A common thread which is emerging in foreclosure cases is the claim of the plaintiff (a/k/a the “foreclosing party”) that they have “lost the note and/or mortgage”. In such a case, the foreclosing party may file a Affidavit as to the lost note and mortgage in a purported attempt to cure the material defect of proof of ownership and production of the original note and mortgage. This position should be met with a vigorous challenge based on what is being discovered in case after case: that the “plaintiff” does not and never had the original note OR mortgage, which was probably sold or assigned more than once and may today be somewhere in the Cayman Islands as part of a specialized investment vehicle.

Thus, when a borrower or borrower’s attorney is met with such a position, several defenses should be considered. These “affirmative defenses” may take the form of or be asserted along the following lines, provided they are asserted in good faith:

1. Upon information and belief, the mortgage note has been paid in whole or in part by one or more undisclosed third party(ies) who, prior to or contemporaneously with the closing on the “loan”, paid the originating lender in exchange for certain unrecorded rights to the revenues arising out of the loan documents.

2. Upon information and belief and in connection with the matters the subject of paragraph “1” above, Plaintiff (foreclosing party) has no financial interest in the note or mortgage.

3. Upon information and belief, the original note was destroyed or was transferred to a structured investment vehicle which may be located offshore, which also has no interest in the note or mortgage or revenue thereunder.

4. Upon information and belief, the revenue stream deriving from the note and mortgage was eviscerated upon one or more assignments of the note and mortgage to third parties and parsing of obligations as part of the securitization process, some of whom were joined as co-obligors and co-obligees in connection with the closing.

5. To the extent that Plaintiff has been paid on the underlying obligation or has no legal interest therein or in the note or mortgage, or does not have lawful possession of the note or mortgage, Plaintiff’s allegations of possession and capacity to institute foreclosure constitute a fraud upon the court.

6. Based upon one or more of the affirmative defenses set forth above, Defendant (borrower’s name) is entitled to a release and satisfaction of the note and mortgage and dismissal of the foreclosure claim with prejudice.

Jeff Barnes, Esq.

23 Responses

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  2. The Sheriffs Sale was scheduled for Nov. 16, 2010 on my home … A Final Judgement had already been entered on my case because I never answered the complaint. I had only “Objected” to the plaintiffs “Application for Final Judgement” by raising “Lack of Standing and Fraud” , but it was ignored by the foreclosure unit in New Jersey because they only deal with objections over the amounts due.
    After I received the Notice of Sheriffs Sale, I wrote a “Motion To Vacate the Judgement” (Pro Se) and sited NJ Rule 4:50 (Fraud, newly discovered evidence, material facts missing, etc.) which allows for a Judge to Vacate a Judgement.

    In my Motion I stated the following facts ….

    1) Plaintiff Wells Fargo Bank was the servicer of the loan, they were not the original lender Commerce Bank whose name appears on all docs , mortgage and note.

    2) When Plaintiff WF filed the foreclosure complaint they had not yet received the “Assignment of Mortgage” which was post-dated after the complaint was filed, which means they lack standing in this matter.

    3) Plaintiff did not comply with NJ Rule 4:64 regarding proper filing of a foreclosure complaint, which clearly states that “all assignments, chain of title, documents, etc. , must be included in the complaint”. In this case Wells Fargo only wrote in the space titled “Chain of Title” .. that they had “received the assignment from MERS, which is un-recorded at this time”.

    4) The Assignment of Mortgage was never recorded in the county clerks office for an entire year after the complaint was filed.

    5) When the Assignment of Mortgage was finally recorded over a year later, it was obviously a fraud.
    The date of the assignment is AFTER the date of the complaint. Furthermore, the bogus “Vice President of Commerce Bank” Topeka Love, when googled, is not infact the VP of that bank, she is a girl who lives in Minn. where MERS is located and signs documents for a living according to her personal web-pages.
    This fraudalent assignment of mortgage was fabricated to give the appearance that Commerce Bank was assigning the mortgage to Wells Fargo.

    6) The fact that it is signed and dated after the complaint was filed shows they lack legal standing. The fact that they intentionally kept this document from being recorded for over a year is further evidence of their intent to mislead the court and the defendant.

