Florida Standard Jury Instructions as a Guide for Bench Trials

Danielle Kelley, esq., my law partner frequently says she likes to start with the jury instructions because that is where everything is boiled down to their simplest components. I think it is wise to make references to the standard jury instructions (plus the fact that they were introduced as an amendment to the Florida rules of Civil Procedure — thus overriding anything the Judge thought he knew).

For example, on evidence for use in motions and at trial —

SC12-1931 Opinion

301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE

The (describe item of evidence) has now been received into evidence. It has been admitted only [for the purpose of (describe purpose)] [as to (name party)]. You may consider it only [for that purpose] [as it might affect (name party)]. You may not consider that evidence [for any other purpose] [as to [any other party] [(name other party(s)].

That admonishment is not just for jurors — its also for jurists. There is not one set of laws that apply to juries and an entirely different set of substantive law if the case is heard by the Judge. Of course the recent case decided by Judge William Zloch in Fort Lauderdale Federal Court might make these jury instructions directly relevant.

Another example, this time on third party beneficiaries — careful that this double edged sword does not swing back at you and the need for consideration for there to be an enforceable contract—

SC12-1931 Opinion

416.2 THIRD-PARTY BENEFICIARY

(Claimant) is not a party to the contract. However, (claimant) may be entitled to damages for breach of the contract if [he] [she] [it] proves that (insert names of the contracting parties) intended that (claimant) benefit from their contract.

It is not necessary for (claimant) to have been named in the contract. In deciding what (insert names of the contracting parties) intended, you should consider the contract as a whole, the circumstances under which it was made, and the apparent purpose the parties were trying to accomplish.

SOURCES AND AUTHORITIES FOR 416.2

See RESTATEMENT (SECOND) OF CONTRACTS § 302 (1981):

[A] beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and … the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

While the Supreme Court has not commented directly on the applicability of the Restatement (Second) of Contracts § 302 (1981) (but note Justice Shaw’s partial concurrence in Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 280-81 (Fla. 1985)), all five district courts of appeal have cited the Restatement (Second) of Contracts § 302 (1981). Civix Sunrise, GC, LLC v. Sunrise Road Maintenance Assn., Inc., 997 So.2d 433 (Fla. 2d DCA 2008); Technicable Video Systems, Inc. v. Americable of Greater Miami, Ltd., 479 So.2d 810 (Fla. 3d DCA 1985); Cigna Fire Underwriters Ins. Co. v. Leonard, 645 So.2d 28 (Fla. 4th DCA 1994); Warren v. Monahan Beaches Jewelry Center, Inc., 548 So.2d 870 (Fla. 1st DCA 1989); Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987). See also A.R. Moyer, Inc. v. Graham, 285 So.2d 397, 402 (Fla. 1973), and Carvel v. Godley, 939 So.2d 204, 207-208 (Fla. 4th DCA 2006) (“The question of whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.”).

Thus servicer advances, FDIC loss mitigation payments, and insurance payments actually received by the creditor (presumed usually to be the trust beneficiaries in a REMIC New York Trust) decrease the amount due TO the creditor — which therefore means that the amount due FROM the borrower must be reduced by the same amount. The fact that out of all the parties to the contract requiring or providing for those payments to the creditor, directly or indirectly, none of them was thinking about a benefit to the homeowner borrowers does not mean it doesn’t count. The bank might not have thought about or even known you had an Aunt Tilly. But when she pays off your mortgage, it doesn’t matter where the money came from.

And as for the contract for loan that is sometimes referred to as a quasi contract, assuming the homeowner has defended by denying the existence of an enforceable contract, here we are —

SC12-1931 Opinion

416.3 CONTRACT FORMATION — ESSENTIAL FACTUAL ELEMENTS (Claimant) claims that the parties entered into a contract. To prove that a contract was

created, (claimant) must prove all of the following:
1. The essential contract terms were clear enough that the parties could understand

what each was required to do;

2. The parties agreed to give each other something of value. [A promise to do something or not to do something may have value]; and

3. The parties agreed to the essential terms of the contract. When you examine whether the parties agreed to the essential terms of the contract, ask yourself if, under the circumstances, a reasonable person would conclude, from the words and conduct of each party, that there was an agreement. The making of a contract depends only on what the parties said or did. You may not consider the parties’ thoughts or unspoken intentions.

