Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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THE FIVE ASSIGNMENT'S OF MORTGAGE IN MY CASE.

1st Assignment was filed on 11/09/2008 naming CITYGROUP GLOBAL MARKETS REALTY CORP. as assignee and MERS as nominee for QUICK LOAN FUNDING INC. as assignor. This assignment was prepared by Ben Ezra & Katz, and it was not admitted into evidence in the trial, a fraud upon the court, and a prime example of the "Unclean Hands " of the plaintiffs.

Foreclosure suit was filed on 10/28/2008 served on 11/30/2008.
LIQUIDATION PROPERTIES INC vs. JOHN EARL ANDERSON, etal.
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FORPINELLAS COUNTY FLORIDA. CASE NO. 08-16377-CI
They perhaps, should have listed Citygroup Global Markets Realty Corp as the plaintiff, even though according to the MERS Milestone Report, they were not the investor at the time suit was filed, in a attempt to deceive they filed another assignment.

2nd Assignment was filed on 09/27/2009 naming LIQUIDATION PROPERTIES INC asassignee, and MERS as a nominee for QUICK LOAN FUNDING INC. as assignor. This assignment was prepared by DOCX of Alpharetta Georgia, and signed by Korell Harp andTawanna Thomas and notarized by Brittney Snow, in Fulton County Georgia.

On 02/23/2010 Defendant filed NOTICE OF FILING EVIDENCE IN SUPPORT OF DEFENDANTS OBJECTION TO PLAINTIFFS MOTION FOR SUMMARYJUDGMENT. In witch defendant presented evidence showing that the signors on my assignment Korell Harp, and Tawanna Thomas, were robosigners who claimed to be Vice Presidents of many banks, and that multiple people were signing their names. It also included a sworn affidavit from Lynn Szymoink a document fraud expert.

3rd Assignment was filed on 08/13/2010 that had the same transfers  as the second, but was signed by different signers. It was not presented by the plaintiffs attorney, I suspect because it was another DOCX of Alpharetta Georgia document, that says it was prepared in, and was to be returned to Ron Meharg in Alpharetta Georgia, even though LPS ordered them closed about that time, but this was notarized in Duval County Florida. Another clearly fraudulent document and another fraud upon the court, in a attempt to avoid therobosigner defense.

4th Assignment was filed 08/18/2011 and is a . CORPORATE ASSIGNMENT OF MORTGAGE. That has
CITYGROUP GLOBAL MARKETS REALTY CORP as assignor and AS LILLY LLCas assignee.
It was prepared by Irving Potter c/o Steve Jensen and Associates
Josselson & Potter 9400 SW Beaverton-Hillsdale Highway. Suite 131-A
Beaverton OR. 97005
It was notarized in Frederick County Maryland by Kathy E Green.
IT IS RED FLAGED ON CLERKS RECORDS AS A WORK IN PROGRESS.

5th Assignment was filed on 08/18/2011 and is a CORPORATE ASSIGNMENT OF MORTGAGE. that has CITY PROPERTY HOLDINGS F/K/A LIQUIDATION PROPERTIES INC. as assignor and
AS LILLY LLC. as assignee.
It was prepared by Irving Potter c/o Steve Jensen and Associates
Josselson & Potter 9400 SW Beaverton-Hillsdale Highway. Suite 131-A
Beaverton OR. 97005
It was notarized in Frederick County Maryland by Kathy E Green.
IT ALSO HAS BEEN RED FLAGED ON CLERKS RECORDS AS A WORK IN PROGRESS.

How many Corporations can claim the ownership of a mortgage?

I feel this case was over, at the start, and for many reasons, Quick Loan Funding Inc, Incorporation was suspended by the California Secretary of State on 01/25/2008 when their Agent for Service of Process resigned, and their Lender Law License was revoked in May of 2008 well before the suit was filed. That means in my mind that MERS could not assign or transfer anything as a nominee for a dead entity that Quick Loan Funding Inc was at the time the instant action was commenced on  08/28/2008. 

Am I wrong in my thinking? 
Quote 0 0
Moose
A corporation's assets don't vaporize when a corporation goes out of business through sale/acquisition, bankruptcy or receivership or dissolution.

Obviously, the chain of custody was manufactured to cover up something, but the loan did close and the seller got funds for the sale of the house so there's a pony somewhere in that pile of hay and **it and they're willing to commit perjury to get it.

Hopefully the case will be dismissed and they won't get another chance.

Moose





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    In my experience over here in HB, I believe you are 100% spot on. However, assuming you make that argument, what they will do next is
claim that the Note is a negotiable instrument AND COULD BE LAWFULLY
TRANSFERRED WITH OUT AN ASSIGNMENT OF THE UNDERLYING MORTGAGE!
    In other words, they will just admit, yes Judge, the assignment of the
mortgage is invalid, but it doesn't really matter because we are in possesion
of the original Note and therefore under UCC, we have the right to enforce it.
    At this point you need to examine the note and see if it is real or if it is a counterfeit color photocopy. Check for ridge marks on the reverse of the pages where you allegedly signed. Also check for blue ink with an "original"
yellow magic marker. If it doesn't smudge, its a photocopy. Another way
is to look at it under a microscope and see if the paper fibers are soaked
in blue ink or if you see multicolored dots (proof of a photocopy).
    In my experience most of the so called "original" notes are counterfeits.
Another point to consider is whether or not it is a "negotiable instrument".
If it has a variable interest rate with late charges, prepayment penalties and
requires looking outside the Note itself to calculate the balance owed (such
as LIBOR in the Wall Street Journal or referring to the mortgage itself) it is
not a negotiable instrument but part of a larger contract which includes the
mortgage. The whole thing must be transferred under CONTRACT LAW and
not under UCC law. This would require a lawful assignment of the mortgage
with dating,notarization, witnesses and the Note and mortgage would have to be transferred together, ie the old fashioned way before securitization
messed everything up.

