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Angelo
Reply with quote  #1 
Appellate Court holds that the 90 day notice of default is a condition precedent to the mortgage, and must be strickly adhered to, if not case must be dismissed.  

This is the best part, I think this is what we have all be waiting for in NY major case law that now shows that mers never had the note or authority from the lender to assign the note.  MERS JUST WENT DOWN IN NY!!!, this might make it to the court of appeals..

"While, in some circumstances, the assignment of a note may effect the transfer of the mortgage as an inseparable incident of the debt (see U.S. Bank, N.A. v Collymore, 68 AD3d at 754), here the assignment instruments purport to do the opposite, without any evidence that MERS initially physically possessed the note or had the authority from the lender to assign it (see LPP Mtge. Ltd. v Sabine Props, LLC, 2010 NY Slip Op 32367[U]; OneWest Bank, F.S.B. v Drayton, 29 Misc 3d 1021, 1038-1041; Bank of N.Y. v Alderazi, 28 Misc 3d 376; cf. Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674-675). " 

If anybody is in NY, forward this decision to your attorney or read it carefully and make your case. Furthermore, like Mr. Roper always contends, get the Nebraska brief into evidence and use their words to strengthen your case.

Here is the link
http://www.nycourts.gov/reporter/3dseries/2011/2011_04184.htm
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William A. Roper, Jr.
Reply with quote  #2 
Kudos to Angelo for finding and posting this case!

I had independently discovered it and prepared a post offline before discovering Angelo's post.  While it would probably be a bit more courteous to ALL to re-edit my post, it is VERY LATE and I am simply posting below what I had composed, which is somewhat redundant to Angelo's post.

Here, I might add that imitation is the sincerest form of flattery.  Please accept the redundancy of both reinforcement of KEYS POINTS, as well as affirmation and agreement with Angelo's post.

* * *

The Supreme Court of New York Appellate Division, 2nd Department, handed down an earthshattering defeat for MERS on Tuesday, May 17, 2011, in the case Aurora Loan Services v. Weisblum.

There are two significant holdings for New York borrowers in the decision.  One will be unfamiliar to borrowers elsewhere and will have no influence outside of the state of NY.  This was a holding that Section 1304 of the NY Real Property Actions and Proceeds Law (RPAPL 1304) was a mandatory notice requirement and a condition precedent to bringing a foreclosure suit in New York State.

But of far greater national significance and interest, the Court also found that the plaintiff lacked standing in respect of evidence presented consisting of a sequence of assignments out of MERS, where MERS purported to assign BOTH the note and mortgage, when MERS actually had no interest in the note whatsoever:

". . .  The document submitted by Aurora in support of its motion for summary judgment and in opposition to the Weisblums' cross motion purports to be an assignment of only the first note and mortgage in the amount of $672,000 to Aurora by MERS, as nominee for Lehman Brothers.  However, Aurora failed to produce evidence of MERS' authority to assign the first note.  On its motion for summary judgment, Aurora failed to provide a copy of the first note but submitted a copy of the original first mortgage and a series of assignments culminating in the purported assignment of the first note and mortgage to Aurora.  The first mortgage was originally held by MERS, as nominee for Credit Suisse; the mortgage document recites that the lender on the first note is Credit Suisse, but there is nothing in this document to establish the authority of MERS to assign the first note.  MERS later assigned the first mortgage "together with" the underlying note, and thereafter, successive assignees assigned the first mortgage "together with" the underlying note.  While, in some circumstances, the assignment of a note may effect the transfer of the mortgage as an inseparable incident of the debt (see U.S. Bank, N.A. v Collymore, 68 AD3d at 754), here the assignment instruments purport to do the opposite, without any evidence that MERS initially physically possessed the note or had the authority from the lender to assign it (see LPP Mtge. Ltd. v Sabine Props, LLC, 2010 NY Slip Op 32367[U]; OneWest Bank, F.S.B. v Drayton, 29 Misc 3d 1021, 1038-1041; Bank of N.Y. v Alderazi, 28 Misc 3d 376; cf. Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674-675)."