Note: If neither offer nor acceptance is contested, then element #3 should not be given. If (Claimant) did not prove all of the above, then a contract was not created.

NOTE ON USE FOR 416.3

This instruction should be given only when the existence of a contract is contested. If both parties agree that they had a contract, then the instructions relating to whether a contract was actually formed would not need to be given. At other times, the parties may be contesting only a limited number of contract formation issues. Also, some of these issues may be decided by the judge as a matter of law. Users should omit elements in this instruction that are not contested so that the jury can focus on the contested issues. Read the bracketed language only if it is an issue in the case.

SOURCES AND AUTHORITIES FOR 416.3

1. The general rule of contract formation was enunciated by the Florida Supreme Court in St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004) (“An oral contract … is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms.”).

2. The first element of the instruction refers to the definiteness of essential terms of the contract. “The definition of ‘essential term’ varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis.Lanza v. Damian Carpentry, Inc., 6 So.3d 674, 676 (Fla. 1st DCA 2009). See also Leesburg Community Cancer Center v. Leesburg Regional Medical Center, 972 So.2d 203, 206 (Fla. 5th DCA 2007) (“We start with the basic premise that no person or entity is bound by a contract absent the essential elements of offer and acceptance (its agreement to be bound to the contract terms), supported by consideration.”).

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3. The second element of the instruction requires giving something of value. In Florida, to constitute valid consideration there must be either a benefit to the promisor or a detriment to the promisee. Mangus v. Present, 135 So.2d 417, 418 (Fla. 1961). The detriment necessary for consideration need not be an actual loss to the promisee, but it is sufficient if the promisee does something that he or she is not legally bound to do. Id.

4. The final element of this instruction requires an objective test. “[A]n objective test is used to determine whether a contract is enforceable.” Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985). The intention as expressed controls rather than the intention in the minds of the parties. “The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing but on their having said the same thing.” Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla. 1957).

And as to whether the Plaintiff must prove they have been damaged by the defendant’s breach of contract —

SC12-1931 Opinion

416.4 BREACH OF CONTRACT – ESSENTIAL FACTUAL ELEMENTS

To recover damages from (defendant) for breach of contract, (claimant) must prove all of the following:

  1. (Claimant) and (defendant) entered into a contract;
  2. (Claimant) did all, or substantially all, of the essential things which the contract

required [him] [her] [it] to do [or that [he] [she] [it] was excused from doing those things];

3. [All conditions required by the contract for (defendant’s) performance had occurred;]

4. [(Defendant) failed to do something essential which the contract required [him] [her] [it] to do] [(Defendant) did something which the contract prohibited [him] [her] [it] from doing and that prohibition was essential to the contract]; and

Note: If the allegation is that the defendant breached the contract by doing something that the contract prohibited, use the second option.

5. (Claimant) was harmed by that failure.

SC12-1931 Opinion

NOTE ON USE FOR 416.4

In many cases, some of the above elements may not be contested. In those cases, users should delete the elements that are not contested so that the jury can focus on the contested issues.

SOURCES AND AUTHORITIES FOR 416.4

1. An adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages. Friedman v. New York Life Ins. Co., 985 So.2d 56, 58 (Fla. 4th DCA 2008). This general rule was enunciated by various Florida district courts of appeal. See Murciano v. Garcia, 958 So.2d 423, 423-24 (Fla. 3d DCA 2007); Abbott Laboratories, Inc. v. General Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994); Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977).