Quote 0 0
Bill
John Anderson wrote:
THE FIVE ASSIGNMENT'S OF MORTGAGE IN MY CASE.

1st Assignment was filed on 11/09/2008 naming CITYGROUP GLOBAL MARKETS REALTY CORP. as assignee and MERS as nominee for QUICK LOAN FUNDING INC. as assignor. This assignment was prepared by Ben Ezra & Katz, and it was not admitted into evidence in the trial, a fraud upon the court, and a prime example of the "Unclean Hands " of the plaintiffs.

Foreclosure suit was filed on 10/28/2008 served on 11/30/2008.
LIQUIDATION PROPERTIES INC vs. JOHN EARL ANDERSON, etal.
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FORPINELLAS COUNTY FLORIDA. CASE NO. 08-16377-CI
They perhaps, should have listed Citygroup Global Markets Realty Corp as the plaintiff, even though according to the MERS Milestone Report, they were not the investor at the time suit was filed, in a attempt to deceive they filed another assignment.

2nd Assignment was filed on 09/27/2009 naming LIQUIDATION PROPERTIES INC asassignee, and MERS as a nominee for QUICK LOAN FUNDING INC. as assignor. This assignment was prepared by DOCX of Alpharetta Georgia, and signed by Korell Harp andTawanna Thomas and notarized by Brittney Snow, in Fulton County Georgia.

On 02/23/2010 Defendant filed NOTICE OF FILING EVIDENCE IN SUPPORT OF DEFENDANTS OBJECTION TO PLAINTIFFS MOTION FOR SUMMARYJUDGMENT. In witch defendant presented evidence showing that the signors on my assignment Korell Harp, and Tawanna Thomas, were robosigners who claimed to be Vice Presidents of many banks, and that multiple people were signing their names. It also included a sworn affidavit from Lynn Szymoink a document fraud expert.

3ed Assignment was filed on 08/13/2010 that had the same transfers  as the second, but was signed by different signers. It was not presented by the plaintiffs attorney, I suspect because it was another DOCX of Alpharetta Georgia document, that says it was prepared in, and was to be returned to Ron Meharg in Alpharetta Georgia, even though LPS ordered them closed about that time, but this was notarized in Duval County Florida. Another clearly fraudulent document and another fraud upon the court, in a attempt to avoid therobosigner defense.

4th Assignment was filed 08/18/2011 and is a . CORPORATE ASSIGNMENT OF MORTGAGE. That has
CITYGROUP GLOBAL MARKETS REALTY CORP as assignor and AS LILLY LLCas assignee.
It was prepared by Irving Potter c/o Steve Jensen and Associates
Josselson & Potter 9400 SW Beaverton-Hillsdale Highway. Suite 131-A
Beaverton OR. 97005
It was notarized in Frederick County Maryland by Kathy E Green.
IT IS RED FLAGED ON CLERKS RECORDS AS A WORK IN PROGRESS.

5th Assignment was filed on 08/18/2011 and is a CORPORATE ASSIGNMENT OF MORTGAGE. that has CITY PROPERTY HOLDINGS F/K/A LIQUIDATION PROPERTIES INC. as assignor and
AS LILLY LLC. as assignee.
It was prepared by Irving Potter c/o Steve Jensen and Associates
Josselson & Potter 9400 SW Beaverton-Hillsdale Highway. Suite 131-A
Beaverton OR. 97005
It was notarized in Frederick County Maryland by Kathy E Green.
IT ALSO HAS BEEN RED FLAGED ON CLERKS RECORDS AS A WORK IN PROGRESS.

How many Corporations can claim the ownership of a mortgage?

I feel this case was over, at the start, and for many reasons, Quick Loan Funding Inc, Incorporation was suspended by the California Secretary of State on 01/25/2008 when their Agent for Service of Process resigned, and their Lender Law License was revoked in May of 2008 well before the suit was filed. That means in my mind that MERS could not assign or transfer anything as a nominee for a dead entity that Quick Loan Funding Inc was at the time the instant action was commenced on  08/28/2008. 

Am I wrong in my thinking? 


John,

I would first like to give you a word of caution.  It is most likely NOT in your best interest to use your full name and case information (ie.  case number) when posting in a public forum when your case/pleadings are LIVE. 

There have been a few threads here about this.

 I'd also add, I'm not an attorney and this isn't legal advice.


Quote:
Am I wrong in my thinking? 
 
Personally, I think you are very wrong in your case.  While it is an interesting argument and it could cause quite a bit of confusion for the Plaintiff, the Plaintiff can easily "explain away" any discrepancy as a simple "mistake" or in alternative ratify the assignments giving them full force.  Where does that leave your argument?  
 
While we all know it's a fraudulent assignment of the mortgage, where is your proof?  Because a robo signer signed your assignment does not make it fraudulent or even void.  It will have full force.  I don't see how you can prove any fraud without a deposition of the signer, then they could easily just ratify the assignment. 
 
The real question is WHO owned the note and WHEN did they own it?  Any assignment by someone without the note is a nullity.  You really need to focus on the note and not the mortgage.   The owner of the note is entitled to an equitable assignment of the mortgage.  IF it is assigned to them or not, they are entitled to the mortgage.  IF you do not own the note, you do not have standing to invoke the jurisdiction of the court.  There is no controversy.  You can't sue me to foreclose my mortgage because you don't own the note.  You have to be the owner to commence the suit. 
 
