Correct me if im wrong, but that case has to deal with a note that has NO endorsement on it. They argued that the note was transfered from a dissolved bank to the FDIC as a receiver. That in my opinion is apples and oranges, I have a note that is endorsed in blank, which would make it bearer paper, and any person in possession would be entitled to enforce it.
My problem is trying to figure out how to attack the endorsement from an unknown entity. If there is a ruling that the endorsement isn't valid, then this case might come into play.
It is important to distinguish between an unknown signer
and an anomalous indorsee
If a negotiable instrument is made out in favor of First Bank, but never indorsed by First Bank, but is instead indorsed only by Second Bank, then this is an anomalous indorsement.
If the instrument is indorsed on behalf of First Bank by a person unknown to you
-- for example Jane SMITH has indorsed:
"PAY TO ____________
/s/ Jane SMITH (scrawl)
. . . then you simply have an indorsement by First Bank by a person unknown to you and this is an argument that just isn't going to go anywhere. Challenging such an indorsement is problematic for another reason and that is the simple fact that the negotiation is a separate transaction to the original note to which the borrower is NOT IN PRIVITY. The very same cases which have often held that a borrower cannot attack an assignment could also be used to negate a borrower attack on the indorsement.
It is going to require only exceptionally slim proof to establish the validity of the negotiation, absent some facts that take the case well out of the ordinary.
One example, above, is where someone identifiable is shown to have signed -- Martha KUNKLE -- then that person is known to be dead. Another exception might arise where there is some indication that the indorsement took place after the date at which the indorsee was formally dissolved and became extinct as a corporate entity or after the entity was placed in receivership (in bankruptcy). Even so, these latter cases can be problematic, too, since the indorsement is almost always undated.
Unfortunately, the site administrators recently removed one of Mr. Roper's most important threads regarding judicial admissions
. (Remnants of that thread can still be found on Google.)
Mr. Roper's thread points to an exceptionally important proof avenue available where plaintiffs have plead an unindorsed copy of a note. The pleading of that unindorsed copy constitutes a [i]judicial admission
that the note was unindorsed at the date that the complaint was filed![/b]
Not noted by Mr. Roper, but just as important, is that even where the original complaint is subsequently amended
, superseding the original complaint, the earlier complaint still serves as a "quasi-admission". It is not conclusive, as a judicial admission
would be, be it remains some evidence that the note was unindorsed at the date the complaint was filed.
Those who are seeking to attack indorsements and allonges need to realize that it is best to get traction where ever it may be found. And Mr. Roper's post on judicial admissions
was one of the most important unexploited defensive avenues. This is a defensive approach that is viable in all fifty states and is supported by very solid appellate case law everywhere.
It is unsurprising that Mr. Roper now has utter contempt for the corrupt operators of this site for removing his exceptionally important efforts to help others!