Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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James
What if the "lender" named with MERS in the note and mortgage was not licensed at closing, as required by the state licensing regulator? If almost two years later, it became licensed, but as a mortgage broker, would this affect the plaintiff's right to enforce the note?

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William A. Roper, Jr.
Quote:
James said:
What if the "lender" named with MERS in the note and mortgage was not licensed at closing, as required by the state licensing regulator?  If almost two years later, it became licensed, but as a mortgage broker, would this affect the plaintiff's right to enforce the note? 

 
James:
 
Probably NOT, but you really need to look at the express statutory langauge and the cases associated with the state licensing statute.
 
The language of such regulatory legislation can vary considerably from state to state.
 
NOTE:  I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVICE!
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James
Thank you.

I found the state code and a case with an interesting statement, but what is a supervised financial organization or a supervised loan?

One case cited this:


"[u]nless a person is a supervised financial organization or has first obtained a license from the Administrator authorizing the person to make supervised loans, a person shall not engage in the business of: (a) making supervised loans; or (b) taking assignments and undertaking direct collection of payments from or enforcement of rights against debtors arising from supervised loans." The Code is unambiguous: "If a creditor has violated the provisions of this act applying to authority to make supervised loans, the loan is void and the debtor is not obligated to pay either the principal or loan finance charge.



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James
Sorry, I just realized this was cited, but the case was from a different state, which has similar state law.

Thanks for you help, I will keep looking.

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William A. Roper, Jr.
James:

After you get a better handle on the licensing laws, bear in mind that there are also several national statutes which preempt the enforcement of certain state laws.  For example, there exists national legislation preempting state usuary laws for loans on the security of real property.

First, understand the state laws, then double back and check the U.S. Code.  But I doubt that you are going to find anything overly useful. 

Best of luck and success in your research!
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James,
   The answer to your question depends upon whether or not the Note is considered a "negotiable instrument" or not. If it is a "negotiable instrument"
and it gets lawfully transferred by endorsement to a different entity, then
you can not raise the defense of the original lender being unlicensed or any
other defense against the original lender for that matter, such as fraudulent
appraisal (which was widspread with these unlicensed lenders).
    That is why you need to look carefully at the Note and see if it is truly
a "negotiable instrument". In Florida, if it has late charges, a variable interest
rate (which requires you to look outside the Note to calculate the amount owed) or the Note requires you to refer to the mortgage to determine how
much is owed, then it is NOT A "negotiable instrument" and it must be transferred with a lawful assignment of the mortgage (since it is one part of a  contract). Also, whoever buys the loan, takes it subject to all defenses the borrower would have had against the original lender, including lack of a license.
     This is why the "pretender lender" servicers always try to say at the outset, that the Note is a "negotiable instrument". IF YOU DON'T PROTEST,
THEY WIN! In my research, most attorneys do not protest this issue and their client loses. I call it "incompetent practice of law", IPL, a widespread problem in foreclosure defense.
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William A. Roper, Jr.
Quote:
Mike H. said:
James,
The answer to your question depends upon whether or not the Note is considered a "negotiable instrument" or not.  If it is a "negotiable instrument"
and it gets lawfully transferred by endorsement to a different entity, then
you can not raise the defense of the original lender being unlicensed or any
other defense against the original lender for that matter, such as fraudulent
appraisal (which was widspread with these unlicensed lenders).

James:

Once again, Mike H., who is a person who is not trustworthy, has reappeared to post fundamentally erroneous information.
 
As usual, he writes as if with great knowledge and certainty, but he seems to be seldom correct.  Anyone relying upon Mike HANSEN for legal advice is likely to have an unpleasant time.
 
Mr. HANSEN erroneously assumes that the holder in due course immunity would immunize a hold against the sort of defense about which you inquire, but that IF you could get the transaction out from under the UCC by attacking negotiability, that this would present you with a valid defense.

*

As a preliminary matter, permit me to remind you that I suspect that lack of license in your jurisdiction will NOT make the transaction unenforceable, and this is why I encouraged you to investigate the statutes of your jurisdiction.

And if there is no provision which makes the loan illegal and unenforceable, any further discussion is really strictly academic.

But Mike seemingly persists in lingering about the Forum pretending expertise to find new victims for his schemes.  And since he continues to pollute this Forum with his misinformation, his post deserves a response. 

*

I have discussed elsewhere holder in due course immunity.  But it is appropriate to review that immunity here.  You will want to review the text and the cases of the UCC for your jurisdiction.  The national standard UCC language appears within UCC §3-305:
§3-305.  DEFENSES AND CLAIMS IN RECOUPMENT. 

(a)  Except as otherwise provided in this section, the right to enforce the obligation of a party to pay an instrument is subject to the following:

(1) a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;
 
(2) a defense of the obligor stated in another section of this Article or a defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract; and
 
(3) a claim in recoupment of the obligor against the original payee of the instrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.

