L.Ed. 313, 16 Wall. 271, 83 U.S. 271, 274-275 (1872). (emphasis added).

When the banksters wave around a security deed as some sort of triumphant badge of their right to take your property in foreclosure, and that security deed is not bound/attached to the essential PTPA they have just revealed (1) that the PTPA and the security deed have been SEPARATED, in violation of the imperative noted in the Carpenter decision; and (2) that with respect to law that particular security deed does not exist, and therefore, cannot be enforced. The mortgage can have no separate existence." Carpenter v. Longan, 21 L.Ed. 313, 16 Wall. 271, 83 U.S. 271, 275 (1872). (emphasis added).

The referenced Carpenter rules were written by the United States Supreme Court in conformance to the Constitutional authority of the United States Congress to regulate banking under the Commerce Clause and other such federal laws.

    Present physical possession of the PTPA bound/attached to the mortgage must be established pursuant the fact that if the essential PTPA is still in existence, and a party not the holder and without a valid assignment traceable in an unbroken chain of valid assignments back to the original valid owner and holder of the evidence of debt, is awarded judgment against the mortgagor (you), at some time in the future the present holder of the original PTPA could appear and file another lawsuit to enforce the PTPA if it is actually bound/attached to the incidental mortgage writing..

 

     If you paid a lawyer to represent you in a foreclosure lawsuit where you were dispossessed of the property, and the lawyer failed to use the federal law as set out in Carpenter v. Longan to defeat the foreclosure claimant, that lawyer is incompetent and provided ineffective counsel.  A complaint against such lawyer should be lodged with his local bar association.  You might want to conduct an investigation to determine any conflict of interest between the lawyer and the bank.  Your lawyer was probably acting as a "shilling" for the bank. 

Legal Term: "shilling" Slang term for posing as an innocent bystander at a confidence game but giving aid and assistance to the perpetrators of the scheme as a decoy. Black's Law Dictionary, 6th Edition, p. 1377 (BLD6-1377)

     Subject matter jurisdiction can be challenged at any time. Even after judgment and execution.

     If the facts indicate that the foreclosure was wrongful pursuant to the court's lack of subject matter jurisdiction, the court's judgment in favor of the foreclosure claimant is voidable.
See Rules of Civil Procedure, Rule 60(b), (void judgment - lack of subject matter jurisdiction).

     The following research is the supporting statutory law in support of the demand "Show me the NOTE!"

     In light of the fact that virtually all promissory notes taken by banks, mortgage companies, etc., were sold at some time after the "closing" for the respective transactions --- without the right in discovery to physically inspect, and photocopy the original wet-ink instrument, (production of the original instrument), meaning that the bank, mortgage company, etc., retained physical possession of the NOTE, or can PROVE a valid assignment of the rights of the holder to enforce the instrument from the holder of the original wet-ink NOTE, standing in a court to enforce the instrument in foreclosure is impossible pursuant to the Uniform Commercial Code. (UCC).

     Without possession of the genuine original PTPA that is attached/bound to the genuine original mortgage, (See Carpenter), no foreclosure action can be sustained when confronted with the imperatives stated in Carpenter.

If the bank is suing to enforce a Mortgage alone that is not bound/attached to the essential PTPA, and foreclose on property, if the bank sold (transferred) the PTPA separated from the incidental mortgage writing, the bank lost the right to enforce the PTPA through foreclosure procedings.

 

  Many assume that the bank/broker/lender that begins the process is actually providing the money for making a "loan," when in fact, the bank/broker/lender is only making an "exchange," of notes, at no cost, and then, coercing the issuer of the promissory note into the comprehension that he is receiving a "loan." The following was stated in A PRIMER ON MONEY, SUBCOMMITTEE ON DOMESTIC FINANCE, COMMITTEE ON BANKING AND CURRENCY, HOUSE OF REPRESENTATIVES, 88th Congress, 2d Session, AUGUST 5, 1964, CHAPTER VIII, HOW THE FEDERAL RESERVE GIVES AWAY PUBLIC FUNDS TO THE PRIVATE BANKS [44-985 O-65-7, p89]

[2nd paragraph, "Primer on Money" PDF page 89 of 141]
"But the conditions under which private banks operate are very different.
In the first place, one of the major functions of the private commercial banks is to create money. A large portion of bank profits come from the fact that the banks do create money. And, as we have pointed out, banks create money without cost to themselves, in the process of lending or investing in securities such as Government bonds. Bank profits come from interest on the money lent and invested, while the cost of creating money is negligible. (Banks do incur costs, of course, from bookkeeping to loan officers' salaries.) The power to create money has been delegated, or loaned, by Congress to the private banks for their free use.  There is no charge." (emphasis added).

[open (PDF) Primer on Money -- US Congress Subcommittee on Domestic Finance]

   In this instance, the transaction was funded by using the prospective property (collateral) and the signer's promise as if the property and the PTPA already belonged to the bank/broker/lender.

   So, if the bank used the promise, as money, to create the cash reserve which was then used to validate the bank check issued on the face value amount of the promise, at no cost to the bank, without NOTICE to the signer of the promise, and without fully disclosing these facts and aspects of the transaction, the bank committed a Deceptive Practice, False Representation, and Fraud of course the banksters have already acquired court determinations to the effect that such fraud does not afford the victim a valid cause of action.


Repeating:

Authoritative foundational basis for the determination of the right to foreclosure: The foreclosure claimant must predicate the claim upon proof and evidence of physical possession or valid assignment of the PTPA attached/bound to the Mortgage.

"The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." [Fn3 Jackson v. Blodget, 5 Cowan 205; Jackson v. Willard, 4 Johnson 43.] Quotation and Footnote from:
Carpenter v. Longan, 83 U.S. (16 Wall.) 271, 274 (1872). (emphasis added)
(Access Carpenter here: http://supreme.justia.com/us/83/271/case.html)

The above referenced current and binding opinion of the Supreme Court of the United States, was recently utilized as basic law in
Landmark Nat’l Bank v. Kesler, No. 98,489, by the Supreme Court of the State of Kansas, (August 2009). Access Landmark here: [Landmark Decision]

 

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