Two-Faced; Deed of Deceit
NEW - Yale Law Review; Read it because maybe you listen to law professors?
FORGET “SPLIT-THE-NOTE” THEORY, IT’S TWO-FACED!
About "Notice"
Notice is the "legal cognizance of a fact."' The basis of the doctrine of notice in commercial law is the principle that a person should be accountable for his state of mind at the time he entered into a transaction. Information that he possessed when contracting bears upon that state of mind and is frequently an important consideration in determining his rights and obligations not only vis-a-vis the other party to the transaction, but also in relation to third parties whose rights may have been affected by the transaction. - Notice to Holders in Due Course and Other BonaFide Purchasers Under the Uniform Commercial Code - Brian A. Blum
Contract Law
A
contract is a legally binding agreement between parties to do or not do
something. Businesses enter into contracts for
many reasons, including purchasing supplies, insuring employers
or entering into buy/sell agreements. A businessperson should have a
good understanding of contract law, therefore, to succeed in business.
As an initial matter, there are several factors to consider to determine
whether a contract has been made. Once a contract has been created, it
must be determined if there are any issues that call into question its
validity. Finally, if there has been a breach of the contract, there is
a question of whether damages have occurred
Contract Rights Have Become Property[1]
Modern Contract Law grew out of the need to regulate the transfer of
possession (i.e. a lease) or ownership (i.e., a deed) of land and later
personal property. From that, Contract Law progressed to the point that
a contract is now seen as creating a new form of property, i.e., a
contract right. With the rise of secondary markets for home mortgages,
car loans, and student loans, contractual rights and obligations have
themselves become personal property, to be bought and sold in a
world-wide market, as if they were commodities. The “commodification” of
contract rights and obligations breaks the “relational and situational”
ties between the original contracting parties, and moves contractual
inquiries about the formation and interpretation of contracts away from
a subjective assessment of the circumstances surrounding the original
contracting and into the realm of what a reasonable third party would
believe the words and actions of the contracting parties to mean. The
protections that the law affords to assignees of contract rights and
obligations thus become essential to the marketability of those rights
and obligations, and the benefit of maintaining the marketability of
contract rights and obligations introduces
policy considerations that may outweigh the policies that
developed during a time when contract suits were designed to balance the
interests of just the original contracting parties.
THE DEVELOPMENT OF THE COMMON LAW2
TWO-FACED
Simple: Not honest or sincere :
saying different things to different people in order to get their
approval instead of speaking and behaving honestly
1.
double-dealing,
false
2.
having
two faces
FIRST THINGS FIRST
Before things get out of hand, let us make this perfectly clear; If all
the requirements according to law, regarding the homeowners mortgage
loan, were accomplished before the mortgage loans were securitized,
there would be not problems, nor would this debacle be criminal. But the
rule of law was circumnavigated and the negotiations were not
accomplished according to law.
HISTORIC REOCCURRENCE
This historic reoccurrence[2]
provides for simple thinking in solving a mystery to many. As complex as
the MERS members system is, you may be a bit confused with the
“mortgage” problem? It appears that way. And it’s ok. You just didn’t
know. That is part of life’s great journey. If you gain confidence in
yourself and fear not to go where you don’t understand, you only defeat
yourself, nobody else.
It is simple to solve when you better understand a “real property
mortgage loan” and the law(s) which govern such secured loan. Secured is
not your problem, but it does help you understand what is supposed to
take place if the homeowner’s mortgage loan changes “lender”.
Don’t’ confuse yourself, this type loan, a real estate mortgage loan, is
not governed specifically by the Uniform Commercial Code, aka UCC. Only
the note would be held to any requirements in Article 3, should the note
be sold, assigned, or transferred. The deed of trust is a lien. They
call it a “mortgage”. The deed of trust is supposed to be a contract
created upon the theory of basic contract law.
The actions related to the deed
of trust must meet requirements of local jurisdiction in order to keep a
successful chain of title, an incident of an alleged secured
indebtedness it references within the “four corners”, thus naming the
alleged secured creditor as the lender.
Think simple. You do not need to go any further than the combined
instruments. They are to be construed as one. What laws govern them?
I’ll use
Let’s start with the deed of trust, aka mortgage, since this is what
MERS members rely upon. Take
Don’t
worry; Be happy
It does not matter if it was “securitized”. Why? Because everything
after the homeowner signed and closed the “mortgage loan”; and received
their copies to the paperwork they signed; is in the twilight zone. Lost
somewhere in the “electronic zone”. The land of confusion. Stay focused.
