FREE HOUSE?

Judges may be biased in favor of “national security” (i.e., protecting the banks), but they have a surprisingly low threshold of tolerance when they are confronted by the bank’s argument that they don’t have to accept the money and that it is the bank’s option as to whether to accept the money or proceed with the foreclosure. To my knowledge that argument has lost 100% of the time. And THAT means the homeowner was able to get the proverbial free house or otherwise settle under seal of confidentiality (which might include the “free house.”)

all too often the Golden Rule of Mortgage Foreclosure is simply ignored and the foreclosure goes ahead as if the rule were not the statutory law of every jurisdiction in the United States — Douglas Whaley

Listen to the Last Neil Garfield Show at http://tobtr.com/s/9673161

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

The article below demonstrates (with edits from me) just how “hairy” these issues get. Things that laymen presume to be axiomatic don’t even exist in the legal world. I just sent my son a mug that says “Don’t confuse your Google search with my medical degree.” The same could be said for law. You might have discovered something that appears right to you but only a lawyer with actual experience can tell you if it will fly — remember that the bumblebee, according to the known laws of aerodynamics — is incapable of flying. Yet it flies seemingly unconcerned about our laws of aerodynamics. Similar to the lack of concern judges have, as if they were bumblebees, for the laws of contract and negotiation of instruments.

“Be careful what you wish for.” We must not give the banks a condition that they can satisfy with a fake. If the statute says that they must come up with the original promissory note, or the encumbrance is automatically lifted by a Clerk’s signature, then that means that (a) the debt still exists (b) the note could still be enforced with a lost note affidavit (which lies about the origination of the “loan” and subsequent nonexistent transactions), and (c) the debt can still be enforced.

A suit on the note or the debt that is successful will yield a Final Judgment, which in turn can be recorded in the county records. A further action for execution against the property owner will cause execution to issue — namely the judgment becomes a judgment lien that can now be foreclosed with no note whatsoever. The elements of a judgment lien foreclosure are basically (I have the Judgment, the statute says I can record it and foreclose on it).

There are homestead exemptions in many states. Whereas Florida provides a total homestead exemption except in bankruptcy court (up to $125,000 value), Georgia provides very little protection to the property owner which means that Georgia property owners are vulnerable to losing their homes if they don’t pay a debt that has been reduced to a Final Judgment and filed as a Judgment lien.

So the upshot is this: if you ask for the original note they might simply change their routines so that they produce the fabricated original earlier rather than later. Proving that it is a fake is not easy to do, but it can be done. The problem is that even if you prove the note is fabricated, the debt still remains. And in the current climate that means that any “credible” entity can step into the void created by the Wall Street banks and claim ownership of the debt for the purpose of the lawsuit.

What you want to do and in my opinion what you must do is focus on the identity of the creditor in addition to the the demand for the “original” note. When you couple that with tender of the amount demanded (under any one of the scenarios we use in our AMGAR programs) on the industry practice of demanding the identity of the creditor before anyone receives payment, then you really have something going.

But the risk element for tender MUST be present or it will likely be brushed aside who sees it as merely a gimmick — using the state law regarding tender as an offensive tool to get rid of the encumbrance and thus prevent foreclosure.

*

So the commitment is to pay off or refinance the alleged debt conforming to the industry standard of giving estoppel information — with the name of the creditor, where the payment should be sent, and the amount demanded by the creditor, and per diem, escrow and other information.

*

The inability and unwillingness of anyone to name a creditor has been credited with eliminating both the foreclosure and the mortgages in several dozen cases.

*

Judges may be biased in favor of “national security” (i.e., protecting the banks), but they have a surprisingly low threshold of tolerance when they are confronted by the bank’s argument that they don’t have to accept the money and that it is the banks option as to whether to accept the money or proceed with the foreclosure. To my knowledge that argument has lost 100% of the time. And THAT means the homeowner was able to get the proverbial free house or otherwise settle under seal of confidentiality (which might include the “free house.”)

