“Harmless” Motion to Return Original Documents in Court File Might Yield Explosive Effects

The bottom line is that lawyers for the banks and servicers are using a device that looks harmless but creates a strong presumption that the original note exists, that the clerk of the court received it, and that it was apparently sent to the offices of the attorneys that represent the banks or servicers in foreclosure litigation. All this despite the fact that no original note was ever produced, shown, filed or admittted into evidence.
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What I have found is that some clerks of the court have realized that they are being used by the banks and servicers to create a presumption of a nonexistent fact.
It usually starts sometime after a foreclosure lawsuit has begun. The law firm for the named plaintiff files a notice along with a copy of the original note, but the notice says that it is the original note that is attached.
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At trial, the attorneys for the plaintiff in the foreclosure action make “reference” to the notice of filing and then get the court’s permission, usually without objection from the homeowners attorney, to use a copy for purposes of the foundation testimony of the Robo witness. Nobody looks at the court file to view the original.
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The attorney for the homeowner has made the same mistake that everybody else has made, to wit: he or she assumed that the lawyers representing the named plaintiff would not file a notice of filing of the original note without having done so. The colalteral assumption is that the Plaintiff’s counsel would not make reference to it unless he knew for a fact that it was in the Court file ebcause he had checked. But there is no need to check if you already know the original know is not there despite what it says on the Notice of Filing. The “error” sometimes is revealed when a forensic expert is called in to examine the note for authenticity.
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In the end, one side or the other wins and the other side loses.
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After judgment has been entered, the attorneys for the named plaintiff filed a motion requesting return of the original documentation in the court file. Generally this is done without opposition from the attorney for the homeowner, but that might change as attorneys become aware of the fact that the motion to return documents is part of a scheme.
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There are several possibilities.
  • One is that the original note was in fact filed. This is highly doubtful since most of the notes were intentionally destroyed shortly after execution.
  • Second, an “original” note has been fabricated and filed with their notice of filing.
  • Third, a copy of the original note was filed with the notice of filing.
  • Fourth, a copy of the original note containing some “certification” that it is a true and correct copy of the original note was filed with the notice of filing.
  • Fifth, nothing was filed with the notice of filing.
Such motions are usually granted as a matter of course by most judges in most courts. The “fun” happens when the clerk looks into the court file to find the original so that the clerk can return the original note to the plaintiff in the foreclosure lawsuit. Up until recently the clerk simply sent whatever was attached to the notice of filing and nobody knew that it was not the original.
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Now some clerks are sending a letter out saying that they have looked in the court file and no original note was attached to the notice of filing.
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So in this apparently harmless motion, the result can be an inescapable conclusion, to wit: that the plaintiff in the foreclosure suit failed to file the original note with the court or even produce it. At the very least this would require dismissal of the foreclosure action, usually without prejudice.
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But it could also include sanctions if there was a pattern of behavior of obfuscation by the attorneys for the named plaintiff, who probably does not exist and should most certainly does not know of the existence of the action.
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In the past some judges were granting orders permitting the “late filing” of the original note, letting the judgment against the homeowner standing. But judges and clerks are getting increasingly angry and worried about many of the practices of the banks and servicers and their presumptive attorneys. There should be no late filing because the evidence is closed, and the homeowner, counsel and forensic experts were never given an opportunity to test the authenticity of the document. There are probably other reasons.
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In cases where the Plaintiff wins, this could be extremely meaningful and important to the result. In cases where the homeowner wins the trial, nobody takes notice of the request to “return” “original documents.
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But after the case was dismissed without prejudice, the allegation can now be made in the next suit by whoever as Plaintiff against the homeowner that “they” lost the note or that the clerk lost the note — only this time they have a specific point in time that they can “prove” by fact and presumptions that the original note existed — i.e., the time when they asked for it to be “returned” and all indications were that it was returned or that the clerk lost the original note.
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Whatever the story they no longer neeed to go back before the motion requesting the return of the note — which is a free lunch for the named Plaintiff in foreclosure. Not be required to tell a credible story for a lost note for the entire time that the note was destroyed or “lost” starting with the origination of the note through various transfers either with or without sales of the note makes things a lot easier to foreclose.
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Note on the Nonjudicial States: The giant hole in due process in nonjudicial states is that nobody needs to actually have the original note. Nobody needs to see it. Anyone can simply assert that they are the successor beneficiary under the deed of trust, file a notice of substitution of trustee, instruct the new trustee to file a notice of default and notice of sale, and presto, they own the property through a false credit bid.
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The substitution of trustee is for one purpose only. The new trustee is protected by hold harmless and indemnification agreements with the fake successor beneficiary under the deed of trust. Usually the new trustee under the deed of trust is actually a controlled entity of the fake new beneficiary. While the original trustee would most likely have demanded the paperwork showing that the original note had been lawfully transferred to a successor “beneficiary”, as defined by the statutes, the new trustee does nothing except follow the
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While the original trustee would most likely have demanded the paperwork showing that the original note had been lawfully transferred to a successor “beneficiary”, as defined by the statutes, the new trustee does nothing except follow the instructions to file a notice of default and notice of sale. Since 96% of such “foreclosures” are not contested, that is the end of the story in most cases.

6 Responses

  1. The judges and lawyers for both parties know this from get go. The original documents were filed with the court. When the note is payable to the original lender and is filed with the court and the “bank /servicer/trustee/trust/ whoever” still wins , the problem lies with the judge. The judges are ignoring all law. How do you get around the fact that the judges won’t listen to anything. The judges are going to give the house to the pretender lender at all costs. Everything you can imagine or think of was litigated in my case right up to the Supreme Court of New Jersey and not one “Honest Judge” could be found. I’m sure there can’t be that many judges that don’t know or understand the law.

  2. We filed a complaint to litigate foreclosure. The judge asked the foreclosing attorney to bring a motion for summary judgement. They had sold our home in a non-judicial foreclosure and did not file the motion for summary judgement. What do we do next? Please give some advise. Could we ask the attorney to file original of the note with the court?

  3. I’m I an idiot or is the world missing the obvious. My original documents, signed in 2005, were on legal size paper. The so called original note, in my case and most I’ve looked at, are letter size and usually have various xeroxed “black marks” somewhere on this originally different document. My original, my copy, actually had the fax header at the top where the originator faxed it to the brokering agent. It even included pagination, excepting assignments supposed to have occurred on the same day after my signing at 11:30pm that evening at the property in dispute. Oh lordy, don’t get me started. I know, y’all been there, done/doing that!

  4. I mean haul in the BIG bucks

  5. For this, we allow big law firms and partners license to haul in the bucks??

  6. Sent from my MetroPCS 4G Android device

    Livinglies’s Weblog wrote:

    Neil Garfield posted: ” The bottom line is that lawyers for the banks and servicers are using a device that looks harmless but creates a strong presumption that the original note exists, that the clerk of the court received it, and that it was apparently sent to the offices of “

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