“Lost Note” Must Be Proven Along With Ownership and Servicing Rights

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see 5th DCA http://www.lexology.com/library/detail.aspx?g=40d8d5b1-fdc1-4cf4-b713-6edca9f786f1&l=7QBAHBN

see 4th DCA http://www.lexology.com/library/detail.aspx?g=afffe174-d398-45d4-91ac-d9ac1d9160d5&l=7Q4M9K0

These are interesting cases because we find the Florida 5th DCA and the 4th DCA drilling down to the truth. It seems increasingly apparent that the courts are growing increasingly skeptical of the claims asserted by the ever-changing servicers, Trustees and alleged “holders” of the note and mortgage.

Both Courts reversed with instruction to enter involuntary dismissal or Judgment for the Defendant homeowner. We are seeing more of those orders from appellate courts these days. The 4th DCA added that business records are not automatically received into evidence without proof that they are in fact qualified records under the hearsay exception.

The 4th DCA opinion shows how far the courts have moved. The glib recital of various things about the business records is no substitute to swearing on ACTUAL personal knowledge that the entries in those records were made at or near the time of each transaction. In the case of robo-witnesses, it is difficult to imagine how they will get out of that one, to wit: the witness has nothing to do with actual servicing, does not make entries and is only given records that some unknown person made available to him — under which he/she presumed good faith — that the unknown person who made the decision about what entries should be shown and what transactions would not be shown had personal knowledge and should be believed even though we don’t know who they are or what they did or even if they were employed by the company whose “business records” are being introduced as “evidence.”

Those records are not business records. Or at least they are not the full business records. The servicer is giving the court only one side of the alleged transaction. The robo witness for the servicer is telling the court when the homeowner stopped making payments. That witness cannot testify as to why the homeowner stopped making payments.

In fact it could often be that the servicer encouraged the alleged borrower to go into default in order to qualify for a modification that would never be approved. Or more simply, it could simply be that the homeowner realized, after some digging, that he was not paying anyone entitled to collect or enforce the apparent note and mortgage which might well be void because it names as payee and mortgagee a party who is not the lender, was never the holder of the instruments and never the owner of the debt.

If they were, the allegation would be that the servicer is representing a holder in due course (HDC)— the only situation under the UCC where the risk of loss falls on the maker of instruments even if they were procured under false pretenses. The problem of courts giving HDC status (without anyone asking them to do that) to the alleged holder (by virtue of self serving fabrications of records and documents) is coming to an end.

The walls are closing in. Here is what Mr. Wutscher writes:

On appeal, the Fifth District first agreed with the borrower’s argument that the plaintiff mortgagee failed to reestablish the lost note, noting that “[o]n direct examination, not a single question was asked … about the lost note.”

The Court further noted that, on cross examination, the witness “was unable to confirm that loss of possession was not the result of a transfer or lawful seizure, nor did he have the requisite personal knowledge to testify regarding how the note was lost while in the possession of [the lender].” The witness could only confirm that when servicing was transferred, the note was not in the file, that the prior servicer searched for it but could not find it and completed a lost note affidavit.  Although the lost note affidavit was attached to the servicer’s verified amended complaint, “it was not offered or received into evidence.”

The Court noted that, even if a copy of the note had been received into evidence, the blank endorsement attached to one copy of the note placed in the court file would be insufficient to establish standing at the commencement of suit because the endorsement is undated and cannot be used to prove that original plaintiff “had standing to sue when this suit was initially filed.” (e.s.)


23 Responses

  1. http://www.fightingtheforeclosuremachine.com/documents/FTFM_Paper_No._1301H.pdf

    FTFM PAPER No. 1301
    By Robert M. Janes

    Court decisions often discuss the validity and meaning of a document that is involved with the ownership and control of a Note or mortgage. The discussion may focus on an assignment, appointment of a successor trustee, deed, allonge, or paper filed in public records.

    The borrower, too often, doesn’t know how to challenge or rebut the alleged validity and importance assigned to those documents by the foreclosure machine. This type of document is frequently used by the foreclosure machine to gain acceptance of a conclusion that the document doesn’t actually prove.

    Sure,this is a bit deceptive, but the machine is OK with any win, even one based on a sleight of hand. There are ways, however, to minimize the likelihood that such a ploy will confuse you or the judge.

  2. Everyone who owns or is buying a house should have this 2008 book!
    23 Legal Defenses to Foreclosure
    by: Troy Doucet, Esq. Columbus, Ohio litigation lawyer
    click on this link at my dropbox to download 440 page book:

  3. does anyone have a PIN to pop the balloon?

