lost note
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Mortgage Notes Are NOT Negotiable Instruments– One of My First Posts EVER!
This little ole blog has been around since July 2009. At that time, blogs were new and frankly the defense of foreclosures was not particularly sophisticated. I knew way back then that there were major problems with foreclosures, but then the theories were not yet developed. So many of the issues have been more fully developed since then, but too many of them still remain undeveloped.
As I’ve recently been digging into the fact that notes are not negotiable, I realized that I first wrote about this issue as one of my first posts. I’m frustrated that we haven’t really developed that issue yet, but then again I’ve only pursued the issue once at trial….but check this out:
In nearly every foreclosure case filed in Florida, the law firms include a count in the lawsuit to “re-establish a lost note”. In order to prevail in a foreclosure case, the lender must present to the court the original promissory note singed by the borrower at closing. Because these note are often lost, a technical legal procedure was developed which allows the plaintiff to present to the court a copy of that note and ask the court to rule that the copy presented is just as good as the original note.
In many cases, the Plaintiffs will be able to produce a copy of the note that was “lost”, at some point in time in the proceedings. In this case, the lost note count is dropped and the foreclosure case moves forward without this techincal problem. In some cases however, the Plaintiff either cannot even produce a copy of the promissory note or the promissory note signed by the borrower does not fit the precise legal definition of a “negotiable instrument” that is subject to the techincal reestablishment procedures.
In either of these cases, the Plaintiff is going to have a very hard time proceeding with their forecloure case and they have very few easy options which would allow them to prevail in their foreclosure case…confronting this reality should encourage the lender to enter into very favorable mortgage modifcation discussions with the borrower, but more often than not it seems the attorneys just abandon the case leaving the homeowner in a home with noone to make a mortgage payment to and nonone calling or making any attempts to get them to pay.
Or how about this one:
The first question a competent attorney should ask is, “Does the plaintiff who is suing my client have the right to file a lawsuit in Florida against my client?” The fact of the matter is that a variety of statutes and rules prohibit various persons and entities from availing themselves of the jurisdiction of Florida courts.
Minors may not alone avail themselves of the jurisdiction of any court of this state; neither may individuals who are otherwise incompetent. Minors and incompetents may only access the courts of this state through guardians or other legal representatives. Personal representatives appointed by in estates opened in other states may not maintain suit in this state. An ancillary estate must be opened in this state. Businesses operating as a fictitious name may not maintain suit. Only the individual who runs that entity may file suit. Foreign corporations not registered with the Secretary of State may not maintain suit in this state. They must first register as a foreign corporation.
If these two issues alone had been pursued the landscape would be much different than things are today….
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Florida Foreclosure Defense Alliance – The Cutting Edge of Consumer Protection
The leaders of a growing movement that is dedicated to protecting homeowners who are in foreclosure concluded an important meeting in Boca Raton on Thursday June 24, 2010. Over the next several weeks, important developments from this meeting will be announced including:
Renewed Efforts to Share Legal Research, Pleadings and Case Strategies
Bi-Weekly Conference Calls
Legislative and Political Outreach Initiatives
Trial and Critical Motion Support and Attendance
Appellate Case Development, Drafting and Oral Argument Support
Effective Practice Building Procedures- There are too many consumers that still go unrepresented and this will change. This deprives them of their rights and places additional burdens on our judges. We’re all going to work together to make sure that every consumer has the resources and information they need to fight the critical battles they face.
The list serves and other groups we’re all part of have been absolutely invaluable to elevate the practice of this area of the law, but these new efforts will help us all to take this practice area to a whole new level.
If lenders and their attorneys do not start negotiating in good faith, the next phase of this wave of litigation will be trials. Given the significant evidentiary and other issues that exist, I am convinced that trials will be unwinnable for the majority of foreclosing plaintiffs. The members of the ethical and responsible foreclosure defense bar now recognize that every case must be prepared for trial and appeal beginning with the very first motion filed.
Mark Your Calendars Now, Upcoming Events Include:
Motion to Dismiss/Motion In Liminie/Motion to Substitute Party Plaintiff- The facts in this case and the tactics being developed have application to thousands of cases pending across the state. Members of the defense bar are encouraged to help prepare ahead of time, then come watch these proceedings to see how the tactics can be applied in your cases.
