What to Do When the “Original” Note is Proferred

Posted on March 22, 2013 by Neil Garfield
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The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.
There are two issues when the other side presents original documents. First is that they say these are originals and they do not accompany it with an affidavit from someone with actual personal knowledge of the transactions or the high bar for business records exceptions to hearsay. My experience is that 50-50, the documents are original or fabricated by use of Photoshop and a laser printer or dot matrix printer. So what you need to do is to go down to the clerk’s office and see what they filed. It would not be unusual for them to file a copy saying it was the original. Second, on that same point, the original can be examined. When the signatures are heavy there should be indentations on the back. Also a notary stamp tends to bleed through the paper to the back.

The second major point is the issue of holder v owner. The owner of the debt is entitled to the ultimate relief, not the note-holder unless the other side fails to object. So along with the proffering of the “originals” they must tell the story, using competent foundation testimony, how they came into possession of the note. In discovery this is done by asking to see proof of payment and proof of loss. Which is to say that you want to see the canceled check or wire transfer receipt that paid for the “transaction” in which the possessor of the note became a holder under UCC and is entitled to a rebuttable presumption that they are the owner. If there is no transaction for value, then the note was not negotiated under the terms of the UCC.

Since they possess the note there is a hairline allowance that they may sue for the collection on a note in which they have no financial sake but there is no ability to win if the borrower denies they received the money or that the possessor of the note obtained the note for purposes of litigation and is not the creditor — i.e., the party who could properly submit a credit bid at auction by a creditor as defined by Florida statutes, nor are they able to execute a satisfaction of mortgage because even upon the receipt of the money they have no loss, and under the terms of the note itself the overpayment is due back to the borrower.

And just as importantly, they cannot modify the mortgage so any submission to them for modification is futile without them showing proof of payment, proof of loss and/or authority to speak for and represent the interests of an identified creditor.

An identified creditor is not merely a name but is a report of the name of the owner of the debt, the contact person and their contact information. Then you can contact the owner and ask for the balance and how it was computed. So the failure to identify the actual owner is interference with the borrower’s right to seek HAMP or HARP modifications — potentially a cause of action for intentional interference in the contractual relations of another (asserting that the note and mortgage incorporated existing law) or violation of statutory duties since the Dodd-Frank act includes all participants in the securitization scheme as servicers.

The key is the money trail because that is the actual transaction where money exchanged hands and it must be shown that the money trail leads from A to B to C etc. The documents would then be examined to see if they are in fact relating to the transaction or a particular leg of the chain.

If the documents don’t conform to the actual monetary transaction, then the documents are refuted as evidence of the debt or any right to enforce the debt. What we know is that in nearly all cases the documents at origination do NOT reflect the actual monetary transaction which means they (a) do not show the actual owner of the debt but rather a straw-man nominee for an undisclosed lender contrary to several provisions of the Truth in Lending Act. The same holds true for the false securitization” chain in which documents are fabricated to refer to transactions that never occurred — where there was a transfer of the debt on paper that was worthless because no transaction took place.

One last thing on this is the issue of blank endorsements. There is widespread confusion between the requirements of the UCC and the requirements of the Pooling and Servicing Agreement. It is absolutely true that a blank endorsement on a negotiable instrument is valid and that the holder possesses all rights of a holder including the presumption (rebuttable) of ownership.

But hundreds of Judges have erred in stopping their inquiry there. Because the UCC says that the agreement of the parties is paramount to any provision of the act. So if the PSA says the endorsement and assignment must be in a particular form (recordable) made out to the trust and that no blank endorsements will be accepted, then the indorsement is an offer which cannot be accepted by the asset pool or the trustee for the asset pool because it would violate an express prohibition in the PSA.

And that leads to the last point which is that a document calling itself an assignment is not irrefutable evidence of an actual transfer of the loan. If the assignee does not agree to take it, then the transaction is void.  None of the assignments I have seen have any joinder and acceptance by the trustee or anyone on behalf of the pool because nobody on the trustee level is willing to risk jail, even though Eric Holder now says he won’t prosecute those crimes. If you take the deposition of the trustee and ask for information concerning the trust account, they will get all squirrelly because there is no trust account on which the trustee is a signatory.

If you ask them whether they accepted the assignment of a defaulted loan and if so, what was the basis for them doing so they will get even more nervous. And if you ask them specifically if they accepted the assignment which you attach to the interrogatory or which you show them at deposition, they will have to say that they did not execute any document accepting that assignment, and then they will be required to agree, when you point out the PSA provisions that no such assignment or endorsement would be valid.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , | 343 Comments »

Florida 2d DCA Gets It — Rules of Evidence Prevail!