Please
stop helping the criminals
And this series of “Explains” is also directed to the masses whom
unknowingly and continually create case law for criminals of this
financial crime, an economic disaster. They have suckered you into fight
you won’t win the way you are attacking it. You may get close, but. They
will beat your brow with paperwork. And hit you with summary judgments.
And judges are lazy. They want to go play golf, drink, or whatever they
do that appears to be more important than their bench.
The appellate court then upholds
his/her laziness most of the time. Not to sound like some pious person,
but understand that you are never going to defeat this beast and its
associates until you attack it with its own weapons, then use your own
weapons to beat the beast down. Keep the judge on the level.
Don’t go there, violence is not the answer…..
If your thought sways you to believe in physical weapons, you could be
partially correct, as the pen is a physical item; and so is the
keyboard. Nevertheless, the greatest weapons used in this war of words
is your mind; a mind as great as the Father promised; their contracts;
and their “Art
of War” tactics that can become better utilized by your
renewed understanding in your mind, and not in the ways of this
world. Have they worked? Know their rules, procedures. Know their
tactics. You can find it all free on the internet. Don’t be taken by
zealots feeding their own gains taken from the poor and ignorant.
Understand what I say. I am with you.
The Law
Also remember that the “Law” is the greatest weapon of all. It can be
easy to see the fruits of men’s iniquity when it comes to the Law. For
now, though, we will speak of man’s law. If man does not follow man’s
laws; why would man follow the Law? The sheep are many. If the masses
keep fighting the “standard” lawyer fighting boilerplate tactics, you
will make this harder on yourself than you really need to. Maybe you
should read and understand the Art of War? The criminals use it, but not
as it was intended, as everything begins with a good thought well before
the darkness creeps in. You do need to understand the difference between
“intangible” and “real property”.
“Personal Property vs. Real Property”, the fight of
the ages?
When will the world realize, an “account debtor” has caused an effect
they will never understand if
they can’t open their mind and gain knowledge of how the crime affects
the whole world. No one is immune. Not even you. We were all deceived!
Think simple and understand how even E-SIGN does not help MERS members.
E-SIGN excludes Articles 3 & 9 of the Uniform Commercial Code.
Go look and see
15 USC 7003.
E-SIGN paved the way for enforceable electronic contracts. And it paved
the way for unnoticed criminal activity. E-SIGN is good in certain
aspects yet it got bad in a certain other aspects. Nevertheless,
contracts are governed according to basic contract law, both paper and
electronic. However, there is a difference between the paper contracts
and electronic contracts even though they seemingly appear to be one and
the same on their face when viewed in a paper aspect. After all, it is
easy to hit the “print key” on a keyboard of a computer to provide a
paper “copy” of the electronic record. People do it all the time to view
an illusion created electronically.
Take for instance, in Texas, and after defacing the Texas Property code,
“mortgage servicers” can provide “copies” of alleged “mortgage”
paperwork and affidavits to give a court the illusion such paperwork is
true and correct, yet the court relies upon this illusion, and the
relentless “trust” among the men of BAR. They could be turning a blind
eye? I’m not a judge. This illusion has continued for some time since
the defaced Texas property law was enacted 12 years ago, in
2004.
Did you know that the original alleged reason for the Uniform Electronic Transactions Act, Texas UETA,
was for the purpose of insurance companies to utilize electronic contracts; and these electronic contracts
would be enforceable in a court of law? In essence to give the electronic contract “legal recognition”.
With UETA, insurance companies could create, generate, send, communicate, receive, or store by
electronic means, electronic records.
These electronic records are governed differently, yet, similarly to basic contract law. With exceptions.
The party to the electronic contract, the obligor [borrower], is required to electronically sign the electronic contract for
the obligee [creditor] before the obligee [creditor] could enforce such agreed electronic contract. Once signed, the electronic record
is allegedly considered a transferable record governed by E-SIGN.
Once the parties to the transferable record satisfy the requirements of E-SIGN; Texas UETA, the electronic
contract become enforceable. To satisfy such electronic requirements, the obligor agreed to “contract”
electronically, rather than the original ways of the “paper signing ritual”. This “electronic consent” fulfills
15 USC 7021. All seemingly accomplished by an “I agree” type click of a mouse button, and not by physically
signing the printed copy.
There is a difference. Images of signatures are not allowed. That is why the MERS members introduced “evidence”
should be considered suspicious. MERS members or their alleged agents, like Stephen C. Porter have access to
the MERS system, otherwise they would not be producing the “assignment of note and deed of trust”, and recording them all around
Texas counties; an alleged "assignment" which is a product of MERS eRegistry governed by E-SIGN.
"Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record
and executed or adopted by a person with the intent to sign the record.
This "Electronic signature" definition does not allude to an image of a physical signature being allowed for use of
enforcement as copies of tangible paperwork. Copies in this instance allegedly means “derived from” the original tangible
paperwork, different from electronic record. Take the word “electronic record” and break it down;
"Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities.
"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
Hence, "Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.
And "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record
and executed or adopted by a person with the intent to sign the record.
So, when the word “intangible” arises throughout this explanation, it is merely pointing to items governed by the Uniform
Commercial Code, a.k.a. UCC, because real estate contracts are not governed by the UCC, most intangibles are. However,
confusion can arise simply because of the Note signed by the obligor, basically known as the homeowner. The UCC will govern
the negotiations of the note, should the original obligee [lender] choose sell, assign, or transfer the note; while the Electronic
Signatures In Global and National Act will govern the electronic promissory note; and the electronic signatures for the eNote;
and should not to be confused with a note governed by the UCC. E-SIGN excludes Article 3. In fact, E-SIGN excludes
Article 9 also. . See 15 USC 7003.
CREDIT:
Giving credit where credit is due; in other words; I have accomplished
some research to help make the learning process a bit easier for you;
and for your understanding; which
is provided by a cut & paste process for this portion, and for other
support, and with links to the source(s).
DIFFERENCES
I
suppose that if you can understand the following “differences” in
contracts, it may help better understand how the deed of trust is
one-sided. Have many not challenged the alleged “assignments” only to be
rejected simply because you are not a party to the alleged “assignments”
and you have no right to challenge the validity of such? That should be
a “red flag”, but most do not comprehend, nor catch the admission?
What Is an Unconscionable Contract?
An
unconscionable contract is one
that is so one-sided that it is unfair to one party and therefore
unenforceable under law. It is a type of contract that leaves one party
with no real, meaningful choice, usually due to major differences in
bargaining power between the parties.
In a lawsuit, if the court finds a contract to be unconscionable, they
will typically declare the contract to be void. No damages award or
specific performance will be
issued, but instead the parties will be released from their contract
obligations.
See more at:
http://www.legalmatch.com/law-library/article/what-is-an-unconscionable-contract.html#sthash.ivWfa9WW.dpuf
What Is an Unconscionable Contract Compared to an
Illegal Contract?
An unconscionable contract is not the same as an
illegal contract. An illegal
contract is one that is against the law because the subject matter of
the contract is illegal. An example of this is a contract that seeks to
address illegal gambling matters.
In comparison, an unconscionable contract may not be illegal in terms of
subject matter, but instead is unenforceable due to the circumstances in
which the contract was entered into by the parties. In other words, a
perfectly legal contract might be considered unconscionable based on the
way that one party obtained the other’s signature.
See more at:
http://www.legalmatch.com/law-library/article/what-is-an-unconscionable-contract.html#sthash.ivWfa9WW.dpuf
Basic Contract Law;
Old School [tangible] v. New School
[intangible]
In days of old, the “beneficiary” was usually “one and the same”, the
legal owner and holder of the note secured by a deed of trust, a lien,
aka “collateral” used in case of default on a loan. The mortgage secures
the note. The mortgage follows the note.
As pointed out by the court of civil appeals, the liens are incidents of
and inseparable from the debt.
West v. First Baptist Church of Taft
123 Tex. 388, 71 S.W.2d 1090 (1934);
Pope v. Beauchamp,
110 Tex. 271, 219 S.W. 447 (1920);
Ball v. Hill,
48 Tex. 634 (1878);
McAlpin v. Burnett, 19 Tex. 497 (1857)
-
University Savings & L. Ass'n v. Security Lumber
Co.,
423 SW 2d 287 - Tex: Supreme Court 1967
Tangible Correctness;
An examination of the deed of trust in this case reveals that the "legal
owner and holder" of the note secured is the "beneficiary." The deed of
trust authorizes the beneficiary to appoint a substitute trustee, by
designation in writing, who succeeds to all the rights and powers of the
original trustee.
Lawson v. Gibbs, 591 SW 2d 292 - Tex: Court of Civil Appeals 1979
Intangible Correctness; Tangible error
As a matter of basic contract law,
MERS is a beneficiary. "Texas courts have consistently held that the
terms set out in a deed of trust must be strictly followed."
