Quote: Plaintiff, BankUnited filed the alleged original Note, that has no endorsement. Original lender was the old BankUnited,FSB. After the take over by the FDIC, the assets were sold to a group of investors and to a new entity called BankUnited. My question is should the Note have an endorsement by the FDIC or the original Lender? Remember this was a take over and not a merger.
This is precisely the sort of fact pattern where one can well imagine that a new indorsement might very well have been overlooked.
The takeover by the FDIC as receiver WOULD BE the effective equivalent of a merger. Even so, this would need to be proven by evidence.
By contrast, the sale of the asset to a new entity would require at a minimum the valid negotiation of the note to the new entity.
You are only ASSUMING that this was not properly done. There MIGHT BE a valid indorsement on the original instrument.
Bear in mind that a transferee can also have a valid right of enforcement under the UCC, even if the negotiation was not valid.
You can either show the plaintiff all of the errors and give them lessons on how to defeat you by amending the pleadings, obtaining the correct evidence, etc. OR you can simply sit back and hold the plaintiff to its proof.
In this sort of situation, a foolish pro se defendant will file a very detailed exposition teaching the plaintiff about all of the mistakes in the filings. Then the plaintiff will clean up the case and defeat the pro se litigant rendering the person homeless. The homeless pro se litigant can take special pride that he identified all of the mistakes and called them to the attention of the plaintiff and the court for correction.
Another approach is to simply DENY the plaintiff's allegations, including both a denial that the plaintiff has standing and that the plaintiff is the real party at interest.
In most jurisdictions, you NEED NOT deny an indorsement that is not present. (That is, where there are pleading rules that specify that a denial of indorsement or a denial of execution must be expressly plead, it is usually NOT necessary to deny something NOT actually asserted. Where there is no indorsement on the copy, you usually need not allege that there is no indorsement any more than you would need to deny that Jones and Murray indorsed a note where their names do not appear. You would need to deny the indorsement where there appears to be an indorsement by Jones, but you are alleging that the indorsement by Jones is a forgery, etc.)
When you deny allegations for which the plaintiff bears the burden of proof, then the plaintiff needs to come forward with the requisite proof.
If you really want to help the incompetent plaintiffs counsel out, you can furnish them a checklist of the things they need to prove in order to prevail. Or you can just let them do their usual slipshod work and they are often unlikely to marshal the necessary proof.
Getting past the poor excuses for lawyers that regularly practice in the foreclosure defense area, one advantage that almost any really sharp lawyer brings to your case is a sense that a defendant ought not be instructing its adversary as to how to win the case. The pro se litigant rushes to reveal the defects. An incompetent attorney rushes to reveal the defect. A really sharp attorney holds his cards close to his vest and waits for the adversary to play his hand.