I also think you have NO evidence filed on the record.  The "evidence" you filed on 2-23-2010 will NOT be considered evidence by the judge.  You can't just print copies of things and give them to the court.  If this was the case, people could produce what ever "evidence" they wanted and give it to the judge.  Evidence needs to be authenticated to be admissible UNLESS you don't object, and the Plaintiff's attorney will be objecting.  NONE of your "evidence" was authenticated and your unsworn uncertified exhibits will not be considered by the court when the Plaintiff objects.  YOU NEED TO READ THE RULES OF EVIDENCE. 
Quote 0 0
Bill

 

Quote:
In my experience over here in HB, I believe you are 100% spot on. However, assuming you make that argument, what they will do next is
claim that the Note is a negotiable instrument AND COULD BE LAWFULLY
TRANSFERRED WITH OUT AN ASSIGNMENT OF THE UNDERLYING MORTGAGE!
    In other words, they will just admit, yes Judge, the assignment of the
mortgage is invalid, but it doesn't really matter because we are in possession
of the original Note and therefore under UCC, we have the right to enforce it


This is the first post from Mike H that I've seen that makes sense.  Of course right after he goes into wing-nut land.

They will claim it is a negotiable instrument and it CAN be lawfully transferred without an assignment of the mortgage.  In in most places, they will be correct.  The question is not IF they can enforce the note, I'm sure you will find they can by possession.  The question is did they have the note when they filed the suit.  That is a BIG problem.  The milestone report shows they DID NOT own the note even over a year AFTER commencement when all these assignments were taking place. 


Quote:

At this point you need to examine the note and see if it is real or if it is a counterfeit color photocopy. Check for ridge marks on the reverse of the pages where you allegedly signed. Also check for blue ink with an "original"
yellow magic marker. If it doesn't smudge, its a photocopy. Another way
is to look at it under a microscope and see if the paper fibers are soaked
in blue ink or if you see multicolored dots (proof of a photocopy).



Now were off to wing-nut land.  IF you think you proved that the note is NOT the original, what good does that do you?  Are you a forensic document expert?  What expertise do you have?  What scientific tests did you run to PROVE that if the ink doesn't "smudge" it's a photocopy?  Why do you think you will be able to get the original note to "write" on the note with a magic marker?  You are a moron Mike H.

IF you wanted to challenge the authenticity of a note you would need to hire a forensic document examiner to examine the note then offer his/her EXPERT opinion.  This will not be cheap.  IF it is found to be not authentic you will also have to pay them to come to court to testify. 

Quote:

The whole thing must be transferred under CONTRACT LAW and
not under UCC law. This would require a lawful assignment of the mortgage
with dating,notarization, witnesses and the Note and mortgage would have to be transferred together, ie the old fashioned way before securitization
messed everything up.




Why don't you post some cases that support this Mike H?
Quote 0 0
James
John, you might want to contact the site owner to ask him to remove your post or the information that identifies your live case.


The following settles the nonnegotiable issue about variable-rate notes (taken from a Cleveland Fed working paper, which I don't know how to attach):

The universe of instruments that are negotiable under the UCC expanded in the 1990s. Notes that promised to repay loans at variable rates of interest became popular in the 1980s. Variable rate loans allowed creditors to engage in more complicated risk based pricing than with their fixed-rate counterparts. This resulted in credit being extended to individuals who were previously “priced out” of credit markets. Borrowers defaulting on variable-rate notes attacked the notes’ negotiability in an attempt to prevent note holders from asserting status as holders in due course. These borrowers claimed that variable interest rates prevented notes from stating a sum certain as required by UCC § 3-104.

Under the pre-1990 revisions of Article 3, courts were split on whether notes payable at a rate of interest that could not be determined on the face of the note did not state a “sum certain.” (A. Alport & Son, Inc. v. Hotel Evans, 8 U.C.C. Rep. Serv (CBC) 1040, 317 N.Y.S.2d 937 (1970); Pre-1990 revisions to Article 3 of the U.C.C. § 3-106, cmt. 1. The comment also stated that other instruments could be made negotiable by other statutes or judicial decision, granting courts some discretion in how they interpreted variable interest rates.)

Many courts held that variable interest rates prevented notes from being negotiable, in whole or in part, for this reason.  Others held that variable interest rates did not prevent a note from being negotiable. The drafters of the 1990 revisions settled this conflict by rejecting court decisions that held variable-rate notes did not state a sum certain. This rejection is codified in modern UCC § 3-112(b), which expressly authorizes negotiable instruments to use variable interest rates in calculating
the amount due on the note.

See, e.g. Farmers Prod. Credit v. Arena, 39 U.C.C. Rep. Serv. (CBC) 245, 145 Vt. 20, 41 A.2d 1064
(1984) (holding a note allowing for future advances of principal and a variable interest rate did not state a
sum certain); N. Trust v. E.T. Clancy Export Corp., 41 U.C.C. Rep. Serv. (CBC) 1315, 612 F. Supp. 712
(N.D. Ill. 1985) (holding that a note requiring interest to be computed from time to time by referencing a
bank’s floating prime rate renders the sum payable uncertain and the instrument nonnegotiable); Taylor v.
Roeder, 4 U.C.C. Rep. Serv.2d (CBC) 652, 234 Va. 99, 360 S.E.2d 191 (1987) (denying holder in due
course status to the holder of a note because the note’s variable interest rate prevented it from being
negotiable); Centerre Bank of Branson v. Campbell, 5 U.C.C. Rep. Serv.2d (CBC) 1403, 744 S.W.2d 490
(Mo. App. 1988) (denying holder in due course status to the holder of a note because the note’s variable
interest rate prevented it from being negotiable); Nat’l Union Fire Ins. Co. of Pittsburgh v. Tegtmeier, 673
F. Supp. 1269 (S.D.N.Y. 1987).

