CA – One attorney’s response to April Charney’s posting & Court’s Memorandum Re Judicial Notice, Allonge, Authenticity of Note…

23 Apr

From: Charles Cox []
Sent: Monday, April 23, 2012 7:22 AM
To: Charles Cox
Subject: CA – One attorney’s response to April Charney’s posting & Court’s Memorandum Re Judicial Notice, Allonge, Authenticity of Note…

April is correct. For example, in the September 26, 2011 order in Mata v. Citimortgage, the court ruled that the putative assignee of a mortgage has the burden of proving it received a valid assignment–at least where the borrower can allege facts (as distinct from speculation) indicating otherwise; and that where the putative owner fails to meet that burden, the borrower states a claim for a declaration that the putative owner does not actually have an enforceable interest in the note.

With respect to the appropriate use of pooling and servicing agreements, it is true is that borrowers lack standing to enforce or attack their provisions. However, PSA nevertheless may be used as evidence regarding those sales and transfers when trying to prove (or allege the factual basis for) a claim that the putative owners of a particular mortgage never acquired an enforceable interest, because the sale or transfer was never perfected in accordance with the law of the state where the property is located and the terms of the PSA. Getting facts from pooling and servicing agreements and relying on them to allege or prove claims in a lawsuit is NOT an effort to enforce or attack the PSA.

Regarding the UCC, at least in some states (e.g., California), there are strong arguments that the state’s version of the UCC does not apply to real property mortgages on properties located in those states. On the other hand, the California Commercial Code may very well apply to sales and other transfers by and to Californians if the mortgaged property is located in another jurisdiction.

–Mark Didak


2 Responses to “CA – One attorney’s response to April Charney’s posting & Court’s Memorandum Re Judicial Notice, Allonge, Authenticity of Note…”

  1. mjohn May 1, 2012 at 12:26 am #

    the UCC always applies in that every bank-mortgage is represented by a promissory note as “evidence of debt”. the ‘mortgage follows the note’ in every state and country

    it’s not that the UCC controls mortgages per se; it’s that we dont get to “power of sale” or remedy of payment and clearing the title until the proper party to the action joins and can subsequently issue and file the “cancellation of the debt”.

    there is no exception to the rule that the check must be presented endorsed and verified to receive payments or rights (like a ‘credit bid’ at auction), the real owner can still claim under the outstanding obligation and is the only one who could require such a remedy as foreclosure anyway.

    the ‘note’ or ‘chose’ has been monetized by the superseding guarantee of the underwriting system; see “modern money mechanics” and other such publications by the Federal Reserve banks. And then a proper accounting with all credits and payments from other sources and insurances remains to calculate…

    foreclosure proceeds in rem but the “evidence of debt”, lacking in any case, is clearly unsecured by real estate due the operation of law pursuant the contract. there is no deficiency or default or insecurity in any creditor or investor position, everything is guaranteed anyway to simply exist, debt is money, bank issues are legal tender, we could mark the whole transaction with $100 bills and a red felt tip pen and see that, despite all this gibberish litigation, the money was still out there, performing, paying its holder on the spot, dollar-for-dollar, by law. the creditors are the holders of legal tender money so there is no tension.

  2. Dwayne Zook August 29, 2012 at 5:18 am #

    What is astonishing to me is that the courts no longer require trusts to prove standing or an unbroken chain of assignments based on “the debtors not having a right to challenge the trust’s pooling and servicing agreements”.

    It seems to me that hundreds of years of American jurisprudence protecting homeowners from a second foreclosure suit are being canned.

    What if one of these blank indorsed notes makes their way out of the trust custodian hands and into another lending entity? They could easily sue the homeowners again claiming the trust never had an enforceable interest in the note.

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