An examination of the Official Comments to the UCC are pertinent. In particular, Official comment §3-110 states: “This provision merely determines who can deal with an instrument as a holder. It does not determine ownership of the instrument or its proceeds.”

Official comment §3-203 ”The right to enforce an instrument and ownership of the instrument are two different concepts. Ownership rights in instruments may be determined by principles of the law of property, independent of Article 3………….

A thief can seek to enforce a promissory note endorsed to blank as long as it is able to prove with competent evidence the amount it seeks is actually the remaining value of the note as it resides on the owner’s balance sheet ledger. Identification of the owner is necessary along with intimate knowledge of the liability residing on the owners books of account.

A thief by defintion doesn’t purchase anything and therefore the liability which offsets the subject note does not reside on its books.

To summarize, ownership is necessary for lien rights to exist because section 13 of the mortgage instrument covenants that the security instrument binds and benefits the successor and assign of the lender. A lender or its successor can only exits if the note has remaining value on somebody’s books of account.

That is why foreclosure in Florida is by the owner and holder of the subject note and mortgage. Without pleading somebody, anybody, owns the present value of the note, the plaintiff can’t state a cause of action on the lien instrument. A party seeking foreclosure must demonstrate that it owns and holds the note and mortgage in question—otherwise, the plaintiff lacks standing to foreclose. See Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010) Plaintiff must allege that he is the present owner and holder of the note and mortgage see Edason vs Central Farmers Trust Co., 129 So 698, 700 (FLA 1930)

That doesn’t even get into the question of whether or not the endorsements are genuine.

Is a thief of a note endorsed in blank a “holder” entitled to foreclose? I don’t think so. That is absurd outcome that the courts refuse to consider.

Someday, all states will recognize, as the Supreme Judicial Court in Massachussetts has recognized, that holder MUST equal “owner” when considering standing to foreclose. As a foreclosure necessarily involves the attempted taking of real property, this must implicate UCC-9.

Encouraging courts to analyze a party’s “right to foreclose” under UCC-3 is a red herring and a bankster industry favorite past time…