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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Lena
Is an original note ever submitted in court? The near-viral production and Court acceptance of lost note affidavits and "true and correct" copies of the original frustrate me.

Supposedly, Fannie Mae has a low limit to the number of lost notes affidavits allowed, but who checks this? Who knows when one more note exceeds the allowed limit?  (I guess, we all know the answer to that.)

When was the law changed that required the plaintiff to surrender the ORIGINAL note to the Court? The judgment at one time replaced the note, to ensure that the debtor wouldn't face the note later. Should homeowners seek indemnification when a copy is submitted?

Copies of notes used to foreclose seem to be the same (to me) as copying a $100 and using it for gain. Why are copies of negotiated promissory notes not considered counterfeit? Why are they not required to be reduced smaller than the original to indicate a copy at first glance, as it is with copying $100 bills for advertising?

Besides all of these questions, I have a particular dilemma with this "true and correct copy" issue, so I'm trying to learn enough to know how to handle it: The bank sent a copy of a note to answer a QWR and I believe it bears a forgery of my deceased husband's signature. Only this signature acknowledges the debt. If the bank submits the same copy of the note in court, how and when should I object to the authenticity of his signature? The UCC seems to allow for an objection, but would the Court likely consider it frivolous?
 
Comments appreciated.

§ 3-308.  PROOF OF SIGNATURES AND STATUS AS HOLDER IN DUE COURSE.

(a)  In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings.  If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature.  If an action to enforce the instrument is brought against a person as the undisclosed principal of a person who signed the instrument as a party to the instrument, the plaintiff has the burden of establishing that the defendant is liable on the instrument as a represented person under Section 3-402(a).


(b)  If the validity of signatures is admitted or proved and there is compliance with subsection (a), a plaintiff producing the instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under Section 3-301, unless the defendant proves a defense or claim in recoupment.  If a defense or claim in recoupment is proved, the right to payment of the plaintiff is subject to the defense or claim, except to the extent the plaintiff proves that the plaintiff has rights of a holder in due course which are not subject to the defense or claim.

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    The first thing you must do is investigate whether or not the Note in question is a "negotiable instrument". If not, the statute you are referring to does not apply.
     In my experience, most of the Notes being presented these days are not
"negotiable instruments" therefore a simple endorsement on the Note will not
suffice to transfer it. It must be transferred with an assignment of the mortgage like a RISC (retail installment sales contract). Also, if the Note is
not a "negotiable instrument" the borrower has all the defenses against the
transferee that he/she would have had against the original lender, such as
a fraudulent appraisal or some other fraud.
     The "pretender lender" will always try to fool the defendant and the Court
into believing the Note is a "negotiable instrument" because then they can claim they don't need an assignment of the mortgage because the mortgage
automatically follows the Note. Also, the defendant can not raise defenses
he/she might have had against the original lender such as fraud, no license,etc.
      So on top of submitting a counterfeit, color photocopy instead of the
real Note, they are falsely claiming it is a "negotiable instrument". If you don't
protest against this, YOU LOSE! The pretender lender just got themselves another "free house", especially if it was a MERS mortgage because the
original lenders, the investors, already got paid with TARP money or the
FED's quantitative easing policy.
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ANGELO
Mike

Please show us some case law that explains and proves that a note is not negotiable instrument.
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To Angelo:
      These are Florida cases. Holly Hill vs Charter Bank 314 So.2nd 209 Fl. 2nd DCA 1975, & GMAC vs Honest Air Conditioning & Heating Inc 933 So.2nd 34 Fl DCA 2nd Dist. 2006 also Mason vs Flowers 91 Fla. 224, 107 So. 334,335 1926.
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William A. Roper, Jr.
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Angelo:
Please show us some case law that explains and proves that a note is not negotiable instrument.


Angelo:

Mike H. posted some information about this negotiability issue in another thread that we discussed there.  I will try to find and link the thread.  It is based solely upon a Florida case.

Unfortunately, Mike seeks to conflate and aggrandize the holdings in that case, seeking to generalize the case to situations in which it clearly does NOT apply.
 
Unfortunately, there are those easily misled by his unrelenting focus an trying to get everyone to argue points which are almost certainly not only not persuasive, but probably undermine the defendant's credibility about 98% of the time. 

For Florida litigants with an adjustable rate mortgage, I see no hard in including the argument.  I would view it as a throw away that might befuddle and confuse the plaintiff.  And if could help avert summary judgment, that would be a good thing!

But this is certainly NOT a sound argument upon which to foundation a defense for most borrowers.
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