2. To maintain an action for breach of contract, a claimant must first establish performance on the claimant’s part of the contractual obligations imposed by the contract. Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845, 848 (Fla. 1st DCA 1990). A claimant is excused from establishing performance if the defendant anticipatorily repudiated the contract. Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181, 182- 83 (Fla. 1982). Repudiation constituting a prospective breach of contract may be evidenced by words or voluntary acts but refusal must be distinct, unequivocal and absolute. Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463 (Fla. 3d DCA 1980).

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3. “Substantial performance is performance ‘nearly equivalent to what was bargained for.’” Strategic Resources Grp., Inc. v. Knight-Ridder, Inc., 870 So.2d 846, 848 (Fla. 3d DCA 2003). “Substantial performance is that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor’s right to recover whatever damages may have been occasioned him by the promisee’s failure to render full performance.” Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971).

4. The doctrine of substantial performance applies when the variance from the contract specifications is inadvertent or unintentional and unimportant so that the work actually performed is substantially what was called for in the contract. Lockhart v. Worsham, 508 So.2d 411, 412 (Fla. 1st DCA 1987). “In the context of contracts for construction, the doctrine of substantial performance is applicable only where the contractor has not willfully or materially breached the terms of his contract or has not intentionally failed to comply with the specifications.” National Constructors, Inc. v. Ellenberg, 681 So.2d 791, 793 (Fla. 3d DCA 1996).

5. “There is almost always no such thing as ‘substantial performance’ of payment between commercial parties when the duty is simply the general one to pay.” Hufcor/Gulfstream, Inc. v. Homestead Concrete & Drainage, Inc., 831 So.2d 767, 769 (Fla. 4th DCA 2002).

 

So if you look at both the pleading and the proof from the pretender lenders, they never actually say they paid for anything and they never actually say they were harmed and therefore, the Judge surmises incorrectly, that they don’t have to prove financial injury because it is somehow presumed. That is wrong. And since these jury instructions are published by the Florida Supreme Court, I don’t think the Judge has very much discretion to go outside these instructions when he or she is making the decision himself or herself — without (as the instructions from the Supreme Court say) unequivocally stating the grounds upon which the Judge deviated from the standard jury instruction.
And as for the origination of the loan, which definitely starts as an oral contract —

SC12-1931 Opinion

416.5 ORAL OR WRITTEN CONTRACT TERMS [Contracts may be written or oral.]

[Contracts may be partly written and partly oral.] Oral contracts are just as valid as written contracts.

NOTE ON USE FOR 416.5

Give the bracketed alternative that is most applicable to the facts of the case. If the complete agreement is in writing, this instruction should not be given.

SOURCES AND AUTHORITIES FOR 416.5

1. An “agreement, partly written and partly oral, must be regarded as an oral contract, the liability arising under which is not founded upon an instrument of writing.” Johnson v. Harrison Hardware Furniture Co., 160 So. 878, 879 (Fla. 1935).

2. An oral contract is subject to the basic requirements of contract law such as offer, acceptance, consideration, and sufficient specification of essential terms. St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004).

3. “The complaint alleged the execution of an oral contract, the obligation thereby assumed, and a breach. It therefore set forth sufficient facts which taken as true, would state a cause of action for breach of contract.” Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985).

4. As long as an essential ingredient is not missing from an agreement, courts have been reluctant to hold contracts unenforceable on grounds of uncertainty, especially where one party has benefited from the other’s reliance. Gulf Solar, Inc. v. Westfall, 447 So.2d 363 (Fla. 2d DCA 1984); Community Design Corp. v. Antonell, 459 So.2d 343 (Fla. 3d DCA 1984). When the existence of a contract is clear, the jury may properly determine the exact terms of an oral contract. Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985).

5. “To state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to ‘a certain and definite proposition’ and left no essential terms open.” W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297 (Fla. 1st DCA 1999). See also Carole Korn Interiors, Inc. v. Goudie, 573 So.2d 923 (Fla. 3d DCA 1990) (company which provided interior design services sufficiently alleged cause of action for breach of oral contract, when company alleged that: it had entered into oral contract with defendants for interior design services; company had provided agreed services; defendants breached contract by refusing to remit payment; and company suffered damages); Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000) (“In this case, appellant sufficiently pled that Primedica, upon acquiring Shapiros’ assets, which included their oral agreement with appellant, mutually

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assented to appellant’s continued employment under the same terms and conditions as with Shapiro. Further, he alleged that he suffered damages as a result of his termination.”).

