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