When I first got into this mortgage mess I called counsel for Aurora on a foreclosure case pending in California. I asked him how the currently self-designated entity pursuing foreclosure could justify its actions. His answer was “we are the holder.” So I asked him again why a company that has no financial stake in the outcome and who clearly does not meet the definition of a creditor of this borrower could initiate a foreclosure proceeding. And he answered again “we are the holder.” So I asked him does this mean the entity that he is alleging is the holder is acting for or against the interest of the actual creditor? And he answered again “we are the holder.” So I asked him, whether he was asserting that the entity pursuing foreclosure was a holder in due course. And he answered again “we are the holder.” By the way, this was not some foreclosure mill newbie. This was the main guy in Chicago who had been the architect of the legal plan for foreclosures.
In the months after that I received a quick lesson. Everything I knew about bills and notes (commercial paper, negotiable instruments etc.) was going to be put to the test. And it became apparent that notwithstanding clear law to the contrary, the holder was going to be treated as a holder in due course regardless of the actual facts. The justification for this practice rested squarely on two assumptions that were considered to be axiomatically true:
(1) It was assumed that the borrower and received the loan and failed to pay it “back”
(2) It was inevitable that despite any technical defenses a borrower could raise, that the outcome would be foreclosure — which led to a disastrous public policy of rubber stamping millions of foreclosures without any requirement that the forecloser and its paperwork be subject to any scrutiny at all.
The millions of foreclosures had placed an impossible burden on the court system. Based upon the above assumptions, the remedy was clear — get the cases pushed through to to the foreclosure auction as quickly as possible and thus clear the docket. The idea of retaining existing practices where a Judge would scrutinize the documents and allegations with or without the homeowner present, was set aside despite the fact that every state has declared that forfeiture is an extreme remedy.
Instead in non-judicial states, a trustee was installed and merely had to receive instructions from the beneficiary of a deed of trust. Anyone could and would do that. Some entity not on the loan and having no relationship with the originator of the loan would state that it was the beneficiary and was now executing a substitution of trustee under the powers vested in the beneficiary, and the new “trustee” was a controlled or contract entity that was created for the express purpose of foreclosing on the property — minding only the instructions of the new beneficiary — without any verification that the claimed beneficiary had any interest in the loan, the debt, the note or the deed of trust.
In judicial states Judges routinely ignored meritorious defenses treating these fictitious entities as though they were holders in due course and thus excluding nearly every potential defense. The same logic applied — since it was inevitable that the foreclosure would happen anyway, why hold it up? The idea that this was part of a vast scheme of financial fraud and that the perpetrators were being being rewarded with houses when they had already stolen the money that paid for the loans was mere poppycock, conspiracy theory. Even when the lawsuits and charges from investors, administrative agencies, law enforcement, insurers, guarantors and co-obligors stated that the basis of these transactions was rooted in financial fraud, Judges continued to rule based upon the public policy of clearing the docket of inevitable foreclosure sales.
But now, it appears as though some cases of mine are being transferred out of the foreclosure docket and into general litigation or even complex litigation where the old rules apply. Judges in the foreclosure docket are commenting about the shell game played where the servicers are suddenly changed right before trial, and where the elements of their cause of action don’t appear to be present. Judgments are being entered in favor of the borrower that are reciting that the Plaintiff failed to meet its burden of proof — still coming up short on the statement that this was part of a fraudulent scheme and that the perpetrators of such a scheme should not be allowed to profit from it.
So now that we are heading back into the territory where the rules of law, the rules of evidence and the rules of procedure apply again, it is important that you understand the essential nature of bills and notes (negotiable instruments). And we start with the proposition that there has been a legislative and judicial determination that negotiable cash equivalent instruments should be allowed to exist. This means that if you receive a negotiable instrument as a holder in due course, it is yours to use anyway you want the same as cash or to collect from the original maker, regardless of anything that happened between the original maker of the note and whoever he or she or they were dealing with at the time the negotiable instrument was created.
