Plaintiff as Servicer? I Think Not.
I observed a foreclosure trial today, and one aspect of it in particular really bothered me. The plaintiff prosecuting the case was not the owner of the Note, but merely the servicer. Many judges and, of course, plaintiffs’ attorneys, seem to think this is fine, arguing the servicer can foreclose because it’s the “holder” of the Note, even though, by its own admission, it’s not the owner. In other words, the plaintiff/servicer concedes it does not “own” the Note, i.e. it’s not the plaintiff’s Note, but because it has the Note in its possession, and the Note is indorsed in blank, it can foreclose.
I’ve thought about this argument a lot, read a lot of case law, and see some fatal problems. Frankly, I’m frustrated these problems are largely being ignored and hope that everyone starts arguing and adjudicating this issue appropriately.
First off, taking the plaintiff’s argument to its logical extreme, anyone can steal a Note with a blank indorsement – literally, be a thief – but because he possesses the Note, and the Note is indorsed in blank, he could foreclose simply because he’s the holder. That sounds insane, but once you accept the argument that the plaintiff need only be the “holder,” and that ownership is irrelevant, that’s what you’re allowing – a thief can foreclose. Anyone can foreclose. Come to court with a Note with a blank indorsement, and how you obtained that Note is irrelevant – you can foreclose.
Respectfully, that’s just not the law. It can’t be the law. There’s no way the law can allow or would allow a thief to foreclose. Undoubtedly, this is why Rule 1.944 requires the plaintiff be the “owner and holder.”
Check out the rest here…
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After receiving threat of foreclosure, I asked for paperwork and then I received TWO magic appearing ‘Allonge to Notes’ . One by the original so-called lender and one dated exact same date by following ‘servicer’ WHO wasn’t even my servicer until a year or so later?!
That is not how it works ,,, A note endorsed in blank is a bearer instrument , payable to bearer. One can deny that the signature is not yours or it was forged , but if the original Note endorsed in blank is not contested it stands. If the note endorsed in blank Is the original wet ink note then it is payable to bearer. Now with that being said explain to me how a bank can walk into a court room show the note and case is closed. But if a HO walks into the court room with a Note endorsed in blank in their possession the rules suddenily change…
Pehaps the Magistrates, [magic man crafted gods, ruling over men and woemen,] have SPECIAL fiduciary, interests; to SEE after, rather than Justice, merely engauging in: Just U.S. for financial Gain therefor manifesting their: CONflicted Nature, rendering them: In-able to Rule absent malice, agenda or Greed?
Perhaps the “OFFICERS of the COURT;” Judges, magistrates, SECRETaries, Clerks, Baliffs, pro se cutors Defending AH Torn ey’s, translators, may have HIGHER superseeding Oaths or Affirmations, to CONceed to, or Monopolistic cAH Ba’al-istic interests, with SECRET Blood Oaths, to be CONtrolled by, in Dramatic opposition to: the mere pro se litigant or One NOT having redered the Proper HONORARIUM, in Hundred$ or Thousand$?
Perhaps The “FIX” is In and JUST U.S. Does NOT enter the Battle Field of the Legal Mercenary?
Hi,
You people have helped me with gaining knowledge as I continue to fight BofA by myself as no attorney in my state says they won’t go up against them so i continue to fight on my own and this has been going on since my first phone call to TB&W April 2009 & 2nd one 2 weeks after, May 2009, and then they never got the modification done and BofA bought them out late Aug/early sept.2009 and since Sept. 2009 they said they would have the loan mod done within 45-60days and instead they put me into FORECLOSURE!!!!!!And I’ve been fighting ever since.
They have destroyed destroyed my credit and I can’t even get an FHA loan now because I should have already been in the Nashville, TN area by putting my house on the market back in Feb.2010, but because they destroyed my credit(my scores all 3 were in the very high 600’s; 696, 693 & I believe 698) so now they are under 400!!!!!!!! and I can’t get a new mortgage so that I could move!!!!
But my question to you or maybe anybody that has an answer or little better than guess, do you think all these banks & F…..g politicians are going to change everything to the WORSE, where that they will change all the wordings for forclosure to include EVERYTHING now that is going on, where they WILL be able to actually foreclose even when they sell all these mortgages and put in “pools” with trusts….and securitization will probably now become “legal” so that all the banks , wall street & politicians including the president of the USA, will allow all foreclosure to be definitely legal and that the servicer will now become able to foreclose no matter what!??? I think they will because the banks continue to say they have lost so oooooooo much money!
Hell BofA has been saying their stock just for 2011 lost over 50% if you owned it and over the past 2- 2 1/2 yrs say starting end of 2009 to all of 2010, I believe their stock dropped 120% including the loss of 50% last year….BUT THEY DON’T TELL PEOPLE IN THE NEWSPAPERS OR PEOPLE THAT DON’T WATCH BUSINESS NEWS ALL DAY LONG, LIKE I DO AS I — USE TO HAVE MONEY TO TRADE BEFORE A BROKER LOST MY ENTIRE ACCOUNT OF $150k, THAT BOFA’S LAST QUARTER MADE $28.8 BILLION!!!BILLION DOLLARS!!!!! PREVIOUS QUARTER WAS AS MY MIND TRIES TO REMEMBER BUT I’M CLOSE ON THE NUMBER EVEN IF I’M OFF A FEW BILLION, THEY MADE $22.6 BILLION!!!!!!!! QUARTER’S IN 2011 WERE $20.8 BILLION; AGAIN $18.5 BILLION; AND $13.9 BILLION!!!!!! And they say they have lost soooooo much money from foreclosures from people not paying their mortgages, yet they continue to make BILLIONS AND BILLIONS EVERY SINGLE YEAR!!!!!!!!!!!!!! F….K, I’D LIKE TO MAKE THAT KIND OF MONEY, WOULDN’T ALL OF YOU!!!??? THEY ARE TOTAL A-HOLES!!!!!!!!!AND I PRAY EVERY DAY THAT GOD DOES SOMETHING HORRIBLE TO ALL THEIR CEO’S, PRESIDENTS’ETC ETC AND ALL THE STOCK BROKERS THAT CONTINUE TO MAKE MONEY FOR ALL THEIR CLIENTS TOO.
Hope you all have something to say about this as I continue to try to find the forms to file a court case against BofA for “quiet title” and “nullification of the “note”!!!!
Thanks, Mary
Right on Mark Stopa! They are IMPOSTERS if the have an unindorsed copy of a note with NO LEGAL ASSIGNMENT…AKA THE TRUST AGREEMENT WHICH CAN ONLY GO BANK TO BANK…SERVICER, BANK OR WHOEVER THEY ARE..WITHOUT THAT LEGAL TRUST AGREEMENT ASSIGNMENT……THEY ARE BOTH STRANGERS TO THE MORTGAGE…AND THAT RENDERS BOTH THE MORTGAGE AND THE NOTE A NULLITY…..! .FOR EXAMPLE…THE 2008 RULING BY THE ILLINOIS APPELATE COURT AGAINST THE SERVICER BAYVIEW LOAN SERVICING…. ….(.BAYVIEW -V- NELSON 382 Ill. App 3d. 1184, 2008)……and (COLLINS -V- OGDEN 15 Y N.E. 701, 704-5 ILL. 1926).