Prima facie Case for HOLDER vs Holder in Due Course

I am suggesting that the burden of proof for an HDC is different from the burden of proof for a holder with rights to enforce.

The burden of proof in any case is to prove the elements of the case that has been alleged. The stated allegations in every case carry presumptions of validity for purposes of a motion to dismiss, but the implied allegations must still be proven if not admitted. In the case of a Holder in Due Course. Th defining elements of a holder in due course are that the holder purchased the note FOR VALUE in GOOD FAITH with NO KNOWLEDGE OF DEFENSES OF THE BORROWER.

Hence the burden of proof for an HDC is merely show to show possession of the note, combined with the method of by which they acquired the note — i.e., that they purchased the note for value in good faith without notice of borrower’s defenses, even if there was no consideration, even if the note was procured by fraud. The mistake made by both trial courts is that they ignore the allegation in the foreclosure complaint that the suing party is the HOLDER and is devoid of any allegation that says or would support that they are a HOLDER IN DUE COURSE.

see (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.

Note that the implied allegation and presumption is that the loan existed and that a loan contract was consummated. Defendants denies this and therefore the prima facie case must establish the loan and the loan contract, in good faith and in accordance with the requirements of existing law and good sense.

Hence the HDC prima facie case is to prove the elements of being a holder in due course and the default (before the purchase) of the note. This is congruent with Article 9 of the UCC which requires purchase of the mortgage in order to enforce it. Otherwise, without the purchase, the suing party is limited to obtaining a judgment for damages, getting a judgment lien and then recording it against what is mostly homestead property.

If there is any difference between HDC and HOLDER with rights to enforce, it is that the holder, by its own allegations admits that it did not purchase the note and mortgage for value, in good faith, and without knowledge of the borrower’s defenses. This means that the borrower’s defenses against the original stated lender may be asserted against that lender and any alleged successors to the note, which is the title document (and evidence of) the note.

The prima facie face of the holder therefore varies from the the prima facie case of the HDC in that the loan is presumed for the HDC, but not so for the HOLDER. The original consideration for the loan is the loan of money from the stated lender on the note and mortgage.

And to the extent that the loan process violated law, it cannot be said to be in good faith. If table funded loans were the pattern of conduct for the lender, then the loan was predatory per se.  (TILA, Reg Z).

Hence a holder who cannot prove that the loan was made from the originator to the borrower, has nothing to convey to the successors who profess to have endorsements and assignments, none of which convey anything, since the original note was not supported by consideration.

In the normal course of events banks do not lend money and then ask for the note to be signed. First they ask for the note to be signed and then they supply the money. If they don’t advance money to the borrower, then the contract is not complete. If the terms of the note differ from the agreement with either the real lender or the borrower, then then there is no contract to be enforced.

Thus the burden of proof of the HOLDER is vastly different from the prima facie case of the HDC. If the name of the real lender was withheld, then the loan was table funded which is wrong both under the Florida deceptive lending laws and Florida laws concerning the filing of a false instrument.

And if the loan was table funded it was wrong and if part of a pattern of conduct of table funded loans, it violates the content and intent of TILA and Reg Z and is presumptively predatory. This introduces elements of a burden of proof for both the plaintiff and the defendant, where the suing party is only a HOLDER and not a HOLDER IN DUE COURSE.

The prima facie case MUST be different than the prima facie case of an HDC. The principal elements of the HOLDER’s case are the existence of a loan, — and if a third party became involved as a purchaser of the loan, then the prima facie case of the HOLDER must show consideration for both the loan and the sale of the loan as well as the identity of the third party, who is supposed to be protected by both the note and mortgage. These elements are not required for an HDC. But they are required for a HOLDER — because the HOLDER is not entitled to the presumptions and protections of an HDC.

Where, as in most cases including this one, the name of the actual lending party was purposefully concealed or in any event solely known by the named lender and closing agent and specifically unknown to the borrower, the burden is clearly more fairly on the HOLDER suing to enforce to show the existence of an enforceable loan contract that did not violate law. Otherwise it is not entitled to be the presumptions and protections of a party who pays value in good faith without notice of borrower’s defenses (pone of which is denial of the contract and therefore denial of the right to enforce it).

