[gazelle20]

jkatz,

Our situation is a little bit different. We did offer to make a deal with our mortgage company but we have not been able to come to a satisfactory conclusion. My question is this:

We received a Summons from the Court here in West Palm Beach, Florida where they gave us 20 days to reply in writing. The reply meant giving them a reason why we cannot continue to pay our mortgage. Even though I replied within the time frame they indicated I later noticed that there were certain questions in the documents which I did not broach in my reply to the Court. I noticed the following statements from the Plaintiff, among others, which left me wondering:

QUOTE
8. ORIGINAL NOTE LOST: The original note has been lost and is not in the custody or control of Plaintiff. The note was continuously in possession and control of Plaintiff's assignees and predecessors from the date of its execution until the loss and has not been paid or otherwise satisfied, assigned or transferred. Plaintiff's assignees and predecessors were in possession of the instrument and entitled to enforce the note when the loss occurred.

9. NO TRANSFER: The loss of possession of the note was not the result of a transfer by the Plaintiff or its asignees and predecessors or a lawful seizure. Plaintiff cannot reasonably obtain possession of the note because its whereabouts cannot be determined.
UNQUOTE

A friend of mine who knows a little bit about these things advised me that in reference to the above, I ask the Court to DEMAND the original note from the plaintiff, AND IF IT CANNOT BE PRODUCED BY THE PLAINTIFF, request that the FORECLOSURE be DISMISSED.

My friend's opinion is, the fact they have admitted that they have "lost" the note is absolutely not true. He believes they assigned (sold) the note to another company. But if they did lose the "note" their professional credibility leaves much to be desired.

If it wasn't assigned to another company . . . why did the state in (9) above "transfer by the Plaintiff or its ASSIGNEES and predecessors"???????

My question is, should I write another letter to the Court asking the Court to DEMAND the original note from the plaintiff, and if it cannot be produced by the plaintiff, request that the foreclosure be dismissed??

I would really appreciate your advice on this.

Thanks a million.

gazelle20:

[foreclosurefish]

8. ORIGINAL NOTE LOST: The original note has been lost and is not in the custody or control of Plaintiff. The note was continuously in possession and control of Plaintiff's assignees and predecessors from the date of its execution until the loss and has not been paid or otherwise satisfied, assigned or transferred. Plaintiff's assignees and predecessors were in possession of the instrument and entitled to enforce the note when the loss occurred.

9. NO TRANSFER: The loss of possession of the note was not the result of a transfer by the Plaintiff or its asignees and predecessors or a lawful seizure. Plaintiff cannot reasonably obtain possession of the note because its whereabouts cannot be determined.

Translation: "We lost the contract. We didn't sell or assign it. We lost it. But trust us -- they owe us money for breaching this ghostly contract. Don't ask us to prove it; we can't. Just trust us. We paid the court filing fee, so now we're entitled to a judgment against this person -- that's all the proof you need.'

If this were my situation, I would certainly try to have the lawsuit dismissed.

If people could just take you into court to sue for default of a contract that they can't provide proof of its existence, then everyone could just get judgments against everyone else whenever they felt like it.

So the bank is saying "We don't have the mortgage, but trust us -- we can sue to take the house to satisfy the mortgage we can't prove we have." Sounds like an enormous waste of time on everyone's part.

They seem to be admitting that they can't prove you owe them. But they're trying to force a sale of your house to pay off a debt that they admit they can't prove that they're entitled to.

You can't even prove whether all of the elements of a valid contract exist at this point. The bank can't prove that a contract even exists at all. It's just their carefully-worded argument that you somehow owe them, for some reason.

I'd try and get it dismissed. Bringing in a breach of contract lawsuit when no contract can be shown... they're just hoping that you're too stupid to figure out the fraud, I think. Good for you that you caught it.

[aaron]

The loss of the original does not mean that no copies exist. If a copy is properly validated, the court will work from the copy.

[jkatz]

Also as a side a note. The original may sitll exist just not in the hands of the current lender. The original investor may still hold the documents of the original transaction. When loans are transfered papers are lost but it does not mean that they can not find them. As noted by FS above you may be able to get it dismissed but your best best is to contact an attorney and have him review the details of your case. Best of luck.

Regards,

[ballmich]

The loss of the original does not mean that no copies exist. If a copy is properly validated, the court will work from the copy.

I think the theory here is that ONLY the person with possession of the original note can prove they have the right to foreclose on the property. A copy, electronic, faxed, etc, is not an original document and doesn't indicate possession of the note. And there is no way to "validate" that a copy of the note equates to possession of the original note.

This is important because if someone later turns up with the original note and proves that it is the proper holder of the note, the original borrower is still liable for the debt. This is despite the fact that another lender already foreclosed on the property. I believe there is examples of this happening, if my research of this topic is accurate.

So the importance of making the lender produce the original note is paramount, I believe.

But yes, I think the original note will probably eventually be uncovered in most cases.

Note: I'm not an attorney or expert. Just someone trying to research the Produce the Note strategy. This post was just my take on the situation.

[OhMy]

You can click on this link regarding the ORIGINAL NOTE.

http://www.expertlaw.com/forums/showthread.php?t=70495