So if the offer  to loan money came from a party who did not loan the money then there is no contract, oral or written, and no documents that could be used as evidence of an enforceable contract because the basic elements of contract are absent. The same would hold true for assignments. Thus the pile of “transfer documents” are all meaningless and worthless unless there was an original enforceable contract.

As for the duty to disclose all intermediary parties and their compensation and the rise of an implied contract —-
SC12-1931 Opinion

416.6 CONTRACT IMPLIED IN FACT

Contracts can be created by the conduct of the parties, without spoken or written words. Contracts created by conduct are just as valid as contracts formed with words.

Conduct will create a contract if the conduct of both parties is intentional and each knows, or under the circumstances should know, that the other party will understand the conduct as creating a contract.

In deciding whether a contract was created, you should consider the conduct and relationship of the parties as well as all of the circumstances.

NOTE ON USE FOR 416.6

Use this instruction where there is no express contract, oral or written, between the parties, and the jury is being asked to infer the existence of a contract from the facts and circumstances of the case.

SOURCES AND AUTHORITIES FOR 416.6

1. “[A]n implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words.” 17A AM. JUR. 2d Contracts § 12 (2009).

2. “In a contract implied in fact the assent of the parties is derived from other circumstances, including their course of dealing or usage of trade or course of performance.” Rabon v. Inn of Lake City, Inc., 693 So.2d 1126, 1131 (Fla. 1st DCA 1997); McMillan v. Shively, 23 So.3d 830, 831 (Fla. 1st DCA 2009).

3. In Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., 695 So.2d 383, 387 (Fla. 4th DCA 1997), the Fourth District held:

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words.” 17 AM. JUR. 2d Contracts § 3 (1964); Corbin, CORBIN ON CONTRACTS §§ 1.18-1.20 (Joseph M. Perillo ed. 1993). When an agreement is arrived at by words, oral or written, the contract is said to be “express.” 17 AM. JUR. 2d Contracts § 3. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. Id.; CORBIN ON CONTRACTS § 562 (1960). It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated that contracts implied in fact “rest upon the assent of the parties.” Policastro v. Myers, 420 So.2d 324, 326 (Fla. 4th DCA 1982); Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 13 (Fla. 1973). The supreme court described the mechanics of this process in Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1950):

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[A] [c]ourt should determine and give to the alleged implied contract “the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly thereto.” 12 AM. JUR. 2d 766.

See Mecier v. Broadfoot, 584 So.2d 159, 161 (Fla. 1st DCA 1991).

Common examples of contracts implied in fact are when a person performs services at another’s request, or “where services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances” fairly raising the presumption that the parties understood and intended that compensation was to be paid. Lewis v. Meginniss, 12 So. 19, 21 (Fla. 1892); Tipper, 281 So.2d at 13. In these circumstances, the law implies the promise to pay a reasonable amount for the services. Lewis, 12 So. at 21; Lamoureux v. Lamoureux, 59 So.2d 9, 12 (Fla. 1951); A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996); Dean v. Blank, 267 So.2d 670 (Fla. 4th DCA 1972); Solutec Corp. v. Young & Lawrence Associates, Inc., 243 So.2d 605, 606 (Fla. 4th DCA 1971).

….

For example, a common form of contract implied in fact is where one party has performed services at the request of another without discussion of compensation. These circumstances justify the inference of a promise to pay a reasonable amount for the service. The enforceability of this obligation turns on the implied promise, not on whether the defendant has received something of value. A contract implied in fact can be enforced even where a defendant has received nothing of value.

I think I made my point. Lawyers, follow Ms. Kelley’s suggestion. You might find your job in court a lot easier.