Only the named payee on the note and the named mortgagee on the mortgage can easily attest to the transfer of money from the supposed lender to the borrower. They have the cancelled checks, wire transfer receipts etc. They have the proof of payment to the prior lender. The borrower has none of these things and to place the burden on the borrower is not only patently unfair, it opens the door for any stranger to any transaction to pick up a piece of it and sue to enforce it with impunity even while he is actually defrauding the party entitled to receive the money.

Hence the prima facie case of a HOLDER is to prove the loan, prove the loan contract and prove compliance with lending laws. It is ONLY then that the burden should shift to the borrower. This is different from the HDC where the borrower has the burden of proving affirmative defenses that in most cases are actually claims against third parties rather than the innocent purchaser of the loan for value without notice of defenses.

Accordingly we offer the clear requirements of law — that the burden of proof for a HOLDER alleging rights to enforce include the proof of the actual loan by competent best evidence, with proper foundation and not with hearsay evidence adduced from a made for litigation report that lacks any semblance of authenticity.

Make them prove the loan, make them prove through their witness that the loan was not in violation of public policy and public laws, THAT IS THEIR PRIMA FACIE CASE. THEN they can assert a position of an injured party entitled to redress.

18 Responses

  1. Leave a Reply

    In the case of the sale of a life interest or a remainder interest, the grantor is held siesed of the estate. Therefore the , the factor used , as is the case of the sale of a term certain interest, the factor used is the factor (adjusted where appropriate) which appears in the term certain column of the table opposite the number of years remaining (on the date of sale) before the term certain interest will terminate.

    Foreclosure is a fiction of law where Sale or other disposition of certain term interests accelerate a 30 year mortgage. In determining gain or loss from the sale or other disposition (1969) of a term interest in property (as defined in paragraph (f)(2) of Reg. Sec. 1.1001-1) the adjusted basis of which is determined pursuant, or by reference, to section 1014 (relating to the basis of property acquired from a decedent) or section 1015 (relating to the basis of property acquired by gift or by a transfer in trust), that part of the adjusted uniform basis assignable under the rules of paragraph (a) of this section to the interest sold or otherwise disposed of shall be disregarded to the extent and in the manner provided by section 1001(e) and paragraph (f) of Sec. 1.1001-1.

    registerclaims@live.com

  2. There are some judges in Colorado that do not distinguish between a holder of the note and a holder in due course. One judge said;

    WHAT EFFECT, IF ANY, DOES A FINDING OF WHETHER PLAINTIFF IS A HOLDER OR A HOLDER IN DUE COURSE HAVE UPON APPELLANT’S OBLIGATION TO PAY PLAINTIFF THE AMOUNTS DUE UNDER THE NOTE?
    There is no question that Plaintiff is the Holder of the Note which was endorsed in blank. However, Appellant contends that Plaintiff is not a Holder in Due Course, and therefore holds the note subject to her defenses.

    All the judge focuses on is that there is a default. You owe money so you must pay to whoever claims to be plaintiff.

  3. Let me see if I understand this. You grant estate to mers irrevocably. You grant W.D. To capital asset co (long arm of plender straw on note). Wire transfer from table fundfer/origionater. Plender straw debtor to tableplunder org?

  4. DwightNJ,

    The Endorsement on the Note at time of signing has no relevance. I have seen that before many times, and have seen allonges among closing documents hundreds of times.

    Read RESPA regarding Table Funded loans. You find that the Funder is the Original Lender. It is black and white in the regulations and Commentary. That is what a Court will look at, and those who try to make claims otherwise will fail.

    How were you “tricked, high pressured and violated” to take a loan you did not want? After signing, you had a 3 day right to cancel. Did you try to cancel?

  5. DwightNJ- on the signature line, look for any place where the line doesn’t go through the loop of a lower case g, or similar. The signature would be cut and pasted over the line. Also, under high magnification. Look for the telltale dots of a laser printer v a handwritten pen signature.