(b)  The right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in subsection (a)(1), but is not subject to defenses of the obligor stated in subsection (a)(2) or claims in recoupment stated in subsection (a)(3) against a person other than the holder.


. . .

See:  http://www.law.cornell.edu/ucc/3/article3.htm#s3-305
The law distinguishes between various kinds of defenses.  If the defense is that the original transaction was illegal nullifying the obligation of the obligor, because this is a defense set forth in §3-305(a)(1) this is would NOT be subject to the holder in due course immunity.

In short, IF the transaction was of a character that the laws of your jurisdiction found to be illegal and the statute nullified the transaction, whether the promissory note was negotiable or not is seemingly irrelevant.

*

It should probably be noted that the primary state statutes which found lending transactions to be illegal and unenforceable were state usury laws.  The application of state usury laws to most mortgage loans was preempted nationally by the Depository Institutions Deregulation and Monetary Control Act, enacted by Congress in 1980.

Generally, you might want to look at 12 U.S.C. §1735f–7a and 12 C.F.R. Part 590 to learn more about Federal Preemption of State Usury Laws.  For example, see:

http://www.law.cornell.edu/uscode/html/uscode12/usc_sec_12_00001735---f007a.html


*

It should also be noted that Mike is totally ignorant and confuses holders and holders in due course.  An instrument can be lawfully negotiated making the receiving entity a lawful holder, but that holder still might not be a holder in due course

I would generally encourage you to disregard posts by this person.

*

So far, in spreading a lot of serious misinformation, Mike HANSEN has seized upon one minor Florida decision regarding negotiability, which may very well be erroneous, and conflates this as the silver bullet to foreclosure defense.  This along with a variety of other total wingnut theories such as the "death gamble" defense and a very unsound encouragement that borrowers file quiet title actions against their Lenders.

Mike HANSEN is a person of questionable intelligence and judgment who is self-described as engaging in an unlicensed practice of law in Florida, apparently victimizing various borrowers.  If he contacts you off this message board to peddle his unlicensed legal services you are encouraged to report him to both the Message Board administrator, as well as the appropriate authorities.

See also:

"About Mike H."

http://ssgoldstar.websitetoolbox.com/post?id=5358980

 

NOTE:  I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE!

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William A. Roper, Jr.
See also my prior post from 06/07/11 at 03:34 PM:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1268944946&postcount=25


This is within my thread:

"Assignment of the Mortgage Without the Note Is a NULLITY"

http://ssgoldstar.websitetoolbox.com/post?id=5314462


See also the holder in due course discussion within this thread:

"New Case - Foreclosure Denied Due to Predatory Lending"

http://ssgoldstar.websitetoolbox.com/post?id=2465397


There is some discussion about holder in due course immunity within my post:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=39952053&postcount=15


Since holder in due course is so often confused with holder and so often misunderstood, perhaps we need a dedicated thread for this topic.
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James
Thank you, Mr. Roper.

That's plenty of food for thought. Guess I'll be up half the night again.


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    Roper is a liar and a blowhard who does not even know how to do a criminal background check since he has accused me of having a criminal
conviction. If he were to go to Official Records of Hillsborough county in
Florida, he would see that I have no criminal convictions.
    In my opinion he is a "plant" by the servicing industry whose job is to destroy this web site by providing false information. He is a "pretender defender" working for the "pretender lenders". His BS is completely useless
in actual practice which is why he posts his malarcky.
    Look up the UCC statutes in your state and find out the definition of a
"negotiable instrument", then go to Westlaw and look up the cases in your
State to see how the Courts have ruled on what is and is not a "negotiable
instrument". This information is fundamental to winning your case.
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TNL

Mike -- Please stop  -- Your " Death Gamble" Bull$hit just shows what an idiot you are.  Do yourself a favor --- STOP.

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Dear TNL,
   How many foreclosure cases have you worked on? How many dismissals have you gotten? In my case it is over 150 and we have gotten many dismissals. In some we used the "Death Gamble" defense and won right at the
first hearing. It's real my man. The fact you don't "get it" is your problem,
not mine.
   Turning to the subject at hand, the licensing of the original lender, this is
a significant issue because many times the "lender" named on the closing
documents was not the "real" lender and used "identity theft" of a name
of a company that was no longer in business.
    The phony lender did this because it was intending to defraud the investors by selling the same Note multiple times on the secondary market.
Obviously, if one intends to commit fraud, one will not put one's real name
on the documents.
    Unfortunately, if the servicer "pretender lender" can "smooze" the Judge
into ruling that the Note is a "negotiable instrument", the issue of licensing
will never come up because the defendant will lose at the Summary Judgment
hearing and that will be the end of it.
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George Burns
Mike H

Can you cite a few mortgage cases which have been "won" where the court agreed that the mortgage related Note was NOT a "negotiable instrument" ?

