WHERE'S THE NOTE, WHO'S THE HOLDER | ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATE

WHERE’S THE NOTE, WHO’S THE HOLDER | ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATE

WHERE’S THE NOTE, WHO’S THE HOLDER | ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATE

WHERE’S THE NOTE, WHO’S THE HOLDER

INTRODUCTION

In an era where a very large portion of mortgage obligations have been securitized, by assignment to a trust indenture trustee, with the resulting pool of assets being then sold as mortgage backed securities, foreclosure becomes an interesting exercise, particularly where judicial process is involved.  We are all familiar with the securitization process.  The steps, if not the process, is simple.  A borrower goes to a mortgage lender.  The lender finances the purchase of real estate.  The borrower signs a note and mortgage or deed of trust.  The original lender sells the note and assigns the mortgage to an entity that securitizes the note by combining the note with hundreds or thousands of similar obligation to create a package of mortgage backed securities, which are then sold to investors.

Unfortunately, unless you represent borrowers, the vast flow of notes into the maw of the securitization industry meant that a lot of mistakes were made.  When the borrower defaults, the party seeking to enforce the obligation and foreclose on the underlying collateral sometimes cannot find the note.  A lawyer sophisticated in this area has speculated to one of the authors that perhaps a third of the notes “securitized” have been lost or destroyed.  The cases we are going to look at reflect the stark fact that the unnamed source’s speculation may be well-founded.

UCC SECTION 3-309

If the issue were as simple as a missing note, UCC §3-309 would provide a simple solution.  A person entitled to enforce an instrument which has been lost, destroyed or stolen may enforce the instrument.  If the court is concerned that some third party may show up and attempt to enforce the instrument against the payee, it may order adequate protection.  But, and however, a person seeking to enforce a missing instrument must be a person entitled to enforce the instrument, and that person must prove the instrument’s terms and that person’s right to enforce the instrument.  §3-309 (a)(1) & (b).

continue below…

Scribd

More on….MERS

© 2010-14 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.






Comments

comments

Related posts:

  1. MUST READ… MISSING LINK (s) | BANK OF NEW YORK v. MICHAEL J. RAFTOGIANIS Absolutely, positively a MUST READ! edit: From a reader who...
  2. Screw the Note, SHOW ME THE LOAN! SHOW ME THE LOAN A legal doctrine developed by: John...
  3. Promissory Notes | How Negotiability Has Fouled Up the Secondary Mortgage Market, and What to Do About It A MUST READ! via: 83jjmack Copyright (c) 2010 Pepperdine University...
  4. VICTORY IN MONTANA: PRELIMINARY INJUNCTION ISSUED AGAINST MERS, RECONTRUST, AND COUNTRYWIDE May 25, 2010 A Montana Circuit Judge entered a preliminary...
  5. Tracking Loans Through a Firm That Holds Millions: MERS Kevin P. Casey for The New York Times: Darlene and...

This post was written by:

- who has written 6995 posts on FORECLOSURE FRAUD | by DinSFLA.

CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

Contact the author

One Response to “WHERE’S THE NOTE, WHO’S THE HOLDER | ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATE”

Trackbacks/Pingbacks

  1. [...] This post was mentioned on Twitter by DinSFLA, DinSFLA. DinSFLA said: WHERE'S THE NOTE, WHO'S THE HOLDER | ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATE http://bit.ly/9Blgoc [...]


Leave a Reply

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Chip Parker, www.jaxlawcenter.com
RR Compliance Consulting Inc was established to provide training and support services to the Loss Mitigation Consulting Community.  There is a huge void in the market for this training since those who are truly practicing in the field have neither the time nor interest in providing this training.
Jamie Ranney, www.NantucketLaw.pro
Kenneth Eric Trent, www.ForeclosureDestroyer.com
LATEST TOP FORECLOSURE FRAUD CASES OPINIONS
Advertise your business on StopForeclosureFraud.com

Archives