  6. I am trying to find out if RASC Series 2006-EMX1 Trust is still active. I got as far as the SEC Website which states on 1/12/07 a Notice of Suspension of Duty to File Reports form 15 was filed under Rule 15d-6. I called the SEC to find out what that meant and all they could tell me was that after that date they have no idea what happened to the trust or if it even still exists. I need to find out if this Trust is still active. I am currently in an active Bankruptcy and this could help me greatly if I can find out if the trust still exists. I can be reached at 443 677 2799 or jsmith5915@msn.com. James Smith

  7. Ian … I’ll check and look for the MIN number … The AOM was recorded in the county land records in October of 2008, but had back-dated information on it stating MERS had assigned the mortgage to Wells Fargo Oct. 8, 2007 , probably to match the foreclosure complaint which had been filed Sept. 2007. The notary is clearly a forgery, but I’m not sure if that alone is a fatal defect to the document or if it voids it. The originator/lender is Commerce Bank, they were still in business under that name in 2007-08 , TD Bank now owns them. WaMu owned my note just prior to my default in 2007. Right after Wells Fargo sent us a letter stating they would be our new servicer, we defaulted in 2007. No AOM has ever been recorded in public records showing WaMu , no record or chain of title showing how they received the note and mortgage at the time of closing in 2004 … or how they transferred it to Wells Fargo .. the only AOM is the forged one that says Commerce by way of MERS now assigns the mortgage to Wells Fargo .. so we have a major gap / broken chain of title … but does it matter? How important is it ?? WaMu owned the note , but MERS AOM doesn’t mention WaMu , it only says Commerce is giving everything to Wells Fargo. They ignored WaMu in the chain , but how important is that? Will it even matter to the Judge? He puts all of his eggs in the basket of who has the note In their hand … he believes that is the most important issue … but it’s most likely a fabricated fake copy where they added the WaMu stamp after the fact onto a computer generated copy in order to show it’s signed in blank and can be used to foreclose. The only way to check it would be to have a forensic document expert inspect it to determine if it’s the true wet ink note, does it have our DNA or fingerprints on it, etc .. what Judge would go that far? He’s just going to accept that the note is the real true note, and I’ll have to win or lose my case on some other issues. Like , can they prove how the note was transferred and delivered, with dates and names? From WaMu to WF for the right to foreclose. And does a broken chain of title matter to the Judge? No assignment ever mentioned WaMu.

    I guess after reading so many of the recent court decisions regarding assignment issues , its clear the courts will do anything possible to help the bank salvage victory in foreclosure courts. The only thing that seems to have knocked the banks down is when you can claim a VOID, an issue or problem that voids the assignment and there is no way to cure the problem , it thereby voids the assignment. In my case I have a forged notary signature .. does that constitute a void?

  8. DwightNJ- make sure the MERS assignment has the 18 digit MIN number. It may have only 17 digits. And if the originator was out of business prior to the date on the AOM, then the assignment is bogus. Most originators stopped paying their MERS bill prior to being defunct and were this shut out of the MERS system. See “Ocwen v. MERS”

  9. @ master servicer – it is clear you understand the process. Please explain the difference between the closing bank and the originator, whose guidelines are deployed as a prerequisite to funding, and how they circumvent the “wash / sale” rule.

    Please also explain to the good folks why the Underwriting Agreement ( which amends the Preliminary Prospectus, and Supplement Prospectus) clearly intends for every first payment default loan to be deleted.

    I have never done business with you direct, so I have never attacked or endorsed your character or services. Comments of that nature should be reserved for your clients or business partners.

    Ultimately, results always outweigh both accolades and negative speak. I know a thing or 6 about this industry and can clearly see that you have the flow correct, but continually fail to convey your message with form to which us commoner’s can relate or understand.

    Do you do it intentionally to intrigue us into hiring you?

  10. MS says, “To those who have supported my efforts over the last few years in the face of the few who seek to destroy my character ….thank you !”

    You have no need for outside help in destroying your character. You do that task very well all on your lonesome. You’re a first rate buffoon.

  11. Hmmmmm…. someone is baiting the hook….!

    Leave a Reply : MERS is still saying they are nominee because Commerce gave them that authority …

    MERS has standing ….MERS has standing ….MERS has standing ….
    MERS has standing ….MERS has standing ….MERS has standing ….
    MERS has standing ….MERS has standing ….MERS has standing ….
    MERS has standing ….MERS has standing ….MERS has standing ….
    MERS has standing ….MERS has standing ….MERS has standing ….
    MERS has standing ….MERS has standing ….MERS has standing ….

    MERS is the beneficiary for the obligations owed by a National Association for wires carried back at settlement and wired rerouted in to off shore depositors accounts.