The case may be cited as:

Aurora Loan Services, LLC, v. Weisblum, Index No. 6174/09, 2011 NY Slip Op. 04184 (NY App. 2nd Dept., 2011)
http://www.nycourts.gov/reporter/3dseries/2011/2011_04184.htm

In support of its reasoning, the Court cited these additional New York cases:

LPP Mtge. Ltd. v. Sabine Props, LLC, 2010 NY Slip Op 32367[U] (NY Sup. Ct. NY Co. 2010)
http://www.nycourts.gov/reporter/pdfs/2010/2010_32367.pdf

OneWest Bank, FSB v. Drayton, 29 Misc 3d 1021, 1038-41, 2010 NY Slip Op 20429 (NY Sup. Ct. Kings Co. 2010)
http://www.nycourts.gov/reporter/3dseries/2010/2010_20429.htm

Bank of N.Y. v. Alderazi, 28 Misc 3d 376, 2010 NY Slip Op 20167 (NY Sup. Ct. Kings Co. 2010)
http://www.nycourts.gov/reporter/3dseries/2010/2010_20167.htm

The Court encourages readers of the decision to Compare (cf.) the Court's holding in:

Mortgage Electronic Registration Systems v. Coakley, 41 AD3d 674, 674-5, 2007 NY Slip Op 05478 (NY App. 2nd Dept., 2007)
http://www.nycourts.gov/reporter/3dseries/2007/2007_05478.htm

*

This New York Appellate holding expressly blesses the decisions by Justices Wayne Saitta (Bank of N.Y. v. Alderazi), Arthur M. Schack (OneWest Bank, FSB v. Drayton) and Joan A. Madden (LPP Mtge. Ltd. v. Sabine Props, LLC).  Note that two of these three decisions were out of Kings County (Brooklyn), NY.
 
It should be noted that the prior holdings in published decisions by New York Trial Judges were influential and persuasive in New York State.  This case is AUTHORITATIVE!

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William A. Roper, Jr.
Reply with quote  #3 
See also Angelo's prior related thread:

"MERS goes down again, BONY Mellon v. alderazzi"

http://ssgoldstar.websitetoolbox.com/post?id=5184802


It should probably be noted that there are two published Alderazzi decisions:
Bank of N.Y. v. Alderazi, 28 Misc 3d 376, 2010 NY Slip Op 20167 (NY Sup. Ct. Kings Co. 2010)
http://www.nycourts.gov/reporter/3dseries/2010/2010_20167.htm

Bank of N.Y. v. Alderazi, 31 Misc 3d 1209(A), 2011 NYSlipOp 50547(U) (NY Sup. Ct. Kings Co. 2011)
http://www.nycourts.gov/reporter/3dseries/2011/2011_50547.htm
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FnDoomed
Reply with quote  #4 
LOL.  I came across this case this morning posted from somebody on a yahoo group that I participate in, sent it off to my BK attorney to add to his list of authority cases, and then came here.

News travels fast.

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William A. Roper, Jr.
Reply with quote  #5 
It should probably be noted that the In Re Agard decision expressly cited two of the decisions cited and relied upon within Weisblum:
OneWest Bank, FSB v. Drayton, 29 Misc 3d 1021, 1038-41, 2010 NY Slip Op 20429 (NY Sup. Ct. Kings Co. 2010)
http://www.nycourts.gov/reporter/3dseries/2010/2010_20429.htm

Bank of N.Y. v. Alderazi, 28 Misc 3d 376, 2010 NY Slip Op 20167 (NY Sup. Ct. Kings Co. 2010)
http://www.nycourts.gov/reporter/3dseries/2010/2010_20167.htm
The In Re Agard case may be found at:

http://scholar.google.com/scholar_case?case=4871833651431228042


*

It should be noted that the In Re Agard decision was NOT binding on New York State Courts.  By contrast, the Weisblum decision is authoritative in New York at least in the 2nd Department.  And Weisblum is now established New York law binding on U.S. Bankruptcy Courts sitting in New York State.

U.S. Bankruptcy Judges could rely upon In Re Agard, but the decision was NOT binding in other Bankruptcy Courts.  But other Bankruptcy Courts will be REQUIRED to respect the Weisblum decision.

*

See the prior threads discussing In Re Agard:

"02-14-2011 Merscorp Lacks Right to Transfer Mortgages, Judge Says"

http://ssgoldstar.websitetoolbox.com/post?id=5093243

 

"NY BK blasts MERS 2-11-2011"

http://ssgoldstar.websitetoolbox.com/post?id=5090668


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Sandy
Reply with quote  #6 
It seems to me that this decision would not apply to notes indorsed in blank. Is that correct?

