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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Since it appears that our courts on most levels have no backbone due to their pockets being filled by Bank supporters, and legislative members also, we won't WIN court decisions, because the Bank's attorneys 99% of the time get cases tossed by demurr or a judges ruling.  See the problem?  We MUST push and pursue our jury trial demands FULLY.  This will be fought adamantly by the Bank's attorneys, but a panel of our peers, will see the issues, we will start winning and THEN the tide will turn.  Demand a Jury Trial
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    The problem with this idea, is that most foreclosures are "equity" cases
so the defendant is not entitled to a jury trial. (Florida) Only in "law" cases
can one get a jury trial.
     In my opinion, a better tactic is to attack the "negotiability" of the Note.
     Fannie Mae has admitted that its "adjustable rate notes" are not "negotiable instruments" put are part of a contract which includes the "mortgage".
     This means that the Note & Mortgage must be transferred together with
a "special endorsement" on the Note and a lawful "assignment" of the underlying mortgage, with dating, two witnesses, notarization and recording
in Official Records for a lawful transfer of the "obligation" to take place.
     Also, whoever take it, is not a "holder in due course", immune to the
defenses of the maker (borrower) against the "originator", such as a fraudulent, inflated appraisal.
     Many conventional attorneys disagree with this analysis, but we must
make the argument or else the servicer gets a "free house" every time.
     Most of the time, the "originator" no longer exists and no "lawful"
transfer of the "obligation" ever occurred. The servicers win by using
a color photocopy of the Note, call it original and a "negotiable instrument"
and then claim to own the "obligation". The maker can raise no defenses
because the Judge buys the lie that the servicer is a "holder in due course",
ie an innocent third party who legally acquired the Note.
      So even though the maker (borrower) won the "death gamble" (mort-gage) with the originator, the "croupier" servicer, steals the winning bet
and gets a "free house". 
      It's time for the gullible sheeple to wake up their lawyers to this concept, and at least present it to the Judge. Some of my students have
won using this argument. It is the only valid argument they had, and it worked! IT IS A TRUE DEFENSE!
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Texas
Mike H said:

"Fannie Mae has admitted that its "adjustable rate notes" are not "negotiable instruments" put are part of a contract which includes the "mortgage".

This means that the Note & Mortgage must be transferred together with
a "special endorsement" on the Note and a lawful "assignment" of the underlying mortgage, with dating, two witnesses, notarization and recording
in Official Records for a lawful transfer of the "obligation" to take place."

Not a correct argument and if one won on these arguments, please post an opinion of such win.

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   Right now, Matt Weidner is making this argument in a case in Florida's
2nd DCA. You can go to his web site and study his pleadings on negotiability.
   Two cases from the 2nd DCA are Holly Hill Acres vs Charter Bank and
GMAC vs Honest Air. You can go to "google scholar" and read them for
yourself.
    I can not understand why so many lawyers and pro se's think these
Fannie Mae Notes are negotiable since one must refer to the adjustable
rate rider attached to the mortgage in order to calculate the balance
owed. Also, each Note has lots of conditions beyond the mere payment
of money so they are clearly "non negotiable".
    FHA Notes also require one to look outside the Note, to the security
instrument to calculate the balance owed. They also have conditions
beyond merely paying money. They too are "non negotiable".
    If anyone disagrees, I would love to hear why anyone believes these
notes are negotiable. Please let the forum know!
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Texas
If the 1961 UCC applied would agree.
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Digger
Here is some case law referencing the 1961 version of the UCC; support for Mike's argument of having to look outside the four corners of the instruments, and Holder in Due Course:


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.”
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arrgy
You can see his MTD based on non-negotiability here:

http://msfraud.org/LAW/Lounge/MTD_non-negotiable-coa-brief_6-12.pdf
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Texas
And the courts opinion is what?
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arrgy
Max Gardner for a couple of years has also attacked the negotiability issue as well. If you haven't already, I would strongly suggest you save and read this from Tom Cox about the issue:


http://s355160796.onlinehome.us/__oneclick_uploads/2012/03/bootcamp-memo-3-5-12-w-ex-a.pdf

Most FHA loans are non-negotiable, I know mine isn't at all. And the banks, etc. know this. My FHA mortgage was assigned and note signed over from bank A to bank B properly. I could not even attack that if I tried. The only thing I could attack is, was the note actually sold? would it be worth the trouble to dig it up and try to prove otherwise? I am sure someone could fabricate something to say that my note was sold when in fact it probably wasn't.

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arrgy
The court agreed that the note was non-negotiable. What Weidner put on his website was this:

"When we get back around to some integrity of our laws and start recognizing that notes are not negotiable, that does not mean they aren’t enforceable….it only means they have to be transferred not by negotiation but via assignment pursuant to Article 9….do you see how that works?  The end of the delusion of negotiability is not the END OF THE WORLD!  It just means courts will not be relying upon illegible squiggles to transfer interests in billions of dollars worth of assets and the interests in real property to land and homes all across this nation.  See how that works?  When notes are enforced as non negotiable instruments, the transfer of interest in those documents occurs, along with the mortgage and the enforcing authority, pursuant to an assignment of mortgage or some other document which would actually show some chain of ownership….."
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Luke
Since this thread purports to be about the right to a jury trial, it bears noting that an action at law for breach of contract for default on a promissory note is usually subject to a jury demand.  By contrast, a suit on a count for foreclosure is an action at equity.

Equitable actions, such as foreclosure, have historically been exempt from any jury demand.  In antiquity, such suits would be brought at Chancery.  Even with the merger of courts at law with court of chancery, equitable remedies are usually tried and determined by the judge rather than by a jury.

Anyone that wants to expend significant energy trying to get a foreclosure count tried by jury might want to consider whether there is much value in seeking to dispute about five centuries of case law that conclusively establish that there is no right to a jury trial in an equitable action.

Separately, distressed borrowers need to carefully consider whether they are more likely to get a fair shake from a judge or from a jury.  While there are many posts attacking judges and asserting systemic judicial corruption, the reality is that most judges are reasonably fair, but most distressed borrowers appear in court unrepresented, unprepared and having failed to follow the Rules.

Anyone who thinks that a jury is going to be far more sympathetic isn't very good about reading public opinion polls!  Bear in mind that in civil cases, jury unanimity isn't necessary.  A plaintiff can win a judgment on the note count by getting a majority of the jury to agree.  Experienced attorneys are far more skilled at jury selection.  An unrepresented pro se borrower may discover that turning to a jury is going to be an epic mistake.  The jury may be far more likely than an honest judge to buy into the demonization of the borrower as a "deadbeat". 

While there may be select cases of egregious lender/servicer abuse where having a jury might be helpful, in ordinary cases a juror's eyes are likely to glaze over hearing arcane arguments about MERS and securitization.

Most good defense lawyers I know would rather try a foreclosure case before an honest judge than to take a chance with a jury.  Be careful what you ask for!  
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Jack
They are in NY
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Jones
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They are in NY


They are what is NY??  Your post makes absolutely no sense whatsoever!
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Jack
They are negotiable instruments in NY, under the UCC
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