Florida "original note" requirement

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Permalink Reply by Phred Maldonaldo on February 22, 2011 at 9:19pm

Not an attorney, but came across the legal concept of sequestration of documents by the court. There may be tucked away in the statutes such a procedure, but it may be 'obsolete' from disuse, and require specific request from a party to implement. Sequestration would likely mean the court holds the original contract at its premises for examination by parties, to be returned to a party after end of proceedings.

 

In CA there appears the terms 'original note' and 'true copy' which are defined as separate entities. The borrower has to specifically ask for the return of the original note and deed of trust at the termination of a mortgage or else they only get a 'satisfaction' certificate from the lender. In my case I let the court know in advance I am requesting the original note whether I win or lose in order to avoid the dodge "... you don't need the original note to foreclose..." so they better come up with it at the trial.

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Permalink Reply by Suze2011 on February 23, 2011 at 7:30am

Thanks, I'll keep looking using some different terms.   My main concern though is that I fear that the court may accept the bank's alleged "Notice of Filing Original Note" as a type of sequestration (or whatever FL calls it), but since the county is paperless, I can't have my expert review the actual wet ink note. 

I think I'm going to have to call some of my former colleagues who now work in foreclosure defense.  I just hate doing that because you know attorneys...they never return your calls or emails. :)

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Permalink Reply by Maria Matos-Picarelli on September 28, 2012 at 8:50pm

What county in Florida are you referring to.  I know that because Orange County has gone paperless that the original file that claims to have the "Original Note" can be ordered from their warehouse.  I believe it takes 24 - 48 hours for the original file to be available for inspection.  I am also aware of a Forensic Document Examiner that for $150 will examine the authenticity of the note.  This document examiner can tell if the ink is original or copied.  If you have a sample of the signatures, he can tell if the person or person on the mortgage actually signed the "original note" that has original ink.  Original Notes should not have Paid to the Order of ______.  Otherwise it is no longer a note...it is evidence that it has been converted into a draft and that the bank has been paid.  Anyway, The Forensic Document Examiner's phone # is : 407-234-3219.  His name is Thomas Vastrick. Let him know that Maria Matos-Picarelli referred you.

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Permalink Reply by saving my home in floridah on September 28, 2012 at 11:43pm

thank you maria please accept my friend notice and we will talk. thanks for the info.  i am in discovery right now.  will definitely need my note checked eventually.  you see the signature on my note and the mortgage do not match.  they defenitely robosigned it,

 

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Permalink Reply by saving my home in floridah on February 23, 2011 at 12:27am

hi suze  what w eknow out here in foreclosure land is the original note is the  ink note signed at v=closing with our pen and notarized and stamped.  the court loves when a defendent does not show.  they just give the house to the bank.  please  try a file an appeal  and ask for the wet ink note,  the original.  the robo sign they have machines with pens that trace our sigs.  so having a keene eye is important.  check notary date also.  all my mortgage paper work is blank  so not sure what they are are going to say.   or do.  not sure how the modifications  effect this.  good luck we need it   are oyu in florida???   rally in tally march 9th

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Permalink Reply by Suze2011 on February 23, 2011 at 7:23am

This didn't happen to me - I just witnessed it happening to others.  I was there and got a continuance (they gave me their witness and exhibit lists too late - just days ago).   I was wondering if anybody who HAD shown up and defended themselves had a judge accept as an original an earlier filing of a COPY that purports to be the "original note" without making them produce the actual wet ink note, or were they able to successfully challenge that.   

 

In a "normal" non-foreclosure case if you have somebody testify that a copy is a "true and accurate copy" of the original, that suffices for admitting the copy into evidence.  I know foreclosures are different in many ways, and I am wondering if this is one of those ways.  The way I read the law, they really do need the  true wet ink original note, but I'd like to know if anybody knows how to handle it (other than strenuous objections) if and when the court accepts this alleged "original note" that was filed early in the case.  I'm also working a fraud angle on the allonge and assignment (think I've got it on the assignment!), so that may negate everything.

Yes, I'm in Florida - but SW FL, so an 8 hour drive or couple hour flight from Tally. Leave it to Florida to put their capital in the most inaccessable place in the state!  Well, Key West may be worse, but at least it's more fun.  :)

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Permalink Reply by Maria Matos-Picarelli on September 28, 2012 at 8:59pm

I was just googling and came across this site.  Just realized after answering a questions that all these messages are dated 2011.  Today is September 28, 2012.  How is your case coming along.  I also am disputing the assignment and note on a few properties.