  4. Review 101 –

    the maker of the note is always the “owner” of the note… while others might “hold” it… (‘holding’ you to your promise) they are never the owner

    a note is cash or cash equivalent according to the UCC

    ONLY THE ORIGINAL NOTE is cash or cash equivalent according to the UCC – it is like a $100 FRN – copies are fraudulent and are counterfeit

    a $100 FRN has no maturity date listed – an indefinite promise – an indefinite debt of the federal government

    just like a $100 FRN, the note can and may be sold and bought/traded “in whole” by others – as long as its original species is preserved and maintained

    notes which have a maturity date longer than 9 months are not notes

    notes which have a maturity date longer than 9 months are defined as securities

    in all times before securitization, the original note was returned to the owner/maker upon satisfaction of the promise contained therein…

    the banks concocted a way to securitize (sell) your note in bits & pieces to many others – not just selling a share/percentage in it, but actually re-selling the whole thing repeatedly into several funds and tranches -in a word, they got other people to pay off your note multiple times, while never giving those people the right to come back to you and demand you fulfill your promise in the note

    they intentionally destroyed the original so nobody could sneak back in and collect as holder in due course – that way they could keep bifurcating the shares and cause derivatives to be created, resulting in inflating your note into 10-100 times its original value

    under this scheme – if the note ever came back to the owner/maker to be zeroed out, all the derivatives based upon that note would thus logically be zeroed out as well… this is also why the Federal Reserve Banks will not honor a $100 FRN and pay you back in gold or silver US coin… all the derivatives (M2-M3 funds) based upon that note would thus logically be zeroed out as well…

    so it follows, that in this scheme YOU ARE THE ORIGINAL INVESTOR and your note is the original instrument which created the funds by which (perhaps) Millions of FRN derivative funds were created and used throughout the world! – and you never got even a thank you – much less a dividend or share in the (negative) profits…

    and now they want to foreclose and take what value you have, to collect on their multiple insurance policies and add to the negative inflation, and get another sucker to write another note against your house to create even more funny money…

    the banks have figured out that they can inflate a balloon with negative pressure (vacuum/debt) instead of positive (value) pressure… they figured out how to use the Theory of Relativity – as long as there is a relative difference between zero and another number – those standing at zero looking out at the edge of the inflated balloon cannot instinctively perceive in which direction it is going (+/-)

    the polarity shifted at the 1933 bank holiday declared by the big banks and FD Roosevelt… where your congress agreed to pledge/leverage the YOU – land and people of America – as the collateral for future debt based money… there were many clues including the abrogation of the “gold clause” in the “interest” of “national security” – since then, the US Government has been in receivership TO the Private World Bankers – primarily the old guard of European Monarchs and their bankers…

    so when you get the feeling that life sucks – you will have a clue as to why…

    better hold on to your assets – cash out some of your accounts & buy old US silver coin… non-GMO seeds, dried foods, a water desalinization and purification unit, solar panels, rechargeable batteries and other valuable things… not saying the sky is falling – but you will know when it is…


  5. “…also did not introduce any documents, such as the loan payment history, which reflect the current debt owed under the note.”

    Um, no. I’m sick and tired of lazy judges. The current debt owed under the note can only reside upon the note owner’s balance sheet ledger according to GAAP. A servicer’s loan history only reflects what has been collected from the borrower, it isn’t necessarily a reflection of the note’s value as reported on the owner’s books.

    In order to be a holder, the right to enforce payment must be perfected, which means the tangible instrument must be owned by somebody (i.e. an amount or value must be reported on somebody’s balance sheet as due and owing) otherwise payment is unenforceable against the borrower.

    The party must allege HDC or somebody’s independent ownership of the tangible instrument in order to maintain a right to collect an amount due, therefore ownership is important to the analysis of enforcement rights. A thief or mere holder must prove the remaining value of any debt it wishes to collect which requires intimate knowledge of the owner’s balance sheet upon which the underlying debt is still reported. Otherwise the debt should be considered unliquidated (amount or existence in dispute).

    Therefore, in any foreclosure, it seems the owner of the debt instrument must be made part of the proceedings to authenticate the remaining value of the contract as reflected on its books. Without proven ownership, no contractual right to enforce payment exists, which means there isn’t a “holder” standing before the court.

  6. Correcting a typo in that reply.

    12 banks within the Federal Reserve System

    A .thru. L

    I am called Trespass Unwanted, Creator, Corporeal, Life, Free, People, Independent, State, In Jure Proprio, Jure Divino.

  7. Listening Greg,

    The additional trickery that was identified my goodness a while back, and one of those gold sites did an article on it was that you can take a $20 bill to a Federal Reserve bank and they don’t even have to honor it.

    I wish I could remember which site posted it, but it was a gold site, one that was selling gold and making the argument that they do not recognize the $20 Federal Reserve Note for value. [ as written on it’s face]

    Now stretch that and guess what would happen if we change the word $20 bill to $100 bill, something many people are probably hoarding because it appears to be backed by something with all the blue and gold and holographic imaging.

    Now that article had us look at the $20 bill and mentioned the bill had the words Federal Reserve System. It was not an obligation on any particular bank within the Federal Reserve System, and there are 13 banks within the Federal Reserve System.

