To Be or Not To Be: Who Owns Your Mortgage Note?

What is filed into public record?

“To be or not to be.” While this phrase was originally versed by Shakespeare, it is a question that comes up again and again. Documents that purport to be either an Assignment of Mortgage or an Assignment of Deed of Trust are brought forth in an effort to bedazzle the audience into thinking that what they are looking at is the real deal. What they are actually looking at is the creation of fancy word crafting at its finest.

Is the Assignment Eligible to Be Recorded?

One of the questions that runs past my mind and burns into my thoughts upon the sight of a document that is purporting to be an Assignment of Mortgage is: “Is that Assignment of Mortgage actually eligible to be recorded?” The whole purpose of the Assignment of Mortgage document is to memorialize the sale of the Tangible Promissory Note, but that sale of the Tangible Promissory Note has not taken place.

This is a feeble attempt to put things into an orderly fashion for presentment. It allows the transaction to take place on its face if not challenged. In reality, this is a cover up of an extreme magnitude and of global proportions. This transpires every day with filings recorded in thousands of counties across the United States, in every state.

The Sale Never Occurred

The sale of the Tangible Promissory Note to the party named on the purported Assignment of Mortgage did not occur, and yet an Assignment of Mortgage is filed with the county recorder’s office with no regard to any wrong doings. This claim is unsupported by evidence and is only supported by the Assigner’s own hearsay claim.

In Carpenter v. Longan, 16 Wall 271, 83 U.S. 271, 274, 21 L.E.D. 313 (1872), the U.S. Supreme Court stated:

“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 assignment of the latter alone is a nullity… The mortgage can have no separate existence. When the note is paid the mortgage expires. It cannot survive for a moment the debt which the note represents. This dependent and incidental relation is the controlling consideration…”

What Interest Is Being Transferred?

In actuality, only an interest in the Mortgage is being transferred and assigned. What interest is being transferred? There is no evidence of the Tangible Promissory Note being transferred, negotiated and delivered to the same named party that is listed as mortgagee in the public records. This is certainly not the same named party with a claim to the sole interest of the Intangible Payment Obligation that was stripped and sold shortly after the signing of the documents at closing. A mortgage fraud investigation can uncover whether these transfers involved fabricated or fraudulent documentation.

While the Intangible Payment Obligation was sold years prior to this purported Assignment of Mortgage, there is no debt to be evidenced by the Tangible Promissory Note. When the Tangible Promissory Note is stripped of this debt obligation, there is nothing for the Security Instrument to attach itself to. The security instrument, being a Mortgage or a Deed of Trust, is now a nullity. Not voided or voidable, but a nullity. It can have no separate existence of its own. The debt was the controlling consideration that kept the security instrument alive. There are no conditions to hold over for collection as the debt has been sold.

A Legal Impossibility

When the right to collect future payments was sold, the value of the security instrument diminished in value. Fast forward to the present time and we will see all of the king’s men trying to put Humpty Dumpty back together again. This is a legal impossibility.

We must challenge these filings. If we do not, the banks shall surely prevail. A Chain of Title Analysis traces every transfer and assignment to expose these defects. This is not just one battle, but a war with hundreds of thousands of casualties in thousands of battles. This is a war of rights, the rights to a legal title for your property.

I say to the banks: “Bring it on.”

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Joseph Esquivel, Mortgage Compliance Investigators. Copyrighted 2013.