Supporting, Informing & Connecting People in Foreclosure
It looks like a "blank endorsement", the kind they use to transfer a "negotiable instrument". My research here in Florida, shows that most of the time, the Notesare not "negotiable instruments" because they contain "late fees" and theyrequire one to look outside the "four corners" of the Note, to the SecurityInstrument, in order to calculate the balance owed. That being said, if the Note is part of a larger contract which includesthe Security Instrument, it can not "lawfully" be transferred without a "special endorsement" on the Note, and a valid "assignment" of the underlying mortgage, in order for the plaintiff to have Standing to foreclose. If it is not "negotiable", than whoever takes it is not a "holder indue course" and you can raise any defense against the transferee, youcould have raised against the originator, such as a "fraudulent, inflatedappraisal" (among others like no license, violation of truth in lending byputting a phony lender on the loan documents, failin!
g to perfect the lienin the name of the "true lender" etc) Check out Livinglies web site for abetter explanation of this "phony lender on the loan documents concept".Mr. Garfield believes you need to "follow the money" in order to find outwho the true lender is. If the entity on the loan documents is not the truelender, then the lien was "never perfected" and this could be a valid defense. Example, xyz corporation went out of business five years before the loan was originated and no longer had a license. The true originator doesnot want their name on the loan documents, because they are planningto sell the Note multiple times on the secondary market. The originatordoes not want the investors coming after them when the investors realizethey've been defrauded. This is why the "truth in lending act" is so important in preventing fraud. If the real lender is not on the loan documents, it is highly probable the "borrower" was used as a "stooge"to carry out a "heist" against the !
funds of a pension company. Mr. Garfieldtruly sees the "big pi!
cture" which most regulators do not see.
Yes! I believe (I'm not a lawyer) everyone should pull out their promissory note (loan) papers and your mortgage (or deed of trust). In the note look at Section 5 (of the note): - Borrower's Right To Prepay & Section 11: Uniform Secured Note. where it states: "Transfer of the Property or a Beneficial Interest In Borrower" and any Addendum to the note like a 3 year prepayment penalty - (Section 4 or 5 depending on you note, goes something like this ("I have the right to make payments of principal at anytime before they are due. A payment of principal only is known as a "prepayment." When I make a prepayment, I will tell the Note Holder in writing that I am doing so.) The italicized sentence of that provision appears to constitute an "undertaking". These three items render the note non-negotiable because it constitutes an "undertaking...to do a[n] act in addition to the payment of money." (See UCC Section 3-104 and the corresponding UCC law for your state). Also look at Section 6. LOAN CHARGES for usury savings clause (= absence of negotiability)(the most "common" problem for negotiability was the presence of a usury savings clause that goes something like this: "Interest paid or agreed to be paid shall not exceed the maximum amount permissible under applicable law and, in any contingency whatsoever, if Lender shall receive anything of value deemed interest under applicable law which should exceed the maximum amount of interest permissible under applicable law, the excessive interest shall be applied to the reduction of the unpaid Amount of Note or be refunded to Maker."
See UCC 3-104(a) (1991) (a negotiable instrument must be "unconditional"); see also id. 3-106(a) (defining requirement that a negotiable instrument be unconditional).
Most promissory note forms used in the country are FNMA/FHLMC Multistate Fixed Rate Note-Single Family forms or some simular form = your promissory note/note/loan is a non-negotiable document on its face. Which means the "holder-in-due-course" protections do not apply. The bank fc on you cannot be a real party in interest when the note is non-negotiable, and only a real party in interest can use the acceleration clause & power of sale clause in a deed of trust to fc on you. They do not have holder-in-due-course status and protections because of UCC Article 3 & Article 9. Do some research.
Now on to the deed of trust or mortgage, depending on your state - this is the "security" instrument used to back up the note/loan - typically using your home as the collateral in case you don't pay the loan/note back.
