In yet another example of a practice that occurs in foreclosure courtrooms across the state but which is unsupported by case law, Plaintiffs should not be permitted to drop a count in their complaint, especially the lost note count. See Desert Ranches here DESERET.
Moreover, the practice of Plaintiffs simply doing a Notice of Filing an Original Note in court to support Summary Judgment should not be permitted in any case. It certainly should not be permitted inside the twenty day window for receipt of evidence for Summary Judgment. See verizzo here.
Note that the promissory note is the primary document that is sued upon in a foreclosure case. Even if a copy of the note is attached to the complaint or filed somewhere along the way, that copy is not the document that is being sued upon…a key fact is added to that document that changes the document entirely….that key fact often added is the endorsement or allonge.
When the endorsement or allonge is added, many additional facts and witnesses become part of the case that must be pursued:
1) Who endorsed this note?
2) Did they have the authority to endorse the note?
3) When was the note endorsed?
The method and mode of transfer are key facts that I have the right to pursue and, given what we know about fraud and improper transfers, we must challenge the authenticity of signatures and defend on these bases. The proper method for a Plaintiff to incorporate the newly found note is to file an amended complaint.
Read carefully the typical complaint. Note that it often does not specifically incorporate in the note they are now suing on. It may mention, “a note was executed”, but there is typically not one single sentence where that document is correctly incorporated into the complaint so as to be a document that can be a basis for the judgment….now read the complaint excluding the portions where they have indeed “dropped” that lost note count….it is simply mortgage foreclosure and is an incomplete complaint…..not subject to a judgment.