Posted on February 16, 2010 by Neil Garfield

See 2D08-3553 Fla 2d DCA BAC v Ginelle Jean-Jacques

This is the reason why I am offering the workshop on Expert Witnesses, i.e. — to highlight the rules of evidence, to coach those who would present opinions as evidence and to hone the skills of the litigator. While apparently narrow in its scope and reasoning, this decision nails down the issue of evidence versus assumptions or presumptions with finality. The case clearly establishes that merely filing papers with “argument” about what they are or what they mean is insufficient to establish anything at all.

The lesson here is not only that you can beat the pretender lenders, but also that YOU must conform to the rules of evidence, establishing a proper foundation and not try to finesse the court. And in non-judicial states the argument is plain: if they could not prevail in a judicial action, why should the court rubber stamp their non-judicial actions?

U.S. Bank filed documents that named other parties along with defective assignments that were not executed in recordable form. They tried to finesse the court by filing “original Note and Mortgage”. The Trial Court granted Summary Judgment, fooled by the appearance of proper documentation and the appellate court said that was an error and reversed the trial court’s summary final judgment.

Notable excerpts follow:

the space for the name of the assignee on this “assignment” was blank, and the “assignment” was neither signed nor notarized. Further, U.S. Bank did not attach or file any document that would authenticate this “assignment” or otherwise render it admissible into evidence.

U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank’s standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006)

When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”).

U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose. See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (holding that the trial court, when considering a motion for summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the note in the absence of record evidence of such).

The incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not constitute admissible evidence establishing U.S. Bank’s standing to foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note and/or mortgage. Essentially, U.S. Bank’s argument in favor of affirmance rests on two assumptions: a) that a valid assignment or transfer of the note and mortgage exists, and b) that a valid defense to this action does not. However, summary judgment is appropriate only upon record proof—not assumptions.

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How to Search for the Trust or SPV Claiming Your Loan to Be Part of the SPV Pool

Posted on December 5, 2009 by Neil Garfield

Thank You ABBY!

This post is from Abby. You can catch her email in comments where she originally posted. Just one word of caution: Just because the Trustee or officer of the SPV pool claims to have your loan doesn’t mean they really do. In fact they may only have a spreadsheet with no documentation, no original notes, no copies of the note, no copy of the deed, deed of trust or mortgage deed. They may have something they called an allonge and are treating it as though it was an assignment. The attempted transfer will almost ALWAYS violate the terms of the the SPV mortgage backed bonds and almost certainly violate the terms of the pooling and service agreement which is the document governing the pools created by aggregators before they were “sold” to the SPV. For one thing these documents usually state that the execution of the transfer documentation must be in recordable form and some of them even say they should be recorded. There are many other terms as well that conflict with each other and conflict with the actions of the intermediary participants in the securitization chain.

This is why this research is so important — but you should not be doing it to prove your case. You should be doing it to make them justify their position.

By delving deep in discovery or seeking an order compelling them to answer the QWR or DVL, they will eventually anger the judge by their stonewalling. Judicial anger is behind some of the most favorable decisions on record so far. The Judge gets there by recognizing that he/she has been duped and now the truth is coming out that these foreclosing parties are illegiitimate: they are not creditors, they are not lenders, they are not beneficiaries. They are simply interlopers seeking a windfall leaving the homeowners and the investor who advanced the funds in the dark. Shine the light and they scatter like roaches in the middle of the night.

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WANT TO SEARCH FOR THE TRUST YOUR LOAN WENT INTO??

Some steps below to use the SEC website to locate your loan and the trust it is in (mortgage pool).

This example uses WAMU (Washington Mutual).
Typically, Chase had JPMAC (JP Morgan Acquisition Corp) as the name of trusts.

http://www.sec.gov/

1. click on above link
2. if you have not yet created a free account and it asks you for login info…create the account
3. click on ’search’ in upper right corner
4. in the blue area, type in WAMU in the ‘company name’ field
5. click find companies at bottom
6. this brings up all the WAMU filings
7. search around for one that is the year you got your WAMU refi
8. it will be tedious, but you have to click on each CIK number (in red) over on left, and that will take you to a whole big list of more filings for that particular trust
9. go through and click on any ‘fwp’….read/scan to see if it lists any loan numbers….some will….check to see if your loan number is in it.
10. when you click on an ‘fwp’, which means free writing prospectus, you will see even more files…try to avoid looking at the ones that have .txt ending (the other, usually an html file, will have any infor you may need.