On the face of the deed of trust read Section 20. Sale of Note; Change of Loan Servicer; Notice of Grievance. (which = the "right to collect" was stripped and assigned to the "servicer" seperate and independent from the loan contract) and Section 13. Joint and Several Liability; Co-Signers; Successors and Assigns Bound. grants the lien binds and benefits the purported "lender's successors and assigns (except under the circumstances provided for in Section 20). These two sections map out on the face of the document that the "right to collect" was stripped & assigned to the purported servicer seperate & independent from the loan contract. Taken together, the deed of trust grants the lien only transfers with a conveyance of the purported lender's intangible property rights and interests. Do some research.
Mr. Garfield & Mr. Weidner are right on point in my opinion but I am not a lawyer & this is not legal advice. Do your own research & I believe you will find that if you start your objections to the wrongful fc being perpetrated on you by using the note & deed of trust/mortgage and their language on the face of each, you will find it much easier to have the judge latch on to specific legal facts in evidence (on the face of the docs) & reasons why the wrongful fc is really legally wrongful. The burden is on the Plaintiff bank to prove anything else. This especially applies in non-judicial states.
Use UCC Article 3 & UCC Article 9 (and your states equivalent UCC articles) to defend your home. The banks are in the process of changing these laws as we speak & putting "an over-lay" UCC law over all 50 states to try to get themselves off the hook. Now is the time to get on it!
hi peace, good play on words, anywho the banks have cushioned themselves well. i want to know what made us not beleive the garbage and dweleve deep into the rabbit hole. we were not suppose to do that. you know the flouride and preservatives were suppose to make our brains docile so we would not dweleve we would just obey. you are the bank , you own my mortgage , i did something wrong i will walk away now. NO!!
i was insistent on finding the truth. the non-negotiable note as we find is not understood , most lawyers today defending foreclosure and the judges judicating are not well educated on these notes they beleive the note is negotiable. so it will be a while becfore they use it as a defense. anther smoking gun out there that will be extremley helpful in not just winning our foreclsoure cases but giving us back the lives they stole. is the ability to claim TILA violation and have the loan rescinded. this will mean we get the house, the down payment , and all moneys paid for the house. i wil post the link below. i think this will be a strong defense that discovery will show who the true lender was for our mortgages and that we were not aware of the type of transaction we were entering into.
he has written to all the AG's in the country. make this link viral. we need to do what we can to save our homes and the people that are aware like us. we will prevail
please listen to this pod cast
Some of these issues about negotiability already have been tested in court. Long-settled law allows a negotiable mortgage note to refer to the mortgage and to include late fees; and it also deems adjustable-rate interest payments as "sum certain." Another fact, far worse than these protections for the banks, is the UCC allows the note to include a waiver of a right meant to protect the OBLIGOR. (Could it be any plainer that the banks PLANNED to screw homeowners through the UCC!)
Never underestimate the influence banks have had over the negotiable instrument laws, even before the UCC was enacted. The non-negotiability of the note has been argued before, but produced only a revision of the Code to ensure no interference with movement of the notes. Even a THIEF can become the holder of a note indorsed in blank, and then can transfer the note legally. (I know, I know! Thieves are running rampant with no law enforcement intervention these days.) This begs the question: can this thief also enforce the mortgage securing that note? Of course not. That's absurd. Right?
Read the UCC; it's easy to see where the add-ins turned the Code to the banks' favor. They read almost like a happy afterthought...or an accommodating plug-in. It will not be easy to overcome this influence. As Matt Weidner warned when he blogged about this non-negotiability issue, it is critical to have an experienced lawyer to handle this line of defense. It is permeated with land mines, ready to blow up everything at the first wrong move.
I hope some of the brilliant lawyers will pursue, successfully, this non-negotiability issue, but until then, we must stay focused. We do not need bad case law.
It's easy to drive yourself crazy with all the complexity of the fraud. (You know you're there if others avoid you or your best friend gets glazed eyes when you start to talk.) It is good to be informed, but at some point, obsessing about the newest details not yet getting traction will not be helpful in defending your case. It might be fun to "kill" them ten times, but once will do. :) Keep it simple and strong.
To help keep it simple, just remember that the defendant's primary job is to show that the plaintiff did not prove its case.