The fraudclosure industry has asked our court systems to accept an absurd argument of law which holds that a million dollar home can be taken from a homeowner over a simple squiggle, an “X” or any old stamp, mark, or blotch.
To support this argument, they first needed to convince the courts that mortgage promissory notes are negotiable instruments. But here’s the thing. MORTGAGE PROMISSORY NOTES ARE NOT NEGOTIABLE INSTRUMENTS.
Now there are a handful of appellate court cases which make gratuitous statements like, “The note is negotiable”, but there is only one opinion when an appellate court in Florida actually analyzed the operative language in a purported instrument, compared it with the clear language of statute and, guess what?
FLORIDA’S 2ND DCA FOUND IT’S NOT NEGOTIABLE!
The case is GMAC v. Honest Air. Now, when the Second DCA gets around to looking at the standard promissory note that is common in the vast majority of foreclosure cases, they are going to really struggle to excuse the notes from the fact that they are not negotiable!
This will be a sea change for all our courts to wrap their collective judicial minds around, but it’s frankly pretty simple stuff. Just print out the statute, highlight each provision of a note that falls within the specific exclusion of the operative statutory language and you’ll see that the note isn’t even close to being a negotiable instrument. And when the opposing side or the court quote opinions for the proposition that they are, remind them that NONE OF THOSE CASES SPECIFY THE DOCUMENT IN QUESTION AND NONE OF THOSE CASES PROVIDE ANY ANALYSIS.
We need to first brief a trial court on the specific note and the allegations, then we need an appellate court to engage in the same detailed analysis of the statute and note itself. If the courts do this, they will find that a note is not negotiable.
The fallout from the false argument that notes are negotiable is evident all around. It is found most especially with foreclosure mills waving around original notes that are “endorsed” with an illegible scribble who scream, “We’ve got an endorsed note your honor, case closed!”. Read Stopa’s post here
But that’s just wrong, a simple squiggle cannot be all that’s necessary to take a homeowner’s home away from them….and it’s not. The banks never intended these notes to be negotiable…it did not serve their interests. The banks specifically intended the notes to be transferred under Article 9…..that means they were transferred via Assignment, that carried with it the mortgage and the terms and conditions of the operative Pooling and Servicing Agreements….just read the agreements, it says so in black and white.
So why has this False Flag of Negotiability been planted and why does it wave? Because we have not done our job to challenge it.
But now is the time. Strap on the boots and Join Me At Max Gardner’s Boot Camp on Negotiability!