Can you cite a few cases where the "death gamble" was successful?
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Mr. Roper,

Do you know of any specific case law that supports that a judgment void ab initio cannot be defeated by the mootness doctrine?  In other words, after a party has been granted a void judgment, they cannot then defend that judgment by an attack pursuant to Rule 60 by the opposition by ultimately claiming the opposition is too late, we got the judgment and you should have appealed 9 months ago, now your Rule 60 motion is moot. 

Thanks for any assistance you can provide.
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George,
    With regard to your first question, in Florida, Holly Hill Acres LTD vs
Charter Bank of Gainsville 314 So. 2nd 209, Fl2nd DCA 1975 also GMAC
vs Honest Air Conditioning & heating, Inc., 933 So. 2nd 34 Fl.2nd DCA, 2006.
There are many more listed in West's.(With regard to the negotiable instrument issue)

    With regard to the "Death gamble" defense, we have had several dismissed but without prejudice, therefore, they can refile so I can not
provide the case numbers at this time.

    The key point is that if the original lender "died" several years ago without
lawfully transferring the Note and Mortgage, there probably is no entity to
whom the debt is owed. When the servicer comes into court, it can not
prove it owns the loan, therefore it has no standing and the case gets
dismissed. (gager in French=to wager) a gage is a wager (Black's Law Dictionary 1968) (mort in French=death).
     It's called a "mort-gage" (death gamble) because the borrower puts up
the deed, the lender puts up the cash, whichever "dies" first, loses.Very often, the borrower dies just short of paying off the loan and the lender forecloses thereby winning (gagnant) the equity of the dead borrower.
     The early Church considered this form of loan to be "usury" and outlawed
it, but it continued in the Anglo-Saxon countries. Today, on the Continent
they use a "hypotheque" which means a "gage" but without the "mort".
If the borrower dies short of paying it off, the lender only gets the balance
owed, not the entire property as is often the case in America.
     Sometimes the borrower wins the "death gamble" which means a "quiet
title" is in order. We are doing one now. So far, the servicer and MERS defaulted, while the successor to the dead lender did answer by contesting
the ownership of the deed, calling it a "deed of trust" held by a Trustee.
Such is not the case in Florida but I can see how this defense could be a
problem in a "deed of trust" state like California. Also, the defendant moved
the case up into the US District Court from the State Court, which is no problem at all, since operating in federal Court is even easier than State
Court. Since the plaintiff here has a valid "warranty deed", I don't expect
we will have any problem winning the Quiet Title action against the "dead
lender" which went out of business in 2006 without ever assigning the mortgage. The key point is that a "mort gage" is due on "death" (of either
party unless it was lawfully transferred). This is a hard concept for most
people to grasp but when they "get it", then the logic of what we are doing
will become apparent.
     The current "system" uses MERS and the "negotiable instrument" fraud
to defeat the "death gamble" concept. They have MERS acting as the agent
of "dead lenders" to assign the mortgage to the servicer, posing as a phony
trustee of a phony trust. They will call a "variable interest Note" which requires reference to the Wall Street Journal to figure out the balance owed,
 a negotiable instrument, even when it has late charges, refers to the
security agreement (mortgage) to calculate the balance owed and other "excess luggage". True negotiable instruments follow the KISS formula,
KEEP IT SHORT AND SIMPLE! Our legal system has gotten far adrift of this
basic concept, which allows these pretender lender servicers to collect
money and steal houses, in which they have no equity.
      So far, only the "deciples" of Neal Garfield seem to understand the full scope of the scam that is being perpetrated on the American people. I hope more people wake up so we can save this country from disaster, one home at a time. This is why we do what we do.
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Bill
Mike wrote:
George,
    With regard to your first question, in Florida, Holly Hill Acres LTD vs
Charter Bank of Gainsville 314 So. 2nd 209, Fl2nd DCA 1975 also GMAC
vs Honest Air Conditioning & heating, Inc., 933 So. 2nd 34 Fl.2nd DCA, 2006.
There are many more listed in West's.(With regard to the negotiable instrument issue)

    With regard to the "Death gamble" defense, we have had several dismissed but without prejudice, therefore, they can refile so I can not provide the case numbers at this time.

