Originally posted by justbroke
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But in the foreclosure context, given what I wrote, the court doesn't care who gets paid. They really only care about who has standing to commence a foreclosure lawsuit. The original (endorsed) promissory note is proof enough in every case that I know of.
Right, and most of the time, it is pretty clear. In NY, like it's been said here before, to put a lien on a property and have it mean something, you have to have it on the county records through assignment. My case is clearly a mess, and I believe the Judge will see that too. Time will tell.
Where I have seen problems, at least in Florida, is with the Lost Note Affidavit where they try to re-establish the Note. The fact is that they need to prove that they lost it once they actually had possession of it! If it was lost before they got it, then it's easier to challenge them, since they literally cannot produce the note. However, I think, at least for Florida, that the creditors affidavit that they lost the note while they were in possession of it, is prima facie evidence and enough to re-establish the Note... even though it's missing!
Really complex. What I was saying by what you highlighted above, that the court wants to know who is entitled to collect, in that it is always a question of standing. The court really doesn't care "who" gets paid. They (should) care about who is entitled to enforce the provisions in the security instrument -- the mortgage.
Agreed
I look forward to hearing more about your case. I also wish someone could cite the 8 (New York) cases that were mentioned in passing.
(Edited to add) Think of the "did you pay" question. If a mortgagor can answer "yes" and to ABC Bank and prove that... yet XYZ Bank is foreclosing, then you have a real issue of standing and who is entitled to collect on the Note! (This has actually happened before but is extremely rare.) Even better, you answer "no" to that question, but there are TWO foreclosure lawsuits filed! Each by different entities claiming that they are the owner AND holder of the note. Technically impossible for them both to hold it... but there was some "warehouse" fraud a while back (if you read my prior posting on how the actual documents are warehoused).
Right, and most of the time, it is pretty clear. In NY, like it's been said here before, to put a lien on a property and have it mean something, you have to have it on the county records through assignment. My case is clearly a mess, and I believe the Judge will see that too. Time will tell.
Where I have seen problems, at least in Florida, is with the Lost Note Affidavit where they try to re-establish the Note. The fact is that they need to prove that they lost it once they actually had possession of it! If it was lost before they got it, then it's easier to challenge them, since they literally cannot produce the note. However, I think, at least for Florida, that the creditors affidavit that they lost the note while they were in possession of it, is prima facie evidence and enough to re-establish the Note... even though it's missing!
Really complex. What I was saying by what you highlighted above, that the court wants to know who is entitled to collect, in that it is always a question of standing. The court really doesn't care "who" gets paid. They (should) care about who is entitled to enforce the provisions in the security instrument -- the mortgage.
Agreed
I look forward to hearing more about your case. I also wish someone could cite the 8 (New York) cases that were mentioned in passing.
(Edited to add) Think of the "did you pay" question. If a mortgagor can answer "yes" and to ABC Bank and prove that... yet XYZ Bank is foreclosing, then you have a real issue of standing and who is entitled to collect on the Note! (This has actually happened before but is extremely rare.) Even better, you answer "no" to that question, but there are TWO foreclosure lawsuits filed! Each by different entities claiming that they are the owner AND holder of the note. Technically impossible for them both to hold it... but there was some "warehouse" fraud a while back (if you read my prior posting on how the actual documents are warehoused).
Thanks, and I will post the results when they happen.
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