    7) Wells Fargo has never produced the “note” to show that they own the underlying debt.

    8) The original note was signed and endorsed by Commerce Bank … and filled-out “Pay to the order od Washington Mutual Bank”.

    9) For years we had paid our monthly payments to Washington Mutual, only recently did Wells Fargo become the servicer of the loan.

    10) Washington Mutual Bank was siezed by the United States government in 2008 after a 10 day run on the bank in which 16 billion dollars in withdrawals wa seen. The very next day it’s parent company Washington Mutual Inc. filed a chapter 11 bankruptcy.
    This was the last known holder of the note.

    My hearing on this motion was scheduled for Nov. 12, 2010 .. just 4 days before the sheriffs sale of the 16th.

    A week before the hearing I received a phone call from the lawfirm representing Wells Fargo, they are asking me to consent to an adjournment so that they can better prepare their case. The attorney was rude and abrasive and ended up saying she didn’t need my consent, she would get an adjournement anyway.

    The next day the secretary for the Judge calls my home and asks me if I mailed copies of the Motion papers to the lawfirm for Wells Fargo, I replied yes and stated that I have the green certified mail receipts showing they had received the motion papers back on Oct. 19th. The secretary explains that they are saying they “just received this paperwork and need time” , but she said because I did indeed send it in a timely manner the Judge is denying their request for an adjournment.

    A day later UPS delivers an overnight express mail package containing the plaintiffs “Reply” to our Motion.
    In it the lawfirm states that the defendant is full of crap because “standing” is a wide umbrella that includes any party that might have an interest in the outcome of a case. To narrow the “standing” threshold would unfairly keep real partys of interest from being able to file complaints, standing they write is a “wide umbrella”

    They go on to state that “nowhere is it mandatory that a party has to record the assignment of mortgage in a certain timeframe. They spin the recording issue into the MERS assignment being after the complaint was filed saying as long as you are a real party of interest the dates of these assignments don’t really matter.

    They also state that they are the owners of the mortgage and the note and include exhibits of each.

    BUT … they made a fatal error by doing that , the “copy” of the note shows the original note which was probably downloaded off a computer file , and it shows the endorsement signature by Commerce Bank , signing over the note “PAY TO THE ORDER OF WASHINGTON MUTUAL BANK”.

    Nothing is changed to suggest that Wells Fargo has been given the real note … if indeed they had been given the real note it would have been endorsed over to Wells Fargo Bank and clearly shown on the front side of the note in available space as the UCC Article III rules and laws mandate . The UCC Article III laws are very specific regarding the tranfers of notes that have been “endorsed” … there needs to be a clear history of chain of title with dates and endorsements and must be done on the front side of the note until no more space is available and then it can be turned over and the backside can be used thereafter.
    The note shown in Wells Fargo’s reply is just a copy.
    Yet in their arrogance they continue to say “we have the note”.

    Now is where a huge injustice is taking place in my case and i’m not sure I have the ability to fight it …. it’s now become apparent that Wells Fargo’s Attorneys must have called the Judges Chambers and either told him or his staff that “they cannot find the note”.
    An apparent agreement was struck between the Judge and the lawyers for WF without my knowledge of this secret discussion that took place before the hearing on my motion, but its clear that it did take place by the words and actions of the Judge during my hearing.

    2 days prior to my hearing, Wells Fargo contacts the sheriffs office and “stays” the sale until Jan. 4th, 2011.
    This must have been agreed to by the lawfirm and the Judge as part of their secret deal to allow them more time to find the note, or fabricate a note, or fabricate a lost note affadavit. And the Judge is helping them do it.

    We show up to court and he calls our case up … the Judge allows me to open as to my Motion , I begin to state how plaintiffs did not comply with NJ Rule 4:64 regarding foreclosure complaints and the materials and documents required in those complaints……

    The Judge immediately cut me off mid-sentence …
    in the first 30 seconds of my presentation !!!!