From what I read on this site, I understood that delivery of the original note with Pay-to-the-Bearer indorsement by the original lender would carry the mortgage with it (Carpenter), therefore, such indorsement would establish lawful status as an assignee with legal or equitable interest. Any MERS involvement would be irrelevant, a mere nullity. Is my understanding correct?

I would appreciate any clarification of this. The "either by written assignment or physical delivery" confused me from this excerpt:
In order to commence a foreclosure action, the plaintiff must have a legal or equitable interest in the mortgage (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207). A plaintiff [*7]has standing where it is both (1) the holder or assignee of the subject mortgage and (2) the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d at 207-209; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754). Thus, as long as the plaintiff can establish its lawful status as assignee, either by written assignment or physical delivery, prior to the filing of the complaint, the recording of a written assignment after the commencement of the action does not defeat standing (see U.S. Bank, N.A. v Collymore, 68 AD3d at 754). We find that Aurora has failed to make this showing.

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FnDoomed
Reply with quote  #7 
Right.  A real honest to goodness properly negotiated note takes the mortgage with it and assignments do not matter.  It's the "honest to goodness properly negotiated" part that the banks are having trouble with.

They're saying an "honest to goodness assignment" is good enough.   Again, its that "honest to goodness" part that the banks had trouble with.

In the first of the two cases indicated they tried to get away with a retroactively effective assignment which might have been okay had they been able to actually prove it.  In the second case indicated the bank had trouble with conflicting versions of the note.

Bear in mind that a properly negotiated note is indorsed by the holder.  Just because you see a note payable to bearer doesn't mean that the holder indorsed it.

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William A. Roper, Jr.
Reply with quote  #8 

Quote:
FnDoomed said:

Bear in mind that a properly negotiated note is indorsed by the holder.  Just because you see a note payable to bearer doesn't mean that the holder indorsed it.


FnDoomed:

I am SURE that you KNOW the correct answer and this would appear to be a typo, though perhaps Freudian.

But since there are many who visit the Forum who are easily confused, I think this needs to be corrected.


What should have been said is:

Bear in mind that a properly negotiated note is indorsed by the payee or by the prior indorsee to whom the instrument was previously negotiated by indorsement and delivery to that indorsee. Just because you see a note payable in blank or to bearer doesn't mean that the payee indorsed it.

Regrettably, it is often the foreclosing entity which may have come into receipt of the original or a copy which fraudulently creates the indorsement presented to the court, often by way of an allonge.

A person cannot be the holder of an instrument payable to another person absent proper indorsement by the payee.
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Sandy
Reply with quote  #9 
So an indorsement in blank can go through multiple "bearers" as a legal transfer as long as no bearer is named along the way, correct? Those deliveries, if proved, constitute an honest-to-goodness assignment, if the Court sees the original lender as legit and the final party provides the Court an original or expensive-printer-copy note, correct?

I just learned that the original lender where I sent my payments for two months was listed as a mortgage corporation DBA a wholesale lender. The mortgage company was/is not licensed in my state, but the DBA is.  Is that of any helpful concern, or is that common?




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Sandy
Reply with quote  #10 
Mr. Roper and FnDoomed, please excuse me, I didn't read closely enough. I thought the original lender's indorsement in blank traveled with the note to whomever was next in line, regardless of the number or times the loan is sold, and that only delivery of the note with the original blank indorsement was needed to fulfill proper negotiation.  I guess this means I'm thinking like the banks, and that is scary. I really am reasonably intelligent, I just don't act like it sometimes.



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William A. Roper, Jr.
Reply with quote  #11 
Quote:
Sandy said:
So an indorsement in blank can go through multiple "bearers" as a legal transfer as long as no bearer is named along the way, correct? Those deliveries, if proved, constitute an honest-to-goodness assignment, if the Court sees the original lender as legit and the final party provides the Court an original or expensive-printer-copy note, correct?


Sandy, I think that you basically understand the concept, but a review is probably always helpful to the unititiated.
 
Generally, one can think of indorsements of checks by way of analogy and example, as checks are negotiable instruments under the UCC.
 
If you make out a check and it identifies Mark SMITH as the payee, in order for Mark to negotiate the check, he should do two things.  First, he should indorse the check.  Second, he should deliver the check to the person or entity to whom he is negotiating the check.
 
The indorsement can be restrictive OR it can be blank.  With a blank indorsement, the payee simply signs their name.  They COULD write "Pay To _______" on the check, but this is unnecessary, as simply signing implies a blank indorsement.  Making the check payable to "Bearer" or to "Cash" is roughly equivalent to a blank indorsement.
 