 

 

 

27 Responses

  1. MERS imo is violating the Consent Order. Because the consent order included a finding that the grunts being called officers were just that, MERS has apparently put some “training” in place, as if that’s going to change anything. MERS is purporting, thru those straw officers, to be assigning the note as well as an instrument it also has no interest in, unless it’s thee ben. But if it’s thee ben, then the note and dot suffer from original bifurcation, a fact imo which no one who supports enforcement wants to acknowledge for obvious reasons. There is a remedy, but because it’s unavailable when the orig lender is toast (or anyone in the chain) and it’s time consuming and expensive, it’ll get overlooked til it’s finally acknowledged after most of our homes are lost to hooligans. This expensive remedy might not be necessary had they stayed with naming the lender as the ben and then assigning the dot to MERS.

  2. Poppy, you said:
    “I’d like to know how a nominee, MERS, has any rights to foreclose? Or grant their nominee status to anyone else…”

    I think a nominee could have a right to foreclose IF everything needed to be done were done. However, I believe nominee and agent are mutually exclusive,I guess is how I’d say it. I know I’ve said this 15 times, but I’ll say it again: there is no agency created in and by the dot.
    There may be an agency agreement elsewhere (but there isn’t). Agency was never the goal. It only ‘came out’ when needed, and most
    particularly after the Consent Order. A nominee could have a right to foreclose. In fact, that was the deal acc to the membership agreement X a very big, and imo dispositive, except: MERS was never going to do anything. Only others were in MERS’ name. In other words – here, MERS, we’ll give you the right to do Y, but you give it back to anyone of us (actually all of us) by calling one of our employees one of your officers and we’ll take it from there. I can’t seem to get anyone to understand the bs-ness of their m.o., that or people see nothing wrong with it. I see a lot wrong with it. It’s a sham. When servicers were foreclosing in MERS’ name, their m.o. included alleged poss of the note by the servicer’s employee who had been designated a MERS’ officer, courtesy of an alleged corp resolution from Hultman. That, to that gang, meant there was unity of the note and dot: MERS was named the ben in the dot and it’s “officer” was in alleged poss of the note. So the member was allowed to allege MERS as the note holder entitled to enforce as well as being the ben. (One, and only one, of the inherent problems is that MERS never knew if that party were in possession or not.) Further, the member had to PAY Mers for being able to foreclose in MERS’ name. This was going on at the same time MERS swore in NB that it had no connection to the note, and also at the same time, Mers was swearing in cases like the Hilmon one I cited, that the very Article III at the very heart of their m.o. (servicer-employee-now-mers-officer poss) was irrelevant to these notes: the MERS m.o. depended on the alleged poss by its alleged officer and Article III, yet MERS swore both that article III was n/a and that MERS had NO connection to notes whatsoever.
    A nominee, and by that I mean a third party, could poss foreclose IF it were properly authorized. But imo it wasn’t, certainly not by way of the dot signed only by the borrower who wouldn’t be a party to that necessary agreement. Further, even were it, it still doesn’t make the nominee the rpii, at least not in a court. Except according to AZ, anyone who wants to foreclose must have an interest in the debt a dot secures. And an assgt of the dot without the interest in the note is a nullity. If MERS were an agent, all it could do imo is abandon its agency status. It couldn’t convey the interest in the dot nor could it make anyone else an agent. MERS never intended anyone to assign in its name (x to non-members); that came about because of the Consent Order which recognized the bs-ness of the MERS’ m.o.
    Only as a nominee beneficiary, not an agent, could anyone possibly convey interest. I believe MERS was thee ben and I also believe that’s not a legally recognized deal – to split the note and dot. People gave up on the split after so much litigation, esp the ruling in the MDL in AZ, which ruled there was no split. It did so on a ridiculous, unfounded proposition that MERS was an agent. No agency = split. But MERS never thought this would be outed by a Consent Order. Even as an agent, MERS or anyone would need to be authorized to assign interest. Agents don’t have carte blanche. I haven’t seen any evidence of that authority. In fact, if the MERSCorp’ membership agreement means anything, it’s the members who retained the ability to assign, albeit in MERS’ name. A sham. imo.