First City Fed. Sav. Bank v. Bhogaonker, 10 U.C.C. Rep. Serv.2d (CBC) 873, 715 F. Supp. 1216 (S.D.N.Y. 1989); Klehm v. Grecian Chalet, Ltd., 164 Ill. App. 3d 610, 518 N.E.2d 187 (1987); Universal C.I.T. Credit v. Ingel, 3 U.C.C. Rep. Serv. (CBC) 303, 347 Mass. 119, 196 N.E.2d 847 (1964).

AMERICAN LAW INSTITUTE, PROGRESS REPORT 5 (Apr. 20, 1988) states: “This redraft rejects recent
decisions holding variable rate notes nonnegotiable on the ground that there was no sum certain.” See also,
1988 Annual ALI Conference Proceedings, 65 ALI Proc. 435 (1988), which states:

We want to make the substance of Article 3 much more relevant to the way in which business is done today . . . Our redraft is, I think, very much in the mainstream of Anglo-American commercial law, but it does make some major substantive changes. For a very few minutes, let me just mention some of the points that are made in the redraft. The traditional formal requirements for negotiability have been largely retained, although there is some flexibility. One of the principal matters before the committee right now is how much more flexibility there should be. We, of course, reject the recent holdings that variable interest rate notes are nonnegotiable, and we hope we have solved that particular problem.
(My emphasis.)
Quote 0 0
James
I should have said I think it settles the issue about variable-rate notes. Legal conclusion must be left to the courts.

I am not an attorney, so my posts are solely my opinion and nothing more.
Quote 0 0
Bill
James wrote:
John, you might want to contact the site owner to ask him to remove your post or the information that identifies your live case.


The following settles the nonnegotiable issue about variable-rate notes (taken from a Cleveland Fed working paper, which I don't know how to attach):

The universe of instruments that are negotiable under the UCC expanded in the 1990s. Notes that promised to repay loans at variable rates of interest became popular in the 1980s. Variable rate loans allowed creditors to engage in more complicated risk based pricing than with their fixed-rate counterparts. This resulted in credit being extended to individuals who were previously “priced out” of credit markets. Borrowers defaulting on variable-rate notes attacked the notes’ negotiability in an attempt to prevent note holders from asserting status as holders in due course. These borrowers claimed that variable interest rates prevented notes from stating a sum certain as required by UCC § 3-104.

Under the pre-1990 revisions of Article 3, courts were split on whether notes payable at a rate of interest that could not be determined on the face of the note did not state a “sum certain.” (A. Alport & Son, Inc. v. Hotel Evans, 8 U.C.C. Rep. Serv (CBC) 1040, 317 N.Y.S.2d 937 (1970); Pre-1990 revisions to Article 3 of the U.C.C. § 3-106, cmt. 1. The comment also stated that other instruments could be made negotiable by other statutes or judicial decision, granting courts some discretion in how they interpreted variable interest rates.)

Many courts held that variable interest rates prevented notes from being negotiable, in whole or in part, for this reason.  Others held that variable interest rates did not prevent a note from being negotiable. The drafters of the 1990 revisions settled this conflict by rejecting court decisions that held variable-rate notes did not state a sum certain. This rejection is codified in modern UCC § 3-112(b), which expressly authorizes negotiable instruments to use variable interest rates in calculating
the amount due on the note.

See, e.g. Farmers Prod. Credit v. Arena, 39 U.C.C. Rep. Serv. (CBC) 245, 145 Vt. 20, 41 A.2d 1064
(1984) (holding a note allowing for future advances of principal and a variable interest rate did not state a
sum certain); N. Trust v. E.T. Clancy Export Corp., 41 U.C.C. Rep. Serv. (CBC) 1315, 612 F. Supp. 712
(N.D. Ill. 1985) (holding that a note requiring interest to be computed from time to time by referencing a
bank’s floating prime rate renders the sum payable uncertain and the instrument nonnegotiable); Taylor v.
Roeder, 4 U.C.C. Rep. Serv.2d (CBC) 652, 234 Va. 99, 360 S.E.2d 191 (1987) (denying holder in due
course status to the holder of a note because the note’s variable interest rate prevented it from being
negotiable); Centerre Bank of Branson v. Campbell, 5 U.C.C. Rep. Serv.2d (CBC) 1403, 744 S.W.2d 490
(Mo. App. 1988) (denying holder in due course status to the holder of a note because the note’s variable
interest rate prevented it from being negotiable); Nat’l Union Fire Ins. Co. of Pittsburgh v. Tegtmeier, 673
F. Supp. 1269 (S.D.N.Y. 1987).

First City Fed. Sav. Bank v. Bhogaonker, 10 U.C.C. Rep. Serv.2d (CBC) 873, 715 F. Supp. 1216 (S.D.N.Y. 1989); Klehm v. Grecian Chalet, Ltd., 164 Ill. App. 3d 610, 518 N.E.2d 187 (1987); Universal C.I.T. Credit v. Ingel, 3 U.C.C. Rep. Serv. (CBC) 303, 347 Mass. 119, 196 N.E.2d 847 (1964).

