Re: [tips_and_tricks] Re: foreclosure not by holder in due course
- 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
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
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.