    [1] MERS CORP = UCC 1 filing
    [2] Deed of Trust = Local recording
    [3] BOTH CANNOT SURVIVE see Tax Payer Wash Sale Rule under IRC Sections 1.1091

    Registerclaims@live.com

    ——————————————————————————————-

    Dewey Screw and Cheat’em LLC

    [Hey Neil …it works….he’ talking ….lets fluff it up and get it out and make some $$$$$$$$$$$$$$$$$$$$$$$! ]

  12. ARE YOU A LENDER PLANT OR SOMETHING ?

    Some say the mortgage follows the note

    – The obligation is secured by the instrument recorded in local county records.

    What does it matter what a document says as long as the two parties in that document allow it to happen.

    – My young and restless fact finder! Baited question …..come on !

    But where I get confused is by seeing how WaMu has owned the note since inception …

    -Wa Mu was part of a Purchase and Sale scheme for Mergers and acquisition with JP Morgan Chase

    WAMU never has to speak up and say that they are assigning the mortgage?

    – The Note is liquidated into the security and can only be triggered back at the time of reversion. Title was conveyed free of liens and encumbrances …. all part of the great Y2 K “depreciation” Scheme of 1998 starting in 2000.

    Peace !

  13. You ask :

    since Commerce named MERS as nominee on the original mortgage contract , but WaMu was really the owner of the note at the point the closing papers were signed, does that make the Commerce mortgage a nullity?

    Commerce is the lender and beneficiary of record
    WAMU wired funds into settlement and held the obligor for the amount alleged to have satisfied the existing lines of record.
    The amount owed by WA MU to the payoff at settlement is owed the beneficiary for amount carried back under nominee Mers Corp

    On or about 10/28/2008 WA MU merged with JP Morgan Chase and Chase become the creditor for the amount wired into settlement

    Chase is allowed to wash sale the amount WA MU owed for the wire into settlement with the amount carried back by the lender issuing the payoff demand

    Both the amount owed for the “net” wire and the amount carried back and due are demands due after 12/31/2010 . Each recall are offset by deposits depositors funds transferred to JPM Chase under the Chase WAMU Mergers and acquisitions.

    My friend, the amount you paid at settlement was never allowed to satisfy the existing lines of record.

    registerclaims@live.com

    —————————————————————————–

    To those who have supported my efforts over the last few years in the face of the few who seek to destroy my character ….thank you !

    God Bless

  14. @ elexquisitor

    Thank you. You make a good point about attacking the origination process, predatory lending, table funded loans, etc. …. The only AOM ever recorded is the one Wells Fargo had fabricated using LPS , stating that MERS assigns the mortgage to Wells Fargo in 2007 (so WF could foreclose) … no other assignment exists on the land records. There has never been an assignment recorded showing that WaMu was assigned the mortgage, although they were the first ones I started sending payments to right after closing. But a Judge might shrug it off and say the mortgage follows the note.

    The reason I call it a fraud is because the notary signature is a blatant forgery , it’s just a small line shaped like a bird flying, like the letter m , it’s not even close to looking like the true signature of that notary which I have found on a different assignment on the internet.
    Is a forged notary a good enough reason to void an AOM ? But then what if the court says its only voidable, meaning it can be re-done and re-submitted with a new AOM ? Then the MERS assignment can go thru again and they get the foreclosure. Other cases I’ve read seem to indicate the Judges don’t care much about AOM. Some say the mortgage follows the note and what does it matter what a document says as long as the two parties in that document allow it to happen. But where I get confused is by seeing how WaMu has owned the note since inception … and never has to speak up and say that they are assigning the mortgage .. MERS speaks for everyone, even after the note has been sold to a new party. My hope was that a forged notary would make the AOM a VOID or a nullity .. but a lot of Judges seem to bend over backwards to allow bad AOM docs, saying its between those two parties and the borrower has no standing to challenge it.

    My question is , since Commerce named MERS as nominee on the original mortgage contract , but WaMu was really the owner of the note at the point the closing papers were signed, does that make the Commerce mortgage a nullity? Commerce had no right to name MERS as nominee because Commerce was not the true owner of the note at the time the parties signed the papers at closing. Commerce was only acting like they were the owners of the note , but the note speaks for itself.