 

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Permalink Reply by Dan JS on February 23, 2011 at 8:02am

The "deal" regarding the actual, physical note, has to do with the "proof" the debtor owes someone money secured by a mortgage or deed of trust.  That "original note" (a "promise to pay" and conditions,) with the signatures of the debtor and the representative of the "real" lender or current, legal owner of the "contracts of debt and/or ownership" is necessary to enforce payment of the debt by foreclosure.  (A "contract" is a "property" that can be sold or traded.... and every note and mortgage/deed is a contract.)

 

The local clerk's office that "records" the note, records only  copies of the "original note" and/or mortgage.  In my opinion, these are the only "copies" courts should be examining to determine ownership and "lein position" status.... not electronic "copies" that can be digitally altered.

 

The "original documents" should rightfully be physically secured by the original lender, or by an alternate owner if they have been sold or otherwise transferred. That physical possession is necessary so that the original documents may be physically protected from unlawful alteration and presented as "proof" of contractural default to the legal entity authorized to "enforce" any subsequent foreclosure proceedings. 

 

It would make no sense for anyone other than the actual "owner" or an appointed trustee to retain possession of these documents..... else, the documents could be stolen or altered in ways that are in opposition to the original, contractual terms of the written "promise to pay" (the note.) 

 

[Even a "Mortgage Servicer" should not be a "holder" of the orginal loan documents.  They should operate only as a legally appointed "agent" of the owner, not as a "depository" for property... the "contracts.")

 

According to my understanding of the law re "negotiation" (legal transfer of documents,) the "original note" must "follow" (be physically attached) to the "original mortgage/deed of trust document," else the "note" is no longer "secured" by the terms of the mortgage/deed.  (Caveat: I'm not a lawyer.) Both documents must be physically presented to legal representatives of the proper local jurisdiction (where a copy of the note/deed was physically "recorded,) before a "foreclosure sale/auction" so that the "records" can be referenced to determine if any existing legal leins are "superior" to the note being foreclosed upon.

 

And on these very important issues.... the whole present "mortgage foreclosure" mess rests! 

 

Today, this traditional way of recording and proving property ownership has been circumvented by the unauthorized intervention of Mortgage Electronic Recording Services, Inc. (MERS). Because they have "insinuated" themselves into to the 300 years old, private property recording process, in an  "institutional" way without the legal "authority" to do so, every financed parcel of land in our nation that had MERS mentioned in the closing papers associated with real estate loans has a "cloud" on the title of ownership.

 

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Permalink Reply by Suze2011 on February 23, 2011 at 10:36pm

The judge has a computer screen in front of her.   I went to the clerk and requested the hard file (have learned as an attorney it's best not to DEMAND things from the clerk - they can be your best friend or your worst enemy so be nice to them) and was told there was no hard file - only digital.

 

There are 1000 - okay maybe only 900 - exceptions to the hearsay rule.  One of them is the business records exception and that's what the banks use to get the note in - original or otherwise.  Certifying a doc is for court or official records and is just another way around the hearsay rule.  Also, it's hearsay whether or not it's the original - an out of court statement offered in evidence to prove the truth of the matter asserted.  :)

 

But yes, there is definitely an issue with the paperless system.  Maybe I can blow the lid off of it!

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Permalink Reply by Dan JS on March 2, 2011 at 8:53am

In the many "non-judical" states, there is no Judge... there is no hearing.  I know of precious little addressing these central issues relative to ForeclosureGate. I'm of the opion that in these "off the radar states" far more robo-signing and other shenanigans are taking place... far from the discerning eyes of any "just judges."  (I would really appreciate anyone who can provide historical information as to just how "Non-judical Foreclosure" was introduced into these affected states.  Any homeowner who needs financing has no choice in these states but to contracturally sign away their contstitutional rights to judicial review.)

 

Even if there were judges "using computer screens," such "proof" provided by MERS is likely to be a "digital copy" of any note.... little protection against digital manipulation or even the possibility of "forgeries by color printers" (See Faked "Original" Note Exposed http://4closurefraud.org/2011/03/01/busted-foreclosure-mill-files-f...   )

 

 If you know of any related developments in Non-Judicial states (especially in GA,) please post such information on Foreclosure Hamlet and on 4ClosureFraud sites.  Thank you!

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Permalink Reply by edward wenzel on February 23, 2011 at 9:52pm

suze,

are you in key west? If so I live in summerland key. Would like to talk to you face to face if possible. I have been fighting this for nearly a year now. I have the feeling I can win. If you want my e-mail yyou are welcome to it and we can arrange a meet.

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Permalink Reply by Suze2011 on February 23, 2011 at 10:39pm

I'm in SW FL, but not that far SW...lol

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