Note: you may want to also search around in years just prior to or just after your loan was done.

Some of these deals were set up even prior to you getting your loan.

Again, another place you may find the trust name is on your recorded docs, in MERS or on a Power of Attorney filed at the county recorder by the Securities trustee in your local county (if required by law).

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Florida 4th DCA on Lost Note:

Posted on November 5, 2008 by Neil Garfield 
Original Note Required: fl-statute-90

Filed under: CDO, currency, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: , , , , | 1 Comment »

Note produced and Mortgage is not: Several possible answers:

Posted on July 4, 2008 by Neil Garfield

Note produced and Mortgage is not: Several possible answers:

  1. Mortgage itself is not required in original form but a certified copy of what is recorded is required.
  2. That they do not have the original stamped copy is indicative but not proof that the mortgage was assigned or transferred in some way. Therefore you want someone with personal knowledge to swear what happened to the mortgage and specifically whether it was assigned, transferred, hypothecated or whether any instrument was executed by the named mortgagee that effects the terms, rights, obligations, ownership or control over the disposition of the mortgage. Put another way: who is it that could execute a satisfaction of mortgage that would satisfy a title expert?
  3. Original Note produced. Several cases where the “original” was a forged copy of the real original. Check with borrower to determine if it is their signature and whether all borrowers signed.
  4. Just because someone physically has possession of the note does not necessarily mean that they own it — but that raises a strong presumption which can only be rebutted by some proof of either a pattern that the mortgagee and payee on the note admits to regarding selling, transferring etc the note, or some documentation from the mortgagee files that shows that they only retained the rights to service the mortgage and received some payment for the full balance of the note or part of the balance of the note plus a “premium” which amounts to an undisclosed fee (TILA violation).
  5. It is probably true in many cases that any number of people got possession your borrower’s note without any rights to it in the process of multiple assignments. Transfer of possession implies transfer of ownership and rights but that is a presumption, not black letter law. So if you show that that going up the line that A transferred to B who transferred to C who transferred to D and the note is in B’s hands, B has no right to enforce the note or foreclose the mortgage. B lacks standing and they have not joined the real party in interest. They are at most a nominal plaintiff. Even if the statute allows a nominal plaintiff in possession of the note to enforce the note and foreclose on the mortgage, they cannot do so without someone having personal knowledge and authority to state that the note is in default and that the nominal plaintiff is instructed to enforce. But in our example if C instructs nominal Plaintiff B and the note and mortgage are held by D then the standing and real party in interest problem still exists — the Defendant could still be sued again by the real party in interest for a double collection, thus the action must be dismissed with prejudice.
  6. In the securitization process, co-obligors (other borrowers) are created in the merger that results by pooling the mortgages and notes and terms are added, which is what happens when a 12% note is sold to an investor as 12% but it only provides for a 1% option ARM payment. Thus if the investor (owner of asset backed security) is in fact getting paid in full, then it is difficult if not impossible to say that one specific note is in default even if there is no evidence of borrower payment, because of the obvious intervention of third party payments.
  7. “Assignment” of the note must usually be accompanied by physical delivery. But in the securitization process this rarely occurred resulting legally in the Mortgagee/Payee receiving payment in full for a pool of mortgage notes that includes some reference to your borrower’s note. That being the case, the note is paid, the security is severed, and the party who now “owes” on the note is the Mortgagee/Payee who assigned for payment the ownership to a third party who in turn did the same thing. The “default is not that of the borrower anymore because a third party intervened and paid the full balance. This follows the same logic and theory that happens in a refinancing: the mortagee/payee on one mortgage note is paid by a third party. If the third party fails to record a valid assignmentof mortgage or a new mortgage under the laws governing recording, then there is no encumbrance. If the reason the third party paid was because of some deal with the original borrower then the new lender may have a cause of action for an unsecured debt. But in the securitization process the “new” lender is not even disclosed to the original borrower. That they chose to pay off the note is their problem and between them and the seller or their attorney who should have documented the transaction properly.
  8. Rules of evidence in each jurisdiction vary somewhat when it comes to negotiable instruments, assignment, delivery and recordation, so it should be checked both with state and statutes and even with one of the more experienced recording clerks in the county where the property is located.