    Years later MERS is still saying they are nominee because Commerce gave them that authority … my argument is that Commerce had no authority to create the mortgage, because they were not the real party of interest .. they didn’t own the note when the agreement was signed.
    They falsely led me to believe they were, by making false statements and representations that they knew were false at the time .. and I ended up suffering injury because of those false representations. My injuries are that I have no way of ever being able to deal with the real party of interest , I have nobody who I can deal with firsthand because of what Commerce did to me in their scheme. When I sent a QWR to Wells Fargo , they sent back a one sentence response saying Commerce Bank is the lender.

    And Wells Fargo has named Commerce Bank as one of the defendants in my foreclosure complaint , because they have a judgment against me for the equity loan they talked us into the year after doing our refinance. Commerce came into our lives and turned it upside down and destroyed our credit by encouraging us to refinance and then take out an equity loan saying our home was going to keep appreciating in value anyway. When we got in trouble after I was hospitalized, we used our credit cards to get cash advances to pay the loans each month. Now we have a judgment against us by the credit card for 30,000 and they too were named as defendants by WF.
    Just looking at the foreclosure complaint tells you the damage that was done to us from dealing with Commerce Bank and by becoming victims of their predatory lending schemes. We suffered enormous damages.

    But its a complicated and tough argument, and the court is likely to say that Commerce is the lender, and that they negotiated the note over to WaMu … period. .. and at some point WaMu delivered the note to Wells Fargo stamped in blank and endorsed .. bearer paper.

    Its a tough fight.

    I do like what you’re saying about attacking the origination predatory lending and table pretender lender loan issues .. I just need to be able to fully understand it so that I can be able to argue it successfully. It’s looking like that may have to be my best chance for a victory. I still need to understand the argument about Holder -v- Holder in due course .. and how they affect the arguments in my case and how each matters .. I thought I had a grasp , but now I’m unsure again.

    Thank you

  15. @ Neidermeyer

    Just to give you a little background about myself, I’m a construction worker who built most of the casinos in Atlantic City and have little to no background into understanding mortgages, etc. … I still struggle to fully understand some of the things you guys and gals are talking about here. So I apologize if my questions sound stupid and I don’t want to be a burden or a cause of frustration to anyone here. But I’m not sure I understand what you mean when you say >

    “To my thinking the holder in due course argument really works for you here as there must be multiple true sales proven ,,, Commerce to WaMu and WaMu to WF (in the FDIC sale?? that didn’t include notes??) … and you can easily get a judge to see that without having to wade into securitization ,,, although your loan was likely securitized. WF only claiming to be HOLDER is key ,, do you have the purchase and assumption agreement from the WaMu collapse and sale?”

    Everything goes over my head , it’s not you or your questions, it’s me and my lack of understanding … are you saying, in your opinion, that I should consider arguing that Commerce sold the debt to WaMu and therefore we need proof of all transactions regarding that sale, as they had become the holder in due course?

    Now Wells Fargo first showed a copy of the note that they said they had possession of , and it did not have any stamp or endorsement from WaMu on it (this was in Dec. 2010 after I had submitted an emergency motion to vacate the judgment and dismiss the complaint just two weeks before the sheriffs sale) … WF objected to the motion with a reply where they showed the “true and accurate copy of the note” in their certification, it had no stamp or endorsement from WaMu . But it was now 2010 and I figured they would have trouble getting anything from Wamu since they went under back in 2008. I screwed up by pointing it out to the Judge (I should have waited), because then at that point the Judge said that he will give them time to locate the note so they can bring it in and satisfy my concerns. They came back with the note, but it now had a stamp on it from WaMu ,, in blank .. pay to the order of … blank … and signed by a woman, VP of WaMu.

    I tried to object to this, saying that the note is now different than the note shown in their certifications…but the Judge began spinning and trying to deflect duck and weave and steer the conversation away from the point I was making.

    Wells Fargo is claiming they possess a note that is endorsed and stamped in blank … meaning they are holders??

    I should argue that they are really holders in due course ??

    I have to be spoon-fed like a baby .. lol

    and not sure what you mean when asking if I have the purchase and assumption agreement from the WaMu collapse .. what is that?