    The key point is that if the original lender "died" several years ago without lawfully transferring the Note and Mortgage, there probably is no entity to whom the debt is owed. When the servicer comes into court, it can not prove it owns the loan, therefore it has no standing and the case gets dismissed. (gager in French=to wager) a gage is a wager (Black's Law Dictionary 1968) (mort in French=death).
     It's called a "mort-gage" (death gamble) because the borrower puts up the deed, the lender puts up the cash, whichever "dies" first, loses.Very often, the borrower dies just short of paying off the loan and the lender forecloses thereby winning (gagnant) the equity of the dead borrower.
     The early Church considered this form of loan to be "usury" and outlawed it, but it continued in the Anglo-Saxon countries. Today, on the Continent they use a "hypotheque" which means a "gage" but without the "mort".  If the borrower dies short of paying it off, the lender only gets the balance owed, not the entire property as is often the case in America.
     Sometimes the borrower wins the "death gamble" which means a "quiet title" is in order. We are doing one now. So far, the servicer and MERS defaulted, while the successor to the dead lender did answer by contesting the ownership of the deed, calling it a "deed of trust" held by a Trustee.
Such is not the case in Florida but I can see how this defense could be a problem in a "deed of trust" state like California. Also, the defendant moved the case up into the US District Court from the State Court, which is no problem at all, since operating in federal Court is even easier than State Court. Since the plaintiff here has a valid "warranty deed", I don't expect we will have any problem winning the Quiet Title action against the "dead lender" which went out of business in 2006 without ever assigning the mortgage. The key point is that a "mort gage" is due on "death" (of either party unless it was lawfully transferred). This is a hard concept for most people to grasp but when they "get it", then the logic of what we are doing
will become apparent.
     The current "system" uses MERS and the "negotiable instrument" fraud
to defeat the "death gamble" concept. They have MERS acting as the agent
of "dead lenders" to assign the mortgage to the servicer, posing as a phony
trustee of a phony trust. They will call a "variable interest Note" which requires reference to the Wall Street Journal to figure out the balance owed,
 a negotiable instrument, even when it has late charges, refers to the
security agreement (mortgage) to calculate the balance owed and other "excess luggage". True negotiable instruments follow the KISS formula,
KEEP IT SHORT AND SIMPLE! Our legal system has gotten far adrift of this
basic concept, which allows these pretender lender servicers to collect
money and steal houses, in which they have no equity.
      So far, only the "deciples" of Neal Garfield seem to understand the full scope of the scam that is being perpetrated on the American people. I hope more people wake up so we can save this country from disaster, one home at a time. This is why we do what we do.


As usual Mike H. is posting his internet garbage.  He will never post a case concerning his "Death Gamble" defense because ANYONE that has attempted to argue this THEORY I'm sure was laughed out of court.  I have responded to his "Death Gamble" garbage several times, I did add a little more this time:

Quote:
Before you get wrapped up in the "Death Gamble" defense I'd like to see some actual pleadings and case law from ANY jurisdiction that supports this THEORY.  The word Mortgage really means:

Mort:  Dead

gage:  Pledge

It is not a Death Gamble.  It is a Dead Pledge which comes from the the thoughts that the deal (mortgage) dies when the debt is paid or payment fails. 

Here is a better explanation:

The History of Home Mortgages – A “Dead Pledge”

Mortgages are a part of our everyday lives – something we wouldn’t normally think about as far as their origin. You’d probably be surprised to learn how far back the history of home mortgages goes. But no matter how many years old this system is, the basics have never changed – the high value of real estate puts it beyond the reach of most people. So the only way to buy property is to borrow money. And that’s what they did as far back as the year 1190.

Mortgages started in “merry old England”

The beginnings of a mortgage system have been found, as mentioned, as early as 1190. English common law included a law that would protect a creditor by giving him an interest in his debtor’s property. According to this law, the mortgage was a conditional sale. Although the creditor held title to the property, the debtor could, in the event the debt wasn’t paid, sell the property to recover his money.

The history of the actual word “mortgage” is very interesting. In the word “mortgage”, the “mort”- is from the Latin word for death and “gage” is from the sense of that word that means a pledge to forfeit something of value if a debt is not repaid. So mortgage is literally a dead pledge. It was dead for two reasons, the property was forfeit or "dead" to the borrower if the loan wasn’t repaid, and the pledge itself was dead if the loan was repaid.

The great jurist Sir Edward Coke (1552-1634) says of the word “mortgage”: It seemeth that the cause why it is called mortgage is, for that it is doubtful whether the Feoffor will pay at the day limited such summe or not, & if he doth not pay, then the Land which is put in pledge upon condition for the payment of the money, is taken from him for ever, and so dead to him vpon condition, &c. And if he doth pay the money, then the pledge is dead as to the Tenant, &c. A pretty old English way of saying the same thing, but interesting to note that the principle hasn’t changed throughout the years.

Here’s another interesting piece of trivia: originally, ownership rights extended from the center of the earth to the sky. Of course, now they’re generally limited to surface rights only.

http://www.thehistoryof.net/history-of-home-mortgages.html

Also see:

http://www.thefreedictionary.com/mortgage
[Middle English morgage, from Old French : mort, dead (from Vulgar Latin *mortus, from Latin mortuus, past participle of mor, to die; see mer- in Indo-European roots) + gage, pledge (of Germanic origin).]
Word History: The great jurist Sir Edward Coke, who lived from 1552 to 1634, has explained why the term mortgage comes from the Old French words mort, "dead," and gage, "pledge." It seemed to him that it had to do with the doubtfulness of whether or not the mortgagor will pay the debt. If the mortgagor does not, then the land pledged to the mortgagee as security for the debt "is taken from him for ever, and so dead to him upon condition, &c. And if he doth pay the money, then the pledge is dead as to the [mortgagee]." This etymology, as understood by 17th-century attorneys, of the Old French term morgage, which we adopted, may well be correct. The term has been in English much longer than the 17th century, being first recorded in Middle English with the form morgage and the figurative sense "pledge" in a work written before 1393.
http://www.word-origins.com/definition/mortgage.html

A reader wrote me asking about this word. It seems she was conversing with someone from Holland and upon telling him that her husband was a mortgage broker, the Dutchman assumed he was a mortician. She wanted to know where the word mortgage came from and if it was etymologically related to mortician and mortuary.