AMERICAN LAW INSTITUTE, PROGRESS REPORT 5 (Apr. 20, 1988) states: “This redraft rejects recent
decisions holding variable rate notes nonnegotiable on the ground that there was no sum certain.” See also,
1988 Annual ALI Conference Proceedings, 65 ALI Proc. 435 (1988), which states:

We want to make the substance of Article 3 much more relevant to the way in which business is done today . . . Our redraft is, I think, very much in the mainstream of Anglo-American commercial law, but it does make some major substantive changes. For a very few minutes, let me just mention some of the points that are made in the redraft. The traditional formal requirements for negotiability have been largely retained, although there is some flexibility. One of the principal matters before the committee right now is how much more flexibility there should be. We, of course, reject the recent holdings that variable interest rate notes are nonnegotiable, and we hope we have solved that particular problem.

(My emphasis.)

Thank you James for your post.  MAYBE Mike H will read it an quit posting his garbage about the note NOT being a negotiable instrument. 
Quote 0 0
Although I do not agree with Mike H. on his death gamble theory, I have to let you all know that there is a 2006 case in Florida stating that a note charging late fees is non-negotiable under Florida law - GMAC v. Honest Air, 933 So.2d 34 (Fla 2d DCA 2006).  

In Wells Fargo v. Chrstopher Chesney (Case No. 51-2009-CA-6509-WS/G), Judge Stanley Mills, (Pasco County, Florida) granted the defendant's motion to dismiss and cited the Honest Air case as the basis for the dismissal.  The dismissal was a Pyrrhic victory for the defendants as Judge Mills gave Wells Fargo 20 days to amend its complaint.  
Quote 0 0
Casey Law

  The law on the non-negotiability is well-settled in various jurisdictions:

In the precedential case, Resolution Trust Corp v. Maplewood (31 F.3d 1276), the court concluded: [t]hat the Note executed by Maplewood is not negotiable under Virginia law. Thus, Virginia law would not classify the RTC as a holder in due course. See VA. CODE ANN. § 8.3A-302 (Michie 1993) (refers to "instrument" as defined in VA CODE ANN. §§ 8.3A-103(b) and 8.3A-104(b) (Michie 1993)); see also MODEL UCC §§ 3-104(b), 3-302 (1990). "There cannot be a holder in due course of a nonnegotiable instrument.... The holder of a nonnegotiable instrument is not under any circumstances given the peculiar protection afforded ... to a holder in due course of a negotiable instrument." 11 Am.Jur.2d Bills & Notes § 377 (1963) (footnote omitted); see also United States v. Kellerman, 729 F.2d 281, 284 (4th Cir.1984) (Under Virginia law, "only a holder can be a holder in due course," and "to be a holder, the [instrument] must have been negotiated."). 

In Barnsley v. Empire Mortgage, (N.H. Sup, Ct. 1998), New Hampshire’s Supreme Court opined: The plaintiff next argues that the defendant is not a holder in due course. We agree. Because the note was not for a sum certain, the note cannot be a negotiable  instrument. RSA 382-A:3-106 (1961) (amended and recodified 1994). Because the  plaintiff's note was not negotiable, the FDIC could not become a holder in due course. 

In Rogers v. NCNB Texas National Bank (Tex. App.- Dallas (1992)), the Court of Appeals stated: Because the amount due under the Note is not a "sum certain" and can only  be determined from sources outside of the Note, the Note is not a negotiable  instrument. See Tex. Bus. & Com. Code Ann. § 3.104(a)(2) (Tex. UCC) (Vernon 1968). Because the Note is not a negotiable instrument, NCNB is not a holder in due course. (Tex. Bus. & Com. Code Ann. § 3.302(a) (Tex. UCC)(Vernon)

In Sunbelt Savings v. Montross (923 F.2d 353 59 USLW 2529, 13 UCC Rep.Serv.2d 792 – Dallas 1991), the court addressed the non-negotiability as a case of first impression  and concluded:   “Extending holder in due course status to the FDIC and its successors  respecting non-negotiable instruments is both unnecessary and undesirable.   When the FDIC assumes control of an institution, the assets are what they are—negotiable instruments, contracts, real property, and so on.  We agree that the FDIC should not be disadvantaged by the circumstances of its assumption of control, but this policy does not require giving the FDIC the ability to transmute lead into gold.  Allowing the FDIC to transform contracts into negotiable instruments would defeat the reasonable  commercial expectations of the variable interest note makers. Carried only a little further, this transformation would affect all contracts and even the title to real property.” (Emphasis)

Quote 0 0
Here is an interesting Florida case regarding the negotiability of a defaulted negotiable paper - Guaranty Mortgage v. Harris, 182 So.2d 450 (Fla. 1st DCA 1966)

"Negotiable paper which is overdue carries on its face notice of infirmities and defects, and one who takes a negotiable instrument after its maturity ordinarily is not entitled to protection as a holder in due course, but occupies the status of the assignee of a chose in action or the holder of a nonnegotiable instrument, [sic] Which means that he holds the instrument subject to defenses based on infirmities in the instrument or defects in the title of the person transferring it. * * *"

[2]

From the foregoing principle it appears that the assignee of defaulted negotiable paper occupies the status of the holder of a nonnegotiable instrument. As to those occupying this status, the rule appears to be:

"* * * There cannot be a holder in due course of a nonnegotiable instrument, and the doctrine of protecting a bona fide holder for value without notice and before maturity does not apply, no matter how widely or how narrowly the instrument may miss being negotiable or how the parties themselves may have regarded the instrument. * * *

"The purchaser of a nonnegotiable instrument is a mere assignee. His position is the same as that of his assignor, whether he holds by assignment or indorsement. He receives only such rights or title as the assignor possessed and ordinarily takes title subject to all equities and defenses which would be available as between the original parties or which could be urged against the payee and his assignor, even though he is given the right to sue in his own name."

[3]

[2] 4 Fla.Jur. 435, 436, Bills, Notes and Checks, § 113.

