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Affidavit of Lost Note and Mortgage

I had a conference today with a Senior Judge in St Lucie County I was trying to dismiss my case for Lack Of Prosecution because nothing had been filed since 4/11/2011 on my foreclosure case which he denied. The judge is setting the case for a hearing in October the banks attorney did state that he will file an Affidavit of lost Note. Should I refile produce original note which I already did back in 2008? I have stalled this for 4 years. Or what else can I do to get the case dismissed. I know that the loan was securitized it is HSBC Trustee for Mana-2007 the plaintiff attorney today said the loan is owned by Wells Fargo and Americas Servicing Company. Please any suggestions would be appreciated.

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Permalink Reply by Striker on July 9, 2012 at 9:03pm

Unfortunately the judges dont seem to care that they do not enforce the FRCP. . .their view is that you signed the note so you are the bad guy. . . clearly the judge should have ruled in your favor. . . but the banks can do no wrong. I had a court date for a MSJ last month and the bank did not show. . . if you or I had not shown up for a court hearing we would have lost by default. . .so the banks get special treatment and there seems to be no legal remedy short of a concerted mass revolt against the financial institutions.

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Permalink Reply by jersey girl on July 10, 2012 at 10:32am

Somewhere on here recently, there was a discussion about dismissing cases due to the lack of prosecution, I just can't remember where I read it. Search around in here. I would consult with an Attorney on this one. Tool around in Fraud Digest. Alot of these trusts were closed before 2008.

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Permalink Reply by Phred Maldonaldo on July 11, 2012 at 9:05pm

Not strong on FL law, but the general principle is that if they file lost note, they also have to prove with corroborating evidence they 1) possessed the note at the time 2) were holders of beneficial interest 3) exactly the circumstances of why the note was lost. Corroborating evidence is business records of vault receipt or bailee letter, and GL entry of purchase of the note. Corroborating evidence would be the same for the entity that sold them the note. Request a statement of decision from court how decision of lost note is supported under FL law if these records are not entered into evidence with supporting affidavits so you have proper grounds for appeal. Because that's where this puppy is going. And BTW, if there were other possessors of the note, each one in the chain should be required to supply the vault record and the GL records of purchase and sale of the note. File a request for statement of decision separately, and cite the FL statutes about 1) requests for statement of decision 2) non holder in due course in commercial law 3) statute about lost note (commercial law) and case law to support those statutes.

Your request for statement of decision could also include the indulgence in the court in the seeming violation of statutes for abandonment of prosecution.

If I were an attorney, which I am not, that's what I would plan on doing, depending on state law. Since I am not an atty, you would be foolish to act on any opinion or recommendation such as the text above without contacting a licensed attorney for your state.