Filed under: CDO, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: , , , , , , , , | 6 Comments »

Foreclosure Offense and Defense for Borrower’s and Their Lawyers

Posted on June 21, 2008 by Neil Garfield

Start with GARFIELD’S GLOSSARY ABOVE: HERE IS ARE SOME OF THE RECENT ADDITIONS TO THE GLOSSARY AND TACTICAL CONSIDERATIONS:

Deed of Trust
An instrument signed by a borrower, lender and trustee that conveys the legal title to real property as security for the repayment of a loan. The written instrument in place of mortgage in some states.

AS APPLIED THE CREATION OF THE TRUSTEE AND THE POWERS GRANTED TO THAT TRUSTEE (AND LATER APPLIED) PROBABLY VIOLATE THE DUE PROCESS REQUIREMENTS OF BOTH THE U.S. CONSTITUTION AND THE APPLICABLE STATE CONSTITUTION WHICH ORDINARILY ADOPT IDENTICAL OR NEARLY IDENTICAL LANGUAGE REGARDING DUE PROCESS. THE ABILITY TO POST A SALE NOTICE, ESPECIALLY UNDER THE MORTGAGE MELTDOWN CONTEXT, PROBABLY ALSO VIOLATED THE FIDUCIARY OBLIGATION OF THE TRUSTEE GIVING RISE TO A CLAIM FOR DAMAGES FROM THE BORROWER, THAT IS ORDINARILY COVERED BY THE ERRORS AND OMISSIONS INSURANCE POLICY COVERING THE TRUSTEE. See Non-Judicial sale, Default, Asset Backed Security (ABS).

Default — PRIMARY DEFENSES IN MORTGAGE FORECLOSURE ACTIONS AND BANKRUPTCY ACTIONS:

SEE APPRAISAL, SPECIAL PURPOSE VEHICLE (SPV), STRUCTURED INVESTMENT VEHICLE (SIV), ASSET BACKED SECURITY (ABS)

In a conventional mortgage transaction, a mortgage is in default when any of its terms are breached. While there are cases where the default consists of compromising the security (e.g. failure to insure — favorite among predatory lenders who “force place” insurance at exorbitant rates without just cause), the most common default claimed is in the event that the borrower fails to make the payments as agreed to in the original promissory note.

In the Mortgage Meltdown context, the entire concept of default has been redefined by

(1) disengagement of the borrower’s obligations from the security instrument and note

(2) substitution (novation) of parties with respect to all or part of the risk of default

(3) substitution (novation) of parties with respect to the obligations and provisions of the security instrument (mortgage) and promise to pay (promissory note)

(4) merger of mortgage obligations with other borrowers

(5) addition of third parties responsibility to comply with mortgage terms, especially payment of revenue initiated in multiple mortgage notes and

(6) a convex interrelationship between

(a) the stated payee of the note who no longer has any interest in it

(b) the possessor of the note who is most frequently unknown and cannot be found and therefore poses a threat of double liability for the obligations under the note and

(c) cross guarantees and credit default swaps, synthetic collateralized asset obligations and other exotic equity and debt instruments, each of which promises the holder an incomplete interest in the original security instrument and the revenue flow starting with the alleged borrower and ending with various parties who receive said revenue, including but not limited to parties who are obligated to make payments for shortfalls of revenues.

It may fairly be argued that there is no claim for default without (1) ALL the real parties in interest being present to assert their claims, (2) a complete accounting for revenue flows related to a particular mortgage and note including payments from third parties, sinking funds, reserve funds from proceeds of sale of multiple ABS instruments referencing multiple portfolios of assets in which your particular mortgage and note may or may not be affiliated and (3) production of the ORIGINAL NOTE (probably intentionally destroyed because of markings on it or other tactical reasons or in the possession of an SIV in the Cayman Islands or other safe haven.

In ALL cases, including recent ones in Ohio, New York, Maryland and others, it is apparent that the “lender” is either not the lender or upon challenge, cannot prove it is or ever was the lender. Wells Fargo definitely engaged in the practice of pre-selling loans upon execution of loan applications rather than assignment AFTER a loan had actually been created. In nearly all cases the Trustee or MERS or mortgage service operation has no knowledge of where the original note is, has no interest in the note or mortgage, and has no knowledge of the identity, location or even a contact person who could provide information on the real parties in interest in a particular mortgage note.

