The “Debt” rabbit hole
Neil Garfield
Nov 17
Take care to distinguish what contract you’re talking about. If you receive money, the law says you must give it back unless it was payment for something or it was a gift. In that sense, the law imposes a contract on people even if they are not thinking about or writing a contract.
In fact, even if there is no agreement on giving it back, the other person can and will force you to do so. That is what is called “debt.” It is something that is created by law — i.e., by legislative action signed into law by the governor of the state. It is NOT the note, it is NOT the mortgage, nor the “payment history.”
There are three types of contracts from a procedural point of view:
First is the contract imposed by law, even if the parties don’t want to consider their interchange a contract.
Second, an oral contract may or may not be enforceable, depending upon the jurisdiction’s laws. Certain contracts are considered unenforceable if they are not in writing. That does not completely erase liability under the equitable or legal doctrine, but it does prevent anyone from “suing on contract.”
Third, there are contracts in writing that may or may not be enforceable, depending upon the laws of the jurisdiction in which the contract was executed. So if the contract violated public policy or a statute, it is probably not enforceable. NOTE: Being unenforceable does not zero out liability. Under doctrines like unjust enrichment, the other party can still collect. But they cannot enforce the terms of the written or oral agreement.
The debt is created, therefore, by the receipt of the money — not the execution of any contract intentionally or unintentionally. This is important because the “thing” in a contract is the subject of the contract. The debt is either created or not by action, not by words.
My point here is that the banks want us to talk about debt because they say it is a debt, not because it IS a debt. And they are leveraging our ignorance into direct and implied consent for their securities transaction even though they never told us about it.
Their intent was not to make a loan. Nobody in the entire securitization infrastructure wants to own any unpaid loan account receivable because that would make them either a lender or a successor lender. AND THAT would expose them to all types of liability for violations of federal and state lending and servicing laws. They intended to control the transaction, not own it.
The first step in making a claim is that there must be a foundation for the claim. The bank lawyers focus strictly on the paper documents and argue that the debt was created by executing documents. However, there was no intent (on their part) to become lenders or successor lenders — and no intent to create or maintain an unpaid loan account on the books and records of any company.
They successfully substituted a “payment history” under the name of a third party who had no role in the production of that history. By accepting the payment history as evidence of the loan account, homeowners and their lawyers encouraged the judges to accept it too. In doing so, everyone arrived at the same conclusion: that there was a default despite the absence of any unpaid loan account on which someone (anyone) had suffered a “default.”
Foreclosure is strictly about the satisfaction and release of an unpaid debt. It is not about allowing anyone who knows something about you to force you to make payments or else lose your home. There is no default without injury. And there is no injury without an unpaid loan account that has been reduced in value because of a gap in scheduled payments. And there is no evidence of such injury until you see the unpaid loan account — not the payment history.
If you stop making payments you don’t owe, that is not a default. If you stop making payments to someone who does not own the alleged or implied debt, that is not a default unless the creditor has contacted you and told you that they own the debt and designated in writing that you should pay a third party.
Anyone announcing a default is at least implying that there is such an unpaid loan account. You are entitled to get corroboration of that implied assertion. You won’t get it because there is no such account in most cases.
In the case of a foreclosure, there must be an unpaid debt owned by the claimant — i.e., someone who has paid value for it. No jurisdictions in the U.S. allow for the transfer of the title to a mortgage lien without a concurrent conveyance of the underlying debt. That means an actual transfer of the debt. And for that to happen, the debt must exist. Without that, the instrument of transfer (i.e., assignment) is considered in all U.S. jurisdictions as a “legal nullity.”
A legal nullity is something that the laws refuse to acknowledge even though it is written or something happened.
The above leads to my fundamental premise that nearly everyone is ignoring.
Suppose there was no intent to become a lender and no intent to create and maintain an unpaid loan account as an asset on the books and records of some creditor. What was the nature of the payment that arrived at the closing table when the transaction originated?
It can’t be called a “loan” just because one side thought it was a loan (homeowner). The most basic concept of contract law is the requirement of the meeting of the minds.
The other side wanted to keep the ability to enforce “as if” the transaction was a loan, but they wanted no part of owning it or being subject to lending or servicing laws.
Further, it is apparent that their business plan was not based on generating revenue or profit from the interest paid. It was based almost entirely on selling securities whose only value depended upon market forces and discretionary promises from the underwriters (who were also issuers). Secondarily it was based upon their continued success in the enforcement of “virtual loan accounts” through collection and foreclosure (distributing the proceeds as revenue and profit instead of a credit against any loan account).
I, therefore, arrive at the only possible conclusion: the payment received at the closing table (assuming there was a payment received by the closing agent) was an incentive payment to the homeowner to execute loan papers even though there was no loan.
This made the homeowner an unwitting issuer in a securities scheme for which they received a payment that was required by the “loan papers” to pay back and, adding insult to injury, requiring not only a return of the fee they received but also a surcharge that was called “interest.” the compensation.
My analysis leads me to conclude that homeowners are continually being cheated out of legally required financial participation in a securities sales scheme that could not exist without their cooperation. Further, they are not given due consideration for their actions in support of the scheme simply because the investment banks don’t want homeowners to share in the incentives, revenues, and profits.
Iceland recognized this at the time of the 2007-8 collapse. They addressed it and ended their recession in 3 months. They sent the key players to prison and reduced household debt across the board by 25%. This created stimulus to their economy without spending one dime and forced the banks to accept at least part of the losses created by pumping up prices far beyond the value of the properties affected. We spent trillions of dollars in stimulus to offset the hole in our economy created by this fraudulent scheme. Our recession lasted for 10 years.
The bottom line is don’t fall into their rabbit hole of “virtual debt.” The debt is not a piece of paper. The debt, if it exists, can only exist if the party who gave you the money intended to start a loan relationship — not because that was what you were seeking.
And if someone seeks to enforce the “debt” against you, make sure it actually exists on the books of the designated creditor or claimant as an asset on their books — not just as a record of payment on the report issued under the name of some third party who played no part in producing that report.
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