Maine | Letter to Senator Hastings and Representative Nass RE: HP 128, LD 145 Requiring the Foreclosing Entity to Provide the Court with Original Documents

“A photograph of the promissory note is no more valid or sufficient than a photograph of the mortgaged house. If it is sufficient for the bank to produce a photocopy of the note, it ought to be sufficient for the homeowner to satisfy the foreclosure judgment by producing a photograph of the property.”

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PETRUCCELLI. MARTIN & HADDOW, LLP
Attorneys at Law
50 Monument Square
Post Office Box 17555
Portland, Maine 04112-8555
GERALD F. PETRUCCELLI
gpelruccelli@pmhlegal.com

April 8, 2011

Senator David R. Hastings, III, Esq., Chair
Committee on Judiciary
c/o Legislative Information
100 State House Station
Augusta, ME 04333

Representative Joan M. Nass, Chair
Committee on Judiciary
c/o Legislative Information
100 State House Station
Augusta, ME 04333

RE: HP 128, LD 145 – An Act to Protect Homeowners Subject to Foreclosure by
Requiring the Foreclosing Entity to Provide the Court with Original Documents

Dear Senator Hastings and Representative Nass:

I am writing to express my support for LD 145 and in the hope that it may be helpful to the Committee to focus particularly on the distinctive characteristics of a promissory note, as distinguished from documents generally. Many years ago, I taught commercial law at the University of Maine School of Law School. In the course of that work, I came to know something about promissory notes and I am writing to offer some observations that I think might be helpful in thinking about these problems.

I do not currently represent any banks. One ofmy Partners has been involved in one or two of the foreclosure disputes that have generated some of this discussion, but I am not writing on behalf of any client.

This is not simply a question of evidence law. The question is not whether the copy, or the photograph, or the digital image, should suffice as proof that a loan was made, notwithstanding the best evidence rule. It is not a question of modern technology concerning recordkeeping in the computer age. The note is not a record. The promissory note, unlike other documents, is itself valuable property. A photograph of the promissory note is no more valid or sufficient than a photograph of the mortgaged house. If it is
sufficient for the bank to produce a photocopy of the note, it ought to be sufficient for the
homeowner to satisfy the foreclosure judgment by producing a photograph of the
property. This is the fundamental point.

There is a practical functional reality to all of this as a matter of negotiable instruments law. The promissory note is negotiable and the holder in due course of a negotiable promissory note has preferred status in litigation on the note. If the person seeking to enforce the note does not actually have it as a matter of physical possessory fact, it is likely that somebody else does. It is only the holder of that original note who has any rights at all on the note. Anyone may have a copy of it. But without the note itself, all that any plaintiff can actually accomplish is to try to persuade the court that at one time somebody photographed it, not that at the current time the plaintiff owns it, and possesses it, and has enforceable legal rights on the note. There is really no good reason that a plaintiff claiming to be the holder of a note should be entitled to enforce it without bringing it to court.

Because of this fundamental characteristic of the promissory note as property, carrying both substantive and procedural rights for the holder in due course, every defendant in every case is at some risk of having to pay twice, or at least defend twice, if the original note is not brought forward in every action. It may be statistically unlikely that there will be a large number of these cases, but there ought not to be any of them. It is an important protection for the makers of promissory notes that they not be subjected to this risk, simply because the bankers now find it inconvenient to produce this essential item in the very process of enforcing rights that are bound up in and rest upon this very item.

Another significant point follows from that. Because a promissory note is negotiable, the circumstances of its negotiation are vitally important with respect to any determination of the rights of any plaintiff purporting to be the holder by virtue of negotiation. The endorsements must be examined to determine not only their authenticity but their legal sufficiency. As you know, there are various forms or kinds of endorsements and it is only by examining the document itself that the court can determine whether any sequence ofendorsements is regular and in good order so as to confer the rights of a holder upon the plaintiff. A photograph of a note that does not include both sides cannot possibly permit a court to determine whether or not all of the necessary endorsements are provided. But even a photograph showing all of the purported endorsements does not address the fundamental initial problem which is that the actual note may be in the possession of still anotherperson, carrying still another endorsement, a fact which cannot be determined by the court without examination of the original. To return to the beginning, I do not mean to be flippant when I say that if the bank can foreclose by producing a photograph of the note, the foreclosure judgment ought to be able to be satisfied by the homeowner delivering a photograph of the house. In both instances, photographs of the property are not the property. In a negotiable instruments setting, all of the issues relating to the sufficiency of photocopies of records or files, or contracts, or documents are fundamentally irrelevant to the real point. Only the holder of the original note with all proper endorsements in place is entitled to claim and enjoy the benefits of holder in due course status in enforcing the obligations of the maker on the promissory note.

