tag:blogger.com,1999:blog-5695890240300110384.post2160835840304186662..comments2023-12-08T23:54:11.220-05:00Comments on America Lost: What happens when a lender can’t produce the original note?DJLThttp://www.blogger.com/profile/12761269853937809556noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-5695890240300110384.post-73726125977045498702014-01-28T10:46:45.617-05:002014-01-28T10:46:45.617-05:00Make sure to read the article of Washington Mutua...Make sure to read the article of Washington Mutual and Chase , to undo this puzzle. DJLThttps://www.blogger.com/profile/12761269853937809556noreply@blogger.comtag:blogger.com,1999:blog-5695890240300110384.post-67374048656968919732013-12-21T13:40:20.041-05:002013-12-21T13:40:20.041-05:00Nice article. I think it is useful and unique arti...Nice article. I think it is useful and unique article.<b><a href="http://fhamortgagelendingsolutions.com/massachusetts-home-buyers/" rel="nofollow">FHA mortgage lending</a></b> Solutions offers affordable fixed rate mortgage loans to first-time homebuyers and repeat homebuyers in Ma.Anonymoushttps://www.blogger.com/profile/01043352936323016432noreply@blogger.comtag:blogger.com,1999:blog-5695890240300110384.post-83241438643199618752013-07-17T20:17:37.047-04:002013-07-17T20:17:37.047-04:00Natalie.. Thank you so much for this . I will writ...Natalie.. Thank you so much for this . I will write you soon and explain mine.. its very complicated. DJLThttps://www.blogger.com/profile/12761269853937809556noreply@blogger.comtag:blogger.com,1999:blog-5695890240300110384.post-3282146633936967112013-07-17T20:06:37.359-04:002013-07-17T20:06:37.359-04:00Email NatalieS.work1@gmail.com if there are questi...Email NatalieS.work1@gmail.com if there are questions on Washington Mutual Bank loans that Chase is now claiming that it purchased from the FDIC. Through a court case it appears the "Affidavit of the FDIC" signed October 2, 2008 by Robert Schoppe stating that Chase acquired the Washington Mutual Bank loans and loan commitments "by operation of law" is legally incorrect and that the FDIC never identified what Washington Mutual Bank loans or assets that were purported to have been sold through the Purchase and Assumption Agreement between the FDIC and Chase.<br /><br />In short, the Deed of Trust Act in non-judicial foreclosure states makes it much tougher for homeowners to overcome the missing negotiable instrument/note issues because the foreclosure law doesn't require them to prove they have possession of the original note prior to foreclosure. But keep eyes open for new ways to argue this and bring lawsuits to out this widespread issue of missing negotiable instruments. The bank doesn't want you to know they likely don't have possession of yours :)<br /><br />- NatalieS.work1@gmail.com (end)Anonymoushttps://www.blogger.com/profile/12652022621201701237noreply@blogger.comtag:blogger.com,1999:blog-5695890240300110384.post-64808215874444657482013-07-17T20:05:56.671-04:002013-07-17T20:05:56.671-04:00Lastly, bear in mind that banks/lenders stubbornly...Lastly, bear in mind that banks/lenders stubbornly refuse to understand that "original Note" means original, paper, one-of-a-kind object that has an ink signature on it. Many banks/lenders, whether intentionally or not, repeatedly choose to understand "original" Note to mean a COPY of the Note as it looked shortly after origination of the loan. That is not at all the same as the original PAPER Note as it appears now, with possible stamped endorsements showing who the new proper party entitled to enforce the loan is.<br /><br />Great cases to read:<br /><br />State Street v. Lord (Florida)<br />Joslin v. Robinson Broadccasting<br /><br />But make sure that your own state's version of the "Enforcement of Lost, Stolen or Destroyed Instrument" is exactly the same as Washington state's RCW 62A.3-309 (Google it to make a direct comparison to your own state's).<br /><br />Side note: If your loan is a Washington Mutual Bank loan that Chase is now trying to enforce, be aware that if there is any "lost note affidavit" from the FDIC as Receiver of Washington Mutual Bank, that this is likely false. According to Freedom of Information Act request responses from the FDIC, the FDIC never took any accounting of what Washington Mutual Bank had on the exact date that it closed on September 25, 2008 and therefore the FDIC would not have had time to identify missing negotiable instruments/notes in order to issue any "lost note affidavits" related to your loan.<br /><br />Also ask to see a copy of the note - if it has a rubber stamped "endorsement in blank" on it with a rubber stamped Cynthia Riley or other signature, this may be a problem for the bank/lender. (continued)Anonymoushttps://www.blogger.com/profile/12652022621201701237noreply@blogger.comtag:blogger.com,1999:blog-5695890240300110384.post-48541986724919943112013-07-17T20:05:14.337-04:002013-07-17T20:05:14.337-04:00So the short version is this: If you're in a s...So the short version is this: If you're in a state that has a Deed of Trust Act, you're likely hosed because the foreclosing trustee is not required to produce the original note to prove their right to foreclose. They just have to produce paperwork in line with the sale requirements. It's up to the homeowner to bring a separate lawsuit to try and dismantle their cover-up of the lack of physical possession, and that takes a different strategy that I haven't