The first point is that a negotiable instrument can ONLY be a promise to pay that is NOT conditioned on anything. The maker is agreeing to pay regardless of any other dealings he has had with any other party at any time. A promissory note can be an unconditional promise to pay. A mortgage is not an unconditional promise to pay (there are not two notes for the same transaction). The mortgage is a collateral agreement for protection of the creditor in the event that the collection on the note does not satisfy the full debt. The mortgage is not a negotiable instrument. But in some jurisdictions it is treated as an attachment to the note such that the endorsement (“indorsement”) of the note also transfers ownership of the rights under the collateral mortgage or deed of trust. Those are called “mortgage follows the note jurisdictions.” In other jurisdictions the assignment of the mortgage gives rise to an implied assignment of the note. Those are called “note follows the mortgage” jurisdictions. Note that a mortgage cannot be endorsed — it is a legal agreement that requires assignment. And there are jurisdictions that do both.
The aim here under public policy that is centuries old, is to promote the free flow of commerce and leave disputes to the people involved in the dispute and not present a danger to an innocent third party who takes an apparently negotiable instrument as an unconditional promise to pay only to be confronted with the maker’s defenses of fraud in the original or subsequent transactions. This is an over-riding public doctrine. It is the reason why I have warned from the beginning that failure to dot an “i” or cross a “t” is going to get you nowhere in terms of winning your case. But if you can prove that the current “holder” is part of the fraud you can knock them down from their pedestal of being a holder in due course and thus just a holder or even less a possessor (bailment) holding no rights to enforce under any conditions. This is why the actual transaction documents and methods of payment at each stage of the “assignments”or “endorsements” of the instruments must be carefully examined starting with the origination. By actual transactions I mean — “SHOW ME THE MONEY.” The UCC says “for value” and so if someone claims to have received ownership of the note then in order for them to aspire to holder in due course status they must show they paid for it.
When you see a loan closing followed some hours later by an assignment followed a few minutes later by another assignment, you can assume that something was not disclosed to the borrower and that the actual lender was probably not stated on the loan papers, which means the basics of contract law apply — the borrower’s act of executing the loan papers, including the note (that would have otherwise been a negotiable instrument) was not counterbalanced by the named payee making the loan. Thus the contract is unexecuted and unenforceable unless the Payee and mortgagee can establish disclosure and an actual relationship with the true source of the loan, such that the Payee was the borrower in a transaction in which a third party actually made the loan.
But just because you have it and just because you claim to be a holder in due course doesn’t make it true. You might not have it, you might have forged or fabricated the original, and you might have actually known about problems and defenses of the maker when you took it, or the maker might not have known the true nature of the transaction and you did. In all those cases you are not a holder in due course and every action or defense that could be brought in a breach of contract action would apply to you as a holder (if you really have it) or mere possessor. AND THE KEY ELEMENT BEFORE ALL OTHER INQUIRIES IS WHETHER YOU RECEIVED THE NEGOTIABLE INSTRUMENT FOR VALUE, WHICH MEANS YOU PAID MONEY FOR THE SALE OF THAT INSTRUMENT. The banks that assert that their own self-serving allegation of holder or holder in due course ends the inquiry in terms of discovery are just plain wrong.
This is long enough. I will expand on these issues in upcoming articles. In the meanwhile read carefully the following cases, especially the KIND case, which shows how extraordinary the powers of a holder in due course can be.
See UCC 3-305
U.S. v Second National Bank of North Miami, 1974, 502 F. 2d 535, cert denied, 95 S Ct. 1567, 4221 U.S. 912, 43 L. ed. 777
Davis vs. West, App 2 d DCA 114 So. 2d, 703 (1959)
Daiwa Products, Inc. v Nationsbank, N.A. 885 So. 2d 884 (Fla 4th DCA 2004)
Kind v Gittman 889 So.2d 87 4th DCA (2004)
EDITOR’S NOTE: read the Kind case. see if you don’t agree that this case opens the door to appraisal fraud both as a counterclaim and set off. But the basis is that you must plead and prove that the property was worth something different at the time of the transaction that what the appraisal said. The action is against both the appraiser and the lender, because the appraisal is a representation of the lender. The resulting damages in interest and principal payments could produce the reduction in principal sought by so many homeowners in litigation.
Filed under: CASES, CORRUPTION, Eviction, evidence, expert witness, Fannie MAe, foreclosure, foreclosure mill, GARFIELD KELLEY AND WHITE, GTC | Honor, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, TRUST BENEFICIARIES, trustee | Tagged: appraisal fraud, Daiwa Products, Davis vs. West, for value, Inc. v Nationsbank, Kind v Gittman, N.A, U.S. v Second National Bank of North Miami, UCC 3-305 | 144 Comments »