[3] 11 Am.Jur.2d 402, 403, Bills and Notes, § 377; See also Stegemann v. Emery, 108 Fla. 672, 146 So. 650.

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Sorry, meant to also give the link to Guaranty Mortgage v. Harris - http://fl.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19660113_0040099.FL.htm/qx
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OOPS!!!!  I messed up - don't rely on Guaranty v. Harris.  The 1st DCA was reversed by the Florida Supreme Court.  

Lesson to all, when you do research - search everything.  If you have access to a law library, Shepardize your cases to make sure you have good case law.  Also, don't be a hurry when you think you found a great decision.
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James
The late fees issue would be interesting to explore, but as far as variable rates, the matter is settled. Variable-rate notes are negotiable.


UCC update (Mercer Law Review)

In an important provision, variable rate instruments are included as
negotiable instruments under Revised Article 3.8 Prior Article 3
required that a negotiable instrument state a "sum certain.?" The
holder must be "able to determine the amount then payable from the
instrument itself." Most courts considering the issue under Prior
Section 3-106 found that instruments with variable interest rates could
not be negotiable instruments because of this "sum certain" requirement."
However, instruments providing for variable interest rates
pegged to some sort of fluctuating standard rate of interest are much
more common now than they were when Article 3 was originally
promulgated. The requirement of a sum certain has been completely
eliminated in Revised Article 3. Rather than a sum certain, an
instrument must show a "fixed amount of money, with or without
interest or other charges described in the promise or order. "Rates of
interest may be stated as "fixed or variable." Thus, the revision
clearly recognizes the negotiability of variable rate instruments.

As of September 1996, forty-four jurisdictions have adopted the Revised Articles,
most with few, if any, variations to the official text:


Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware,
District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia, and Wyoming.


UCC revisions were presented to the states for approval in early 1991. Forty-four states had adopted the revisions by 1996, and as far as I know, all states now have adopted the official revised language of the UCC. The cases cited above could be a few of the cases that brought attention to this issue of a variable rate and negotiability. They likely, if not obviously, were decided before a particular state adopted the revision.
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I really appreciate every ones help and opinion, and statement of court decisions and facts of law.
Even though I have a very prime example of a fraudulent assignment of mortgage via the DOCX assignments, the courts in Florida have decided to turn a blind eye to it and I will soft peddle or just drop all mention of it, except that the suit was filed before the assignment was filed.

As to the note, my wife and I went to the courthouse, to view it, and the first thing she noticed was it was signed in black ink, when the notary required us to sign in blue ink, and where the notary signed his name is in black but underneath where he prints his name, is in blue ink. My thinking is it's a color copy that was photoshoped. Why would the notary change pens? The signatures have made no indentations on the paper, when viewed by a jewelers Lupe. I can only afford to ask the judge to view it closely, and have the Lupe available 
I have read in the notary blogs that Pinellas County Fl requires that blue ink signature on mortgages, but I have not found the law.
On the back side of the note is says payable to the order of Quick Loan Funding Inc. and a signature in black ink also.

I asked for a continuance, and stated as one of the reasons the fact that a new servicer Gregory Funding Inc, had contacted me and offered a settlement, and a new investor AS LILLY LLC now owns my mortgage, and claims to be in process of filling a new assignment of mortgage and I needed time to negotiate.

This of course caught the eye of the Ben Ezra & Katz replacement law firm of Panza, Maurer & Maynard who now asks the court for continuance stating that 
1 On July 14, 2011, Plaintiff filed notice for trial in this action.
2 Subsequently, a new entity acquired the interest in the subject note and mortgage and must be substituted in as party plaintiff.
3Pursuant to this Courts Order Setting Non Jury Trial on September 30, 2011, Plaintiff will no longer have adequate time to submit its evidence of the recent transfer of its interest prior to timely filing its witness  and exhibit list.
4 This is the first time this case has been scheduled for trial and no prior continuances have been requested for same.
5 This motion is not a result of a lack of diligence on Plaintiff's behalf or to cause an unreasonable delay.
6 At all material times, Plaintiff has acted in good faith in attempting to prepare this case for trial and comply with the deadlines pursuant to this Courts Trial Order. Furthermore, the parties will not be prejudiced should this court grant a continuance.
7 Accordingly, Plaintiff  is requesting this case be scheduled for trial after September 30, 2011 or be taken off the trial docket until such time that it is noticed for trial.

WHEREFORE, in light of the foregoing, Plaintiff respectfully request that this Honorable Court grant it's Motion to Continue Trial as set fourth above.

-------------------------------------------------------------------------------------------------

Now I feel I should object. I should not have asked for the continuance, and let it have gone to trial, or closer to the date before disclosing about the new owner.

Thoughts?
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PaulR
My thought is, if you're counting on the judge to use a jeweler's loupe for your defense, you're waaaayyyy out there on thin ice.


Paul

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PaulR wrote:
My thought is, if you're counting on the judge to use a jeweler's Lupe for your defense, you're waaaayyyy out there on thin ice.


Paul


I don't count on it, but I think he may considering the black and blue signatures of the notary, and asking him to look at a document closely with a device is not anymore unusual than asking him to put on his glasses nor, is it prejudicial to the plaintiff inasmuch as it is the judges duty to look at the evidence.
But of course, he can refuse. But I will ask.

What I need now is good argument as to why I object to the change of plaintiff.
But thanks for the input Paul.
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Now I feel I should object. I should not have asked for the continuance, and let it have gone to trial, or closer to the date before disclosing about the new owner.


