In this battle of foreclosure many issues have been raised. Looking at the issues pertaining to the Security Instrument being either the Mortgage, or the Deed of Trust, and actually reading and understanding exactly what is being said. It causes one to wonder about the deceit and the planning that has gone into preparing this document [Deed of Trust or Mortgage]. The implications of misapplying the actions stated with Security instrument [Deed of Trust or Mortgage] are cataclysmic. A question of the Security instrument contract [Deed of Trust or Mortgage] being a valid contract or not, as there was never a meeting of the minds.
The contract for the Security Instrument was written by a party that did not sign the aforementioned contract. It was a unilateral contract. The lender is a professional company that deals with the issues of the Securitization of negotiable instruments every day. The borrower, through a consciousness of innocence, has not been schooled in understanding the Uniform Commercial Code; or in Texas referring to the States equivalence, which would be the Business and Commerce Code.The homeownerwas a participant to the misrepresentation of the transactions that were to take place within the Security contract [Deed of Trust or Mortgage].
I am specifically talking about the Fannie Mae/Freddie Mac Uniform Instrument that pertains to the Mortgage or Deed of Trust contract. Each state has its own version of the Security instrument. Let us take a look down the yellow brick road of this instrument and see what we can find. Fraud in its basic element is about deceit, and includes the deliberate concealment of material information in a setting of the fiduciary obligations. These fraudulent acts were designed to mislead us into believing that what is written within the contract is true and correct. “Fraud vitiates even the most solemn promise to pay”, see U.S. vs. Throckmorton, 98 U.S. 61, 65.
In looking at the verbiage pertaining to covenant “20” of the Security Instrument “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 the Borrower” Emphasis added by this writer. The word or in itself is disjunctive. The definition as defined in the Merriam Webster defines the term disjunctive as “expressing an alternative or opposition between the meanings of the words connected <the disjunctive conjunction or>”.
This is a gross misrepresentation of the Security contract [Deed of Trust or Mortgage] stating that a choice could be made between the Note, or a partial interest in the Note, with the result being the same. This is a legal impossibility as the Security Instrument [Deed of Trust or Mortgage] can only follow a properly secured Tangible Note. In taking the words or and the word and we can apply them into a math formula and look at the results.
= is read as equality and means is equal to.
≠ is read as not equal to: does not equal
or ≠ and but requires an A part and a B part to =C
A does not =C
B does not =C
A+B might =C
A properly secured Note would have both parts attached to the Note. Both the Tangible and the Intangible. The Intangible being the promise to pay, or the partial interest. The Partial Interest is nothing but a Transferable Record; whereas the Uniform Commercial Code Article 9, or here in Texas referring to the States equivalence, would be the Business and Commerce Code Chapter 9 applies, but Local Laws of Jurisdiction do not apply to Transferable Records.
The Security instrument [Deed of Trust or Mortgage] could be considered as Fraud in the Factum. The Security Instrument [Deed of Trust or Mortgage] cannot follow a partial interest of the Tangible Note. This is a type of fraud where misrepresentation causes one to enter a transaction without accurately realizing the risks, duties, or obligations incurred. This can be when the maker or drawer of a negotiable instrument, such as a promissory note or check, is induced to sign the instrument without a reasonable opportunity to learn of its fraudulent character, or essential terms. Fraud in the factum usually voids the instrument under state law. One could allege it was never a contract to begin with. An example is a contract to commit a crime. The only distinction which can be made amongst penalties is regarding crimes and contracts. No one can contract to commit a crime; it would be void.; State v. Baltimore & O.R. Co.
In looking at the implied actions that were to take place within the Security instrument [Deed of Trust or Mortgage] one would see that an illusion on the part of the Lender who is using fancy word crafting is taking place.
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