Here is the UCC article by Douglas Whaley. [Words in brackets are from the Livinglies editor and not from Mr. Whaley]

the Golden Rule of Mortgage Foreclosure: the Uniform Commercial Code forbids foreclosure of the mortgage unless the creditor possesses the properly-negotiated original promissory note. If this can’t be done the foreclosure must
stop.
 *
all too often the Golden Rule of Mortgage Foreclosure is simply ignored and the foreclosure goes ahead as if the rule were not the statutory law of every jurisdiction in the United States.1
 *
Why is that? The answer is almost too sad to explain. The problem is that the Uniform Commercial Code is generally unpopular in general, and particularly when it comes to the law of negotiable instruments (checks and promissory notes) contained in Article Three of the Code. Most lawyers were not trained in this law when in law school (The course on the subject, whether called “Commercial Paper” or “Payment Law,” is frequently dubbed a “real snoozer” and skipped in favor or more exotic subjects), and so the only exposure to the topic attorneys have occurs, if at all, in bar prep studies (where coverage is spotty at best). Thus many foreclosures occur without it occurring to anyone that the UCC has any bearing on the issue.
 *
If the defendant’s attorney announces that the Uniform Commercial Code requires the production of the original promissory note, the judge may react by saying something like, “You mean to tell me that some technicality of negotiable instruments law lets someone who’s failed to pay the mortgage get away with it if the promissory note can’t be found, and that I have to slow down my overly crowded docket in the hundreds of foreclosure cases I’ve got pending to hear about this nonsense?” It’s a wonder the judge doesn’t add, “If you say one more word about Article Three of the UCC you’ll be in contempt of court!”
 *
The debt is created by the signing of a promissory note (which is governed by Article Three of the Uniform Commercial Code); the home owner will be the maker/issuer of the promissory note and the lending institution will be payee on the note. There is a common law maxim that “security follows the debt.” This means that it is presumed that whoever is the current holder of the promissory note (the “debt”) is entitled to enforce the mortgage lien (the “security”). The mortgage is reified as a mortgage deed which the lender should file in the local real property records so that the mortgage properly binds the property not only against the mortgagor but also the rest of the world (this process is called “perfection” of the lien).1
 *
{EDITOR’S NOTE: Technically the author is correct when he states that a debt is created by the signing of a promissory note governed by Article 3 of the Uniform Commercial Code. But it is also true that the note is merely a written instrument that memorializes the “loan contract” and which in and unto itself constitutes evidence of the debt.
 *
This means that some sort of transaction with a monetary value to both sides must have taken place between the two parties on the note — the maker (borrower) and the payee (the lender). If no such transaction has in fact occurred then, ordinarily the note is worthless and unenforceable. But in the event that a third party purchases the note for value in good faith and without knowledge of the borrowers defenses, the note essentially and irrevocably becomes the debt and not merely an evidence of the debt. In that case the note is treated as the debt itself for all practical purposes.
 *
Such a purchaser would be entitled to the exalted status of holder in due course. Yet if the borrower raises defenses that equate to an assertion that the note should be treated as void because there was no debt (the maker didn’t sign it or the maker signed it under false pretenses — i.e. fraud in the execution) then in most cases the HDC status won’t prevail over the real facts of the case..The corollary is that if there was no debt there must have been no loan.
 *
This would be fraud in the inducement which moves the case into a gray area where public policy is to protect the innocent third party buyer of the note. All other defenses raised by borrowers are affirmative defenses (violations of lending statutes, for example) raising additional issues that were not presented nor implied in the complaint  enforce the note or the nonjudicial procedure in which the note is being enforced by nonjudicial foreclosure.}
 *
The bankers all knew the importance of the mortgage, and supposedly kept records as to the identity of the entities to whom the mortgage was assigned. But they were damn careless about the promissory notes, some of which were properly transferred whenever the mortgage was, some of which were kept at the originating bank, some of which were deliberately destroyed (a really stupid thing to do), and some of which disappeared into the black hole of the financial collapse, never to be seen again.
 *
Filing fees in real property record offices average $35 every time a new document is filed. The solution was the creation of a straw-man holding company called Mortgage Electronic Registration Systems [MERS]. MERS makes no loans, collects no payments, though it does sometimes foreclose on properties (through local counsel). Instead it is simply a record-keeper that allows its name to be used as the assignee of the mortgage deed from the original lender, so that MERS holds the lien interest on the real property. While MERS has legal title to the property [EDITOR’S NOTE: this assertion of title is now back in a grey area as MERS does not fulfill the definition of a beneficiary under a deed of trust nor a mortgagor under a mortgage deed.], it does not pretend to have an equitable interest. At its headquarters in Reston, Va., MERS (where it has only 50 full time employees, but deputizes thousands of temporary local agents whenever needed) supposedly keeps track of who is the true current assignee of the mortgage as the securitization process moves the ownership from one entity to another.3
 *
Meanwhile the homeowner, who has never heard of MERS, is making payment to the [self proclaimed] mortgage servicer (who forwards them to whomever MERS says is the current assignee of the mortgage) [or as is more likely, forwards the proceeds of payments to the underwriter who sold bogus mortgage bonds, on which every few months another bank takes the hit on a multibillion dollar fine]..

