TFH 4/22 | Foreclosure Workshop #56: HSBC Bank v. Moore — Determining What Is Required In Court To Prove the Legal Right To Foreclose in Your State

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TFH 4/22 | Foreclosure Workshop #56: HSBC Bank v. Moore — Determining What Is Required In Court To Prove the Legal Right To Foreclose in Your State

TFH 4/22 | Foreclosure Workshop #56: HSBC Bank v. Moore — Determining What Is Required In Court To Prove the  Legal Right To Foreclose in Your State

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

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Sunday – April 22, 2018

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Foreclosure Workshop #56: HSBC Bank v. Moore — Determining What Is Required In Court To Prove the Legal Right To Foreclose in Your State

 

 

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There has probably been no more contested and confusing issue in American law in recent years than who has the right to foreclosure on real property in the United States.

While homeowners, for instance, continue to rely on traditional defenses, such as the lack of a loan general ledger, the lack of requisite TILA notices of the right to rescind, the lack of an adequate default notice, and the expiration of the statute of limitations, for instance, all of which have themselves generated an enormous amount of contested litigation, including appeals, they are now all being dwarfed in comparison to the present dispute in the case law over who has “standing” to foreclose and whether the requirement of standing is jurisdictionally sufficient to support later collateral attack.

After reviewing hundreds of recent “standing” appeals in dozens of State and Federal jurisdictions, it is clear that there is presently no consensus in the United States as to what needs to be proven to establish the right to foreclosure on real property.

The law of standing to foreclose reportedly started to be litigated in the nineteenth century in two famous cases, Carpenter v. Longan, decided in the U.S. Supreme Court in 1872, holding that the Mortgage followed the Note, and Merritt v. Bartholick, decided in the N.Y. Court of Appeals in 1867, holding that an attempted transfer of the Mortgage without the Note was void unless a contrary intent to transfer the Note also be proven.

Meanwhile, recording laws in the States emphasizing proof of Mortgage ownership and lien priorities, as well as the adoption of the UCC with its confusing and contradictory language relating to its applicability to secured promissory notes, created unresolved tension between the traditional Carpenter/Merritt view and the confusion and differing judicial interpretations regarding who had the right to foreclose and what proof of that right is required.

That confusion was further complicated by the fact that State laws provide for the foreclosure of mortgages and deeds of trust without mentioning promissory notes.

Then, with the advent of securitization, much of the contested foreclosure case law has now shifted to the issue of who has standing, which is the topic for today’s show, where we will try to answer some of the most disputed issues in foreclosure defense, such as:

1. Does a foreclosing plaintiff have to prove ownership and/or possession of the underlying mortgage and/or note?

2. How can that ownership and/or possession be proven?

3. Who are the real parties in interest and/or the indispensable parties who need to be named and served in a foreclosure action when a securitized Mortgage loan is involved?

4. Does the Mortgage follow the Note or does the Note follow the Mortgage or both when a securitized Mortgage Loan is involved?

In examining these fundamental standing questions, we will examine for insight a recent decision of the Hawaii Intermediate Court of Appeals in HSBC v. Moore, decided April 20, 2018, the opinion in which will be posted on the past broadcast section of our website www.foreclosurehour.com following our live broadcast of today’s show.

We will also suggest a means by which State courts can eliminate such expensive confusion while being fair to both lenders and borrowers alike, as well as eliminate the present unnecessary burden on our courts.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

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Host: Gary Dubin Co-Host: John Waihee

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The Foreclosure Hour 12

 

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