    He immediately begins prosecuting the case for Wells Fargo , saying that I borrowed money and someone needs to be paid back for that loan of money. He started asking me questions about my income, questions about whether we could afford our home, he basically berated us and embarrassed and humiliated us in front of a packed courtroom.
    Without even allowing me to ever continue stating the grounds for my motion he says “they have their papers” while glancing over to the plaintiffs table , he goes on to say that there is no legal standing argument here, things were done differently back then when they filed the complaint in 2007.

    I quickly realized this Judge was not in my corner and was going to side with the plaintiff , I spoke up and said that “legal standing is an issue that must be addressed no matter how late it’s raised, courts all over the country have dismissed foreclosure cases based on legal standing, and right here in NJ as recently as June of this year 2010, Judge Todd ruled in a 53 page decision on why the standing issue is relevant…..

    The Judge again cut me off and said he doesn’t really look to what other Judges are doing, he makes his own decisions … he then asked the plaintiffs attorney if they had the “Assignment of Mortgage” .. as the Judge looked at the assignment he commented that yes, it is dated after the complaint was filed but thats how things were done back then, I’m denying the motion of legal standing. (at no point was I allowed to see the document he had been handed, aren’t defendants allowed to see things and comment on them?).

    The Judge then says … I’m ordering you to contact a HUD hotline and get applications for mediation , the stay of sale takes you to Jan. 4th, at that point you can use your two statutory sheriif stays, that will take you to the end of January … so on Jan. 31st I want everyone back here at 10 o’clock AM … that will give the plaintiffs time to find the note , sometimes these things are kept in safes or vaults, or in files somewhere , so plaintiffs are going to bring the note on Jan. 31st .
    (how did the Judge know they needed time to find the note? he never asked them for the note)

    So the plaintiffs in their reply to my motion state that they have the note and include an exhibit showing proof of it … and after I reply to their reply explaining that the note they show is not valid … they suddenly need more time to find the note?

    But they just said “they have the note” !!!

    Why did the Judge not allow me to present my case?

    Why did he strike a secret deal and not put it on the record?

    He now has us using our two statutory stays right before he orders us all to return to court? burning our stays right before they show up with a fraudalent note that they fabricate? leaving us with no recourse but to be kicked out of our house? This Judge took over this hearing and acted as the attorney for Wells Fargo.
    He made it known his feelings about people who don’t pay their mortgage , they borrowed the money and somebody needs to be paid back” .

    Can somebody offer me advice on how I fight this?

    I can’t possibly pay for an attorney and legal services is not helping anyone with foreclosure cases.

    how can I appeal a case on my own, they make it impossible for a pro se defendant to write an appeal based on the crazy rules on how the appeal needs to be written. What kind of Justice system do we have where secret deals are made behind the defendants back before his hearing, and the Judge never states on the record how he knows the defendants need time to find the note , he never asked them for the note during the hearing, they had stated they have the note in their reply … so how does the Judge know they don’t have the note ???





  3. I just found out my home in Calif. goes to auction on Mon. No notice to me at all!! I am a young widow with 4 children. My husband died unexpectedly at 38 and now I am in charge of administering his estate. My house is worth more than I owe and being well kept up. Bank of America is heartless! They give you no time to actually get anything in motion. Is there anyway I can buy some time for myself in 3 days? I am desperate. My loan was first held by countrywide and was always paid on time until my husband’s death. Why are the bank’s getting money and the homeowners suffering?

  4. Dear Sirs,

    I am at the point now, in my dealings with my lender, where I’ve answered the unlawful the time frame allowed me. I am now awaiting a Court date.

    In addition , I’ve sent the lender a request to ” show me the promissory note “I originally signed with the bank.

    They have sent me a response stating that it is there position that they are not required to show me the note because of an attorney client confidentiality agreement.

    I’m of the mind that they are bluffing . I dont think they have possession of the note at this time.

    I am not a lawyer and can not afford one, so in my continued attempt to proceed in the proper manner I have just read that California is considered to be a Non-Judicial Foreclosure State. It also is stated that for the “show me the Note” defense to work, I must file a lawsuit against the lender.