Article 3 of the Uniform Commercial Code could not be clearer when it comes to the issue of mortgage note foreclosure. When someone signs a promissory note as its maker (“issuer”), he/she automatically incurs the obligation in UCC §3-412 that the instrument will be paid to a “person entitled to enforce” the note.5″Person entitled to enforce”—hereinafter abbreviated to “PETE”—is in turn defined in §3-301:

“Person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person

not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d) . . . .

[Editors’ note: the caveat here is that while the execution of a note creates a liability, it does not create a liability for a DEBT. The note creates a statutory liability while the debt creates a liability to repay a loan. Until the modern era of fake securitization, the two were the same and under the merger doctrine the liability for the debt was merged into the execution of the note because the note was payable to the party who loaned the money.

And under the merger doctrine, the debt is NOT merged into the note if the parties are different — i.e., ABC makes the loan but DEF gets the paperwork. Now you have two (2) liabilities — one for the debt that arose when the “borrower” received payment or received the benefits of payments made on his/her behalf and one for the note which is payable to an entirely different party. Thus far, the banks have succeeded in making the circular argument that since they are withholding the information, there is not way for the “borrower” to allege the identity of the creditor and thus no way for the “borrower” to claim that there are two liabilities.]

Three primary entities are involved in this definition that have to do with missing promissory notes: (1) a “holder” of the note, (3) a “non-holder in possession who has the rights of a holder, and (3) someone who recreates a lost note under §3-309.6

A. “Holder”

Essentially a “holder” is someone who possesses a negotiable instrument payable to his/her order or properly negotiated to the later taker by a proper chain of indorsements. This result is reached by the definition of “holder” in §1-201(b)(21):

(21) “Holder” means:

(A) the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession . . . .

and by §3-203:

(a) “Negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

(b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

The rules of negotiation follow next.

B. “Negotiation”

A proper negotiation of the note creates “holder” status in the transferee, and makes the transferee a PETE. The two terms complement each other: a “holder” takes through a valid “negotiation,” and a valid “negotiation” leads to “holder” status. How is this done? There are two ways: ablankindorsement or aspecialindorsement by the original payee of the note.

