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Sunday, November 28, 2010

I Hate "You Know," You Know

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A verbal plague is sweeping the English-speaking world (I hope and trust, you know, it's not a problem with other languages). This plague is mysterious because, you know, it's unclear where it came from and why, you know, it's spread everywhere so quickly. Articulate people—close friends of mine, even the President of the United States—are, you know, infected by this plague, causing them to be inarticulate at key moments. Caroline Kennedy recently said "you know" 142 times in an interview with The New York Times. It's terrifying, you know!

Do you see how annoying it is to read "you know" so often in the prior paragraph? No one would deliberately write that tedious repetition into a document, but many people cannot stop themselves from the verbal tic of inserting "you know" into every conversation, sometimes more than once in a single sentence. This overuse of "you know" is painful to listen to, and if those infected by this logomania were aware of how it sounds, they'd take drastic steps to cure themselves.

Oh, come on, what's the harm, you might ask? The harm is multiple. First, it makes the speaker seem unsure of him/herself, as if constantly asking for validation of what's being said (though it's unclear what the speaker means by "you know," given that it could either be a question or a statement). Second, it's obviously a bad habit, and who wants to call attention to a bad habit? Third, it makes the speaker seem inarticulate, out of control, which is never a good thing. Fourth, it annoys listeners not similarly infected—just when you think you're being clever or amusing, your interlocutor is silently cringing at what you're saying. Finally, it interferes with whatever message or thought the speaker intends to convey because it distracts from the essential communication. If what you say is worth hearing should it be dressed up with ugly, meaningless interruptions?

Suppose you yourself are infected by this speech diarrhea and want to be cured. Is there hope? A twelve-step program? Poor baby, what can you do? Ah, my friends, Dr. Douglas is here with the remedy, so calm yourself and take careful notes.

First of all learn if you can hear yourself saying "you know." That will be difficult because you're used to your own cadence, but, as with all bad habits, being aware of the difficulty is a major step forward. If you're able to spot your "you know"s, you'll be embarrassed by how often you utter these inanities. However, if you can't hear your own overuse, or think it's minor, try another step. Get a friend (I'd be glad to volunteer) to say "I know" to you as an interrupting reply every time you say "you know." That will be shocking to you at first, then as annoying to you as the overuse of "you know" is to others, and, finally, so embarrassing that if this experiment is repeated daily for four days you'll build in an automatic dread of "you know" being followed by "I know," and the disease will be in remission.

Adopt this rule: the only time you should say "you know" is when you actually expect the other person to indicate understanding of what you've said.

Facebook has a site called "Society Against Major Overuse of 'You Know'," dealing with what it calls a "crisis sweeping our globe." I'm not sure "crisis" is the right word, but the overuse is damned annoying.

I know.
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Related Post:
"Picking Your Battles: The Meaning of Words," July 3, 2011

Tuesday, November 23, 2010

The Purring Heart

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Today, Tuesday, November 23, 2010, is the one year anniversary of the day I received my heart transplant at The Ohio State University Ross Heart Hospital. For the history of this whole process, see the "Related Posts" at the bottom of this post. The photo is of a birthday card my bridge partner, James Griffith sent me to commemorate the event. On the inside, he wrote: "We have much to be grateful for this Thanksgiving." He is so right.

It's been an amazing journey. A year ago I couldn't walk twenty feet without stopping to let my old, enlarged heart calm down enough that I could continue walking. Like all animals, I tried to cover my illness. Walking from the parking lot to a bridge tournament, for example, whenever I had to pause I'd pretend to examine my bridge convention card as if checking something written thereon, and then, apparently satisfied, walk on for another twenty feet until another pretended confusion caused me to check the card yet again. Today I'm back to the rigorous workout program I've had most of my adult life: stretching, 30 pushups, 30 sit-ups, 30 minutes on the exercycle, and 45 minutes lifting weights on the Universal Gym Machine. My only current health problems have to do with being older. This summer my right knee explained to me that we were done jogging. It was quite firm about this.

Dr. William Abraham
I have so many people to thank for keeping me alive. First is Dr. William Abraham, director of the division of cardiovascular medicine at The Ohio State University Medical Center, and all his splendid helpers. For ten years he was the cardiologist who carefully watched each change in my deteriorating heart and applied the right medical treatment to keep old Doug going. Next are all the wonderful doctors and nurses and other workers at Ross Heart Hospital who by performing the heart transplant (Dr. Ben Sun and his entire surgical team) and running the Heart Transplant Program made this miracle happen. The post-op care has been particularly impressive, for which I thank all involved, especially Drs. Ayesha Hasan and Veronica Franco, nurses Emily Jarvis and Erin Bumgardner, and Sandi Parsons (who controls the Heart Transplant front office, and who responds so efficiently to my various problems when I call her three or four times a month). Everyone has been terrific, and I'm so grateful for the patience and skill they've brought to the "Douglas Whaley Stays With Us" project. On top of being experts at their jobs, they're all great human beings and fun to know.

