Repossesion Hearing 1st Aug Help, Advice and Witnesses

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Re: Repossesion Hearing 1st Aug Help, Advice and Witnesses

Postby nameless » Fri Jul 29, 2011 11:50 am

These are some of the notes I copied from The Foreclosure Handbook, if I remember correctly. Presumably, Perfection of Chain of Title is as important here as in the US.

... "Beyond "Show Me the Note"

This argument is often tossed out of court.

You have to be able to articulate and defend your allegation that the bank is not a real party of interest, and therefore, lacks subject matter jurisdiction on the controversy. In other words, they lack standing.

An action must be pursued by a real party of interest. So, if it can be proven that the bank is not a real part of interest, then the bank cannot enforce the note.

A note is a one of a kind negotiable instrument that has the only legally binding chain of assignment. Often, the lender will show up with a photocopy of the note made years ago. This is admissible unless you know how to object.

Using "Blank assignments" is a blatant abuse of the law. The prom note as well as the Deed of Trust must be together at all times and there must always be a clear and unambiguous chain of title that is traceable in public records for all parties of interest in real estate.

Remember, the argument we want to go by is not "show me the note," but instead, "show me standing" or "show me that you are a real party of interest". One of the ways they can do this is to present the original prom note. By understanding the argument of securitization, you may be able to refute the note.

The Deed of Trust and Mortgage

When you sign to close on your loan, you signed a number of documents. Most importantly are the Deed of Trust or Mortgage, and the prom note.

The Deed of Trust/Mortgage secures the prom note, and is the document that gives your lender the right to sell your house in a foreclosure action.

Both the Deed of Trust/Mortgage and the prom note must always point to the same party at all times to have Perfection of Title.

Perfection of Chain of Title

When a prom note is sold or assigned, it must be recorded in public record to maintain perfected chain of title for the security. If there is a break in a chain of title, then bifurcation occurs where the Deed of Trust points to one party, while the prom note points to another party.

In every Deed of Trust/Mortgage, it states specifically that the instrument is subject to applicable state and federal laws. Since an assignment of the promissory note occurs without the corresponding Deed of Trust, then the instrument has violated state law. Thus, violating the terms of the Deed of Trust/Mortgage, making the instrument invalid.

If it can be proven that your loan has been securitized, then we have a serious breach of the terms of the Deed of Trust/Mortgage. ..."
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