By contrast, the payee could add a restrictive indorsement.  The payee could specify indorsement in favor of a particular person or entity "Pay To Paul JONES" or "Pay To Paul and Mary JONES".
 
When the instrument is restrictively indorsed, the new holder must in turn indorse the instrument to further negotiate it.  When the instrument is indorsed in blank, it can be negotiated by delivery alone.
 
*
 
The New York decisions have generally held that proper negotiation of the note -- by proper indorsement and delivery -- carries with it the mortgage.  This is the case in most jurisdictions.  It is NOT the case in Massachusetts, as shown by the Ibanez case.
 
*
 
The Weisblum decision does NOT expressly hold that a properly negotiated promissory note could not be used to support a mortgage foreclosure.  Instead, it merely holds that the MERS assignments which falsely purport to convey both the note and mortgage are insufficient to prove the plaintiff's standing to foreclose.
 
Another different question not addressed in the Weisblum decision because it was not before the Court is whether the conveyance of the mortgage to MERS in an original MOM mortgage effects a bi-furcation of the note and mortgage.  If it DOES, then the note would seem to be unsecured.
 
And since MERS CANNOT convey the note and mortgage together may NOT be able to convey the mortgage AT ALL.  Note that New York Courts have consistently held that an assignment of the mortgage without a contemporaneous conveyance of the note is a NULLITY.
 
*
 
If the plaintiff comes into New York Courts with a validly negotiated original promissory note, this would usually prove a right to enforce the note.  And such a negotiation would USUALLY seem to carry with it the mortgage.  But it is difficult to see how such negotiatioin would carry a mortgage if it had been bi-furcated and actually separated from the note at origination!
 
As to the validity of a forgery of the note, a forged instrument would tend to be unenforceable, though this presents a proof problem.  That is the borrower is presented with the problem of proving that the instrument is, in fact, a forgery.

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William A. Roper, Jr.
Reply with quote  #12 
It is important to realize that the forged assignments are very often presented as false proof of both negotiation and assignment.  Rather than seeking to PROVE negotiation through proof of indorsement and delivery, the plaintiff simply forges an assignment which falsely purports to convey both the note and the mortgage.

Since MERS NEVER OWNS the Note and is never in physical possession of the note, the forgeries are rather transparent, though hundreds of thousands of borrowers have lost their homes through precisely this kind of fabricated evidence.

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Angelo
Reply with quote  #13 
2 questions on the topic.

1) If the the note was properly endorsed in blank from Bank A(originator) to Bank B, Bank B then delivers the Note to Bank C and so on...always passing the note with the same blank endorsement.  Does the the Bank that is now holding the blank endorsed note have to show the complete chain of custody with delivery receipts back to the originator for it to be valid conveyence?

2) The New assignment of mortgage's now state that the "..assignor(MERS) hereby grants and conveys onto the assignee(trust), the assignor's beneficial interest under the mortgage." Is this line in the assignment trying to assign the note also without explicitly stating such?
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FnDoomed
Reply with quote  #14 
Am I taking too much license with the language or am I slow today? ... I am feeling slow.  

Maker makes note to payee or his order.  Payee is a holder.  Payee indorses and delivers instrument to Receiver.  Receiver is now a holder.  Holder-ship can only derive from makers or prior holders.

UCC § 3-201.  NEGOTIATION.

(a)  "Negotiation" means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

(b)  Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.  If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

As I'm sitting here, I'm thinking that "payee" and "holder" are identical at time of issue.  Where did I go wrong?
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FnDoomed
Reply with quote  #15 
Quote:
Does the the Bank that is now holding the blank endorsed note have to show the complete chain of custody with delivery receipts back to the originator for it to be valid conveyence


The term "valid" is slippery.  Valid according to what?  According to the UCC a note lawfully indorsed in blank can travel as many hops as necessary for commerce to take place.   One can also contract around the UCC though...

The assignment sounds like its trying just that... The only "beneficial interest" really derived from a mortgage is the rights gained by tying the note to the property...

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Sandy
Reply with quote  #16 
I am feeling slow today too, FnDoomed. Obviously, I haven't been doing enough mental exercise and I'm showing it with this. Now the word REMITTER slows me down.

Pursuant to U.C.C. § 3-103, remitter means a person purchasing an instrument from its issuer when the instrument is payable to an identified person other than the purchaser.

