You need to read some more FL cases. That is exactly what they say. Sorry your Honor, that was not the correct note. It was some kind of paperwork error, I don't know where it came from. Here is the REAL original and everything is in order, we're ready to foreclose. The same goes for assignments that are prematurely attacked. It was a paper work error.
I'm reading every case I can find. Google Scholar is my friend.
I suppose they can give that a try. It used to work but the courts are getting tired of the game. The Florida Supreme Court amended the Rules of Civil Procedure and now requires that every complaint in a foreclosure case is verified when filed.
"An oath or verification requires a swearing or affirmation which would
subject the person signing the pleading to a prosecution for perjury if the
facts sworn to be true are false and the person knew they were false when
sworn to or affirmed."
They must swear that they have personal knowledge, or a sworn statement from another, supporting every aspect of the case being true, prior to filing.
They would have to go a little farther out on a limb then they used to do.
In re-litigating a case, the servicer will very often switch law firms. This allows for the new attorneys to shrug their shoulders and say (with some plausible deniability): "We have no idea how that happened, your Honor! We weren't representing the plaintiff in that case."
I expect them to use a different law firm. I don't expect a different plaintiff though. The plaintiff provided the documents in each instance. At the very least, a different note plead as the original will cast doubt on which note is enforceable.
What, if anything, the Clerk does to preserve a valid copy of an original exhibit filed, varies from state to state and usually within a state.
The Clerk scans everything in the file and stores it electronically. They post much of it online. When the file is closed they will return the originals to the plaintiff and store the remaining file in archives in the County seat.
Realize that YOU will have the burden of proof as to the state of the note at the prior litigation. Of course, if the order of dismissal of the prior case contains some express mention of the absence of indorsement, then this is quite helpful. But almost universally defendants haven't thought to insist that this be included.
I hadn't received a copy of the Motion to Dismiss from my attorney before today. They had agreed to dismiss prior to the hearing and so I never met him at court to get a copy. I had assumed that he argued the lack of indorsement from the original lender since that was the issue I kept harping on. It appears he might be a better attorney than I thought. He didn't argue that at all. He didn't even mention it. He argued that the plaintiff failed to verify the complaint by affidavit as required. He also argued that the plaintiff lacked standing based on TBW's indorsement in blank and the assignment not corresponding to the record.
5. A review of the Promissory Note indicates a blank allonge endorsement signed by Taylor, Bean & Whitaker, Mortgage Corporation.
6. It appears that the Note was endorsed to an unknown payee who is not named in the assignment of record. As the Note was endorsed to an unknown person or entity, that person or entity should have been the assignor to the Plaintiff herein.
7. The assignment of the subject mortgage was recorded after the lawsuit was filed. The assignment was from MERS as nominee of the original lender to the Plaintiff.
8. As the endorsement does not state to whom the Note was endorsed, there was no proof as to the fact that MERS was the endorsee. There no chain of title to indicate that MERS received the endorsement and had the authority to assign the same to the Plaintiff herein.
9. Without the proper endorsement, MERS does not have the authority to assign the same to the Plaintiff. Since MERS cannot be identified as the entity to which the note was endorsed, it is unknown what other entity or person may have ownership of the Note.
10. It is unknown to whom the Note was endorsed and such person or entity is an indispensable party to this matter. Failure to name such party is cause for the dismissal of this lawsuit.
So perhaps when they re-litigate they still will not have noticed the lack of original indorsement. If that happens I can probably drag this out long enough to receive a summary judgment in my favor after the limitations expire.
In respect of absence of indorsement, part of the "explanation" will be fact dependent upon the placement of the indorsement on the original instrument. If the indorsement appears on the back
of the instrument, the plaintiff can plausibly assert that the clerk failed to make a copy of the back of the instrument. Indorsements on the back are not only permitted, but that is what indorsement actually means (to write on the back of something). Thus, absence of indorsement on the extant copies will be found to be inconclusive.
If you haven't already done so, you might want to go and check the record to see precisely what is now available on file.
If there is a copy of the original instrument, you might want to get a certified copy
of the exhibit now, before even the copy is inadvertently "Lost".
I inspected the file. I have a certified copy of the "Notice of Filing of Original Note and Mortgage" which includes copies of the original note and mortgage. They appear to be genuine.
I also obtained a certified copy of the fraudulent Assignment of Mortgage.
In respect of failure to affix an allonge, I would always recommend that upon discovery of a "missing staple" that you bring back some witnesses to view the original and the allonge. Taking photos with a digital camera is also a very good idea. In selecting a "witness" you want to identify someone whose credibility is impeccable and who you can rely upon to be available. It is best if the person is not "interested" in the case. It would be better to bring two other witnesses rather than just one. This would allow a defendant to present three separate affidavits that the original was unindorsed OR that the allonge to an instrument was not affixed at the date of the visit.
Great idea! I'll try to set that up for tomorrow while the file is still there. I called and they verified it is still there.
The viewing area is in full view of the clerks and monitored by cameras. I'll try to not make a scene but it will be obvious to anyone paying attention what I am doing.
You might be in great shape. But it may already be too late to conclusively establish the facts as to the disposition of the note in the prior case.
I think I am in good shape. The witnesses and photographs idea will help me cover my bases.