The “clearing and settlement” of “sale” or “assignments’ of mortgages, notes, ABS instruments and collateral exotic derivatives whose value is derived from the original ABS of the SPV which received representations from an unidentified SIV (probably off-shore).

The abyss created in terms of identifying the actual owner of the mortgage and note was intentionally created to avoid liability for fraudulent representations on the sale of the derivative securities to investors. The borrower’s signature on an application or closing documents was part of the single transaction process of the sale of ABS unregulated security instruments to qualified investors based upon fraudulent appraisals of (1) the underlying real property, (2) the financial condition of the “borrower” and (3) the securities offered to investors.

Thus the claim of “default” is by a party who has no standing to assert it, no knowledge to prove it, no possession of the original note, and no authority to pursue it. IT IS FOR THIS REASON THAT THE SCHEDULES FILED IN BANKRUPTCY SHOULD NEVER NAME THE ORIGINATING LENDER AS A SECURED CREDITOR FOR A LIQUIDATED AMOUNT. THE “LENDER” MAY BE EFFECTIVELY BLOCKED FROM GETTING RELIEF FROM STAY IF (A) THE SCHEDULES DO NOT SHOW THE CREDITOR AS A SECURED CREDITOR AND INSTEAD SHOW THE CREDITOR AS AS NOMINAL PARTY THAT MIGHT ASSERT A CLAIM FOR AN UNLIQUIDATED AMOUNT AND (B) THE SCHEDULES SHOULD SHOW JOHN DOE ET AL AS PERSONS, ENTITIES OR PARTIES THAT MIGHT ALSO EXPRESS AN INTEREST IN THE BORROWER’S BANKRUPTCY ESTATE FOR AN UNLIQUIDATED AMOUNT SUBJECT TO RESCISSION REMEDIES UNDER TILA, STATUTORY LAWS, COMMON LAW AND SECURITIES LAWS, AND SUBJECT TO REFUNDS, REBATES AND DAMAGES.

IT IS ALSO FOR THIS REASON THAT WE RECOMMEND THAT JOHN DOE BE SUED FOR QUIET TITLE AND SERVED BY PUBLICATION, NAMING ALL KNOWN PARTIES WHO WOULD EXPRESS AN INTEREST, NONE OF WHOM CAN PRODUCE A SINGLE ALLEGATION OR PIECE OF EVIDENCE SUPPORTING THEIR LEGAL STANDING OR LEGAL COMPETENCY AS WITNESSES.

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Foreclosure Offense and Defense: Basic Rules, Discovery, Affirmative Defenses and Audits

Posted on June 10, 2008 by Neil Garfield

I found an excellent article by an excellent writer I would like to share with you. It underscores the importance of the requiring the lender to prove the original note, the ownership of the note and mortgage and the alleged non-payment. There is much more. If you are involved in a foreclosure or you are an attorney representing someone in foreclosure this is a must read article. see also http://mortgage-home-loan-bank-fraud.com

Affirmative Defenses and Procedure

You Can Stop Foreclosure

and Put the Lender on the Defense.

 Does the Lender have the “Original” Note in Hand?

by: Kenneth M DeLashmutt

 

Step One: Answer the Foreclosure Lawsuit

Foreclosure Filing Schedule:

You receive a Summons and Complaint…

(The plaintiff–bank, lender or other creditor–starts the foreclosure by having a marshal serve the defendant–owner or borrower–with a Summons and Complaint.) You can check the foreclosure rules in your State. Click on the following link:

http://www.stopping-banks-foreclosures.com/state-foreclosure-process.html

Within 2 days of the Return Date on the Summons…

File an Appearance

Within 15 days of the Return Date on the Summons…

File and send an Answer.  Be sure to put a certification of service at the end of your answer, and that you have sent your Answer to everyone who has Appeared in the case.  You will need to sign the certification separately from your signature on the Answer.

If you choose foreclosure by sale, file a Motion for Foreclosure by Sale

 

Step Two: The Lender Must Prove Existence of the Note.  

 

To recover on a promissory note, the plaintiff (the Lender in the case of foreclosure) must prove:(1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note in due course; and (4) that a certain balance is due and owing on the note.

 

Trial court erred when it did not proceed to take testimony before it entered default judgment (see definition below) for the plaintiff; the unsworn statement of plaintiff’s (plaintiff is the lender) attorney could not support default judgment rendered.” 

 

It is also true, in mortgage foreclosures, prove up of the claim requires presentment of the “ORIGINAL” promissory note and general account and ledger statement. Claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note, the person responsible for preparing and maintaining the account general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger. 