Univ. Sav. Ass'n v. Springwoods Shopping Ctr.,
644 S.W.2d 705, 706 (Tex.1982); see also
Mathis v. DCR Mortg. III Sub I, L.L.C.,
389 S.W.3d 494, 507 (Tex.App.2012) ("The rules of interpretation
that apply to contracts also apply to notes and deeds of trust."). -
Harris County, Texas v. MERSCORP INC.,
791 F. 3d 545 - Court of Appeals, 5th Circuit 2015 :
I KNOW YOU CANNOT BIFURCATE; THE COURTS SAY "YOU CANNOT BIFURCATE"; SO WHY DOES THE DEED OF TRUST SAY IT WILL BE?
Since the defacing of the Texas Property Code, MERS, a computer system,
a bankruptcy remote, became a “beneficiary”. Nevertheless, this
”beneficiary” is an illusion, and an avenue for the account debtor[3].
The deed of trust wording provides that the deed of trust can be
stripped away from the tangible note, the one the homeowners signed
physically, and attached to an electronic promissory note registered in
the bankruptcy remote vehicle. And MERS is the beneficiary for the eNote
owner, not matter what account debtor is the holder of the eNote. Yet,
as ignorant as the courts appear, MERS, a computer system governed by
electronic law, replaced the “person” whom once was considered the
“beneficiary”, and the courts appear too ignorant to realize there is an
account debtor involved in this scheme. Or do they turn a blind eye?
Maybe for a job offer later in life? Imagine that, an ATM machine for
deed of trust transfers? Will you learn something about the deed of
trust you possibly missed?
DEBT;
The problem, or in other words, the best way for the homeowner to be a
victim of this crime, is as everyone whom signed a note for a loan for
real property acknowledges, “they have a debt”, because they did. Why
would they deny that? So, as long as the debt exists, whether it is
admitted; or acknowledged, the criminals win without effort. Even though
the homeowner knows s/he has a debt, it is easy for the ignorant judge
to side with the opposition claiming the homeowner’s debt with
electronic illusions, instead of looking to the laws that govern. After
all, they do need a job somewhere else when they leave the bench.
It is sad, but true.
The mortgage of the property is an incident of the debt; and as long as
the debt exists, the security will follow the debt.
THE EXISTENCE OF A DEBT;
The existence of a debt is essential to the validity of a deed of
trust or mortgage, the deed
of trust or mortgage being incident to the note. West v. First Baptist
Church, 71 S.W.2d 1090, 1098 (Tex. 1934). Additionally, to be effective,
the deed of trust must be delivered. West, 71 S.W.2d at 1099.
In Texas, negotiable instruments are governed by the Uniform Commercial
Code ("U.C.C.") as adopted by the Texas Legislature and codified in the
Texas Business and Commerce Code. -
Amberboy v. Societe de Banque Privee,
831 SW 2d 793 - Tex: Supreme Court 1992
MERS members make claim you have a debt, so why do you ask them to prove
such before you admit? That is not lying. Plead the fifth. Don’t
incriminate yourself. That would be unconstitutional if you were forced
to incriminate yourself. So, what if they plead the fifth? Are they not
the ones making a claim?
Hold them to the laws that govern and be specific of what you ask for
when you want to discover what they are doing.
COLLECTION;
Again, since the debacle of 2004, when a certain group of lawyers , the
“New Republic of Texas”, defaced the Texas Property Code, so-called
“mortgage servicers” attempt to collect upon a non-existent debt. To
collect upon the non-existent debt, all the “person” need do is convince
the homeowner they are the homeowners “mortgage servicer” with never
providing proof they hold a servicing contract for the homeowners
mortgage loan. What is worse, the homeowner believes, or trusts such
gibberish from the “mortgage servicer” propaganda. Then they admit they
have e debt to an unknown person who will incriminate the homeowner. And
with the use of electronic copies of the non-existent debt registered in
the MERS system, it is easy for the “mortgage servicer” to succeed. The
unfortunate homeowner is probably the only party that possibly holds a
true and correct copy of their mortgage loan.
To collect on a promissory note, a plaintiff must establish: (1) the
existence of the note in question, (2) the defendant signed the note,
(3) the plaintiff is the owner
and holder of the note, and (4) a certain balance is due and owing on
the note. See
Commercial Serv. of Perry, Inc. v. Wooldridge,
968 S.W.2d 560, 564 (Tex. App.-Fort Worth 1998, no pet.).
-
Cadle Co. v. Regency Homes, Inc.,
21 SW 3d 670 - Tex: Court of Appeals, 3rd Dist. 2000
FOR GRINS AND GIGGLES;
"PARTIAL INTEREST"?
As the deed of trust does contain the wording “partial interest”,
here is an explain from a Texas court.