Now come kudos to an army of family and friends. My son Clayton and his wife Maria, my sister Mary Beth Colpitts, the members of my chosen family here in Columbus, my many friends both in the United States and around the world . . . I am beholden to you all beyond description. To think of the many services done for me—and done so selflessly—chokes me up. It's a wonder to be loved like that.

Most importantly on this day, I must thank my donor, Andrew, and his extraordinary family. Andrew's life was cut short just as it was beginning (he was only 27), and the grief that brings to all who knew him must swell mightily at this sad anniversary. I've become friends with Barbara and Byron, his mother and stepfather, and I hope they take what comfort they can from the knowledge that Andrew's tragic death, and the family's decision to donate his organs, allowed the four people who received five of those organs to snatch life away from the dark abyss. To all those who loved Andrew, my heart—his heart—is with you.

All of us are architects of our own lives. Happily, joyfully, in the last year I've added a new wing onto the building, and, while it's not done, I'm proud of how it looks so far. The whole experience has changed me in many ways. Knowing I was dying, the only plans I was making in November of last year were funereal (a list of people to be contacted with news of my demise, what to do with the body, what to do with the property, where the will was kept, etc.). I didn't buy new clothing in 2009 (a waste of money), and I cancelled a summer visit to Las Vegas for 2010 with my nephew Aaron, knowing it wouldn't happen though we'd been looking forward to it for years. Suddenly comes this surprise operation, and amazingly I had a future life unwrapping before me like an present placed unexpectedly in my lap. How can I describe how a new heart changes you? How it makes you rethink the idea of yourself? I now take an incredible pleasure just in rising from bed each morning. In January of 2010, looking at my pitiful wardrobe in a new light, I promptly spent too much money purchasing new clothes, lots of them! And this past August, Aaron (who had just turned 21) and I went to Las Vegas (see "Mary Beth and the Gay Teddy Bear," September 25, 2010), where I taught him how to play casino games—and, I must add, things were going well until he suddenly . . . impetuously . . . stupidly . . . against all avuncular instruction . . . doubled-down at Blackjack on 12 (!), with me sitting next to him (!), instantly turning himself into my "former nephew." Last Thanksgiving I was in the hospital eating a meal I'm pretty sure had turkey in it somewhere. This Thanksgiving I will be with my chosen family, overeating real turkey as part of our traditional holiday orgy.

Mama Explores Hydrology
Dr. Stanley Martin of OSU's Infectious Diseases Department cleared me last April for cat ownership, and I subsequently acquired two cats, both rescued from the wild: Mama and Barney (see "Teaching English to Cats," August 6, 2010). Mama, here first, was very upset when Barney arrived, but the two of them are now great friends, playing and sleeping together. Barney, still stupid as a chicken, is making progress. He now knows his name and, after too-painful-to-watch battles, has mastered the cat doors. Mama, smart as a Jesuit, has become fascinated by the bathtub and how water swirls around it when the tap is turned on. Whenever I enter the bathroom she hops onto the edge of the tub and mews loudly, a demand to get the water flowing. They are a joy to come home to.

I've also plunged into a legal crusade, spreading word of the necessity of original promissory note production in mortgage foreclosures, about which I've lectured in four states and conducted numerous interviews (see "The Sexy Promissory Note," August 17, 2010). I've always thought, and continue to feel, that following the law is what staves off anarchy. The dean at the law school has talked me into teaching a six-hour course in the spring of 2012—yikes!

I've jumped back into other activities: theater (directing a play in July), playing bridge, working on my various books (both my legal tomes and my novels—I'm off to a writer's workshop in Florida in January), and, to my great surprise, I'm even dating again. Who knew that was possible?

Immediately after the transplant, I assumed that I'd have many dreams about my new heart, and I worried there would be nightmares concerning supposed complications. But, thankfully, my only nightmares were my usual dull ones: control-freak-loses-control: I can't get to a destination on time, or am not prepared for class, or can't find the classroom, etc. Just once, this past summer, did I dream about a heart malfunction. In this dream I was talking to a man about some mundane matter when I realized my heart was making an odd noise. Trying not to look concerned, I analyzed what's going on and—much to my surprise and consternation—discovered that my heart was purring! The purr was quite loud, and I wondered if the man I'm talking with can hear it, but no, he droned on, unaware. Apparently I'm startled enough by this bizarre phenomenon that it wakes me up, at which point I realize that Mama is lying on my chest, purring happily just because she's as near to me as she can possibly get.

