Published on May 27, 2014
By Tex Mason
The Mortgage Deed in itself does not attach to, nor does it create an enforceable right for the BANK (and their Attorney) to enforce an action (foreclosure) against your property. This is according to the Uniform Commercial Code (UCC) article 9-203(b).
Why is this an important find?
Before an Attorney can initiate an action to foreclose, the LAW requires that he produce a statute or a contract from which he derives his authority to take such action. Without such authority written in a Law or a Contract, the Bank (or Attorney) has no legal authority to take such action.
Typically, during the initiating of a foreclosure proceeding, the attorney will file a copy of the Mortgage Deed into the court docket. You may not understand what he is doing. He is essentially trying to create the presumption in the court, that the Security Deed conveys or grants the Bank the right to attach to and foreclose against your property.
It is important that you research UCC article 9-210 so you can understand how to apply it in court, in such a way to disprove and diffuse the presumption made by the Attorney.
You may be wondering how is all of this allowed to happen if the Mortgage Deed doesn't authorize such a right. Well ignorance of the law is no excuse. The Attorney is banking on the fact that you are ignorant to the law, and that you will not challenge his authority in the matter.
Now that you know the law, you actually may have a valid counter-claim for "Fraud on the Court"
The attorney knows that the Mortgage Deed doesn't convey a right to foreclose, but he introduced the document to intentional mislead the court and/or to make a false representation.
This is not legal advice and I do not practice law. For more lectures like this and other information visit www.thctrust.org