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foreclosure not by holder in due course

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  • mobinem@aol.com
    If you do a search for foreclosure not by holder in due course you will be very surprised what you find. I will be posting my discoveries, both law and
    Message 1 of 3 , Dec 3, 2007
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      If you do a search for "foreclosure not by holder in due course" you will be very surprised what you find. I will be posting my discoveries, both law and precedents, as soon as I organize everything. If you are going through a foreclosure you may not want to wait for me. Here is what I have discovered:
      1) Only the holder in due course can foreclose;
         Banks that buy pools of mortgages are not HIDC, they are Holder of value, and therefore can not foreclose;
         HFV only has encumbrance rights;
      2) HDIC requires a Sum Certain note;
         Notes that are not for a fixed amount, including all variable rate interest loans, are not Sum Certain;
         "To be negotiable, a note must be for a "sum certain." Former RSA 382-A:3-106(1) (1961) (amended and recodified 1994) provided:The sum payable is a sum certain even though it is to be paid(a) with stated interest or by stated installments; or (b) with stated different rates of interest before and after default or a specified date; or, (c) with a stated discount or addition if paid before or after the date fixed for payment; or (d) with exchange or less exchange, whether at a fixed rate or at the current rate; or (e) with costs of collection or an attorney's fee or both upon default.
       


      John-Chester: Stuart: sovereign without subjects

      623-206-4339
      mobinem@...
      c/o postal service location
      21001 N. Tatum Blvd. Suite 1630472
      Phoenix, Arizona republic cf 85050 cf
      I am not an attorney and do not give legal advice, all information is for education purposes only. Read Luke 23:2.




      Check out AOL Money & Finance's list of the hottest products and top money wasters of 2007.
    • jbrealtyfl
      Before you try this in Florida make sure you read Florida Statute 673.3091 The bank can just say we lost it 673.3091 Enforcement of lost, destroyed, or
      Message 2 of 3 , Dec 6, 2007
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        Before you try this in Florida make sure you read Florida Statute
        673.3091
        The bank can just say " we lost it"

        673.3091 Enforcement of lost, destroyed, or stolen instrument.--

        (1) A person not in possession of an instrument is entitled to
        enforce the instrument if:

        (a) The person seeking to enforce the instrument was entitled to
        enforce the instrument when loss of possession occurred, or has
        directly or indirectly acquired ownership of the instrument from a
        person who was entitled to enforce the instrument when loss of
        possession occurred;

        (b) The loss of possession was not the result of a transfer by the
        person or a lawful seizure; and

        (c) The person cannot reasonably obtain possession of the instrument
        because the instrument was destroyed, its whereabouts cannot be
        determined, or it is in the wrongful possession of an unknown person
        or a person that cannot be found or is not amenable to service of
        process.

        (2) A person seeking enforcement of an instrument under subsection
        (1) must prove the terms of the instrument and the person's right to
        enforce the instrument. If that proof is made, s. 673.3081 applies to
        the case as if the person seeking enforcement had produced the
        instrument. The court may not enter judgment in favor of the person
        seeking enforcement unless it finds that the person required to pay
        the instrument is adequately protected against loss that might occur
        by reason of a claim by another person to enforce the instrument.
        Adequate protection may be provided by any reasonable means.

        History.--s. 2, ch. 92-82; s. 1, ch. 2004-3.

        Is it legal for them to say "we lost it" when in reality they sold it?
      • mobinem@aol.com
        In a message dated 12/6/2007 3:44:18 P.M. US Mountain Standard Time, jbrealtyfl@yahoo.com writes: Before you try this in Florida make sure you read Florida
        Message 3 of 3 , Dec 6, 2007
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          In a message dated 12/6/2007 3:44:18 P.M. US Mountain Standard Time, jbrealtyfl@... writes:
          Before you try this in Florida make sure you read Florida Statute
          673.3091
          The bank can just say " we lost it"
          That is what a subpoena duces tecum is for. You state they sold it and thusly make them "prove" they did not. Absent the evidence of not being sold, and it is very difficult to prove a negative, your statement they sold it must stand.


          673.3091 Enforcement of lost, destroyed, or stolen instrument.- -

          (1) A person not in possession of an instrument is entitled to
          enforce the instrument if:

          (a) The person seeking to enforce the instrument was entitled to
          enforce the instrument when loss of possession occurred, or has
          directly or indirectly acquired ownership of the instrument from a
          person who was entitled to enforce the instrument when loss of
          possession occurred;
          In Arizona, the transfer of a note does always allow for the transfer of rights as Holder in Due Course. I am not sure if it is the same in Florida, but I would check on it.


          (b) The loss of possession was not the result of a transfer by the
          person or a lawful seizure; and

          (c) The person cannot reasonably obtain possession of the instrument
          because the instrument was destroyed, its whereabouts cannot be
          determined, or it is in the wrongful possession of an unknown person
          or a person that cannot be found or is not amenable to service of
          process.
          The bank will have some kind of record, at least a tax record, of the transfer.


          (2) A person seeking enforcement of an instrument under subsection
          (1) must prove the terms of the instrument and the person's right to
          enforce the instrument. If that proof is made, s. 673.3081 applies to
          the case as if the person seeking enforcement had produced the
          instrument. The court may not enter judgment in favor of the person
          seeking enforcement unless it finds that the person required to pay
          the instrument is adequately protected against loss that might occur
          by reason of a claim by another person to enforce the instrument.
          Adequate protection may be provided by any reasonable means.

          History.--s. 2, ch. 92-82; s. 1, ch. 2004-3.

          Is it legal for them to say "we lost it" when in reality they sold it?
          No, but it is legal for you to say "that is not my signature" when looking at a copy of your signature.

           
           


          John-Chester: Stuart: sovereign without subjects

          623-206-4339
          mobinem@...
          c/o postal service location
          21001 N. Tatum Blvd. Suite 1630472
          Phoenix, Arizona republic cf 85050 cf
          I am not an attorney and do not give legal advice, all information is for education purposes only. Read Luke 23:2.




          Check out AOL Money & Finance's list of the hottest products and top money wasters of 2007.
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