    My question(s) to you is this:

    I was told by the Clerk that I must sue them for an amount of money. I told her I only wanted to have the Court compel them to prove they hold the Promissory Note.

    How do I proceed?

    If you can be of help it would be greatly appreciated.

    Thank you,

    Vincent D’Onofrio 818-346-8249

  5. I am responding to my summons for Re-Establishment of note & mortgage forclosure complaint. I cant afford an attorney so I am responding myself…..
    Your AFFIRMATIVE DEFENSES TO FORECLOSING PARTY’S CLAIM OF “LOST NOTE” above provides responses for #1-6. Are all re-establishment of note requests all the same? I can just cut & paste your affirmative defenses in my response & it will match up?

    I have to file today any help would be great!


  6. Christopher,

    you said…………………..
    from Comments for Livinglies’s Weblog by Christopher Thompson

    I too am trying to find Article VIII UCC and cannot find it as you so aptly put in livinglies, on March 30th, 2009 at 8:34 am . What TITLE is it under? Your help is much appreciated.

    *** You needed UCC reference? Is this what you’re looking for? ***


    Legal Information Institute – Cornell Law School
    INVESTMENT SECURITIES (1977 revision)
    Copyright 1978, 1987, 1988, 1990, 1991, 1992 by The American Law Institute and the National Conference of Commissioners on Uniform State Laws; reproduced, published and distributed with the permission of the Permanent Editorial Board for the Uniform Commercial Code for the limited purposes of study, teaching, and academic research. [This 1977 version of Article 8 was revised in 1994. For the 1994 revision click here.
    For Article 8 as enacted by a particular state and any proposed revisions click here.]



    * § 8-101. Short Title.
    * § 8-102. Definitions and Index of Definitions.
    * § 8-103. Issuer’s Lien.
    * § 8-104. Effect of Overissue; “Overissue”.
    * § 8-105. Certificated Securities Negotiable; Statements and Instructions Not Negotiable; Presumptions.
    * § 8-106. Applicability.
    * § 8-107. Securities Transferable; Action for Price.
    * § 8-108. Registration of Pledge and Release of Uncertificated Securities.


    * § 8-201. “Issuer”.
    * § 8-202. Issuer’s Responsibility and Defenses; Notice of Defect or Defense.
    * § 8-203. Staleness as Notice of Defects or Defenses.
    * § 8-204. Effect of Issuer’s Restrictions on Transfer.
    * § 8-205. Effect of Unauthorized Signature on Certificated Security or Initial Transaction Statement.
    * § 8-206. Completion or Alteration of Certificated Security or Initial Transaction Statement.
    * § 8-207. Rights and Duties of Issuer With Respect to Registered Owners and Registered Pledgees.
    * § 8-208. Effect of Signature of Authenticating Trustee, Registrar, or Transfer Agent.


    * § 8-301. Rights Acquired by Purchaser.
    * § 8-302. “Bona Fide Purchaser”; “Adverse Claim”; Title Acquired by Bona Fide Purchaser.
    * § 8-303. “Broker”.
    * § 8-304. Notice to Purchaser of Adverse Claims.
    * § 8-305. Staleness as Notice of Adverse Claims.
    * § 8-306. Warranties on Presentment and Transfer of Certificated Securities; Warranties of Originators of Instructions.
    * § 8-307. Effect of Delivery Without Indorsement; Right to Compel Indorsement.
    * § 8-308. Indorsements; Instructions.
    * § 8-309. Effect of Indorsement Without Delivery.
    * § 8-310. Indorsement of Certificated Security in Bearer Form.
    * § 8-311. Effect of Unauthorized Indorsement or Instruction.
    * § 8-312. Effect of Guaranteeing Signature, Indorsement or Instruction.
    * § 8-313. When Transfer to Purchaser Occurs; Financial Intermediary as Bona Fide Purchaser; “Financial Intermediary”.
    * § 8-314. Duty to Transfer, When Completed.
    * § 8-315. Action Against Transferee Based Upon Wrongful Transfer.
    * § 8-316. Purchaser’s Right to Requisites for Registration of Transfer, Pledge, or Release on Books.
    * § 8-317. Creditors’ Rights.
    * § 8-318. No Conversion by Good Faith Conduct.
    * § 8-319. Statute of Frauds.
    * § 8-320. Transfer or Pledge Within Central Depository System.
    * § 8-321. Enforceability, Attachment, Perfection and Termination of Security Interests.