 

To recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note in due course; and (4) that a certain balance is due and owing on the note.

1) the existence of the note in question

2) If the “ORIGINAL” note you signed in ink that contains your signature is claimed to be lost, stolen, missing and/or destroyed, then your defense is as follows:

3) the “named” Plaintiff is not the ‘holder in due course” of the note and only an agent or nominee for the true beneficial owners and holders in due course;

4) there may be fraud upon the court in that the named Plaintiff may not have ANY interest to the note and that the supposedly lost note is not lost, but may have been intentionally destroyed due to missing assignments on the note which may have made it void and a legal nullity, thus they have exploited key and vital evidence;

5) there is no proof that the named Plaintiff ever held the note or took possession of the note and thus has no claim or right to bringing about the foreclosure;

6) there is no proof, without the note, that a proper chain of assignments took place and that the lien positions were properly perfected;

7) other unnamed and disclosed real parties in interest may have a claim to the note and be the rightful beneficial owners to the note and must be identified and brought before the court;

8) there may be several unnamed and disclosed real parties in interest may have a claim to the note and be the rightful beneficial owners of the note;

9) that the party sued signed the note

10) If the “ORIGINAL” note you signed in ink that contains your signature is claimed to be lost, stolen, missing and/or destroyed, then you need to notify me and also put on affirmative defenses that:

11) the note in question is not the note you signed and executed in ink and only the one you signed in ink that presumably contains your fingerprints can be relied upon by your handwriting analysis expert;

12) in an electronic age, it is a simple matter to place someone’s signature or image upon a document and that it is very difficult to imagine such a valuable negotiable instrument being lost or missing without a nefarious motive.

13) that the plaintiff is the owner or holder of the note in due course;


14) If the “ORIGINAL” note you signed in ink that contains your signature is claimed to be lost, stolen, missing and/or destroyed, then you need put on affirmative defenses that:

a) the mortgage industry, investors, and GSE’s such as Fannie Mae, Freddie Mac, and FHLBs etc. have a requirement that the last endorsement to them be undated and “blank” leaving the payee line blank and making the negotiable instrument a sort of “bearer bond” and instrument. as such, any party finding or stealing the note can place their name on the payee line, claim ownership of the note, and sell the note to others who may make a demand upon you in the future. as such, you require money to be deposited in an escrow account or with the court in an amount equal to the amount claimed owed on the note, until such missing note is found or upon your death. notes have a life of their own…

b) if the note was destroyed or lost intentionally (the industry maintains this practice) then they may be trying to hide the beneficial owners and shield them from any assignee liability arising from the actions of the servicer who they hire, supervise and most importantly authorize to foreclose upon you. without the note, since subsequent endorsements are not recorded to avoid payment of taxes and t hide true and real beneficial interests, there is no possible way to determine who ever held a rightful interest in the note and who you may have claims or counter claims against and who should be presently before the court as a real party in interest.

c) Furthermore, if there are missing assignments of the original note and the assignment went from Lender A to Lender B to Lender D without an intervening assignment from Lender B to Lender C and From Lender C to Lender D, then the note may be void and a legal nullity in your state.

d) It is industry practice to not name the GSE, investor, or real party in interest in foreclosure and to use as a front for the Plaintiff:

i) The very original lender who may or may not even be in business any more or sold their interest in the note long ago, only to have a claim made upon them for repurchase;

ii) A Servicer of even “special servicer” who is acting as an agent for the investors, GSE’s or real party in interest, but has no beneficial ownership in the note since they are only being paid to collect and foreclosure by the real parties in interest

iii) A “nominee” such as MERS who has no legal authority to foreclose upon you and do business in your state and who according to their own written documents and verbal assurances never hold the note or own “any” beneficial interest in the note!!!!!

e) Notes are pledged, sold, bifurcated, and traded in various derivative transactions like bubblegum baseball cards and their transfers, sales, pledges etc. Are not publicly recorded. As such, only possession of the actual original note can prove the actual owner and holder in due course of the note and who you can make an offer of payment to for purchase of the note by yourself, another family member or partner. You have a right to know the rightful owner of the note so an offer for payment of the note at a discount and at fair market value can be made. If the note has been pledged and encumbered, then that party must be made aware of the foreclosure and your right to negotiate with them a payment and release of the note by you, other lien holders or private parties;

f) Notes are traded often and you need to inspect the physical note to see who the real prior parties were that held and endorsed your note since you may have counter and cross claims against them and need to bring them before the court for the action, since they may have improperly inflated your principal balance, amount owed or escrow account by not applying your payments correctly; adding fees not legally owed by you to the principal balance; miscalculating the interest and not properly amortizing your loan; fraudulent selling your loan or misreporting you on your credit report.

g) Federal Circuit Courts have ruled that the only way to prove the perfection of any security [including promissory note] is by actual possession of the security. Current or prior possession must be proved up.