Okay, I am officially brain dead. I am convinced the banks wrote all of the U.C.C.


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William A. Roper, Jr.
Reply with quote  #17 

Quote:
FnDoomed said:

As I'm sitting here, I'm thinking that "payee" and "holder" are identical at time of issue. Where did I go wrong?


FnDoomed:

I do NOT thing you are mistaken as to your elaborated explanation and your citation of of the law.

But let's face is, holder is both a legal conclusion based upon valid issue or negotiation and the identity of the holder changes.

The payee, by contrast, stays the same.

The note is payable to an identifiable person at issuance and that person is the payee.  When the instrument is delivered to the payee (issued) the payee becomes the holder.

When indorsed by restrictive indorsement, the note becomes payable to an identifiable person.  When indorsed in blank it is payable to the bearer.

*

Perhaps I clarified when no clarification was in order.  But the trouble arises when a person claiming to be a holder is purporting that the instrument was negotiated to that person or entitiy.  The necessary indorsement is not by the person purporting to be holder, but to the identifiable person shown to be the payee or last person to whom restrictive indorsement was made.  

*

Reference to the statute and to the official notes usually clarifies.
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Bob G
Reply with quote  #18 
The Weisbaum decision in the 2nd Dept is binding in the 2nd Dept as well as the other three departments trial courts, if those departments' appellate divisions have not ruled to the contrary.


NY Real Property Actions and Proceeds Law a.k.a. RPAPL, should read Real Property Actions and Proceedings Law.
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chritopherjoseph
Reply with quote  #19 
That it is a note is just a presumption. Attorney's screw people all the time by presumptions. Shift the burden. I can prove by statutory construction that it is actually a security and there is no obligation, it is not a negotiable instrument, it is a non-negotiable security and is governed by Art. 8, not Art. 3.  It's not a liability, it's your asset. Obligations are money.



Remember the spoon boy from the matrix? The spoon doesn't bend, you do.



"Pay to the order of" is a material alteration, meaning it now speaks a different language. That's a discharge  UCC 3-415 (d).



§ 3-104. NEGOTIABLE INSTRUMENT.


(d) A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this Article.


(e) An instrument is a "note" if it is a promise and is a "draft" if it is an order. If an instrument falls within the definition of both "note" and "draft," a person entitled to enforce the instrument may treat it as either.


 


The conspicuous statement is the maturity. Any note with a maturity of more than 9 months is a security.


 


Title 15 § 78c (a)


(10)The term “security” means any note, stock, treasury stock, security future, bond, debenture, certificate of interest or participation in any profit-sharing agreement or in any oil, gas, or other mineral royalty or lease, any collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or in general, any instrument commonly known as a “security”; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange, or banker’s acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.


 


§ 3-407. ALTERATION.


(a) "Alteration" means (i) an unauthorized change in an instrument that purports to modify in any respect the obligation of a party, or (ii) an unauthorized addition of words or numbers or other change to an incomplete instrument relating to the obligation of a party.


(b) Except as provided in subsection (c), an alteration fraudulently made discharges a party whose obligation is affected by the alteration unless that party assents or is precluded from asserting the alteration. No other alteration discharges a party, and the instrument may be enforced according to its original terms.


(c) A payor bank or drawee paying a fraudulently altered instrument or a person taking it for value, in good faith and without notice of the alteration, may enforce rights with respect to the instrument (i) according to its original terms, or (ii) in the case of an incomplete instrument altered by unauthorized completion, according to its terms as completed.


 


 


 







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FnDoomed
Reply with quote  #20 
Quote:
Now the word REMITTER slows me down.

Pursuant to U.C.C. § 3-103, remitter means a person purchasing an instrument from its issuer when the instrument is payable to an identified person other than the purchaser.

Okay, I am officially brain dead. I am convinced the banks wrote all of the U.C.C.


Yeah... The UCC is a real piece of work... w.r.t. REMITTER think of a cashiers check.  You go to BNY and buy a cashiers check payable to FnDoomed.  BNY is the issuer, you are the remitter, I am the payee. 

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FnDoomed
Reply with quote  #21 
Quote:

But let's face is, holder is both a legal conclusion based upon valid issue or negotiation and the identity of the holder changes.

The payee, by contrast, stays the same.


Okay.  I'm in total agreement and think we're both saying the same thing except, that my use of holder presumes valid transfers, and your use of payee required no such presumption. 