    * § 8-401. Duty of Issuer to Register Transfer, Pledge, or Release.
    * § 8-402. Assurance That Indorsements and Instructions Are Effective.
    * § 8-403. Issuer’s Duty as to Adverse Claims.
    * § 8-404. Liability and Non-liability for Registration.
    * § 8-405. Lost, Destroyed, and Stolen Certificated Securities.
    * § 8-406. Duty of Authenticating Trustee, Transfer Agent, or Registrar.
    * § 8-407. Exchangeability of Securities.
    * § 8-408. Statements of Uncertificated Securities.

    © Copyright 2005 by The American Law Institute and the National Conference of Commissioners on Uniform State Laws; reproduced, published and distributed with the permission of the Permanent Editorial Board for the Uniform Commercial Code for the limited purposes of study, teaching, and academic research.

  7. I too am trying to find Article VIII UCC and cannot find it as you so aptly put in livinglies, on March 30th, 2009 at 8:34 am . What TITLE is it under? Your help is much appreciated.

    Maximum Respect,

    Christopher Thompson

    Consumer Action Reform

    (209) 430-7076 Direct

    “Never say ‘no’, until you KNOW what you are saying ‘no’ to”…

  8. By the METHOD of pooling and tranching, they converted from negotiable to non-negotiable instrument. (Article VIII UCC). I could no find this. Any help is appreciated

  9. We received a Motion to Strike Defendants’Affirmative Defense”, Notice of Filing Original Note and Original Mortgage, Notice of Dropping Count II (reestablishment of the Note). I need some help, please. Is there a due date to file a response to that, and what is the response. Thank you and God Bless.

  10. Does anyone have a MOTION TO DISMISS FOR LACK OF STANDING for California? Thank you!!! I can’t find a good form anywhere. My lender’s have not answered my request and I’m in foreclosure. Would this be the first document to record followed by a MOTION FOR DISCOVERY for the bank to produce the docs? Please advise. I bought Neil’s book, but it didn’t go into the specifics… or I just missed it. THANK YOU!!!!

  11. I’ve stay(ed) it for a while through Lack of Service, due process with a cross claim. CPLR 2103 (b), 1,2,3, and CPLR 308(1) or (2). Now what, the bank has sent an affirmation in opposition, which I will give an affidavit in reply. No they never served me, they say they served my 15 year old son. Than Why did I have to go to the county clerks office to get the Summons and complaint? Option One had called and told me that the house was going to be auctioned off. That’s how I found out… So far, as a pro se using your statements has bought us some time. Now I need to get them back to the original note. I know they do not have it.

  12. I am an attorney with the Ticktin Law Group. We have started taking our research and fight against the banks to the next level in an effort to beat the banks in the foreclosure cases. We just sent an attorney to Oregon to depose a record keeper of documents, and are sending another lawyer to California next week. Thought I would share. Will keep everyone posted.

  13. I’m a prose litigant in a foreclosure action.

    I filed and request to produce, the plaintiff filed to get more time to produce, I filed a motion to compel that was granted. The plaintiff was given 60 days and he has not produced any documents. He did recently filed a response to the request to produce objecting to it on the grounds that it is vague, overbroad., and requests irrelevant information that will not lead to the discovery of admissible evidence. Here is the text of my request “…original promisory note signed by defendant, the names and contact information along with a description of the security sold, the assignment made, agreements signed, between all the mortgage brokers, real estate brokers, developers, appraisers, mortgage aggregators, investment bankers, retail or other seller of securities and the investors who purchased the securities…”

    Now, what should happen next? Should I file a motion to dismiss with prejudice?

    Please help!

