Words from the Rising Republics

January 16, 2015

 

 

The bank or mortgage company must show the original promissory note in court, or the mortgagor owes nothing and the mortgage has no validity.  A copy of the promissory note, like a copy of a $100 Federal Reserve Note, has zero validity. Wells Fargo does not disperse original documents. No debt.

15 USC Chapter 41 (Sections 1601-1667z) - TILA (Consumer protection through Truth in Lending Act)

Mortgages must comply with TILA and laws governing mortgages.  Errors in your mortgage documents, or a missing promissory note, can justify rescission and possibly criminal complaints against the mortgage company, realtor, and title company involved with the mortgage, depending on circumstances.  Typically, upon discovering errors, one would write a notice of rescission to the mortgagee.  I no rebuttal arrives back within 20 days, one may file a Quieting Title action (Florida Statutes chapter 65).  In this action, the plaintiff would serve every party having a lien registered in the courthouse against the mortgaged property or the plaintiff.  They get one chance to prove their claim in court.  They do so by showing the original promissory note (which most mortgage companies do not possess) and by showing how the mortgage document complied with laws (if the court will allow it in spite of the estoppel raised by the rescission notice).

If the mortgagee or holder in due course or holder for value does not present the original Promissory Note in court, and instead files an affidavit of lost note, then the discovery process might need to include deposition of members of the bank/mortgage company so as to prove that they did not lose the note at all, but rather securitized and sold it as part of a securities package.  Florida's 6th Circuit requires the original note for all foreclosure actions. Claiming that a copy of a promissory note has validity amounts to a similar claim that a copy of a $100 bill has validity.  Neither constitutes evidence of the debt, and neither has the properties of a "negotiable instrument" under UCC Article III. The same principle should apply to all Quieting Title actions.

We should all realize by now that a promissory note has the nature of a Federal Reserve Note (like a $1000 bill, for example, rare though they are). Both, being negotiable instruments, are like money, and one can spend them the way they spend money, except that the recipient does not have to accept the promissory note because it is not "legal tender for debts."  If the holder LOSES THE NOTE, the DEBT NO LONGER EXISTS and YOU DON"T HAVE TO PAY IT, just as if you LOSE YOUR $1000 bill, you NO LONGER MAY SPEND THAT MONEY.  That is because the note IS the debt (not just evidence of it), just as the $1000 bill IS the money (for all practical purposes).

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