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FnDoomed
Reply with quote  #22 
Oh... and I don't buy the article 8 stuff...  There are rules of construction and this argument won't work.

The conspicuous statement referred to in christerjoseph's cite is more along the lines of the fake checks that get mailed to you inviting you to apply for credit that contained printed watermarks saying something to the effect of:

NOT NEGOTIABLE


Across the face of them.  The cite to 3-104(e) further clarifies.  My note says "I promise to pay" therefore its a note.  The checks in my checkbook say "Pay to the order of: ________________" which makes them drafts.


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Angelo
Reply with quote  #23 
Just to piggy back on Mr. Ropers other thread on the issue of standing and when it needs to be addressed, if the attorneys/pro se that are representing the borrower are not in-tune with the MERS business model, then when they appeal the ruling, the appellate court will not rule on a decision that was not before them.

Here is an Appellate decision where MERS was upheld to have assigned the mortgage and note. 

http://www.nycourts.gov/reporter/3dseries/2011/2011_03578.htm

"In a prior decision and order of this Court dated June 19, 2007, we held that, at the time this action was commenced, MERS was the lawful holder of the promissory note and the mortgage (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674). Contrary to the defendant's contention, MERS was free to assign the note and mortgage, absent any language which expressly prohibited the assignment (see Matter of Stralem, 303 AD2d 120, 122"

This the same Appellate court that ruled a month later that MERS cannot assign the note.  Different panel of judges though!


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William A. Roper, Jr.
Reply with quote  #24 
Quote:
Angelo said:
This the same Appellate court that ruled a month later that MERS cannot assign the note. Different panel of judges though!


There has clearly been an increasing appreciation by the New York Courts of MERS' actual role in the transaction and the absence of any interest in the note.

But this underscores the importance of getting EVIDENCE of MERS' lack of interest in the note INTO THE RECORD.  The surest means of doing that is to get the MERS Appellant's Brief from the case MERS v. Nebraska Department of Banking admitted into evidence.

Frankly, someone ought to lurk in the hallway outside of Judge Arthur SCHACK's Courtroom and give copies away to EVERY defense attorney enterring the Court.  In this way, perhaps SOMEONE would get this document in front of Justice SCHACK.  Justice SCHACK has shown a singular willingness to put a LOT of factual information in his decisions which can then be cited in other cases.
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Bill
Reply with quote  #25 
Bill
Is it at all possible for Judge Schack to introduce the brief sua sponte?  Maybe we can just email him the brief and let him introduce it or cite it without someone pleading it into evidence?

Would this be sufficient for others to then use in their case without making a formal pleading?  can we just cite the brief and let the presiding judge look up the case? 
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William A. Roper, Jr.
Reply with quote  #26 

Quote:
Bill said:

Is it at all possible for Judge Schack to introduce the brief sua sponte? Maybe we can just email him the brief and let him introduce it or cite it without someone pleading it into evidence?

Would this be sufficient for others to then use in their case without making a formal pleading? can we just cite the brief and let the presiding judge look up the case?

 

Bill:

 

It is absolutely true that courts can sometimes take judicial notice of certain facts, including published books, magazines and newspapers, court decisions in other jurisdictions, etc.

 

I am UNFAMILIAR with the New York statutes and Rules of Civil Procedure regarding a court's taking of judicial notice.

 

The MERS Appellant's Brief in the Nebraska case IS posted here at MS Fraud, at my Scribd site and elsewhere.  But let's face it, there are some inherent reliability issues associated with taking judicial notice of published facts, particularly those published solely on the Internet.

 

*

 

Sending evidence directly to a Court is inherently problematic.  IF the evidence is sent in respect of a particular case, then the evidence ought to generally conform to the Rules of Evidence and be properly served on all parties in accordance with the Civil Rules.  I am sure that you would agree that the Court OUGHT NOT consider some evidence presented to the Court without notice to the parties by a stranger in your own foreclosure case.

 

Calling the Court's attention generally to published facts seems a little less questionable.

 

*

 

With judicial notice of published works, common sense dictates that the character of the reported fact would also be important to its admissibility.  For example, suppose that we asked a court to take judicial notice of the score of a Major League Baseball game as reflected in a major newspaper or the participation of a particular player in such a game.

 

In this instance, the newspaper is publishing information regarding widely witnessed public events, the correctness of which is very likely to be unquestionable.