The two words are etymologically related. They both derive from the Latin mori meaning to die (via the Old French mort). In the case of mortician, the logical connection with death is obvious, but with mortgage it is not so apparent.

In the word mortgage, the mort- is from the Latin word for death and -gage is from the sense of that word meaning a pledge to forfeit something of value if a debt is not repaid. It appears in Old French as gage mort as early as 1267. The form mort gage appears in Old French by 1283 and mortgage made its way into Anglo-Norman. Use in English dates to1390, when it appears in John Gower’s Confessio Amantis:

In mariage His trouthe plight lith in morgage.
(In marriage, His troth plight lies in mortgage.)

So mortgage is literally a dead pledge. It was dead for two reasons, the property was forfeit or “dead” to the borrower if the loan were not repaid and the pledge itself was dead if the loan was repaid. In the words of the 17th century English jurist (and apparently etymologist) Edward Coke in his 1628 The First Part of the Institutes of the Lawes of England:

It seemeth that the cause why it is called mortgage is, for that it is doubtful whether the Feoffor will pay at the day limited such summe or not, & if he doth not pay, then the Land which is put in pledge vpon condition for the payment of the money, is taken from him for euer, and so dead to him vpon condition, &c. And if he doth pay the money, then the pledge is dead as to the Tenant, &c.

(Source: Oxford English Dictionary, 3rd Edition)

http://www.seek2know.net/word.html
Mortgage:  In the word mortgage, the mort- is from the Latin word mori (via old french mort) for death and -gage is from the sense of that word meaning a pledge to forfeit something of value if a debt is not repaid. So mortgage is literally a death pledge.
 
http://www.word-detective.com/021605.html

Dear Word Detective: What is the origin and true definition of the word "mortgage"? We've heard that it is from the Latin roots "mort" (death) and "gage" (grip). Is this true? -- Brad Hubbell.

Not exactly, by which I mean that there are things that are literally, indisputably true (such as raspberry being the best flavor of jelly doughnut), and then there are propositions that, while perhaps not entirely true per se, embody a higher sort of truth.

The higher truth of mortgages, as I discovered when I first descended into the wonderful world of home ownership a few years ago, is that the "homeowner" doesn't really own the house. The mortgage company owns it, and merely permits the "homeowner," for a hefty monthly fee, to sit inside the house and watch it fall apart. There is, of course, an art to crafting mortgages. A perfectly calculated mortgage (from the mortgage company's perspective, natch) is one that finally conveys full legal ownership to the "homeowner" at the precise moment when the house has collapsed into a shambles suitable for occupancy only by myopic chickens.

A "mortgage," as the word is commonly used today, is a loan agreement by which the purchaser of real property is loaned money (usually most of the purchase price) by a mortgagor in return for a lien on or conveyance of the property, which will revert to the purchaser when the loan is repaid. If the loan isn't repaid, the mortgagor retains the property. In simple English, they loan you the money to buy a house, and if you fail to pay them back the house goes bye-bye.

The first part of "mortgage," the "mort" part, does indeed mean "death" or "dead" in both Latin and Old French (from which we borrowed "mortgage" back in the 14th century). But the "gage" part has nothing to do with "grip." A "gage" is a pledge or, particularly, something of value offered to ensure payment of a debt, and comes from an old Germanic word ("wathjam") that also gave us the English words "wed" (as in "wedding," a ceremony of pledging) and "wage."

The logic of "mortgage" is that of a "dead pledge," meaning that if the borrower repays the loan as agreed, the property becomes "dead" to the lender, who has no further rights to it. And if the borrower fails to pay, all of his or her rights to the property cease.

 

 

 

If ANYONE is foolish enough to listen to ANYTHING Mike H. says, I would recommend not shorten their life by wasting time attempting to make this argument and typing out the pleadings, save a few trees, find a place to rent, and just mail their keys to the bank.  There is no such thing as a "Death Gamble" defense. 
 
 
Quote 0 0
Bill

Mike wrote:
George,
    With regard to your first question, in Florida, Holly Hill Acres LTD vs
Charter Bank of Gainsville 314 So. 2nd 209, Fl2nd DCA 1975 also GMAC
vs Honest Air Conditioning & heating, Inc., 933 So. 2nd 34 Fl.2nd DCA, 2006.  There are many more listed in West's.(With regard to the negotiable instrument issue)

    With regard to the "Death gamble" defense, we have had several dismissed but without prejudice, therefore, they can refile so I can not
provide the case numbers at this time.

