Facial Validity vs Enforceability

It is universally accepted that a mortgage or deed of trust may not enforced except by the owner of the actual debt. The debt exists regardless of whether it is in writing or not. While a promissory note might be enforced by a party who does not own the debt (Article 3 UCC), forfeiture of a homestead requires that the mortgage be enforced by the actual debt owner (Article 9 UCC), or someone who can prove the identity of the debt owner and delegation of authority from the debt owner to the party enforcing the mortgage or deed of trust. 
A facially invalid document is neither void nor unenforceable, but it does require more proof to enforce than a facially valid document.
 
If you received the money or payments were made on your behalf, you owe the money simply because of the act of receiving or benefiting from a money transfer. 
 
The debt is normally “merged” (see Case Analysis) into the promissory note if the Payee on the note and the owner of the debt are the same person or entity. If the Payee and Debt Owner are not the same entity the debt still exists even if there is no written instrument that reflects the transaction between the person or entity who advanced their own funds and the person(s) usually designated as “borrowers.” 
 
But the terms of payback can only be determined by reference to extrinsic evidence because the operative note does not name the Debt Owner nor does it show on its face any specific reference of authority on the face of the note to represent the Debt Owner. If essential terms or provisions can only be ascertained through external evidence (“Parole Evidence”) then the instrument is not facially valid. 
 
For these reasons and others, we believe the Case Analysis will reveal that both the note and the recorded encumbrance are not facially valid. The fact that an instrument is not facially valid does not mean it cannot be enforced. It simply means that no factual or legal presumptions can be applied to the instruments. In turn, that means that if someone wants to enforce the note or mortgage or deed of trust, they must allege and prove the origination of the debt by proving the elements of a monetary transaction, the identity of the Debt Owner and explicit authority of the party enforcing the debt, together with the authenticity and validity of the note and instrument of encumbrance (mortgage or deed of trust). 
 
For strategic recommendations as to how to use this information, please Order the Case Analysis which looks at BOTH recorded documentation (which is the subject  of the TERA) and court documents, correspondence, statements, notices etc. that were not recorded in county records.  
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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