 

Similarly, a newspaper account of the day's weather seems likely to be uncontroversial. 

 

By contrast, suppose that a newspaper was to publish a story asserting that a reliable source reported that SMITH murdered his wife.

 

It is fairly easy to see that this is, at best, still hearsay, despite its publication.

 

So a first hand news account of facts which might be ascertainable from others within a wide, but possibly anonymous population would seem to be a more reasonable subject of judicial notice than accounts related second hand by undisclosed persons.  Admissibility of an article to prove that a person had written such an article or to prove that a person expressed particular opinions would be one thing.  Admissibility to prove as fact matters therein related would be another.

 

If I post an account online relating the events and outcome of the recent Kentucky Derby and Preakness Stakes, based upon what I have read (not having attended either race) would seem to inherently be hearsay.  A similar account by the jockey of the winning horse would seem to have greater authenticity. 

 

But my account might be admitted anyway absent some objection.

 

*

 

It seems to me that the better practice would be to put the MERS Appellant's Brief in the hands of a singularly capable attorney practicing before Justice SCHACK.  The Brief could then be properly admitted into evidence.  It seems quite plausible that Justice SCHACK might then quote extensively from the admitted Brief in a decision.  And Justice SCHACK could and might take judicial notice of either the evidence filed in one Kings County case within another case OR simply take judicial notice of his OWN DECISION in another case.

 

Similarly, I think that IF the Brief is shown to be admitted as evidence in another case ELSEWHERE, Justice SCHACK might take judicial notice of its use in THAT case.  But it is always better when the request for judicial notice comes from a party.

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Bill
Reply with quote  #27 
 

Quote:
Is it at all possible for Judge Schack to introduce the brief sua sponte?  Maybe we can just email him the brief and let him introduce it or cite it without someone pleading it into evidence?

Would this be sufficient for others to then use in their case without making a formal pleading?  can we just cite the brief and let the presiding judge look up the case? 

 
If you do a quick search you should be able to find a few threads where Mr. Roper discussed different options in which you will be able to introduce the brief into evidence. 
 
 

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William A. Roper, Jr.
Reply with quote  #28 
Quote:
Bill said:
If you do a quick search you should be able to find a few threads where Mr. Roper discussed different options in which you will be able to introduce the brief into evidence.


As Bill observes, we have discussed the means of getting the MERS Appellant's Brief from the Nebraska case into evidence in other previous threads, including:

 

"MERS officers"

http://ssgoldstar.websitetoolbox.com/post?id=5001003

 

"MERS Will Alter Its Rules To Prohibit Foreclosures In Its Name"

http://ssgoldstar.websitetoolbox.com/post?id=5097110

 

It should be noted that the arguments within the MERS Appellant's Brief are also supported by the holding of the Nebraska Supreme Court in its decision:

MERS v. Nebraska Dept. of Banking, No. S-04-786, 270 Neb. 529; 704 N.W.2d 784; 2005 Neb. LEXIS 177 (Neb. 2005).

 

The Kansas Supreme Court also quotes extensively from the Nebraska decision within:

Landmark Nat’l Bank v. Kesler, No. 98,489, 216 P.3d 158 (Kan. 2009).

 

See also Nye's thread:

 

"MAJOR MERS DECISION KANSAS SUPREME COURT MERS HAS NO RIGHTS"

http://ssgoldstar.websitetoolbox.com/post?id=3671071 

 

This earlier thread also discussed the MERS Appellant's Brief:

 

"MERS Appellant's Brief in MERS v Nebraska Dept. of Banking"

http://ssgoldstar.websitetoolbox.com/post?id=4841990

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christopherjoseph
Reply with quote  #29 
Sorry for going off topic, just wanted people to give consideration to the fact that it's not a note!



If Title 15 § 78c (a) says a note with a maturity of more than 9 months is a security, why accept the presumption that it's a note? Securities are non-negotiable.

 

I can't even begin to give the whole truth of the matter because it would blow you people away. But let me put it like this: how can a civilly dead, bankrupt person lend you money? If they are civilly dead, they are legally, naturally dead. The United States is bankrupt, (comes from the word broke/broker) and insolvent since they no longer pay their debts in the ordinary course of business.

 

They are probating your estate as you have been presumed dead until you prove otherwise.





 

 
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Angelo
Reply with quote  #30 

Show me some case law as to this fact!, If not take your theories elseware.