Hopefully this will help understand the “intangible” verbiage
within the deed of trust. This should help the reader arrive to the fact
that the deed of trust contradicts itself, and the laws which govern the
mortgage that secures the note, and the laws which govern the note. See
§ 3.203(d), Tex. Business and Commerce code, or other UCC related laws.
A
"partial interest" consists of a set number of payments under a note or
contract for deed. -
NOTE INVESTMENT GROUP, INC. v. Associates First Capital Corp., Tex:
Court of Appeals, 9th Dist. 2015
THE MEAT;
We must understand that we are Talking CONTRACT LAW not matter what is
alluded to. It is a “tandem” fight; meaning you are defending both the
Note and the Deed of Trust, because the deed of trust is an incident of
the debt; and UCC 9 “intangible” are being referenced in courts of law,
or equity, not article 3. Should you pay close attention, you can
understand the “intangible” word crafting within the deed of trust. This
word crafting could not exist within the “four corners” of the Note, so
it was added into the deed of trust. And apparently nobody is paying
attention, or it would be a hot topic. Remember, keep is simple stupid?
DEED OF DECEIT[4]
The following excerpts are from Form 3044,
Fannie Mae [Texas] Deed of Trust
The Note represents funds advanced by Lender at the special instance and
request of Borrower for the purpose of acquiring the entire fee simple
title to the Property
DEED OF TRUST
DEFINITIONS
“Security Instrument”
means this document
“Loan”
means the debt evidenced by the Note, plus interest, any prepayment
charges and late charges due under the Note, and all sums due under this
Security Instrument, plus interest
“Applicable Law”
means all controlling applicable federal, state and local statutes,
regulations, ordinances and administrative rules and orders (that have
the effect of law) as well as all applicable final, non-appealable
judicial opinions.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender:
(i) the repayment of the Loan, and all renewals, extensions and
modifications of the Note; and (ii) the performance of Borrower’s
covenants and agreements under this Security Instrument and the Note.
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby
conveyed and has the right to grant and convey the Property and that the
Property is unencumbered, except for encumbrances of record.
Borrower warrants and will defend generally the title to the
Property against all claims and demands, subject to any encumbrances of
record.
COVENANTS; an unconscionable contract or not? And / or illegal?
16. Governing Law;
Severability; Rules of Construction.
This Security Instrument shall be governed by federal law and the
law of the jurisdiction in which the Property is located.
All rights and obligations contained in this Security Instrument
are subject to any requirements and limitations of Applicable Law.
Applicable Law might explicitly or implicitly allow the parties
to agree by contract or it might be silent, but such silence shall not
be construed as a prohibition against agreement by contract.
In the event that any provision or clause of this Security
Instrument or the Note conflicts with Applicable Law, such conflict
shall not affect other provisions of this Security Instrument or the
Note which can be given effect without the conflicting provision.
If all or any part of the Property or any Interest in the Property is
sold or transferred (or if Borrower is not a natural person and a
beneficial interest in Borrower is sold or transferred) without Lender’s
prior written consent, Lender may require immediate payment in full of
all sums secured by this Security Instrument.
However, this option shall not be exercised by Lender if such
exercise is prohibited by Applicable Law.
20.
Sale of Note; Change of Loan Servicer; Notice of Grievance.
The Note or a partial interest in the Note (together with this
Security Instrument) can be sold one or more times without prior notice
to Borrower.
So, they hold the homeowner to the deed of trust, and turn a blind eye
to the party attempting to claim it? As for the security instrument;
Covenant 16
states;
“All
rights and obligations contained in the Security Instrument are subject
to any requirements and limitations of applicable law governed by
federal law and the law of the jurisdiction in which the Property is
located. And in the event
that any provision or clause of the Security Instrument or the Note
conflicts with Applicable Law, such conflict shall not affect other
provisions of the Security Instrument or the Note which can be given
effect without the conflicting provision.”
Covenant 16 states that all applicable federal law and law of the
jurisdiction governs the security instrument and note.
In Texas, and turning to the deed of trust requirements, the Texas Local
Government code states in Chapter 192, section 007, that;
Sec. 192.007. RECORDS OF
RELEASES AND OTHER ACTIONS.
(a) To
release, transfer, assign, or take another action relating to an
instrument that is filed, registered, or recorded in the office of the
county clerk, a person must file, register, or record another instrument
relating to the action in the same manner as the original instrument was
required to be filed, registered, or recorded.
(b) An entry, including a
marginal entry, may not be made on a previously made record or index to
indicate the new action.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 53, eff. Sept. 1, 1989.