  3. I think, not 100% the UCC addressed the language of “promissory notes” in article 9 UCC at the bequest of the banksters in 2009? Just so they could move them into securities.

    And the note does evidence an obligation, but to whom? My paperwork evidences a DOT, which has been passed around like party platter, but I have not seen one original piece of paperwork. Nice copies…in blue ink too. Assigned into a trust in 2012 which closed in 2007 by New Century who is still in bankruptcy and who shares office space with Ocwen; called themselves the “owner” hereinafter…not seeing it!

  4. I’d like to know how a nominee, MERS, has any rights to foreclose? Or grant their nominee status to anyone else…interesting how they pass this stuff around.

    My “note” was defaulted from non-payments, long before I had an issue…what trust wants a defaulted-non-performing loan?

  5. MERS SAYS ARTICLE 3 HAS NOTHING TO DO WITH OUR NOTES:

    Hilmon v MERS et al 06-13055 Dkt 19 02/01/07 ED MI SD
    “mers” mtd or alternatively for sj:

    “Additionally, in a “brief” attached to his complaint, Plaintiff
    alleges that the promissory note is a negotiable instrument,
    and that MERS was not a holder in due course and therefore
    could not collect on the debt owed under the note.

    I. PROMISSORY NOTES ARE NOT GOVERNED BY ARTICLES 3 OR 4 OF THE UNIFORM COMMERCIAL CODE.

    PROMISSORY NOTES ARE NOT NEGOTIALBE INSTRUMENTS under the UCC Article 4; rather they are security interests under Article 9. Specifically, pursuant to MCL Section 440.9102 (mmm) promissory note means an instrument that evidences a promise to pay a monetary obligation, and does not evidence an order to pay, nor
    does not contain an acknowledgment by a bank that the banks has
    received for deposit a sum of money or funds.

    Plaintiff’s argument seems to be that the promissory note
    held by MERS is not valid because MERS is not a holder in due
    course. Under UCC Article 3, a holder in due course is used to
    describe a valid property ownership interest in a negotiable
    instrument. As stated above, a promissory note is not a
    negotiable instrument to which the Uniform Commercial Code’s
    holder in due course analysis applies. Diversified Financial
    Systems, Inc. v Schanhals, 203 Mich. App. 589; 513 N.W.2d 210
    (1994). As such, Plaintiff has failed to state a claim upon
    which relief may be granted.”

    There’s more – later.

  6. Foreclosure Sale VOIDED 4-years later
    FDIC v. Duerksen
    Here, it is clear from the face of the order confirming sale that Appellant’s due process rights were violated.Thus, the order confirming sale is void on its face and the trial court was without jurisdiction to enter such order. The trial court’s judgment is REVERSED AND this matter is REMANDED for further proceedings consistent with this opinion.

    Foreclosure Sale VOIDED 4-years later
    FDIC v. Duerksen
    Here, it is clear from the face of the order confirming sale that Appellant’s due process rights were violated.Thus, the order confirming sale is void on its face and the trial court was without jurisdiction to enter such order. The trial court’s judgment is REVERSED AND this matter is REMANDED for further proceedings consistent with this opinion.

  7. @Johngault The mortgage pools you speak of in comparison to the auto securitizations. The SIC code for practically every mortgage conduit falls under the SEC – SIC Code 6189, which refers to Asset Backed Securities (“ABS”), and that is only for non depository credit institutions.

  8. I wonder which jury instructions were utilized in this Florida federal court which materialized; signed and sealed, the world history’s largest ever drug money laundering operation, of over half-a-trillion dollars into Wells Fargo:

    WACHOVIA $1/2 trillion Drug Money Laundering Blessed by U.S. Court Case# cr-20165-JAL

    http://kareemsalessi.files.wordpress.com/2010/04/wachovia-12-trillion-drug-money-laundering-legitimized-by-dismissal-of-florida-criminal-case-cr-20165-jal.pdf

  9. Fighting those Fighting for Change wont help your Cause.
    The Enemy of your Enemy is your Friend.
    Just because our approaches are different .. the goal is the same.

