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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Nye Lavalle
Relief from Stay Hearings: Original Note Required by One Judge in CA

by John D. Duncan
Pite Duncan, LLP – USFN Member (CA)

Beginning January 22, 2008, and until further notice, moving parties on relief from stay motions pending before Bankruptcy Judge Samuel Bufford must bring the original promissory note to the hearing for inspection. Production of the note will be excused only under circumstances such as those provided in Federal Rules of Evidence Rule 1004 or Cal. Commercial Code Section 3301. See below for the full text of these statutes.

Judge Bufford’s stated reason for this requirement is that due to the developments in the secondary markets for mortgages and other security interests, the court lacks confidence that presenting a copy of the promissory note is sufficient to show that a movant has a right to enforce the note or that it qualifies as a real party in interest (as required by Rules 7017 and 9014).

Rule 1004. Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

California Commercial Code Section 3301
“Person entitled to enforce” an instrument means (a) the holder of the instrument, (b) a nonholder in possession of the instrument who has the rights of a holder, or (c) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3309 or subdivision (d) of Section 3418. A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.



http://www.usfn.org/AM/Template.cfm?Section=Home&Template=/CM/ContentDisplay.cfm&ContentID=8573
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