That is a local law created a long time before MERS, Mortgage Electronic
Registration Systems, Inc. was borne. Barrett Daffin … must have
overlooked this local code? Transactions related to MERS products are
not required to be recorded according to E-SIGN, so why are these
electronic records being recorded? Why does Stephen C. Porter, Tommy
Bastian, David Seybold, etc. have so many purported “assignments”
recorded across Texas? MERS products are “intangible” assets which would
be filed with the Secretary of state, if anywhere, not the county
recorder. It would be the “successor” of a tangible deed of trust
attached to a certain note whom would record its action with the county
public records to continue a perfected chain of title for the purported
secured debt.
NAVIGATIONAL ERROR
In essence, covenant 20 circumnavigates covenant 15; and applicable
state and federal law. Covenant 20 contains certain verbiage that “the
note, or a “partial interest” in the note “together with this Security
Instrument” can be sold one or more or more times without prior notice
to borrower”. How do you
split up a deed of trust? Tear it into pieces?
According to Texas case law[5];
“negotiable instruments are governed by the Uniform Commercial Code
("U.C.C.")”. This would mean the “partial interest” wording in the deed
of trust about the note is governed by Article3, Uniform Commercial
Code. So, with the wording “note, or a “partial interest” in the note
“together with this Security Instrument” can be sold…” common sense
would suggest it is alluding to a transfer of some sort, or selling
“parts” of the note from party A to party B, or C, or D, or E, etc.
The governing law for the transfer of the note; the UCC points to
§3.203, of Article 3; However there appears to be an issue with that
“partial interest” wording and subsection (d).
Sec. 3.203. TRANSFER OF
INSTRUMENT; RIGHTS ACQUIRED
BY TRANSFER.
(a) An instrument is
transferred when it is delivered by a person other than its issuer for
the purpose of giving to the person receiving delivery the right to
enforce the instrument.
(b) Transfer of an
instrument, whether or not the transfer is a negotiation, vests in the
transferee any right of the transferor to enforce the instrument,
including any right as a holder in due course.
The transferee cannot acquire rights of a holder in due course by
a transfer, directly or indirectly, from a holder in due course if the
transferee engaged in fraud or illegality affecting the instrument.
(c) Unless otherwise
agreed, if an instrument is transferred for value and the transferee
does not become a holder because of lack of indorsement by the
transferor, the transferee has a specifically enforceable right to the
unqualified indorsement of the transferor, but negotiation of the
instrument does not occur until the indorsement is made.
(d) If a transferor
purports to transfer less than the entire instrument, negotiation of the
instrument does not occur.
The transferee obtains no rights under this chapter and has only the
rights of a partial assignee.
Amended by Acts 1995, 74th Leg., ch. 921, Sec. 1, eff. Jan. 1, 1996.
If you read subsection “d”, this certain portion of “governing law”
becomes a conflict with the word crafting in covenant 20 of the deed of
trust by the wording evidenced as; “The note, or a “partial interest” in
the note… can be sold one or more times.”
Re-iterate 3.203 (d);
If a transferor purports to transfer less than the entire instrument,
negotiation of the instrument does not occur.
The transferee obtains no rights under this chapter and has only
the rights of a partial assignee.
A Texas court has defined that; “A
"partial interest" consists of a set number of payments under a note or
contract for deed”.
This nugget should lead you the understanding of the
“intangible”? It really should.
In essence, and possibly due to greed, the scheme was to “create” the
mortgage loan, register it in a stock market vehicle, and allegedly sell
“bits & pieces” of each alleged mortgage loan, along with “bits and
pieces” of other alleged mortgage loans in “tranches”
to unsuspecting investors. As far as investor is concerned, the question
should arise as to how the trances could hold toxic mortgages constantly
be alleged as in “default”. Some day the investor will catch on?
I suppose this may be a certifiable question; Are the basic rules of
interpretation which apply to contracts with physical signatures the
exact same as contracts created electronically? How would these apparent
different contracts be utilized with the same law? In the physical
world, these paper contracts are “written”. In the electronic world,
these electronic contracts are “electronically” signed with symbols and
such, and not physically signed. Please do not argue with the “same
effect” or you will miss the mark.
Why was MERS created? What laws govern MERS? What laws govern the
note? What law governs secured transactions? Do any of those
applicable law govern the real estate mortgage? Not according to Texas
courts.
"A mortgage is governed by the same rules of interpretation which apply
to contracts."
Sonny Arnold, Inc. v. Sentry Savs. Ass'n,
633 S.W.2d 811, 815
352*352
(Tex.1982). Thus, the same rules of interpretation that apply
to contracts also apply to a deed of trust.