    If you don’t want to fight for change with us … you have your passport and you know your way to the airport.

  10. MERS holds Legal Title for who?

    By Granting the Title of the Estate into Trust … Grantors/Trustors understand and agree MERS is to HOLD legal title that is being Transferred and Conveyed Irrevocably Free and Clear of All Liens and Encumbrances …

    Did we/the trust… hire a servicer to service an ISC/Mortgage via the Trust for 30yrs?
    And if the debtor/borrower defaulted MERS could FC in our name under the Trust?

    I’m starting to feel a lot like, MERS is Me/Us…….

  11. From the post:
    “1. The essential contract terms were clear enough that the parties could understand what each was required to do;”

    jg: well, that didn’t happen

    “2. The parties agreed to give each other something of value. [A promise to do something or not to do something may have value];”

    By telling the borrower MERS had the right to foreclose (not assign ftr),
    the borrower was lead to believe things which were patently false.
    “MERS” wouldn’t do anything and this was known to everyone except the borrower. Whether MERS were a 3rd party beneficiary (here meaning a 3rd party to the loan agreement) or whether MERS were an agent, the fact remains that MERS would do nothing. Any number of others would, under cover of MERS with no oversight by MERS whatsoever. There is NO one from whom MERS took any direction, no principal who sent instructions to an employee or true corporate officer of MERS to do one thing. Those others were compelled, in fact, to take actions and to pay for the defense of those actions taken in MERS’ name. That makes MERS a straw man, I believe, as a matter of law and the borrower was most assuredly mislead.
    MERS never had the right to assign (unless it were a 3rd party ben, thee ben, and that deal could pass muster, which I say it can’t). Even if MERS had the right to assign (where is this found unless MERS IS thee ben?) and even then, one has to disregard the member agreement because the MERSCorp membership agreement spells out that others are to do that (in MERS’ name), not MERS. The agreement also says (or said) those others are not to assign unless the interest in the note has gone to a non-member.

  12. Whoooa …..

    I said pension and retirement fund profits … for bummer care.

    I said nothing about Taxpayer Money supporting Vets.
    In fact they should!! And a hell of a lot better than they do!!

    To Much Skimming!!!!

  13. The government just announced some more defense contracts in the billions and billions, an ongoing scenario in this country. Those contractors will be paid with taxpayer funds. No one flips out or has (maybe around the time of Viet Nam). Yet, people are ruffled that their taxes may support a fellow U.S. (emphasis) citizen’s health costs? Good health care could at least feasibly lower the outlay of other government funds (generally unrelated to war). And veterans who don’t live close enough to VA facilities should be able to have coverage with local facilities. Btw, wasn’t health care Hillary’s big trip?

  14. While we are on the subject of politics ….

    Lets talk about how a Bank can help buy a Senate Seat.
    The Presidency … and such other stuffy seats.

    Tweaks the Birdie to BAC and BONY M

    Bad Apples!
    Out they Go!

  15. Hey Obama … What Pension Funds? … You Already Helped bring them to the Verge of BK here in Illinois already..
    remember the fake MBS?

    I Do! Bite Me!! … Granny Sour Apple!!

  16. Obama wants to bring Obama Care in with the Mortgage Industry.
    He wants to be allowed to SIEZE the benefits on ALL retirement and Pension funds to fund Bummer Care!!

    YES WE CAN AMERICA!!

    JUST SAY NO NO NO NO NO NO NO NO!!

    JDSF;LKHAEI’STY ‘LKJDG ;AJSET
    U ‘LGAS /S,GK[‘IOI /GY’U\[W

  17. I see History Repeating itself Right before my Eyes.

  18. GM was a “owner of the loan”
    The straw man lender was the lien holder.

    I had a loan with GMAC … ONCE!

    Going down memory lane …. I Won the First Case in Illinois under the LEMON LAW against GMAC ever.