(h) that a certain balance is due and owing on the note.

15) You must have the master transaction histories and general ledgers for the account since a “dump,” “summary,” or redacted record cannot be relied upon to determine the rightful amounts owed by having a complete audit of your account. In order to conduct a proper audit, master records and all prior records must be compiled, reviewed, analyzed, and reconciled. In is not you responsibility to prove each payment was made. It is your responsibility to say a payment was made and provide evidence, including your word that it was made. It is the note holder’s duty and responsibility to validate the claims being made on the note and the amount owed. If they have the master records or claim that the records of prior servicers are missing, then there is no rightful way for anyone to prove up the balances and amounts they claim are owed!!!! Furthermore, you must claim:

a) That the principal balance claimed owed, is not owed, and is the wrong amount.

b) That the loan has not been properly credited and amortized;

c) That the current servicer cannot be relied upon to testify and certify that prior amounts, transactions, credits, debits, charges and fees added by prior servicers were indeed proper and correct and that the account they were transferred was properly amortized and credited. As such, the person holding the ledgers at the prior servicer must come and testify as to the amounts owed on the note.

d) dumps and summaries of amounts owed cannot be relied upon and only original ledgers and master records and the keeper of those records cant testify as to the amounts claimed owed and due.
 

 

Supporting Case Law

 

Where the complaining party cannot prove the existence of the note, then there is no note.

 

See  Pacific Concrete F.C.U. V. Kauanoe,  62 Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka  25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001).

 

Siwooganock Bank in Lancaster NH, in alleged foreclosure suit, failed or refused to produce the actual note which Siwooganock alleges Eva J. Lovejoy owed.  

To recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note.  See In Re: SMS Financial LLC. v. Abco Homes, Inc. No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.)

 

Volume 29 of the New Jersey Practice Series, Chapter 10 Section 123, page 566, emphatically states, “…; and no part payments should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, as the case may be. See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469,  in Carnegie Bank v, Shalleck 256 N.J. Super 23 (App. Div  1992), the Appellate Division held, “When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the holder of the instrument shall be afforded all the rights and protections provided a holder in due course pursuant to N.J.S. 12A:3-302″

 

Since no one is able to produce the “instrument” there is no competent evidence before the Court that any party is the holder of the alleged note or the true holder in due course. New Jersey common law dictates that the plaintiff prove the existence of the alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note, and prove that certain balance is due and owing on any alleged note.  Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual possession of the security.

 

Supporting Case Law

 

Unequivocally the Court’s rule is that in order to prove the “instrument”, possession is mandatory.

 

See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977).  “Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security interest in instruments has been perfected is actual possession by the secured party, his agent or bailee.” Bankruptcy Courts have followed the Uniform Commercial Code. In Re Investors & Lenders, Ltd. 165 B.R. 389 (Bankruptcy.D.N.J.1994), “Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is “instrument,” security interest in which must be perfected by possession.

 

Step Three: Audit Your Closing Documents for TILA Violations, Illegal Kickbacks and Fraud

 

In order to find for consumer protection law violations you will have to gather and assemble your loan and closing documents and put them in order.

 

Required Documents for your Audit

 

To begin the Audit process, put together a package of the following documents:

 

NOTE: All of the following documents are required.

If you do not have all of the documents DO NOT call your lender unless you have sent the lender the RESPA document the “qualified written request.”

 

List of loan documents for audit.

 

*anything that was given to you at the time of signing the loan

*Promissory Note (very important)

*Mortgage or Deed of Trust (very important)

*Application for the loan, if available

*Good Faith Estimate (very important)

*Settlement Statement (very important)

*Right to Cancel/Right to Rescission (very important)

 

Disclosures:         

*HUD 1 Statement

*TILA Disclosures (very important)

*RESPA Servicing Disclosures

*Any and all disclosures (very important)

 

A copy of the current billing statement.

 

A copy of any notifications from the lender or other party of a change  in where the borrower is to send the payments.  This may be because the lender sold the note (a new assignee), or sold the rights to collecting the payments (a new servicer). 