    Wells Fargo became our new servicer in 2007 right before WaMu got in trouble in 2008

    not sure why WaMu turned us over to WF , we had been paying WaMu from 2004-2007 and had not missed any payments

    The Judge seemed to be focused on who has possession of the note, that was where he was headed with his decision. All he wanted them to do was to bring in some firsthand witnesses who could testify under oath … and he also agreed with me that they needed to show how they came into possession of the note , with names, dates, signatures of the people in regards to the transfer and delivery from WaMu to WF …
    if they had done that he would have allowed the foreclosure to go thru and the sheriffs sale to be allowed … this is how close they were to having the house , and yet they walked away and refused to take part in his plenary hearing on these issues. They substituted counsel and brought in the lead attorney for WF who wrote the brief in the NJ Show Cause Order where NJ was threatening to deny all uncontested cases and fine the banks for wasting their time and resources , Diane Bettino of Reed Smith in Princeton, NJ … She wrote in her briefs on behalf of WF that they had “fixed the problems” and assured the Courts that it would not happen again , and added that any fines or sanctions or denials of uncontested foreclosures would unfairly harm WF and hurt the economy, financial markets and consumer confidence in the markets .. yada yada yada … so this thing is getting dragged out for a year after the sheriffs sale was placed on my door , it was now Nov of 2012 .. we had been fighting over my motion for a full year .. now she was calling me at work pushing for me to agree to a modification … I’m hanging from a steel beam on the Revel Casino 100 ft above a concrete floor trying to take her call on my cell phone and she starts getting pissy with me, acting rude and disrespectful .. so I told her off and said a modification isn’t good enough , I want a clear title for all the bullshit Wells Fargo has caused in my life … and hung up on her. She turned around and submitted an Order to Dismiss the Complaint and Vacate the Judgment and asked the Judge to sign it. We never got to have the plenary hearing.

    Now it’s a different foreclosure mill firm , Phelan Hallinan Diamond , and it appears they will come back using the same exact documents, and in front of the same Judge . … I have got to slam them good on this one … I’m just nervous that they went out and fabricated a paper trail to show the transfer of the note .. that’s why I need a strong argument with multiple points of attack to make sure they can’t win.

    You say argue that they are really holders in due course?

    Please explain a little bit more if you can , thank you.

  16. @Dwight – IANAL. But it seems to me that if you make a copy of your copies of the note and deed of trust showing the “Pay To The Order Of”, along with a declaration under penalty of perjury that the attached exhibits are true and complete copies of the documents given you at the time of closing, you have prima fascia evidence of a table-funded loan. Even though the special endorsement was not signed, it shows premeditated intent. Combined with the recorded documents of the assignment you have some potent leverage. The question is whether table funded loans are ‘predatory’ by definition in your state.

    As to the AOM, backdating is not ‘fraudulent’. It is either allowed for real property documents, or else it is a forgery, found in the criminal statutes. This ups the leverage you hold tremendously, again, depending on the state laws.

    Forgery, perjury, grand theft, false filing … these are a few of my favorite things … and I almost forgot, elder abuse.

  17. @ DwightNJ ,

    The WF handbook that is currently being litigated in NY wasn’t in existence in 2008 , or at least we cannot document that .. WF was documented to use DocX (LPS’s forgery department) in the 2008 timeframe. (See the criminal LPS CEO Lorainne Browns conviction)

    I really like that you went to a real bank , Commerce Bank , and thought that they were your lender only to find out that they were just an agent selling forward to WaMu as evidenced by the pre-endorsed closing documents. GET YOUR COMPLETE CLOSING FILE DOCUMENTING THE SOURCE OF THE BANK WIRE… If Commerce wasn’t the funding source and had already pre-sold how can anything be sold later? (scratching head)

    To my thinking the holder in due course argument really works for you here as there must be multiple true sales proven ,,, Commerce to WaMu and WaMu to WF (in the FDIC sale?? that didn’t include notes??) … and you can easily get a judge to see that without having to wade into securitization ,,, although your loan was likely securitized.

    WF only claiming to be HOLDER is key ,, do you have the purchase and assumption agreement from the WaMu collapse and sale?

    IANAL , HOWEVER (there’s always a however) I will say one thing … DENY DENY DENY DENY DENY DENY and then DENY some more.