    The key point is that if the original lender "died" several years ago without
lawfully transferring the Note and Mortgage, there probably is no entity to
whom the debt is owed. When the servicer comes into court, it can not
prove it owns the loan, therefore it has no standing and the case gets
dismissed. (gager in French=to wager) a gage is a wager (Black's Law Dictionary 1968) (mort in French=death).
     It's called a "mort-gage" (death gamble) because the borrower puts up
the deed, the lender puts up the cash, whichever "dies" first, loses.Very often, the borrower dies just short of paying off the loan and the lender forecloses thereby winning (gagnant) the equity of the dead borrower.
     The early Church considered this form of loan to be "usury" and outlawed
it, but it continued in the Anglo-Saxon countries. Today, on the Continent
they use a "hypotheque" which means a "gage" but without the "mort".
If the borrower dies short of paying it off, the lender only gets the balance
owed, not the entire property as is often the case in America.
     Sometimes the borrower wins the "death gamble" which means a "quiet
title" is in order. We are doing one now. So far, the servicer and MERS defaulted, while the successor to the dead lender did answer by contesting
the ownership of the deed, calling it a "deed of trust" held by a Trustee.
Such is not the case in Florida but I can see how this defense could be a
problem in a "deed of trust" state like California. Also, the defendant moved
the case up into the US District Court from the State Court, which is no problem at all, since operating in federal Court is even easier than State
Court. Since the plaintiff here has a valid "warranty deed", I don't expect
we will have any problem winning the Quiet Title action against the "dead
lender" which went out of business in 2006 without ever assigning the mortgage. The key point is that a "mort gage" is due on "death" (of either
party unless it was lawfully transferred). This is a hard concept for most
people to grasp but when they "get it", then the logic of what we are doing
will become apparent.
     The current "system" uses MERS and the "negotiable instrument" fraud
to defeat the "death gamble" concept. They have MERS acting as the agent
of "dead lenders" to assign the mortgage to the servicer, posing as a phony
trustee of a phony trust. They will call a "variable interest Note" which requires reference to the Wall Street Journal to figure out the balance owed,
 a negotiable instrument, even when it has late charges, refers to the
security agreement (mortgage) to calculate the balance owed and other "excess luggage". True negotiable instruments follow the KISS formula,
KEEP IT SHORT AND SIMPLE! Our legal system has gotten far adrift of this
basic concept, which allows these pretender lender servicers to collect
money and steal houses, in which they have no equity.
      So far, only the "deciples" of Neal Garfield seem to understand the full scope of the scam that is being perpetrated on the American people. I hope more people wake up so we can save this country from disaster, one home at a time. This is why we do what we do.


Just because something is listed in "West's" or associated with a statute does not mean it applies to mortgages and foreclosure. 

Quote:

In this appeal following a nonjury trial, General Motors Acceptance Corp. (GMAC) appeals from an adverse final judgment determining that its automobile retail installment sale contract was a negotiable instrument as defined by chapter 673, Florida Statutes (2001).


What does an automobile retail installment contract have to do with a note and mortgage?

Quote:

The note having incorporated the terms of the purchase money mortgage was not negotiable. The appellee Bank was not a holder in due course, therefore, the appellant was entitled to raise against the appellee any defenses which could be raised between the appellant and Rogers and Blythe. Since appellant asserted an affirmative defense of fraud, it was incumbent on the appellee to establish the non-existence of any genuine issue of any material fact or the legal insufficiency of appellant's affirmative defense. Having failed to do so, appellee was not entitled to a judgment as a matter of law; hence, we reverse.

The note, incorporating by reference the terms of the mortgage, did not contain the unconditional promise to pay required by Fla. Stat. § 673.3-104(1) (b).[1] Rather, the note falls within the scope of Fla. Stat. § 673.3-105(2) (a).[2] Although negotiability is now governed by the Uniform Commercial Code,[3] this was the Florida view even before the U.C.C. was adopted. E.g., the Supreme Court in Brown v. Marion Mortgage Co., 1932, 107 Fla. 727, 145 So. 413, held that certain bonds which were "to be received and held subject to" a certain mortgage were non-negotiable. See also, First Bank of Marianna v. Havana Canning Co., 1940, 142 Fla. 554, 195 So. 188; Voges v. Ward, 1929, 98 Fla. 304, 123 So. 785; Mason v. Flowers, 1926, 91 Fla. 224, 107 So. 334.