  14. Does anyone have experience with what IndyMac did. I had a construction loan from 2007 with IndyMac which automatically converted to permanent financing when I completed the house in Aug 2008.. I am in foreclosure. I got a TRO in Fairfax County Va because IndyMac could not produce the original note. I need help mounting a defense. My hearing is on June 4th. I am sure they will attempt to use the “lost note” defene. Any help or referral is appreciated

  15. Ian: You hit the nail on the head. By the METHOD of pooling and tranching, they converted from negotiable to non-negotiable instrument. (Article VIII UCC). That means that upon transfer the recipient of the payment is satisfied in full and a new obligation arises between the seller and buyer separate and apart from the borrower. Further, the method calls for the proceeds of payment from one note to be used as collateral (cross collateralization) for another. This breaches the terms of the note which states that payments by borrower will be applied to what the borrower owes. So the investor receives the “benefit” of multiple obligors plus insurance and credit default swaps and an investment grade rating that was obtained under false pretenses. But what the investor is holding is not the original note. He/she/it is holding a stream of revenue with multiple conditions. A conditional promise to pay is not a negotiable instrument. The only party on record as mortgagee or beneficiary under a deed of trust has been paid in full as to principal, paid in full as to disclosed fees, and has received undisclosed fees as well because they were standing in for the real lender whose identity and existence was withheld from the borrower — all TILA violations. The purpose of the disclosure requirements is to crate enough transparency that both the funding source and the borrower can readily perceive the risks of the transaction. In this case the pattern of conduct was to make sure the investor and borrower could never get together to compare notes. This prevented the borrower from assessing whether better terms were available (instead of huge fees going to intermediaries) and it prevented the investor from assessing the risk and rate of return on investment (because only a portion of the invested dollars was going to fund mortgages — the rest going to fees spread around like a whiskey bottle at a frat party (Mike Stuckey’s phrase,

  16. I found these defenses very helpful. Can anyone expound a little bit on the defense regarding the evisceration of the revenue stream upon assignments and as part of the securitization process. Does this invalidate the mortgage agreement or otherwise affect the plaintiff bank/servicer’s ability to foreclose?

  17. Simply amazing! What a help! No wonder you are #1 on search engine! Thanx!

    Paul M.
    Palm Bay, FL

  18. Something has got to be done to these predatory lenders that are refusing payments from a family that has been unablke to live in their home for 2 years because of toxic mold. There are people not making payments and here we are making payments on a home we haven’t lived in in 2 yrs and they refuse them and file for forclosure.

  19. Jeff, I think your affirmative defenses on the lost
    note issue are very good. I have developed a number of other affirmative defenses in foreclosure cases. We should get together and exchange notes and ideas on foreclosure defense strategies. Send me an email when you get a chance. I am in contact with some other Florida attorneys as well who can contribute their ideas as well.

  20. You have some good ideas. I wish you the best of luck.

  21. why not just file the motion to dismiss the case on lack of standing. It would be a hell of a lot faster, cheaper and provide the defendant some time to look for TILA claims in his docs.

  22. I sent a link to this site to Peter Ticktin above. I learned of him from a report in the Miami Herald. I thought some of the things he said were slightly to some of the defenses Mr. Garfield teaches. He must be very busy as he may be one of the only Lawyers in Miami who is starting to get it. I may ask his service if I so need it, to defend me in my case if it comes to trial. Under Mr. Garfield I have become a formidable opponent for my Mortgage servicer at least in the letter writing department.

    To Mr. Garfield I must say time and time again he was a god-send to me this is why I wish Mr.Ticktin would send one of his lawyers or he himself should attend the class in CA.
    I would love to attend but unfortunately I am not a lawyer.
    I will need a good lawyer to defend me at some time I may choose Mr. Ticktin as he may be getting it.
    Most of the lawyers in Miami loose their cases,the ones who do Bankrupsy are the worst proformers,by far.Actually I know more than what I need to do to defend myself in Federal court.Mr Garfield thought me all I know at present.I understand my rights,I know how to demand them,and I have come to see the Fraud very clearly.I am boots on the ground here in Miami,and I am loving every second of it.

  23. I like what you are doing. I believe that we have synergies. We are on the same side, at least. If nothing else, I wish you luck in your endeavors.

    Peter Ticktin

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