I tend to agree.  I think you had them reeling, and giving them MORE time -- especially when THEY are the ones asking for it -- only probably helps them.  Without it, I bet they would have voluntarily dismissed at (or before) your docket sounding, just as the replacement firm did in my case.

They only want more time, to either:

a.  Fraudulently back-date some new documents; or

b.  Find some new, legitimate documents

 . . .with which to button-up their currently-messed-up case.  In my humble opinion.

Paul

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Moose
John, this isn't legal advice but you will need an expert to examine the documents, sign an affidavit as to his or her opinion and be available for testimony at trial.

Otherwise, attempting to impeach the evidence on the basis of the judge's opinion will be objected to and will create a path for appeal if you prevail in the matter based on that evidence.

If you challenge the validity of their evidence based on the colors of the ink the judge may ask them for an explanation and you can bet they'll have one. Then it's your word against theirs. But if an expert witness says it's bogus, the whole geometry of the issue changes and they have two options:  Find their own expert witness (then the judge gets to determine which of the two is most credible) or do a strategic default dismissal and come back at a later time with a better set of manufactured documents and a pleading that the earlier "evidence" was a simple error on the part of someone who no longer works for the plaintiff.

That's how they learn.

Moose

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It seems to me that John has  many valid causes to have the case dismissed. Please get a competent foreclosure defense lawyer to ask for the case to be disimissed. I know many excellent Florida foreclosure defense lawyers who fees are reasonable and you can even pay by small increments. Dillon Graham, Matt Weidner, Thomas Ice, Chip Parker, Mark Stopa, Shuster & Sabeb are excellent lawyers and many more. 

Judges often ignore agurments from pro se. I would not go to a hearing without my lawyer. Remember it is very costly and nearly impossible to reverse a negative judgment.

I have collected a lot of foreclosure defense info and pleadings at http://www.scribd.com/winstons2311. Check it out. Hope it helps.

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Ann wrote:
It seems to me that John has  many valid causes to have the case dismissed. Please get a competent foreclosure defense lawyer to ask for the case to be disimissed. I know many excellent Florida foreclosure defense lawyers who fees are reasonable and you can even pay by small increments. Dillon Graham, Matt Weidner, Thomas Ice, Chip Parker, Mark Stopa, Shuster & Sabeb are excellent lawyers and many more. 

Judges often ignore agurments from pro se. I would not go to a hearing without my lawyer. Remember it is very costly and nearly impossible to reverse a negative judgment.

I have collected a lot of foreclosure defense info and pleadings at http://www.scribd.com/winstons2311. Check it out. Hope it helps.

Ann thank you for committing.
I feel I should object to the change of plaintiffs. Let the new owner file a new action. How has the former investor been harmed? How does currant investor expect to take over suit filed by a former  party?  Multiple assignors of mortgage is something I have never heard of. And it gives rise to the question, are there others who may claim interest? I hope the judge feels the same.
As to representation, one of the reasons I asked for a continuance was that my wife was injured in 2006, and her medical bills are over $250,000.00 so far and rising. We go to mediation on 09/11/2011, and at that time numbers will be put on paper.  The attorneys who represents us in the suit's demand letter asked for a settlement of 1.25 million. So if we accept the offer that is proffered, we could have funds to hire representation, within 90 days. If we do not, it might be years, 
Unfortunately, even though I have been in business here since 1975 my business since 9/11/2001 has been reduced dramatically, and everything I had saved for retirement was spent staying open for  business.
I have asked Matt Weidner, whom I am a fan of, to represent us, but for some reason he feels a retainer of $5,000.00 is needed. Perhaps he thinks I have that type of cash available, or since he running for office he needs to maximize his income. I did make a offer to him but have had no reply.
The judge is the one who forced this to trial, by requesting that a person with direct knowledge to testify, as to when the note came into the possession of the note. 
I would love to discuss, via e-mail, telephone, our in person with any of the attorneys you mentioned.
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John,

If I were in Mark Stopa's area, I would be on his doorstep. I read that he charges $1500 for a year's representation, and he is making some headway in some of his cases. I don't know if he is still charging this amount. He once was interviewed and said he had done so many cases that he had streamlined the process and could keep cost down for homeowners.

I have nothing to do with Mark personally, I don't know him and I don't live in Florida, so I'm only passing info along, not advertising. Check out his blog.

http://www.stayinmyhome.com/blog/

Also, I would like to know more about how your case goes, as I have similar issues with my case. So please let us know here how it goes.

Sorry to hear of your wife's injury. I hope she is doing better now.

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I would summarize my case details in one e-mail, then e-mail it to at least 4 attorneys to seek their opinion. Honest attorney won't take your case and your money  unless they see a chance to win it. It is extremely difficult to win a foreclosure case after negative jugdment is rendered. Any losing Appeal Case can  become a new case law against ALL Homeowners.

I look at many case files and I feel foreclosure case is somewhat similar to a poker game or a battle field . Everyone tries to hide their cards until the right time . Disclose too much info to the opposition is not always the best way to win. I see some attorneys let the Banks dig their own graves filing all their fraudulent documents .Then Boom! they hit the Banks at the right time. Good attorneys know how to preserve defensive elements and at the same time let the Banks in the dark about info. So make sure you get a good attorney. If you don't have all of $5000, try to  negotiate payments in increments.

