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foreclosure

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  • Thomas Storm
    Need some one to work with me off group with a forclosure. I have several cases such as..
    Message 1 of 2 , Jan 3, 2005
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      Need some one to work with me off group with a forclosure. I have
      several cases such as..

      http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=5th&navby=case&no=9850117cv0

      SMS Financial LLc. v. Abco Homes, Inc. No.98-50117 February 18, 1999
      (167 F. 3d. 235; 5th Circuit Court of Appeals.) Where the complaining
      party can not prove the existence of the note, then there is no note.
      To recover on a promissory note, the plaintiff must prove: (1) the
      existence of the note in question; (2) that the party sued signed the
      note; (3) that the plaintiff is the owner or holder of the note; and
      (4) that a certain balance is due and owing on the note. Since no one
      is able to produce the "instrument" there is no competent evidence
      before the Court that any party is the holder of the alleged note or
      the true holder in due course. New Jersey common law dictates that the
      plaintiff prove the existence of the alleged note in question, prove
      that the party sued signed the alleged note, prove that the plaintiff
      is the owner and holder of the alleged note, and prove that certain
      balance is due and owing on any alleged note. Federal Circuit Courts
      have ruled that the only way to prove the perfection of any security
      is by actual possession of the security. See Matter of Staff Mortg. &
      Inv. Corp., 550 F.2d 1228 (9th Cir 1977), "Under the Uniform
      Commercial Code, the only notice sufficient to inform all interested
      parties that a security interest in instruments has been perfected is
      actual possession by the secured party, his agent or bailee."
      Bankruptcy Courts have followed the Uniform Commercial Code. In Re
      Investors & Lenders, Ltd. 165 B.R. 389 (Bkrtcy.D.N.J.1994),
      Unequivocally the Court's rule is that in order to prove the
      "instrument", possession is mandatory. In addition to the note,
      another element of proof is necessary – an accounting that is signed
      and dated by the person responsible for the account. Claim of damages,
      to be admissible as evidence, must incorporate records such as a
      general ledger and accounting of an alleged unpaid promissory note,
      the person responsible for preparing and maintaining the account
      general ledger must provide a complete accounting which must be sworn
      to and dated by the person who maintained the ledger. See Pacific
      Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE
      Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii
      App 2001), Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371,
      (Conn. Super.2000), and Town of Brookfield v. Candlewood Shores
      Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986).
    • rd
      Happy New Year, Regarding foreclosure case: My suggestion generally, hope this does not offend the grp. Moderator, is to (in addition to the Cornforth material
      Message 2 of 2 , Jan 5, 2005
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        Happy New Year,
        Regarding foreclosure case:
        My suggestion generally, hope this does not offend the grp. Moderator,
        is to (in addition to the Cornforth material given in the original
        request for help):
        a. check your court rules to see that in Summary judgment:
        1. that evidence must be certified or the original
        instrument must be entered as evidence along w/ an affidavit.
        2. that the affidavit must be from one w/ personal
        knowledge.
        b. Check your state rules of evidence to see if it requires the
        original instrument as the best evidence. If you can back that up w/ the
        relavent state's case cite(s) requiring the original instrument.
        c. Find the state statute codifying the UCC & quoting the
        section concerning the holder in due course.
        d. I might go out on a limb & assert lack of subject Matter
        jurisdiction based on the no fact in evidence of the alleged original
        promissory note. Also stating that today, copies can be made to say
        anything including that you owe a debt to the plnt. Also assert that
        any attorney can go to the county recorders, if filed there, or other
        institution & make a copy of a note & say that he is the plnt. Or holder
        of the note, then if he is not then you could be in jeopardy of being
        forced to pay this alleged debt if the ct. is taken in & also by someone
        holding the alleged original note. Give the ct. an example if I copied
        a 100 dollar bill, like copying the note, is it real money? So it is w/
        the copied note.
        e. (optional, must be plead w/ care) I don't know if this will
        work but demand to see the contract between the alleged plnt. & the
        attorney (redacting privileged info), for all you know he could be a
        simple debt collector especially if he has the FDCPA notations on his
        communications to you. Then he is entitled to his damages, the amount
        he paid for the note from the orig. holder(at the very most). While
        there, I'd ask 'em for his lic. To practice law issued by the proper
        state regulatory agency & compare it w/ the one defined in the statutes.

        I wish I could work w/ you, but I can't keep up w/ my own work. Please
        keep us posted on your progress as I am also highly interested in this
        area of law. Have 2 of them running now.

        G-- bless and yours in liberty,

        Roy


        Need some one to work with me off group with a forclosure. I have
        several cases such as..
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