Appellee Bank relies upon Scott v. Taylor, 1912, 63 Fla. 612, 58 So. 30, as authority for the proposition that its note is negotiable. Scott, however, involved a note which stated: "this note secured by mortgage." Mere reference to a note being secured by mortgage is a common commercial practice and such reference in itself does not impede the negotiability of the note. There is, however, a significant difference in a note stating that it is "secured by a mortgage" from one which provides, "the terms of said mortgage are by this reference made a part hereof." In the former instance the note merely refers to a separate agreement which does not impede its negotiability, while in the latter instance the note is rendered non-negotiable. See Fla. Stat. §§ 673.3-105(2) (a); 673.3-119.[4]

As a general rule the assignee of a mortgage securing a non-negotiable note, even though a bona fide purchaser for value, takes subject to all defenses available as against the mortgagee. 22 Fla.Jur., Mortgages, §§ 555-56. Appellant raised the issue of fraud as between himself and 212*212 other parties to the note, therefore, it was incumbent on the appellee Bank, as movant for a summary judgment, to prove the non-existence of any genuinely triable issue. Holl v. Talcott, Fla. 1965, 191 So.2d 40.



Again you are attempting to twist a decision of a case that is bordering on ancient.  MODERN MORTGAGES ARE NOT CONSTRUCTED THIS WAY.  Modern mortgage tend to use a universally accepted form with universally accepted language.  This is usually a Fanny/Freddie standard form.  The problem in this case was the language used in the note 
Quote:
  did not contain the unconditional promise to pay required by Fla. Stat. § 673.3-104  
  Even with the questionable language, this in no way invalidated the note or mortgage.  It raised a question about the holder in due course protection and whether or not the owner of the note was subject to a fraud affirmative defense.  Because the language rendered the note a non-negotiable instrument, 
Quote:
 it was incumbent on the appellee Bank, as movant for a summary judgment, to prove the non-existence of any genuinely triable issue

 
Most language problems were fixed with the adoption of Fanny/Freddie notes and mortgages and this just doesn't apply.
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Ellen
Mr. Roper posts new and useful cases almost every day.  He answers questions directly with verifiable facts and clear answers.  He isn't evasive.  He posts under his own name.

This Mike H. character posts the same ridiculous garbage day after day and seems to think that if he keeps reposting it often enough that someone will believe it.  Apparently, in the past some have believed it and he has been ripping people off by performing legal services even though he isn't a lawyer and seems to have no real knowledge of foreclosure at all.

Mr. Roper posted some information in that other thread about how to report Mike H. to the authorities.  I suggest that everyone at the Forum copy various of Mike's posts along with links and e-mail them to the authorities.  Hopefully, Mike will be indicted soon and the Forum can be spared any further interruption by this dishonest person. 

Does anybody remember where the information is shown as to how to report Mike H. to the police, courts or prosecutors?
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So Ellen,
   Where did you go to law school? I would like to know how many servicers you have worked for. Please enlighten the forum.

Bill,
   Unfortunately, you get all your information from Anglo-Saxon sources. The
fact is the word "mort-gage" comes from Norman-French. Gager in French means to gamble and a "gage" is a bet. (It can also mean a deposit but in this word it means a "wager" ie "bet".)
   The word "attourner" in Norman French means to change the ownership of
something. Can you see the relationship to the Anglo-Saxon word "attorney"?
   In French, a lawyer is called an "avocat" ie "advocate", ie someone who
"advocates" the legal position of another who is not able to defend  themselves for whatever reason.
   In my opinion, we need more "advocates" in this country, and less "attorneys"!
   The only license an "advocate" needs in the USA, is the First Amendment
to the US Constitution and a fundamental knowledge of the law. All pro se's
can hire anyone they want to help them with their case.
    Only two groups of people can appear before the "Bar" in a Court Room,
a licensed "attorney" or  Pro Se's, representing themselves. Both can hire
paralegals to do their research for them. So Ellen, you are wrong in your
analysis.
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Moose
Mike H wrote:
...

(Mike H's meaningless linguistic wanderings deleted) ...

   The only license an "advocate" needs in the USA, is the First Amendment
to the US Constitution and a fundamental knowledge of the law. All pro se's
can hire anyone they want to help them with their case.
    Only two groups of people can appear before the "Bar" in a Court Room,
a licensed "attorney" or  Pro Se's, representing themselves. Both can hire
paralegals to do their research for them.
...


A "fundamental knowledge of the law" is roughly the equivalent to a "fundamental knowledge of thoracic surgery."

I would invite the Mike H's of the world to buy a do-it-yourself vasectomy kit and let us know how things work out.

Moose

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Bill

Mike H wrote:
So Ellen,
   Where did you go to law school? I would like to know how many servicers you have worked for. Please enlighten the forum.

Bill,
   Unfortunately, you get all your information from Anglo-Saxon sources. The fact is the word "mort-gage" comes from Norman-French. Gager in French means to gamble and a "gage" is a bet. (It can also mean a deposit but in this word it means a "wager" ie "bet".)
   The word "attourner" in Norman French means to change the ownership of
something. Can you see the relationship to the Anglo-Saxon word "attorney"?
   In French, a lawyer is called an "avocat" ie "advocate", ie someone who
"advocates" the legal position of another who is not able to defend  themselves for whatever reason.
   In my opinion, we need more "advocates" in this country, and less "attorneys"!
   The only license an "advocate" needs in the USA, is the First Amendment
to the US Constitution and a fundamental knowledge of the law. All pro se's
can hire anyone they want to help them with their case.
    Only two groups of people can appear before the "Bar" in a Court Room,
a licensed "attorney" or  Pro Se's, representing themselves. Both can hire
paralegals to do their research for them. So Ellen, you are wrong in your
analysis.


