Here is a copy of the indorsements which were affixed to the Note that was attached to the Complaint in a mortgage foreclosure case I’m defending.
Here is a copy of the indorsements which were affixed to the original Note, which the Plaintiff, Citimortgage, Inc., filed after filing suit.
The notes themselves were identical, but notice any differences in the indorsements?
Upon close inspection, it’s clear that the Note attached to the Complaint contains an indorsement in blank, whereas on the “original” Note, the blank indorsement is filled in with the stamp of “Citimortgage, Inc.”
At my motion to dismiss hearing today, Citimortgage’s lawyer argued this was irrelevant – whether the Note was specifically indorsed or indorsed in blank, Citimortgage would have standing either way.
The judge’s view, however, was much different.
I cited the Second District’s recent decision in Feltus v. U.S. Bank, N.A. http://www.scribd.com/doc/69517251/4DCA-FELTUSvUSBANK-Lost-Note-Fraud-Affidavit-Rule-1-190-a
which explains how banks cannot rely on an “original” note that is different from the Note attached to the Complaint.
But it’s more than that. The obvious question, and the one that the judge posed, was why the original Note was specifically indorsed to Citimortgage when the Note attached to the Complaint was indorsed in blank.
The bank’s lawyer argued “maybe the Note that was stored electronically was different than the hard copy.” But the judge wasn’t buying that argument, especially since it was prefaced with “maybe.” The judge granted the motion to dismiss and directed that Citimortgage, Inc. explain, in its Amended Complaint, how Citimortgage’s stamp appeared on the original Note when it wasn’t on the Note attached to the Complaint.
The lawyer’s explanation, in my view, is hogwash. I suppose I could see this argument if there was no indorsement at all on the Note attached to the Complaint. In that event, it might be possible that the specific indorsement was done later. However, I see no innocent explanation for how there was a blank indorsement on the Note attached to the Complaint, and that very indorsement had the name “Citimortgage, Inc.” on the blank when the original Note was filed. In my view, there’s only one explanation here – Citimortgage had a Note, indorsed in blank, and said “We don’t want this indorsed in blank, let’s put our stamp on it.” Maybe I’m wrong, but let’s put it this way – I can’t wait to hear their explanation.
By the way, there was a court reporter for this hearing, and the transcript will be a great read – I will post it upon receipt.