 *
With a blank indorsement (one that doesn’t name a new payee) the payee simply signs its name on the back of the instrument. If an instrument has been thus indorsed by the payee, anyone (and I mean anyone) acquiring the note thereafter is a PETE, and all the arguments explored below will not carry the day. Once a blank indorsement has been placed on the note by the payee, all later parties in possession of the note qualify as “holders,” and therefore are PETEs.7
 *
Only if there is a valid chain of such indorsements has a negotiation taken place, thus creating “holder” status in the current possessor of the note and making that person a PETE. With the exception mentioned next, the indorsements have to be written on the instrument itself (traditionally on the back).
 *
the allonge must be “affixed to the instrument” per §3-204(a)’s last sentence. It is not enough that there is a separate piece of paper which documents the unless that piece of paper is “affixed” to the note.10What does “affixed” mean? The common law required gluing. Would a paper clip do the trick? A staple?11
 *
a contractual agreement by which the payee on the note transfers an interest in the note, but never signs it, cannot qualify as an allonge (it is not affixed to the note), and no proper negotiation of the note has occurred. If the indorsement by the original mortgagee/payee on the note is not written on the note itself, there must be an allonge or the note has not been properly negotiated, and the current holder of that note is not a PETE (since there is no proper negotiation chain). THE LACK OF SIGNATURE BECOMES A SERIOUS ISSUE IN THE CURRENT ERA BECAUSE OF WHAT HAS BEEN DUBBED “ROBO-SIGNING” THE EXACT DEFINITION OF WHICH HAS NOT YET BEEN DETERMINED BUT IT REFERS TO THE STAMPED OR EXECUTED SIGNATURE BY ONE POSSESSES NO KNOWLEDGE OR INTEREST IN THE CONTENTS OF THE INSTRUMENT AND ESPECIALLY WHEN THE PERSON HAS NO EMPLOYMENT OR OTHER LEGALR RELATIONSHIP WITHT EH ENTITY ON WHOSE BEHALF THE INDORSEMENT WAS EXECUTED. As stated in one case the base of robo-signing is that it is a forgery and therefore amounts to no signature at all which means the note has not really be negotiated, all appearances to the contrary. ]
 *
The Code never requires the person making an indorsement to have an ownership interest in the note13 (though of course the payee normally does have such an interest), but simply that he/she is the named payee, and the Code clearly allows for correction of a missing indorsement. [EDITOR’S NOTE: Here is where the enforcement tot he note and the ability to enforce the mortgage diverge, See Article 9. The possessor of a note that is properly signed by a party to whom the note was payable or indorsed commits no offense by executing an indorsemtn in blank (bearer) or to another named indorse. The author is correct when he states that ownership of the note is not required to enforce the note; but the implication that the right to foreclose a mortgage works the same way is just plain wrong, to wit: foreclosure is ALL about ownership of the mortgage and Article 9 provisions specifically state the ownership means that the purported holder has paid value for it]. 
 *
  1. 13   Thieves can qualify as a “holder” of a negotiable instrument and thereafter validly negotiate same to another; see Official Comment 1 to 3-201, giving an example involving a thief.
  2. 1.  Subsections (a) and (b) are based in part on subsection (1) of the former section 3-202.  A person can become holder of an instrument when the instrument is issued to that person, or the status of holder can arise as the result of an event that occurs after issuance.  “Negotiation” is the term used in article 3 to describe this post-issuance event.  Normally, negotiation occurs as the result of a voluntary transfer of possession of an instrument by a holder to another person who becomes the holder as a result of the transfer. Negotiation always requires a change in possession of the instrument because nobody can be a holder without possessing the instrument, either directly or  through an agent.  But in some cases the transfer of possession is involuntary and in some cases the person transferring possession is not a holder.  In defining “negotiation” former section 3-202(1) used the word “transfer,” an undefined term, and “delivery,” defined in section 1-201(14) to mean voluntary change of possession. Instead, subsections (a) and (b) used the term “transfer of possession” and subsection (a) states that negotiation can occur by an involuntary transfer of possession.  For example, if an instrument is payable to bearer and it is stolen by Thief or is found by Finder, Thief or Finder becomes the holder of the instrument when possession is obtained.  In this case there is an involuntary transfer of possession that results in negotiation to Thief or Finder. 
  3. [EDITOR’S NOTE: The heading for UCC 3-201 indicates it relates to “negotiation” of a note, not necessarily enforcement. The thief might be able to negotiate the note but enforcement can only be by a party with rights to enforce it. While a holder is presumed to have that right, it is a rebuttable presumption. Hence either a borrower or the party from whom the note was stolen can defeat the thief in court. But if the negotiation of the note includes payment of value in good faith without knowledge of the borrower’s defenses or complicity in the theft, then the successor to the thief is a holder in due course allowing enforcement against the maker. The borrower or victim of theft is then left with actions at law against the thief.]
 

8 Responses

  1. A Psychodrama of Our Lives
    An advance transcript of prepared remarks

    SETTING: Supreme Court of the United States. Dave McCrae is presenting Oral Argument in Favor of Cause 18-41, Sometime in the Future. All JUSTICES are present, John Roberts, Anthony Kennedy, Clarence Thomas, Ted Cruz, Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Chris Christie. Donald Trump is President. Trey Gowdy is Attorney General of the United States. I know, let’s just close our eyes and pretend…

    [CURTAIN]