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christopherjoseph
Reply with quote  #31 

Which one? I stated 4 facts.

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Angelo
Reply with quote  #32 
The ONE stating that a note with a maturity over 9 months is a security, and not negotiable.  If thats the case all the mortgage notes since the beginning of time were really securities. 

How does this possibly make sense?  Like I said, show us some case law that holds your position to be true!
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Bill
Reply with quote  #33 
Quote:
Originally Posted by christopherjoseph
Sorry for going off topic, just wanted people to give consideration to the fact that it's not a note!

If Title 15 § 78c (a) says a note with a maturity of more than 9 months is a security, why accept the presumption that it's a note? Securities are non-negotiable. 

I can't even begin to give the whole truth of the matter because it would blow you people away. But let me put it like this: how can a civilly dead, bankrupt person lend you money? If they are civilly dead, they are legally, naturally dead. The United States is bankrupt, (comes from the word broke/broker) and insolvent since they no longer pay their debts in the ordinary course of business.

They are probating your estate as you have been presumed dead until you prove otherwise.
 
 
http://www.law.cornell.edu/uscode/uscode15/usc_sec_15_00000078---c000-.html

You are quoting things out of context.  Below is the FULL definition.  Please first notice that the definition applies when the word "security" is refered to in this chapter.  The Securities Exchange Act does not regulate the banks lending money for mortgages.  This chapter does not apply to notes executed by homeowners to purchase a home, rather than give a definition of what a "note" is, this is showing what the word "security" can include when used in this chapter.

(a) Definitions
When used in this chapter, unless the context otherwise requires
 
 
(10) The term “security” means any note, stock, treasury stock, security future, bond, debenture, certificate of interest or participation in any profit-sharing agreement or in any oil, gas, or other mineral royalty or lease, any collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or in general, any instrument commonly known as a “security”; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange, or banker’s acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.
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christopherjoseph
Reply with quote  #34 

It's not a note.

http://supreme.justia.com/us/328/293/case.html

http://supreme.justia.com/us/494/56/case.html

 

Who are the grantors and settlors that furnished the securities as the consideration for the creation of a Trust as the REMIC, SERVICING AGREEMENT, INDENTURE AGREEMENT?

 

A person who furnishes the consideration for the creation of a trust is the settlor. McColgan v. Walter Magee, Inc., 172 Cal. 182, 155 P. 995 (1916) (beneficiary transferred assets into trust although certain other persons could have prevented transfer by refusal to consent); Parscal v. Parscal, 148 Cal.App.3d 1098, 1104-05, 196 Cal. Rptr. 462 (1983) (child support enforceable against beneficiary's interest in trust created by beneficiary's employers under a collective bargaining agreement with benefit credits according to the amount contributed by employers to employee's account).

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Bill
Reply with quote  #35 
Quote:
Originally Posted by christopherjoseph

It's not a note.

http://supreme.justia.com/us/328/293/case.html

http://supreme.justia.com/us/494/56/case.html

 

Who are the grantors and settlors that furnished the securities as the consideration for the creation of a Trust as the REMIC, SERVICING AGREEMENT, INDENTURE AGREEMENT?

 

A person who furnishes the consideration for the creation of a trust is the settlor. McColgan v. Walter Magee, Inc., 172 Cal. 182, 155 P. 995 (1916) (beneficiary transferred assets into trust although certain other persons could have prevented transfer by refusal to consent); Parscal v. Parscal, 148 Cal.App.3d 1098, 1104-05, 196 Cal. Rptr. 462 (1983) (child support enforceable against beneficiary's interest in trust created by beneficiary's employers under a collective bargaining agreement with benefit credits according to the amount contributed by employers to employee's account).


I'm not following your logic at all.  Maybe you need to explain it in a little more simply for me. 

Everything you are posting has nothing to do with a homeowner executing a note and mortgage to purchase a home. 

If I sign a note with a lender, I am obligated to repay that note.   If the lender decides to sell this note to another bank and they use it to back a security, this does not change my obligation to repay the note I signed.  This also does not mean there is no longer a note, it is now a security.  This does not mean the note I signed is no longer a negotiable instrument.  You are using definitions from the SEC.  The SEC rules and regulations would apply to the bank that my note was sold to in the creation of the securities, but it does not change the note or my obligation.  It just changes the person/entity that will receive the proceeds from any payments I make.  Foreclosures are governed by STATE LAW.  Do you know of any STATE cases that would support this?
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