seen successfully pulled off yet (but it could happen at any second as both sides get smarter and more precise based on all these recent court rulings :)<br /><br />The Washington statute related to "Person Entitled to Enforce" a negotiable instrument is googlable under "RCW 62A.3-301" and the "Enforcement of Lost, Destroyed or Stolen Instrument" is googlable under "RCW 62A.3-309." I include Washington state's here so that you can google specific phrases and keywords from it to find the corresponding version in your own state - it may be exactly the same, or it may be different, so take care! :)<br /><br />States tend to have similar versions, but note that Washington's 3-309 is an older version (the D.C. case of Joslin v. Robinson Broadcasting in 1996 was a turning point that caused the Uniform Commercial Code committee to quickly change the Code, and then only some of the states adopted the post-Joslin version - which version does your state have?) in which the party claiming the right to enforce must prove that they had physical possession at the time that the negotiable instrument was lost. Other states have a different version in which the party claiming the right to enforce need only show that they acquired rights directly or indirectly from the party that had physical possession before that. <br /><br />That's a bit of a slippery slope, so make sure you read your state's equivalent to Washington state's RCW 62A.3-309 related to proving up lost negotiable instruments. Also crucial is whether or not your lender has a "lost note affidavit" stating that they possessed it when they lost it, or whether someone they claim to have bought or been assigned the loan from had this "lost note affidavit" which serves as a stand-in for possession of the original note itself. (continued)Anonymoushttps://www.blogger.com/profile/12652022621201701237noreply@blogger.comtag:blogger.com,1999:blog-5695890240300110384.post-4982299508046787042013-07-17T20:04:21.685-04:002013-07-17T20:04:21.685-04:00Bear in mind that in non-judicial foreclosure stat...Bear in mind that in non-judicial foreclosure states such as California, Washington, and Idaho, where the lender does not have to sue the homeowner to foreclose but can instead do it outside of the court process, that the Deed of Trust Act in each state allows the foreclosing trustee to proceed with the sale of the home without having to produce the original note. Ugh! It is up to the homeowner to initiate a lawsuit requesting inspection of the original note. Tricky stuff. I would expect that a lawsuit seeking Declaratory Relief from the judge that the bank is not entitled to enforce the Note or to foreclose would be enough, but it seems that these have to be perfect or they get thrown out. Still figuring out what it takes to be "perfect" to request a Declaratory Judgment from a court related to non-possession of the Note.<br /><br />Also, very important, the promissory note must meet the requirements of a "negotiable instrument" in your state. In Washington state, for instance, this is under RCW 62A.3-104 if you'd like to google it as an example. Then use keywords from this statute and google the comparable section for your own state. Short version is this: Does your promissory note say "Pay to the Order of" on it? Does it list a dollar amount? This is likely a negotiable instrument. On the other hand, if you have a home equity line of credit, sometimes these do not list a dollar amount, or are worded more like a credit card agreement. If it does not meet the "negotiable instrument" definition then the lenders may not be required to have physical possession of the original. If it is not a "negotiable instrument" then they can try to have the note considered as a regular ol' contract, in which case a copy of a contract is generally enough to prove a debt. It is with "negotiable instruments" where the note becomes a one-of-a-kind object, and "the right to payment is reified in the instrument itself." Sorta like cash. You lose a $100 bill, that's it, you can't get that $100 back usually (unless you have insurance, etc. but that's another story outside this analogy :). You lose the original "negotiable instrument" (note) than you can't get paid either.<br /><br />Check the Florida Bankers Association's official remarks to the Florida Supreme Court, in which they state that it is an industry standard for banks to scan the negotiable instrument (note) and then destroy it, for convenience and not having to store the original objects. Guess what: doesn't comply with the law. They don't break the law by shredding a note, but they basically just ruined their own chances to get money from it. They don't want us to know that they don't have the original - try asking with a Qualified Written Request to inspect the original note and you will get an amazing amount of resistance. In a case out of Washington state, McDonald v. IndyMac (I think), the bank got caught admitting that they were endorsing multiple copies of the negotiable instruments and trying to pass each copy off as a the real "original" - that's like counterfeiting money. (continued)<br />Anonymoushttps://www.blogger.com/profile/12652022621201701237noreply@blogger.comtag:blogger.com,1999:blog-5695890240300110384.post-69528203568710842522013-07-17T16:49:30.555-04:002013-07-17T16:49:30.555-04:00Thanks JK Thanks JK DJLThttps://www.blogger.com/profile/12761269853937809556noreply@blogger.com