Perhaps you didn't read the links I posted.  The word "mortgage" is NOT french.  It's an old English word.  "Gage" is of Germanic origin. 

Quote:
[Middle English morgage, from Old French : mort, dead (from Vulgar Latin *mortus, from Latin mortuus, past participle of mor, to die; see mer- in Indo-European roots) + gage, pledge (of Germanic origin).]
 
Word History: The great jurist Sir Edward Coke, who lived from 1552 to 1634, has explained why the term mortgage comes from the Old French words mort, "dead," and gage, "pledge." It seemed to him that it had to do with the doubtfulness of whether or not the mortgagor will pay the debt. If the mortgagor does not, then the land pledged to the mortgagee as security for the debt "is taken from him for ever, and so dead to him upon condition, &c. And if he doth pay the money, then the pledge is dead as to the [mortgagee]." This etymology, as understood by 17th-century attorneys, of the Old French term morgage, which we adopted, may well be correct. The term has been in English much longer than the 17th century, being first recorded in Middle English with the form morgage and the figurative sense "pledge" in a work written before 1393.
 
There is no "Death Gamble".  Being an ENGLISH word you have to take the meaning of the word from the context it is being used with in ENGLAND.  The same is the case in the United States.  We have ADOPTED THIS MEANING OF THE WORD and use the word "mortgage" in the same sense as it has been used in ENGLAND for HUNDREDS of years.  Anyone that made it past the 6th grade can understand this.  I do not know how you can seriously argue the meaning of a mortgage is that it is really a "Death Gamble" to HIGHLY EDUCATED PEOPLE in court and they are able to keep a strait face.  This argument is sure to provide HOURS of entertainment at parties and conventions for attorneys that like to tell jokes. 
 
NOT ONLY IS YOUR DESCRIPTION OF THE ORIGIN OF THE WORD MORTGAGE WRONG, THE ORIGIN ISN'T IMPORTANT, IT'S THE CONTEXT IN WHICH THE WORD IS USED AND IT'S ACCEPTED MEANING.
 
Quote:
With regard to the "Death gamble" defense, we have had several dismissed but without prejudice, therefore, they can refile so I can not
provide the case numbers at this time.

 
All court proceedings here in the U.S. are open to the public and public records (with a few exceptions), we don't live in France.  If this argument WAS ever used successfully, it would be no secret and it would not have any negative impact on a case that was ALREADY dismissed to post the case numbers.  What you are saying makes no sense.  The fact that you DON'T KNOW THIS clearly shows you are NOT familiar with the courts.
 
You are not posting case numbers because the cases DON'T exist.
 
 
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Dear Bill,
    As the old saying goes, "you can lead a horse to water, but you can't make him drink." I have tried to lead people like you to Truth, but you have
been so brainwashed by the "system" that you can not see the Truth even
when it is laid out in front of you.
    I hope you will reread the "Declaration of Independence" this weekend and
attend church tomorrow. Please focus on the Word "CREATOR".
    Today, many people believe in the "Big Bang", "Evolution" and other fairy
tales being spun by the "father of lies", Satan and all his "offspring".
    We need to go back to the "Foundation" of Truth, the Holy Bible and reread the Ten Commandments, especially the one which says, "Thou shalt
not bear false witness against thy neighbor." Speak the Truth, and the Truth
shall set you free.
     Our Nation is in a mess because we have strayed from the knowledge of
our Ancestors and our Creator. This July 4th weekend, let us remember our
roots and return to the Word of God and ask him to forgive the Sins of our
Nation and lead us back to His path, the path of Righteousness and Truth.
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James
Mike H,

As a Christian myself, I can agree with almost all of your most recent post, but you have missed one important point in your paraphrasing Scripture:

John 8:32 KJV - And ye shall know the truth, and the truth shall make you free.

Knowing the truth is the issue, not merely speaking words and calling them truth.

In context, Jesus was speaking about abiding (living) in His word, which is truth, and which will set us free. Sadly, many have taken His Word out of context and it set no one free. In fact, taken out of context, Bible truth can create deeper bondage. Spiritual truth correlates with natural-realm truth.

If I may offer a bit of constructive criticism, and meaning no offense at all, it seems you are taking words out of context to arrive at your version of truth. First, we must know the truth, then we must keep it in context. If we don't, we will get slammed and lose our credibility and intended effectiveness--every time. 









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Angelo

Now the truth comes out, you are not only a wingnut, but a wingnut of biblical proportions!!!!

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