That's a nice metaphor for how I feel on my first "heart day." I trust my heart will purr through many more to come.
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Related Posts:

“Dog Meat,” December 27, 2009
"About That Heart Transplant," January 24, 2010
"My Heart Belonged to Andrew," February 17, 2010
"Parakeets and Me," February 5, 2010
“Bears,” February 23, 2010
"Another Letter to Andrew's Parents," March 10, 2010
"The Dogs In My Life," April 18, 2011
"A Toast to Andrew," May 2, 2010
"Mama, Biopsies, and My iPad," May 19, 2010
"Milking Cows," June 8, 2010
"The First time I Nearly Died," August 3, 2010
"Rehabilitating Doug," June 12, 2010
"1999-2001: A Dramatic Story, " December 15, 2010
"Naming My Heart," March 24, 2011
"My Parents and Dummy," May 13, 2011
"Two Cat Stories: Mama and Barney in the Wild," July 9, 2011
"Zoo Stories," August 30, 2011
"Mama Cat Saves My Life." October 23, 2011
"Stepping on Cats," February 8, 2012
“Snowbirding, My iPhone 5, and the Coming Crazy Cat Trip,” December 5, 2012
"Barney Cat and the Big Mammal Nightmare," January 7, 2013
“A Guide to the Best of My Blog,” April 29, 2013

Sunday, November 21, 2010

Open Mike, Insert Foot

This is Chapter Three of my published novel "Imaginary Friend," and it's the last segment I will put on my blog. You'll need to go to Amazon.com for the rest. The first two chapters were posted previously (see "Explosion at Ohio Stadium," October 9, 2010, and "Escape From Ohio Stadium," November 2, 2010). By the end of Chapter Three the premise of the novel has been established, and Franklin Whitestone is hurled through a maelstrom as his life collapses around him while he frantically tries to save everything he holds dear. When I was writing the book I started slowly, but towards the end of the process I was producing a chapter every other day—the last three chapters, created in a sort of fever, took one day each. I was astounded when I went back and read them. Before I wrote the first chapter I knew what the last six words of the book would be. Two years later, when I finally typed them, it was a surreal moment.



                                                 CHAPTER 3


                                      IMAGINARY FRIEND


Jake Richardson propped his feet up on the small table in front of his recliner, and put a bag of microwaved popcorn on the floor beside him. He was a tall man, and the room he called his living room was small and crowded with both furniture and debris. He had to move two pizza boxes and a huge bowl filled with something from last week just to find a spot for the popcorn. Jake balanced a beer on the arm of his chair as he settled down to watch the Jimmy Ball Show.

He knew he shouldn’t be drinking beer at all, especially now that he was a hero and was in the process of reforming old bad habits, but there was a six pack in the frig, and he couldn’t bring himself to throw it away. I’ll quit drinking at midnight tonight, he thought. Just now I need to relax. Been a bitch of a day. I wonder if they’ll mention me on the Jimmy Ball Show? Maybe run that interview with the chink. Maybe Heather would call—oh, wait, his cell phone wasn’t working since he stopped paying the bills, when was it, last month? The month before?

He took a healthy slug of the beer as the Jimmy Ball Show came on, and was annoyed to learn that Franklin Whitestone wouldn’t appear until the second half of the program. First he’d have to endure a half hour of that dickhead Hubie Lulland. Crap. That man hadn’t made a decent movie since “Udder Nonsense.”

Jake took another healthy slug of the beer. It was 8:00 pm. If he was going to quit drinking at midnight he still had five unopened beers to get through, but he was sure he’d be able to handle that.





“So, Hubie, one last question,” Jimmy Ball said, too loudly, his bald head catching a glare from the lights in spite of Judith’s careful work to prevent this, “is your new movie going to be as bad as the last one?” He took a sip of the glass of water on the desk before him and then wiped his large walrus mustache with the back of his hand.

“Worse!” Hubie exclaimed, guffawing, not unaware of what his agent and those who had worked so hard on this movie would think about this candid evaluation. “But it features lots of belching and fart jokes, so it’ll be a big hit with the teenagers. That’s all that matters, Jimmy!”

“On that note, we’ll take a break,” the host said into the camera. “When we return we will have a major hero as our guest.” He turned back to Lulland and extended his hand. “And. Hubie, we’ll see you back here when your next stinker opens!”





“About time,” Mary Whitestone said. “I couldn’t take another minute of that troglodyte.” She turned to Todd. “Tell me the worst, have you ever seen one of his movies?”

Todd’s face screwed up with disgust. “Oh, Mom,” he said, “really now! About the only movies I go to are independent films, mostly foreign ones. The last mainstream movie I saw was ‘Brokeback Mountain,’ unless you count documentaries such as ‘An Inconvenient Truth.’”

