Thomas A. Cox is one of the national leaders in the fight to protect consumers and defend the Rule of Law. Cox, along with Tom Ice, first worked to expose the whole robo signing fraud and now Cox weighs in with this weighty piece of scholarship that addresses the issue that MORTGAGE NOTES ARE NOT NEGOTIABLE.
I hope to get an appellate decision in Florida soon, but I encourage everyone to weigh in on this most important subject. We need our trial court judges to be thinking about this every single day….it’s the next front in this maddening war.
Tom’s analysis, contained within this long law review article, is very critical and frankly this is precisely the kind of hard assessment we need. If we could lock judges in a room and insulate them from the chaos that the banks have dumped into our courtrooms and into our law, the decision would be simple….NOTES ARE NOT NEGOTIABLE and must be transferred under Article 9.
Making these kind of difficult decisions is precisely what our courts are supposed to do. We simply must demand that they fulfill their highest function…the development of clear, guiding law.
TAC Non-negotibility memo 3-5-12 w Ex A
This little ole blog has been around since July 2009. At that time, blogs were new and frankly the defense of foreclosures was not particularly sophisticated. I knew way back then that there were major problems with foreclosures, but then the theories were not yet developed. So many of the issues have been more fully developed since then, but too many of them still remain undeveloped.
As I’ve recently been digging into the fact that notes are not negotiable, I realized that I first wrote about this issue as one of my first posts. I’m frustrated that we haven’t really developed that issue yet, but then again I’ve only pursued the issue once at trial….but check this out:
In nearly every foreclosure case filed in Florida, the law firms include a count in the lawsuit to “re-establish a lost note”. In order to prevail in a foreclosure case, the lender must present to the court the original promissory note singed by the borrower at closing. Because these note are often lost, a technical legal procedure was developed which allows the plaintiff to present to the court a copy of that note and ask the court to rule that the copy presented is just as good as the original note.
In many cases, the Plaintiffs will be able to produce a copy of the note that was “lost”, at some point in time in the proceedings. In this case, the lost note count is dropped and the foreclosure case moves forward without this techincal problem. In some cases however, the Plaintiff either cannot even produce a copy of the promissory note or the promissory note signed by the borrower does not fit the precise legal definition of a “negotiable instrument” that is subject to the techincal reestablishment procedures.
In either of these cases, the Plaintiff is going to have a very hard time proceeding with their forecloure case and they have very few easy options which would allow them to prevail in their foreclosure case…confronting this reality should encourage the lender to enter into very favorable mortgage modifcation discussions with the borrower, but more often than not it seems the attorneys just abandon the case leaving the homeowner in a home with noone to make a mortgage payment to and nonone calling or making any attempts to get them to pay.
Or how about this one:
The first question a competent attorney should ask is, “Does the plaintiff who is suing my client have the right to file a lawsuit in Florida against my client?” The fact of the matter is that a variety of statutes and rules prohibit various persons and entities from availing themselves of the jurisdiction of Florida courts.
Minors may not alone avail themselves of the jurisdiction of any court of this state; neither may individuals who are otherwise incompetent. Minors and incompetents may only access the courts of this state through guardians or other legal representatives. Personal representatives appointed by in estates opened in other states may not maintain suit in this state. An ancillary estate must be opened in this state. Businesses operating as a fictitious name may not maintain suit. Only the individual who runs that entity may file suit. Foreign corporations not registered with the Secretary of State may not maintain suit in this state. They must first register as a foreign corporation.
If these two issues alone had been pursued the landscape would be much different than things are today….