E-mail your case to Dillon Graham at dillon@grahamlegalpa.com, tell him Ann refers you and seek his advice. You can also contact Shuster & Saben law firm and Magery Golant too. First consultation is usually free. Make sure you have all your case details in writing and bring yourl case file so they can read it when you see them. Best wishes
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John,
     Your case is a classic example of "bifurcation of the mortgage from the
Note" leaving the note unsecured.
     Before your case was filed on October 28, 2008 by Liquidation Properties inc, the mortgage was assigned to Citigroup Global Markets Realty Corp.on oct 21, 2008. Therefore the mortgage was separated from the Note before the inception of the case and the plaintiff is suing on an unsecured Note.
     This fact has important implications for Homesteaded property if you
lose the case and a judgment is entered against you. You could file Ch 7 BK
and get the judgment discharged completely using the Florida Homestead
exemption, which is unlimited.
     Once the judgment is discharged in Ch 7 Bk, you would file a Motion for
Relief from judgment in State court and the case should be dismissed. One
of my students did exactly this and got his judgment discharged and the
case dismissed on 7/7/11. I sent you a copy of the case so you can study
it. I blacked out the student's name but he did give me permission to discuss
the case, since it has been dismissed. Please verify that you received it.
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Moose wrote:
A corporation's assets don't vaporize when a corporation goes out of business through sale/acquisition, bankruptcy or receivership or dissolution.

Obviously, the chain of custody was manufactured to cover up something, but the loan did close and the seller got funds for the sale of the house so there's a pony somewhere in that pile of hay and **it and they're willing to commit perjury to get it.

Hopefully the case will be dismissed and they won't get another chance.

Moose

Thanks for pony and hay story.
My point is that even though the assets don't vaporize, they must be acquired by someone else, and have a agent for service of process.
The suit should have possibly been titled 
MERS acting solely as a Nominee for XYZ CORP AS SUCCESSOR IN INTEREST OF QUICK LOAN FUNDING.



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Bill
Quote:

John,
     Your case is a classic example of "bifurcation of the mortgage from the
Note" leaving the note unsecured.
     Before your case was filed on October 28, 2008 by Liquidation Properties inc, the mortgage was assigned to Citigroup Global Markets Realty Corp.on oct 21, 2008. Therefore the mortgage was separated from the Note before the inception of the case and the plaintiff is suing on an unsecured Note.



More of Mike H's fantasy land stories.  Could you please post ONE case where it was decided that the mortgage was "bifurcated" from the note and because of this the note was unsecured? 

Rather than being unsecured, any assignment that is contrary to the negotiation of the note is a nullity.  The mortgage follows the note.  READ Carpenter v. Logan.  You will find that most States follow this logic and it is a very common argument used by the Plaintiff to dismiss the need for an assignment when they are confronted with a fraudulent assignment or their failure to assign the mortgage.  They are entitled to an equatable assignment of the mortgage. 

I'll help you out a little Mike:


   WM SPECIALTY MORTG., LLC v. Salomon, 874 So. 2d 680

However, it has frequently been held that a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt, unless there be some plain and clear agreement to the contrary, if that be the intention of the parties.

....

Although the assignment of the mortgage from Everglade Lumber Company to Gillian was defectively executed, it may be taken as evidence to show that the company had, before the commencement of the suit, sold and transferred to Gillian its entire interest in the note and mortgage. A mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.

....

Any form of assignment of a mortgage, which transfers the real and beneficial interest in the securities unconditionally to the assignee, will entitle him to maintain an action for foreclosure. Or if there had been no written assignment, Gillian would be entitled to foreclose in equity upon proof of his purchase of the debt.

This took about 30 seconds to find.
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Mike H wrote:
John,
     Your case is a classic example of "bifurcation of the mortgage from the
Note" leaving the note unsecured.
     Before your case was filed on October 28, 2008 by Liquidation Properties inc, the mortgage was assigned to Citigroup Global Markets Realty Corp.on oct 21, 2008. Therefore the mortgage was separated from the Note before the inception of the case and the plaintiff is suing on an unsecured Note.
     This fact has important implications for Homesteaded property if you
lose the case and a judgment is entered against you. You could file Ch 7 BK
and get the judgment discharged completely using the Florida Homestead
exemption, which is unlimited.
     Once the judgment is discharged in Ch 7 Bk, you would file a Motion for
Relief from judgment in State court and the case should be dismissed. One
of my students did exactly this and got his judgment discharged and the
case dismissed on 7/7/11. I sent you a copy of the case so you can study
it. I blacked out the student's name but he did give me permission to discuss
the case, since it has been dismissed. Please verify that you received it.

Yes Mike, thanks for sending it. Very interesting. I think I shall engage the new owners, AS LILLY LLC. " Suckers/Fools " of my note, in discussion about the facts of their new acquisition.  They claim, that they are not a part of MERS, and I feel they may have been taken advantage of.
I am saving bankruptcy until my wife's lawsuit is settled, if needed. But when I go with a attorney, I think it would be best going with  one who does both foreclosure defense and bankruptcy.
Thank you for your information.

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    In my experience, a key point is this, once a Lis Pendens is filed, I believe it is unlawful for new parties to join the lawsuit without the express permission of the Court. They must file a motion to intervene and you can oppose it.
     With regard to the "bifurcation issue", if the mortgage is assigned to a
third party BEFORE the Lis Pendens is filed, that third party must be joined
as a defendant in the lawsuit and listed in the Lis Pendens. If not, the plaintiff is definitely suing on an unsecured Note (in my opinion).
     Regardless of who wins, there will be a major title problem if the third
party assignee of the mortgage is not joined in the suit. If joined in the suit,
the issue will be who is the true owner of the obligation, the third party or
the plaintiff.
     Once this issue is raised, the plaintiff might just dismiss the whole case
voluntarily as they did in the case of my student.
     Bill will like this, it was dismissed 7/11/11. Every gambler recognizes those
numbers. It's a winning combination at "dice". He won the "mort gage" ie the
"death gamble"!
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