    DAVE: Good Morning, IUSTICII! We are finally assembled! What a Great Morning! I’m Dave McCrae, slave of Christ Jesus and Natural Citizen of the United States, and resident of Texas, with all of the rights and privileges attendant thereto, and it is indeed my honor to greet all the JUSTICES of The Supreme Court of the United States of America who are here assembled in Washington, D.C., CHIEF JUSTICE John Roberts, JUSTICE Anthony Kennedy, JUSTICE Clarence Thomas, JUSTICE Ted Cruz, JUSTICE Stephen Breyer, JUSTICE Samuel Alito, JUSTICE Sonia Sotomayor, JUSTICE Elena Kagan, JUSTICE Chris Christie with their clerks and attendants, Grace and Peace to you, from God Our Father and the Lord Jesus Christ! I know that y’all read a lot, and I know you’ve read our cause, and I know you already have a considered and well formed opinion. We ALL have opinions! I’d like to take our brief time together today to go out exploring and do a little psychodrama, and get into the nuts and bolts of our diversity, and do some clarifying, and just explore these knotty issues before us. I hope you’ll enjoy our brief time together, and I know we’ll all learn something new. First, I have to ask, has anyone of you ever served on a jury? Before you entered the legal profession? I know you would be struck immediately if we were assembling a jury down the street. Nobody? Ok, we have a pool of nine, and these nine are acceptable to me! Oh, one more question, I’m sorry I almost forgot, I see from the information pool that you guys all work for a paycheck, am I correct? That’s better yet, we are all peers here. I’m presenting my cause, and I’m asking you to judge my cause, and we are all peers. This is a foundation on which we can build. So let’s set aside our personae, and get ourselves into character a bit. The rule is…there are no rules! You are all Free American Citizens! You’re on a jury! Let’s do some considering!….

    [SETUP CHAIR and EGG TIMER]

    [BEGIN THE BEGUINE – SONIA, JOHN, CLARENCE, Y’all have speaking parts, just chime in when it’s your turn, any questions among the jury as we go, just speak out.]

    DAVE: Here’s our situation. I’m going to buy this here CHAIR. I need to borrow $100. Sonia, how about lending me $100 to buy this here CHAIR. You got $100 on you?

    SONIA: No, Dave, I’m sorry, I’m not a lender.

    DAVE: Well, SONIA, I’m sorry too, I didn’t make myself clear, I apologize. You need to borrow the $100 from JOHN, he’s actually going to give you $110, you keep the extra $10 I already gave JOHN, give me the $100, I buy the chair, you have the extra $10, well you’re not really borrowing, you’re not really lending, you’re just doing a service and making a little money. That sounds pretty good, right? Neither a borrower nor a lender be! Have you had coffee this morning? How about a Flat White Grande? That sounds pretty good, right? And BTW, you look really great today, I love your hair. Do you put stuff on it? Do you like Hawaii? Ever been there? Wanna go there?

    JOHN: Here’s your $10 SONIA. DAVE already got his chair. You need more, call anytime. We’re here to help 24-7. We’ve got a website now, you can have cash in one hour! Call me!

    [ASIDE TO AUDIENCE – JOHN has no money either, just checks. He’s just a useful idiot. Let’s see what happens. On with the show!]

    SONIA: Oh. I guess that’s OK then. 🙂

    [TIME OUT – TURN EGG TIMER #1]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #2]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18. We did pretty good this period, I’m giving you an extra $14. Just credit me.

    [TIME OUT – TURN EGG TIMER #3]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #4]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #5]

    SONIA: (wondering) Where’s DAVE? That asshole! Probably drunk or something. This is getting kind of old…these Texas people are just deplorable…

    DAVE: Hey SONIA, I’m back! Here’s your $28, and an extra $3, I got kind of hung up. The car broke, the dog ate my homework, I’ll spare you the detail. Keep the $3. It won’t happen again. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #6]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #7]

    DAVE: Hey SONIA, I’m back! Here’s your $78. I’m putting in an extra $50, that’s half my chair! Be sure and credit me! Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #8]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #9]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #10]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #11]

    DAVE: [NOTHING HAPPENS]

    [TIME OUT – TURN EGG TIMER #12]

    DAVE: Hey SONIA, I’m back! Here’s your $56. Double for last time. Send JOHN his $36.

    [TIME OUT – TURN EGG TIMER #13]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Send JOHN his $18.

    [TIME OUT – TURN EGG TIMER #14]

    DAVE: Hey SONIA, I’m back! Here’s your $28. Hey, my computer does amortization tables and all that stuff, my computer says I’m way ahead, I think I owe you another $4.18 for the CHAIR and we’re all square. Could you check with JOHN?