 

A copy of any default notices, acceleration papers, or foreclosure paperwork.

 

A copy of any and all court paperwork if the property is in

foreclosure or there is any court process ongoing that involves this property.  If you do not have this paperwork, it must be obtained from the court files.

 

What are you looking for?

 

Now you can audit your closing documents and look for TILA, HOEPA and RESPA violations.

 

If the answer to any of the following questions is “yes,”

you are most likely a victim of predatory lending practices and may be able to void the mortgage and apply 100% of your payments to principal. And, you may also be able to recover money damages.

 

Such violations can be used as a defense to a mortgage foreclosure. If there is a violation,

 

1. Have you repeatedly refinanced your loan? Was the last refinance within the last 3 years? (A common predatory practice is “flipping,” which involves “repeatedly refinancing a mortgage loan without benefit to the borrower, in order to profit from high origination fees, closing costs, points, prepayment penalties and other charges, steadily eroding the borrower’s equity in his or her home.”).

 

2. Did you increase rather than lower your rate upon refinancing?

 

3. Are you paying an interest rate in excess of 9.5%?

 

4. Was the loan obtained to pay for home improvement work that was not done properly, or even at all?

 

5. Have you had problems with the mortgage company regarding untimely posting of monthly payments? Sudden increases in payments? Adding amounts to your balance for insurance, “property preservation,” or other “advances”? Does your principal balance never seem to go down?

 

6. Were you charged high closing costs (points and fees) on the mortgage?

 

7. Did the terms of the mortgage change to your detriment at the last minute before the closing?

 

8. Did the lender pay money to your mortgage broker (look on your HUD-1 Settlement Statement for a “premium” or “YSP” or “yield spread premium” or “POC”, “Paid Outside of Closing”)?

 

9. If you have an adjustable rate mortgage, were any adjustments done improperly? Can you even tell if the adjustments were correct or not?

 

10. Does your loan contain a prepayment penalty?

 

11. Do you believe you were treated unfairly by your mortgage company? Has correspondence with the mortgage company gone unanswered? (Mortgage companies have a statutory obligation to respond to complaints and requests for explanations of accounts. Often, they don’t. Each failure may entitle you to $1,000. If your claim against the mortgage company may exceed the number of monthly payments you allegedly missed, the mortgage company may not be able to prove that you are in default.)

 

12. Did all collection letters sent to you by debt collectors comply with the Fair Debt Collection Practices Act? (Up to $1,000 more if they did not.)

 

13. Did you (or anyone else who has an ownership interest in and lives in the house) receive a “notice of right to cancel” that was not completely filled out?

 

14. Did you receive your copy of the loan documents at the closing (as opposed to being sent to you later)?

 

15. Did you sign a document at the closing stating that you were not canceling?

 

16. Did the closing occur by mail, or at your home, or in another city?

 

The following is an example of some of the other TILA violations you may find in your closing documents.

 

Over-escrowing

 

Junk charges

(i.e. yield spread premiums and service release fees)

 

Payment of compensation to mortgage brokers and originators by lenders

 

Unauthorized servicing charges

(i.e. the imposition of payoff and recording charges)

 

Improper adjustments of interest on adjustable rate mortgages

 

Upselling

 

Overages

 

Referral fees to mortgage originators.

(i.e. a lender who pays a mortgage broker secret compensation may face liability for inducing the broker to breach his fiduciary or contractual duties, fraud, or commercial bribery)

 

Failure to disclose the circumstances under which private mortgage insurance (”PMI”) may be terminated.

 

Underdisclosure of the cost of credit

 

Excessive escrow deposits

 

Breach of Fiduciary Duty

 

You may also find breach of contract claims.

 

There is a common assumption (among judges, borrowers, and the public) that mortgage companies do not desire to foreclose and acquire real estate. This assumption is no longer well founded.

 

There are an increasing number of “scavengers” that buy bad debts, including mortgages, for a fraction of face value and attempt to enforce them. Such entities profit by foreclosure. “Mortgage sources confide that some unscrupulous lenders are purposely allowing certain borrowers to fall deeper into a financial hole from which they can’t escape. Why? Because it pushes these consumers into foreclosure, whereupon the lender grabs the house and sells it at a profit.

 

 

Kenneth M. DeLashmutt

“Predatory Lending Defense Specialist”

email: bankfraud@cox.net

website: http://mortgage-home-loan-bank-fraud.com

 

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