Alkas v. United Savs. Ass'n,
672 S.W.2d 852, 858 (Tex.App.—Corpus Christi 1984, writ ref'd n.r.e.).
Further, "[t]he note and deed of trust on ... property should be
construed together and effectively regarded as one instrument."
Chapa v. Herbster,
653 S.W.2d 594, 600 (Tex.App.— Tyler 1983, no writ). Issues
of contract interpretation are determinable as a matter of law.
Fisk Elec. Co. v. Constructors & Assocs.,
888 S.W.2d 813, 814 (Tex.1994).
-
Lawson v. Gibbs, 591 SW 2d 292 - Tex: Court of Civil Appeals 1979
FORECLOSURE?
"Repossession" of real estate cannot be compared to repossession of
personal property. Repossession of personal property is governed by
Chapter 9 of the Texas Uniform Commercial Code. TEX.BUS. & COM. CODE
ANN. § 9.101 et seq. (Tex.UCC) (
THE ILLUSION
There is a document on the Texas Supreme court website, it is a
transcript of a certain “task force” which clearly admits they
“documents are just made up”. What’s worse, a few judges were sitting
in, or by phone, associated with that certain meeting. I do have a copy
of this meeting and it is located
Here.
So, when the banks, or it imposters allude to UCC 9, you should know
them by their fruits. UCC 9 is a red flag. I’ve written, we’ve written,
in the past, of this issue. There are many articles, charts and
explanations on
Ourlemon.com or
TrillionDollarFUBAR.com. Go read,
learn and understand. The world is being ripped off.
In essence, the “originating lender” became an account debtor, who
pledged “partial interests” as collateral for this crime. This being the
instance, party “a” gets to claim so many payments” as the “partial
interest”, then party “b” gets to claim so many payments from the note,
and so goes the story. These “partial interest” parties are seemingly
alluded to as “investors” in the secondary ‘intangible” market.
So, the homeowners mortgage and note governed by contract law, somehow
became a UCC 9 contract. How is this accomplished? The Account debtor
pledged the homeowner collateral in case the account debtor defaulted
upon the UCC 9 governed mortgage, a personal property mortgage, only
related to the real estate mortgage by reference. Then the intangible
obligor pursues the innocent homeowner. And MERS just made it easier to
confuse the masses.
Think “old school” real estate, not electronic personal property
mortgages MERS members allude to. They are actually attempting to use
UCC 7 & 8 for their crime unknowingly to the courts, but if you knew
that, they could not accomplish their crime.
So, how did the alleged transfer of the note pass the requirements of
3.203(d) of Article 3?
This can open Pandora’s box and when the can tips, you will know how
many worms were in the can. It is a crime, to say the least.
So, is the deed of trust unconscionable?
Is it illegal?
Discover! Say it……
If Texas is a non-judicial foreclosure state; and the only “known”
lender is named upon the face of the two contracts allegedly referenced
as recorded into public records, rescission should be as easy as sending
the rescission letter to the originating lender, no? Read the Supreme
court opinion on that process;
Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 - Supreme
Court 2015
The courts clearly state the note and deed of trust cannot be
bifurcated. Why does the deed of trust make the grantor agree to such
activity? See covenant 20 in the deed of trust.
OTHER:
If you are thinking of using court documents from other cases as summary
judgment proof, pay attention;
Summary Judgment; Evidence
A
party cannot simply attach a court document from another case as summary
judgment proof. See
Soefje,
270 S.W.3d at 626 (emphasizing that one cannot dispense with
proper foundational requirements). Rather, the evidence must be
submitted in a form acceptable for summary judgment proceedings; in
other words, the summary judgment evidence must be either sworn to or
certified.
Soefje,
270 S.W.3d at 626;
Souder,
235 S.W.3d at 848;
Mowbray v. Avery,
76 S.W.3d 663, 689 (Tex. App.-Corpus Christi 2002, pet. denied).
- Sanders v. AMERICAN HOME MORTGAGE SERVICING, INC.,
LAST WORDS
As for those whom have attempted to discover the recorded assignments to
determine the trail of the chain of title, would it not be more
advantageous to request both unrecorded; and recorded assignments? It
really would make for one spectacular audit if one has the power to
conduct such subpoena request, right?
After all, there are many government agencies who provided funding to
many, many real estate mortgage loans. Ginnie Mae are you Listening?
Veterans Administration are you listening?
Speaking of Governmental Agencies; Do you know about §51.008,
Sec. 51.008.
CERTAIN LIENS ON REAL PROPERTY.