    [TIME OUT – TURN EGG TIMER #15]

    SONIA: [NOTHING HAPPENS]

    [TIME OUT – TURN EGG TIMER #16]

    SONIA: [NOTHING HAPPENS]

    [TIME OUT – TURN EGG TIMER #17]

    SONIA: Hey DAVE this sucks, we’re going to sell your CHAIR. We’re tired of dithering. Courthouse steps, 10:00 am. You’re in Texas, right? Never been there. We’re sending BBDFTE.

    DAVE: I’m sorry SONIA, I have to do some STRATEGERY here, I’m BANKRUPT. I’ll sit here in MY CHAIR until HELL freezes over. Tell CLARENCE your problems.

    [TIME OUT – TURN EGG TIMER #18]
    [TIME OUT – TURN EGG TIMER #19]
    [TIME OUT – TURN EGG TIMER #20]
    [TIME OUT – TURN EGG TIMER #21]
    [TIME OUT – TURN EGG TIMER #22]
    [TIME OUT – TURN EGG TIMER #23]
    [TIME OUT – TURN EGG TIMER #24]
    [TIME OUT – TURN EGG TIMER #25]
    [TIME OUT – TURN EGG TIMER #26]

    CLARENCE: OK, SONIA, here’s your $4.18 OK DAVE, here’s your CHAIR. Now go away and don’t come back for SEVEN YEARS. You and DONALD have a nice life!

    DAVE: OK, SONIA, you heard from CLARENCE. I have my CHAIR. Pay me what you owe me. BTW, this racket sucks. I have 1182 FRIENDS. Pay us all. You heartless bitch.

    [THE JURY IS EXCUSED]

    [CURTAIN]

  2. In CA non judicial you can turn the tables by answering unlawful detainer and request jury trial. Homeowner can then be charged for deficiency though and only 5 days to Answer. So basically you have to go through sale and raise defenses in UD court and/or separate action to address title issues although theoretically void deed by TILA should be in effect but not willing to address in my UD hearing.

  3. Reblogged this on Deadly Clear and commented:
    ” the judge may react by saying something like, “You mean to tell me that some technicality of negotiable instruments law lets someone who’s failed to pay the mortgage get away with it if the promissory note can’t be found, and that I have to slow down my overly crowded docket in the hundreds of foreclosure cases I’ve got pending to hear about this nonsense?””

    So, judge – do you know where your original note is at the moment? Oh, that’s right your half a million dollar mortgage was miraculously paid off in 2008 – I’m sorry, I forgot.

  4. …. Incorrect.!! Creditors always have the burden of proof, if you know [this] as the fact that [it] is!!

    The “laws” do not say that non-judicial foreclosure statutes supplant the UCC, not at all. Only ignorant or conspiratorial state judges in California [try] to apply that opinion, but it remains a FALSE STATEMENT, regardless of how many times it gets repeated.

    Only ignorant or lazy litigators [allow] a judge to state such garbage, as “law” or statute. Don’t start agreeing with false statements just because the California state judiciary can’t see daylight yet due to their heads being shoved up their asses..

    The California federal bankruptcy court … [routinely] applies California real property law [better] than state court judges apply California real property law.

    NEVER … and, I mean NEVER would such [shitty] reasoning, that the [only] thing that matters in a California non-judicial foreclosure is the Deed of Trust … would ever be accepted in the California federal bankruptcy court.

    If the alleged creditor tried to argue [its] perfected status in a California bankruptcy court, by claiming the deed of trust as the controlling factor rather than the obligation itself … they would lose miserably!!

    The UCC controls EVERY California foreclosure … both judicial and non-judicial, alike!! (PERIOD)

  5. Unconstitutional

  6. Of course, one has to be careful in using Doug Whaley’s analysis. Though he is a noted UCC Scholar and author, it remains that in many jurisdictions with statutory schemes for nonjudicial foreclosure, the laws (caselaw or statute) say that the nonjudicial foreclosure laws supplant the UCC when dealing with the issue of foreclosure (e.g., California’s Civil Code section 2924 and the DeBrunner case.

    Whether it is a nonjudicial or judicial foreclosure also affects this analysis in another way – as to who has the burden of proof. In a judicial foreclosure, the plaintiff is the bank and has the burden of proof and must establish it has standing. In a nonjudicial foreclosure there is no such requirement (in most if not all states) and if one sues to challenge the foreclosure, the homeowner then becomes the plaintiff with the burden of proof.

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