Indymac v. Davis ~ Chambers of Judge Kathleen Hessinger ~ Pinellas County – 7/8/2010 – 1:30
Mortgage Foreclosure Trial- There have been very few full mortgage foreclosure trials in recent history but that’s all going to change in the months and years to come because if lenders refuse to negotiate in good faith, we will be prepared to take these cases to trial. Come watch this trial for insight into the exciting new era of foreclosure defense.
Indymac v. Davis ~ Chambers of Judge Kathleen Hessinger ~ Pinellas County – 7/12/2010 – 1:30
Taylor v. Deutsche Bank Fifth Circuit Appeal Oral Arguments- It is increasingly obvious that many of the complex issues that confront our this area of the law will be resolved not in the trial courts, but in the appellate courts. These oral arguments will be streamed live so even if you cannot attend in person, you will have the opportunity to watch the proceedings live! I’m honored to make these arguments by my friend and fellow warrior Greg Clark. We will be holding several Mock Trials in the next several weeks, so stay tuned for more information about these exciting events as well.
Before the Fifth Circuit Court of Appeals ~ Volusia County- 7/15/2010
We’re all grateful to the Florida Bar for their support and for allowing us to participate in such a meaningful way at our profession’s marquee event. The message has been delivered and received loud and clear- the crucial problems faced by our judicial branch will be solved by ethical and responsible attorneys working together to serve our clients and the courts we serve. If you’re in town today, don’t forget to come by the Foreclosure Hamlet meeting room where hundreds of consumers and experts from a variety of fields will make presentations and present networking opportunities.
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SMACKDOWN~ TWO EXCELLENT NEW DISMISSAL ORDERS!
Any week when we get judges applying the law and dismissing the foreclosure garbage is a good one, but when we get TWO ORDERS in one week
FROM TWO SEPARATE CIRCUITS…HELL THAT’S DAMN NEAR EXTRAORDINARY!
It seems crazy that we should make such a big deal when judges actually apply the existing laws to foreclosure cases, but given the widespread abuses of the foreclosure mills and, with all due respect, either the failure of judges to understand the particularities of real estate law or worse, knowing the law and ignoring it as applied to foreclosure cases, but this is the case.
Anyway, Greg Clark is among the best Foreclosure Defense attorneys in the state, a true statesman in the fight and a vocal and brilliant opponent of the whole MERS scheme. Contact Greg here for more information about these complex arguments.
More importantly, read his clear and brilliant Orders that dismissed foreclosure cases and which were GRANTED, just last week:
Judges across this state need to be educated on the issue of “Dropping the Lost Note Count“. This is yet another widespread practice that has infected our court systems, but the process IS NOT SUPPORTED BY CASE LAW. More importantly, Final Judgments granted based on cases where the Lost Note Count was dropped are subject to title challenges for decades to come….stay tuned on this one! (Search this blog for “Lost Note” for a detailed explanation of the problem)
CONGRATULATIONS GREG- THE GOOD FIGHT CONTINUES!
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Improper Court Procedure- Dropping Lost Note Count
Here is an example of an objection to dropping the lost note count as a basis for objecting to summary judgment.
Objection to Summary Judgment Based on Lost Note
The improper procedure of dropping the lost note count and granting Final Judgment of Foreclosure (and then issuing a title to the property based on that improper Final Judgment) sets up yet another in a long line of issues that will permit titles to real estate to be set aside and invalidated. See the attached case law for issues relating to improper judgments.
Bay & Gulf Laundry Improper Partial Judgment
As advocates, particular we real estate and title attorneys, we need to continue to make clear to our judges that one of the biggest problems this crisis has created is fatal issues that will cloud title to real estate for decades to come.
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When is an “Original” Note Not THE “Original” Note?
When a forged document has been submitted to the court…..have a look at the latest blog posting from our friends and fellow foreclosure fraud fighters at 4closurefraud.com
I hate to keep using inflammatory words to catch attention like “BOMBSHELL” or “SUBSTANTIATED ALLEGATIONS OF FRAUD”, but I continue to hear allegations that lenders and attorneys are passing off computer generated copies of original notes and passing them off to judges as “original” or “wet ink” notes.
I have yet to see one myself, but this latest post appears to be a “live” one. Remember all foreclosure cases filed with the courts are available for inspection. Make sure you examine all the documents carefully and make objections when issues of authenticity are real.
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D5 Creation