(a) A lien on real
property created under this code or another law of this state
in favor of a governmental entity must be recorded
as provided by Chapters
11 and
12 in the real property records of
the county in which the property or a portion of the property is located
unless:
(1) the lien is imposed as
a result of failure to pay:
(A) ad valorem taxes;
or
(B) a penalty or interest
owed in connection with those taxes;
or
(2) the law establishing
the lien expressly states that recording the lien is not required.
(b) Any notice of the lien
required by law must contain a legal description of the property.
(c) This section does not
apply to:
(1) a lien created under
Section
89.083, Natural Resources Code;
(2) a state tax lien under
Chapter
113, Tax Code;
or
(3) a lien established
under Chapter
61 or
213, Labor Code.
Added by Acts 2001, 77th Leg., ch. 827, Sec. 1, eff. Sept. 1, 2001.
Let's say the value of the paper note was transferred to the electronic promissory note. This could fit the requirements in section 203, of Article 3. However, if the value were transferred in partial interest in eNotes, does this meet the requirement of 3.203(d), of Article 3. A mystery? Nevertheless, and for sake of argument, let's say the whole value of the paper note was transferred to the electronic promissory note, which is the deed of trust MIN. And all the requirements were met for 3.203. Then the electronic promissory note was sold, purchased, assigned, transferred, etc., how is the electronic promissory note negotiated? What value does the electronic promissory note have? The electronic promissory note did not have to meet any requirements of negotiability, simply because Article 3 is excluded from E-SIGN, the law that governs electronic signatures and electronic transfers of transferable records, aka eNotes registered in the MERS eRegistry.
Of course, if you have read the Fannie Mae, or other GSE guidelines, you would notice that the electronic promissory note can be printed out. This gives an illusion to its validity? Simply printing out the electronic promissory note does not give value, nor does it provide a legal avenue to pursue the real estate mortgage homeowner. It only proves electronic records residing as computer information, in a computer system, was printed onto tangible medium, paper. Think of this. The ability to sell, purchase, transfer, assign a "negotiable instrument", resides within the Uniform Commercial Code. As long as you believe the electronic promissory note is governed by the UCC, you will get very tired fighting this beast. In fact you will note win. You might get close, but you have not shown the crime. Even E-SIGN does not provide a way to transfer the "value" of the electronic promissory note to paper. Again, See 15 USC 7003.
Here, read
§ 7003. Specific exceptions
(a) Excepted requirements
The provisions of section 7001 of this title shall not apply to a
contract or other record to the extent it is governed by—
(1) a statute, regulation, or other rule of law
governing the creation and execution of wills, codicils, or testamentary
trusts;
(2) a State statute, regulation, or other rule of
law governing adoption, divorce, or other matters of family law; or
(3) the Uniform Commercial Code, as in effect in
any State, other than sections 1–107 and 1–206 and Articles 2 and 2A
PROVE IT?
Do you get it? The only things referenced for the UCC is sales, leases and other captions. MERS system is utilized for the sales of intangible assets. Not real estate mortgages, but personal property mortgages. There is no avenue to produce evidence of a real estate mortgage or note other than providing printed copies of an Authoritative copy which has no value; nor law to support its value, except for E-SIGN which the real estate mortgage loan was only referenced. Of course, all that is needed in Texas is evidence of the debt. So, does the evidence from the MERS eRegistry provide true & correct copies of the note or deed of trust? You betcha! It was initially place into digital images and registered into a bankruptcy remote as an investment vehicle for investors. Does that mean it can be used as evidence? I suppose it could between the "Creditor" and "Borrower" of the electronic contract, but how can it be used as legal evidence between a "mortgage servicer" and a real estate mortgage loan borrower? E-SIGN only applies to those whom chose to electronically contract, it has nothing to do with the two contracts which were physically signed. Article 3 was never changed in order to support E-SIGN for electronic negotiable instruments. E-SIGN does not apply to contracts governed by Article 9, or Article 3, should that be the case. In other words, MERS members have no right to challenge a real estate mortgage loan, nor foreclose, because they are not parties to the original contracts. The world is deceived.
eNotes contain all the "homeowner" information in image format, the note, the deed of trust, the financial records, insurance papers, all the "mortgage documents". But to register the eNote, some of the so-called vital information would be by input from a keyboard or some type.
ENDING NOTE; For now.....
Namaste,
[1],2
Richard R. Orsinger;
170 YEARS OF TEXAS CONTRACT LAW
[2] It means I have written about this matter many times before. That’s all.
[3] (3) "Account debtor" means a person obligated on an account, chattel paper, or general intangible.
The term does not include persons obligated to pay a negotiable instrument, even if the instrument
constitutes part of chattel paper.
[5]
Amberboy v. Societe de Banque Privee, 831 SW 2d 793 -