I respect and appreciate all of the hard work that is being done by all of the members of the Legislature on all of these difficult problems. I hope this is of some assistance, and I thank you for the opportunity to comment.

Sincerely,

Gerald F. Petruccelli

_______________________________________________________________________________

PDF of letter below…

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4closureFraud.org

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RE: HP 128, LD 145 – An Act to Protect Homeowners Subject to Foreclosure by
Requiring the Foreclosing Entity to Provide the Court with Original Documents

Comments
12 Responses to “Maine | Letter to Senator Hastings and Representative Nass RE: HP 128, LD 145 Requiring the Foreclosing Entity to Provide the Court with Original Documents”
  1. Sean Meador says:

    I love it!!! Well said. You hit the nail on the head. They have no leverage or legal right to foreclose these houses. I have a pipeline of clients who will agree. We do the litigation against these lenders. We have a slamming NTS program that can stop foreclosures. Its a money back guarantee for this NTS service. We can do eviction protection. Feel free to call me at 714-862-2865 to discuss your individual case.

  2. KT says:

    Way to go Maine!…

    This letter was written in regards to http://www.mainelegislature.org/legis/bills/bills_125th/billpdfs/HP012801.pdf

    Any Mainers in Foreclosure please join together and fight for your homes!
    Check your mortgage papers here http://www.mainelandrecords.com you might be shocked at to what you find.

  3. John says:

    How can I get this info from I vent?
    is this someone venting or can this be used in a defense. Judge want proof of fraud, not geerally, but specifically in each case..

    • l vent says:

      @John, Yes I am venting but I am also speaking the truth. You should have all of the proof that you need in your public recordings and in your title. Does the Origination of your loan exist? They have 12 years in my state to assign a debt. In my case it has been 20 years without an assignment. I just filed and appearance and and answer to my fraudclosure complaint to the “PRETENDER LENDER” who is trying to fraudclose int he name MERS. I denied all of their complaints and asked them to SHOW PROOF that I could possibly owe MERS ANY MONEY. MY ATTORNEY TOLD ME THE PRETENDER LENDER CANNOT FRAUDCLOSE IN THE NAME OF MERS. I will post any futher developments. There is no ORIGINAL LENDER on the TITLE to my home, there has NEVER BEEN AN ASSIGNMENT to the DEED in 20 years on my public recordings. My county recorder of deeds office told me the statute of limitations in my state is 12 years, my house is paid for, I can live in it, sell it. or do whatever I want with my home. The title search my attorney did proves this is true. My attorney also told me that the TITLE INSURANCE POLICY that you I have possession of, is what makes the MOST IMPORTANT PART OF THE DEED. IT PROVES THE DEED WAS LEGALLY TRANSFERRED TO THE HOMEOWNER, NOT SO FOR THE PRETENDER LENDER. THIS IS WHY THEY WANT YOU TO SELL YOUR HOME. BECA– USE THEY CAN’T SELL YOUR HOME. WHY?, BECA– USE THEY NEVER SECURED THE COLLATERAL LIEN by PROPERLY ASSIGNING THEMSELVES TO YOUR DEED.

  4. TONY says:

    I would like to know that as well since I have the original note endorsed in blank in my possesion? I would like the court to reconize that the Plaintiff lacks standing , not the real party in interest because I have the note negotiated , properly endorsed in blank, and I have proof of transfer. So that the court will see that the plaintiff committed fraud filed a fraudulent assignment 16 days after the LIS and produced a fake lost note with two allonges skipping b to c and c to d and not even to the succe3ssor trustee cause the FRAUDULENT assignment was from MERS ( robo signed) and MERS was removed in 2002 , original lender dead since 2005, company C is dead and the Plaintiff is foreclosing with FRAUD!!!!!!

  5. l vent says:

    This attorney has it absolutely, positively beyond a shadow of a doubt 100% correct. This whole FRAUDCLOSURE SCAM has gotten completely out of hand. None of these PRETENDER LENDERS ever had any skin in this game and were NEVER owed any money from the homeowners. That was the key to the PONZI SCHEME for FANNIE/FREDDIE. ALL THEY NEEDED WAS COLLATERAL. That is why the FRAUDSTERS, THE ORIGINATORS OF THE PONZI SCHEME HEIST WHO ARE NONE OTHER THAN THE GSE’s FANNIE/FREDDIE are also who are hiding behind BANKSTERS/MORTGAGE SERVICERS/ATTORNEYS/MERS to try and FRAUDCLOSE. THESE LOANS NEVER,EVER EXISTED, WE WERE SCAMMED. THE TRUTH IS IN THE ORIGINATION OF THE LOAN and by no means do I mean the LIARS LOAN PART. THESE MORTGAGES WERE ALL LIES AND FRAUDS. THE MORTGAGE LOANS WERE A GIANT DECEPTION. A GRAND ILLUSION. WE WERE ALL MASSIVELY DECEIVED BY THE GOVERNMENT SPONSORED ENTERPRISE FANNIE MAE AND FREDDIE MAC. RESCIND OUR LOANS, THEY NEVER EXISTED. AMERICA IS NOT BROKE. THE AMERICAN PEOPLE GOT ROBBED IN THE BIGGEST PONZI SCHEME HEIST OF OUR WEALTH IN HISTORY. OUR HOMES ARE PAID FOR FREE AND CLEAR AND WE OWE NO MONEY TO ANYBODY. THESE CRIMINALS OWE US, THEY MADE TRILLIONS OFF OF THIS SCAM AND HID IT IN OVERSEAS BANKSTER ACCOUNTS. THESE FOREIGN OWNED MULTINATIONAL BANKSTERS AND FOREIGN OWNED MULTINATIONAL CORPORATIONS ARE NO BETTER THAN KHADAFFI OR ANY OTHER FASCIST DICTATOR. .

    • l vent says:

      Ben Bernanke is also a New World Order perp who has been engaging in a MONUMENTAL COVER-UP of EPIC PROPORTIONS by using QE1 & QE2 to COVER-UP for the PONZI SCHEME HEIST by using his FEDERAL RESERVE MONEY PRINTING PRESS to PROP UP THE WALL STREET/BANKSTER CABAL while creating HYPER-INFLATION AND CURRENCY DEFLATION and therefore MORE DEBT FOR THE AMERICAN PEOPLE. THIS IS A DIABOLICAL NEW WORLD ORDER PLAN TO CONVINCE THE AMERICAN PEOPLE WE ARE BROKE. THAT IS A _GIGANTIC LIE_. WE THE PEOPLE WERE FINANCIALLY ROBBED, RAPED AND PILLAGED AND THEY WILL STOP AT NOTHING TO DESTROY OUR NATIONAL SOVERIEGNTY. DON’T BELIEVE THEIR LIES THAT WE ARE BROKE. AMERICA IS _THE_ WEALTHIEST NATION IN THE WORLD. THIS IS A MASSIVE CONSPIRACY TO CONVINCE ALL OF US THAT WE ARE BROKE. WE ARE _NOT_BROKE. THEY WANT US TO PAY FOR THE ROBBERY OF OUR OWN WEALTH AND CREATE MASS IMPOVERISHMENT OF NOT ONLY AMERICA, BUT THE ENTIRE WORLD. THEY WANT TO BLAME ALL OF US, WHO ARE THE VICTIMS OF THE BIGGEST PONZI SCHEME HEIST IN HISTORY. SPREAD THE WORD. WE THE PEOPLE WERE ROBBED BY THE U.N./NEW WORLD ORDER AND _AMERICA _IS_ NOT_ BROKE_

      • l vent says:

        THE U.N./ NEW WORLD ORDER IS ALSO HIDING BEHIND OPEC AND THE SKYROCKETING GAS PRICES. THIS IS JUST ANOTHER INSIDIOUS WAY FOR THEM TO TRY AND CREATE POVERTY FOR THE AMERICAN PEOPLE. THEY ARE HIDING BEHIND THE SCENES OF ALL OF THE FINANCIAL TERRORISM IN AMERICA AND AROUND THE WORLD. THEY WANT US TO PAY 8 BUCKS A GALLON LIKE EUROPE. THIS IS A VAST UN/NEW WORLD ORDER CONSPIRACY AND IT IS TRULY DIABOLICAL.

  6. Mia says:

    How can I get a letter similar to this one for the state officials in North Carolina. We the homeowners are being fraudulently foreclosed on in North Carolina and the halt to foreclosing on us was lifted without notice. State officials are sitting idle. It is massive and I am tired of this!

    • Susan DeSimone says:

      Mia, You need to file your own lawsuit against all the banks, lenders, brokers, loan officers. Gather the evidence in your personal case of issues and do it. It appears to me that the individuals that are doing this are “Winning”. Just a little Charlie Sheen humor. I found a group in the state of New Jersey. Call every attorney in the phone book. Look for a young buck to take the case, or a group. You have to investigate and file. No one will take care of it for you. DEMAND your rights. Good Luck. Read Brown vs Quicken Loans, Wheeling, West Virginia. She just won near 3 million. Get moving, before our government reforms all the laws that will allow for all the illegal foreclosures. To add, if the people start filing the Courts will be overwhelmed.

      Susan

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