    So, make sure that the claim is at least for a Note that you can demand value and replacement for, and I guarantee a note $5 and up does not qualify.

    Can you figure out why, considering the note I didn’t mention?

    I am called Trespass Unwanted, Creator, Corporeal, Life, Free, People, Independent, State, In Jure Proprio, Jure Divino.

  8. observation & general question:

    When i create a private note in this verified paradigm of debt based currency, i create cash or cash equivalent (check the UCC – i’m not drunk or making this up)… evidenced by the fact that a bank takes that note and converts it into public credit and holds it as an asset on their books… right?

    So all the bank is doing is acting as my agent (under the Federal Reserve Act, etc.) to create public credits out of MY private value… right?

    So… is there anyplace on or in the language of MY note where it says i agree that i have to accept in the future, counterfeit copies of my note as authentic and claimable? even if presented with a lost or destroyed affidavit? i don’t think it is in there…

    Because if that crap works on MY note – i certainly feel it would be appropriate to start writing the Treasury Dept & Federal Reserve with Affidavits of lost or destroyed $100 enumerated Federal Reserve Notes (a legal obligation of the United States-the debtor)… would that not logically follow?

    What are my options to foreclose on a Federal Reserve Note when a demand for lawful currency of value under 12USC411 is made and denied?

    Anyone listening?

    let me know please…

  9. Troy Doucet, Esq. Columbus, Ohio litigation lawyer
    23 Legal Defenses to Foreclosure

  10. Troy Doucet, Esq. Attorney Troy Doucet is a Columbus, Ohio litigation lawyer
    Self-Help Seminar: Foreclosure Defense Attorney Discusses Foreclosure Law

  11. resource: “Mighty Matt” Weidner, Esq.
    Foreclosure Defense SECRET WEAPON Dodd Frank Part 4

  12. resource: “Mighty Matt” Weidner, Esq.
    Foreclosure Defense SECRET WEAPON Dodd Frank Part 3

  13. resource: “Mighty Matt” Weidner, Esq.
    Foreclosure Defense SECRET WEAPON Dodd Frank Part 2

  14. resource: “Mighty Matt” Weidner, Esq.
    Foreclosure Defense SECRET WEAPON Dodd Frank Part 1

  15. I think what is happening now was inevitable. The truth finally comes out and is being heard…
    My question is what about all of us that have already been fraud-closed on? have any ideas?
    It is just now, three years since I lost my home of 32 years. Is there something that I can do NOW? If the bank that foreclosed on me did not own the loan, the trust was perfected/assigned to the alleged trust 4.5 years after the loan was supposedly signed…?
    I have noticed that any questions I have asked, have never been addressed on this site for the past four years. Just wondering what this site is about if not helping those in need? I used ALL of my money fighting this, with obvious results.

  16. Read this affidavit records


  17. When a mortgage loan is registered on the MERS® System, it receives a mortgage identification number (MIN). The borrower executes a traditional paper mortgage naming the lender as mortgagee, and the lender executes an assignment of the mortgage to MERS®. Both documents are executed according to state law and recorded in the public land records, making MERS® the mortgagee of record.

  18. Neil’s Show in 15 minutes… tune in!

  19. The Force (Of Law) Awakens
    by Rich Vetstein on December 27, 2015

    “As with this year’s blockbuster Star Wars — The Force Awakens, my prediction for an active and entertaining 2015 in Massachusetts real estate law has come to fruition. Without further ado and with a Star Wars theme, I present you with the top 5 “episodes” for the last year in Massachusetts real estate law.”


  20. California Homeowner Bill of Rights Collaborative
    703 Market Street, Suite 2000
    San Francisco, California 94103
    Telephone: (415) 546-7000
    Email: info@calhbor.org


    “Shortly after the mortgage loan was made in October 2007 by the alleged lender, WMBFA, Reed’s Note was endorsed in blank by Cynthia Riley as Vice President of the non-existent WMBFA. However Ms.. Riley’s employment with WMBFA and WMB was terminated in November 2006, one year prior to the date of the Reed mortgage. Neither was she employed by JPMorgan Chase Bank NA during the period in question. Riley in a sworn deposition in a case in Florida revealed this employment.”

    “Reed contacted US Senators Diane Feinstein, and Barbara Boxer, and Congressional Representative Barbara Lee for their assistance. Nothing came of those repeated requests for assistance.

    Reed filed complaints with the Consumer Financial Protection Bureau but that too was to no avail.

    Frustrated Reed sent a bah humbug email to President Barak Obama in November 2014. The White House figured out which bank was involved and sent a referral to the CFPB on Reed’s behalf with a letter to expedite because of her military status. The bank refused to speak with her attorney and made little effort to work with Reed at all, leaving garbled inaudible messages for her.”

    “Frustrated and angry Reed emerged as a “foreclosure warrior” fighting for herself and other homeowners in distress.”

  22. can we clone the judges of the 4th & 5th DCA and plant them across America?

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