  18. Excellent. I’m going to incorporate this into my argument against the servicer “Holder” Wells Fargo who has filed the foreclosure complaint against us. Now that I’ve been reviewing my closing documents from 2004 when we were high-pressured, tricked and violated by Commerce Bank into allowing them to refinance our home, I notice a couple of things. 1) The Note already had “pay to the order of WaMu Bank” stamped on the bottom before we had signed at the closing. We have a copy of it with our signatures, but the Commerce Bank VP had not yet endorsed it, he did endorse it immediately after we had signed, but not in our presence. We did not even realize it was already stamped pay to the order of WaMu at the time we signed, it was never pointed out , explained or disclosed to us. Now after the Commerce Bank VP endorsed it, a few days later we were told that we would not be making any mortgage payments to Commerce as we had been led to believe. We were told that our first payment and all those after would be going to WaMu Bank.

    Now here’s the big question .. If Commerce Bank already had our Note stamped “pay to the order of Washington Mutual Bank” at the closing where we signed the Note, and then they later finalized the closing by endorsing the Note to WaMu , does that fact, open the door for me to attack in any way?

    The Mortgage states that Commerce Bank is the “Lender” and owns and controls everything in regards to this contract. They name MERS as Nominee. But didn’t the actual closing contradict this mortgage language and description ? The actual closing made two things happen simultaneously, when the Commerce Bank VP signed the Note he was effectively making WaMu the owner of the Note at the exact point of time that he was closing this refinance, because the stamp was already there on the Note before both sides signed. How can a closing separate the Note from the Mortgage in the first nano-second of it’s existence? The Mortgage says that Commerce owns the debt as “Lender” and it also says that MERS will be Nominee. But MERS never assigned the mortgage or the note over to WaMu at anytime, there has never been a recording in any land records to show that MERS or Commerce conveyed or assigned the Mortgage to WaMu.

    MERS HAS NEVER even recorded an assignment in any land records that says Washington Mutual assigned anything to Wells Fargo, who now is claiming to be HOLDER and seeking to foreclose.

    The assignment of mortgage that Wells Fargo relies on was fabricated and recorded in October of 2008, immediately following WaMu’s bankruptcy and collapse, but the bogus document was fraudulently back-dated a year, to try and appear that it existed at the time of the complaint and before WaMu went under. LPS workers / MERS / Wells Fargo employees using their “employee document fabrication handbook” must have concluded that they had better fabricate and back-date an AOM upon hearing of WaMu’s collapse. Why else would they suddenly record it a full year after the complaint had already been filed? They were creating a document just incase they needed one.

    Somehow I will figure out a way to make all of this relevant to my case. When I claim that Wells Fargo is just a HOLDER and needs to prove the allegations in their complaint, they will rely on the Commerce Bank mortgage and note .. but when the Court is directed to notice that the Note is already made payable to Washington Mutual Bank at the point of closing … does that give me a right to fight for deeper discovery into what had really happened during the initial origination where we were duped and tricked and fooled by the Ponzi scheme. WaMu was in control of the transaction at closing when the ink met the paper. What did they do with the note as part of the Fannie Mae securitization scheme? Where was the disclosure to the unsuspecting borrowers? Now that WF comes in as HOLDER and wanting to take our home away from us , they do have a lot of explaining to do, and most of it is about Washington Mutual’s part in the scheme … they were part of the origination and their name was on the note before anyone signed it. They are now defunct , they can’t be relied on for answers now, this should open the door for a possible question of “VOID” being taken under consideration, when combined with all of the other problems in the Wells Fargo as servicer/Holder case to take my home away , especially if I can point out that the documents plaintiff relies on cannot be trusted as per the revelation of “the employee handbook”. The only way to fetter out the truth is to carefully inspect the financial transactions , which are forever lost with WaMu’s collapse, and forever hidden behind Fannie Mae’s wall of secrecy.

    But this argument Neil points out above about educating the Judge on why a HOLDER must be held to a different standard, is vital and critical to the case.

    Still struggling to decide how I answer the complaint due back by 25th. Trying to decide if 1) I simply “deny deny deny” and say nothing else until court. or 2) Deny and “counter claims with attacks on who? Commerce, WaMu & Wells Fargo? Deny & file a complaint against everyone involved, seeking to sue who?

    Thanks for any input , just another Pro Se fighting an uphill battle.

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