  19. Naaahh ..

    They were/ or are backed by the Good Faith and Insurance of the US Taxpayers.

    Right?

  20. ABS … Yep!

    Whose Assets?
    Are/were those Assets at Risk?

  21. I admit I’m confused. If GM, for example, covers “credit losses”, which I take to mean borrower non-payment, then the investors in those ABS’s
    are either participants in a split deal (11.4 GM and 5.5 to the investors) or they’re lenders for GM, making the investors merely the ultimate source of capital and these aren’t true sales. But these are ABS’s, not MBS’s, so maybe the requirements are different? I don’t see anything wrong with such a fully disclosed arrangement unless the rules mandate a true sale, including to avoid certain taxation.

  22. Neil, that would be Great Great Aunt Tilly in my case.

    Best of Wishes to You!

  23. Ally, the parent of ResCap, was apparently able to avoid its own bk
    as a result of 17 billion in TARP bailout funds. Ally had apparently been feeding ResCap.

  24. So in poking around, I came across this in GM’s explanation of
    securitization – apparently relevant to auto loans:

    “GM Financial earns (or receives) the net interest
    margin – which is the difference between the interest rate that our customers pay on their auto loans and the interest rate paid to the investors. For example, the securitization named 2007-D-F has an
    average customer interest rate of 16.9 percent, but we are only required to pay the investors approximately 5.5 percent. Therefore, GM Financial will earn a 11.4 percent net interest margin (16.9 percent minus 5.5 percent) on these loans before covering credit losses, operating expenses and any fees associated with the securitization.

    Holy moly! 11.4% net interest margin. Who else do we know who might be enjoying some of this?

    http://www.true-sale-international.de/en/abs-im-ueberblick/wasistabs/wasisttruesale/

  25. Last year, I mentioned that Buffet was able to get a good deal on loans
    held by ResCap/ALLY out of its BK estate. He was able to take the loans “free of” other interests. Since even (and especially) private label (non-gse’s) companies securitized loans they originated themselves, bought, aggregated, I couldn’t figure out why they would have such a massive portfolio available to be purchased from their BK estate.

    But Buffet was able to buy those loans from the BK estate. I thought at the time that his purchase “free of other claims and interests” might mean he was able to take free of the trust / investors’ interests. Previously, I’ve posited that one who has paid for a note but hasn’t received it has a security interest as a matter of course / law. I may have been wrong about that. Reading this article, which I mentioned and linked the other day, makes me think there may be a procedure necessary to perfect the security interests of the trusts. I still tend to think a sec interest IS created by the default UCC law, but this article does raise the question of a “procedure” necessary to perfect that sec interest. From the article:

    “the transfer is regarded as creating security interest in favour of investors; so the investors are secured LENDERS (whether such security interest is perfected or not will depend on the procedure relating to perfection of security interests)”

    Security interests may be created as a matter of law, or to perfect that security interest may take an act. I don’t know which is true, tho as I’ve said, I still think it’s the former. But, if an act is required to perfect the sec interest and that act were not done, it may explain why Buffet was able to get his hands on those loans in a sweet deal with the BK estate. Otherwise, I have no explanation how loans which were surely
    securitized could be purchased out of a BK estate of the loan seller. (The time for the Bk estate’s clawback surely came and went as any alleged transfers are years old) The only possibility which comes to mind at all is a possible entanglement of the interests of a servicer and the party for whom it services (something alluded to in the article and about which I know nada).
    I’m mentioning this because 1) the identity of the interests and claims
    Buffet took “free of” and 2) how this was accomplished may answer a lot of dispositive questions about this whole mess. Maybe some industrious person will pursue those answers.
    Berkshire Hathaway paid 1.5 billion for ResCap’s portfolio of 47,000 loans. Ally is the parent of ResCap. 47,000 loans. That’s a heck of a lot of loans being held in ResCap or anyone’s loan portfolio in the age of securitization.
    I thought NationStar won the bid for the servicing rights, but in another article, I see that Ocwen was mentioned fwiw (partnered?)

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