“You cannot come into court with a note and one single endorsement and say, ‘Judge, I’ve got a negotiable instrument,’” Gardner said. “You have to prove all links in the chain.”

Gardner said a mortgage note does not meet the legal definition of a negotiable instrument, which is transferable and payable to the bearer, such as a personal check. Holding the mortgage doesn’t guarantee a bank can foreclose.


Shelby attorney brings his foreclosure fight to New York City

SHELBY — Fewer foreclosures mean more backyard barbecues and Christmas mornings at the family fireplace.

Consumer bankruptcy attorney O. Max Gardner III wants to help struggling homeowners hold onto their houses in the midst of a national mortgage meltdown. He’s sharing his method of fighting foreclosures with lawyers from North Carolina to New York City.

“Our goal is to get enough legal leverage on the banks to force them into a major modification of the loan,” Gardner said. “If you can make a loan perform, the investors are going to get their money back in full. It’s in their best interest to modify the loan. It’s obviously in the best interest of the homeowner. And I think it’s in the best interest of the economy.”

The founder of Max Gardner Law PLLC in Shelby, Gardner is presenting a foreclosure defense seminar Nov. 19-20 at the New York Law School in Manhattan. Speakers will include Arthur Schack, the New York State Supreme Court justice who’s gained national notoriety for dismissing foreclosure cases when mortgage lenders can’t produce proper paperwork…

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