Quote: Thank you Walt. I know that they always have the original.
What was puzzling to me was what the UCC says and what the PSA says. It seems in this particular situation, the PSA required the original to have the intervening endorsements (even if there was a blank endorsement). I would have thought an original note would contain the endorsements that the PSA requires though.
Gary, since you are not in privity of contract with the parties signatory to the PSA, you have no right of enforcement of that instrument. For this reason, it hardly matters whether they parties complied with the PSA or not.
Moreover, the critical issue with any contract is the intention of the parties.
You seem to read the language as requiring intermediate indorsements. I do not think this language either says this or intends it at all. And I am sympathetic to borrowers.
If one confines oneself to the four corners of the PSA, I do not think that the language supports your interpretation. If one is to look beyond the four corners of the instrument, then the question is NOT what YOU think the PSA means, but rather what the parties to the PSA intended.
Finally, one might garner intention from the usual business practice in this or other similar securitizations involving the same parties. That is, suppose that every other note had intervening indorsements EXCEPT FOR YOUR NOTE. Then, I think you might have a stronger argument that the PSA expressed an intention that the language contemplated indorsements of each intermediate holder. But NONE of the other instruments show intermediate indorsements and NONE of the parties to the PSA are complaining about this!
Hello! Earth to Gary! How do you reach a conclusion on these facts that the PSA reflected an intention of the parties to do intermediate indorsements when (a) the parties claim otherwise, (b) the language doesn't support your reading, (c) the parties practices show that they didn't do intermediate indorsements, (d) industry practice is to negotiate by delivery of a bear instrument alone without intervening indorsements and (e) you lack privity and cannot require adherence to the PSA anyway?
It might be time to wake up, smell the coffee and move on to a more valid and robust argument!