“You saw ‘Brokeback Mountain?’” she asked. He was sixteen, worldly wise for his age, and in no way (alas) restrained by convention. She’d been afraid to ask about his sexual orientation. He’d never been on a date as far as she knew, and she’d thought about the issue.

“Of course. A beautiful film. And if I were gay I’d watch it over and over again. It is a milestone in the history of movies.”

She relaxed from a tension she had not known she felt. “But you’re not gay?” she ventured.

“I might explore around some day, but no. Heterosexual. You?”

“Yes, me too.”

Just then the Jimmy Ball Show returned from its commercial interlude.

“We’re back,” Jimmy Ball announced as if it were necessary to explain his sudden reappearance onscreen. His voice then dropped an octave and his normally twinkling blue eyes narrowed with concern.

“As you know,” he intoned, “yesterday was the worst nightmare this great country has endured since the horrors of 9/11, 2001. The news is still coming in from both horrific explosions, and this news organization will have a two hour special exploring the latest developments following this program.

“But first we have a bright spot as an anodyne for your pain.”

“‘Anodyne,’” Todd murmured, impressed.

“Football fans died on two college campuses, and people were hurt at a number of schools where no bombs at all went off. The awful extent of the casualties is still being tallied, but hundreds, perhaps thousands died, and many more were injured. Our prayers are that more survivors will be found in the rubble of the two stadia.”

“‘Stadia!’” Todd marveled.

“But this morning 68 people were pulled from the cave-in at Ohio Stadium in Columbus. Amazingly, 54 of them got out under their own power when rescue teams and construction workers, after digging all night, knocked down a wall early this morning. What happened then has been replayed over and over today, but even if you have seen it multiple times, it’s worth watching once more.

“Roll it, Marty” he commanded.





Standing backstage, Franklin watched mesmerized as a monitor near him displayed the now famous footage. He’d not seen it until this moment, and the drama of the collapsing wall, he himself suddenly exposed, blinking in the sunlight, unbelievably dirty, turning startled as the beam circled with deadly accuracy towards his head, grabbing on and holding it, posed like a hero in an action movie while what seemed like an endless stream of people ran under his arms—it all floored him. Had it really happened like that? To him? No wonder they’d flown him to New York to be on this show!

When the video ended (with a shot of Franklin letting go as workers surrounded him, and he went down in their midst), there was even applause from the television crew in the studio (there was no live audience present), and Franklin was startled as the clapping backstage began all around him. Jimmy Ball was telling his audience that Franklin Whitestone, the “courageous man who stood his ground like Atlas” was his next guest. Malone, standing behind Franklin, gave him a slight push, and he walked unsteadily into the bright lights of the studio set, shook hands with Jimmy Ball, who motioned him to a plush chair on the other side of Ball’s desk, and sat down.

“What a day for you!” Ball exclaimed, clapping his hands lightly twice.

“You have no idea,” Franklin said, feeling very good about himself and his place in the universe. Why in hell had he been nervous? This was the highlight of his life and it felt incredible.

“You’re right, I don’t. May I call you ‘Frank’?” he asked.

“‘Franklin,’ please.”

“Of course. Franklin, that was an amazing video we just watched. What goes through your mind as you see it?”

“Actually, Jimmy, it was my first time to watch it. I’m still in shock about the whole thing.”

“Where were you when the bomb went off?” Ball asked.

So Franklin related, the best he could remember, everything that happened from the time he went for popcorn until the workers took the girder from his grasp and dragged him away from the opening.

“It’s hard to tell from the video,” Franklin added, “but the last thing that occurred immediately after the workers got to me was that I collapsed and passed out.”

He meant this to be self-effacing, but Ball simply said, “Who wouldn’t? How hurt were you?”

“I got banged around in the explosion and the terrors that followed, but really all I suffered were some cuts—one large gash on my thigh that is causing me some pain and makes me limp a little—and some bruises that are already bright purple. But I’m okay—very, very lucky.”

Jimmy Ball shook his head and ran a hand over his bald pate. “Incredible story, my man, incredible! All America is proud of you! You married? Have children?”

“Divorced,” he said. “I have one son, Todd, a teenager—probably watching now.” Franklin waived his hand vaguely at the camera.

“And what do you do for a living?”

“I’m a partner in the Columbus law firm of Factor, Marroni, & Ray, specializing in commercial law. In fact, I have to get back to Columbus and go to work in the morning.”

“After all you’ve been through, you mean you aren’t going to take some time off? If it were me, buddy, I’d go to Mexico and sun myself on the beach for about a month.”

“Sounds good, but I have a major trial coming up. Mexico will have to wait.”

“You’re a fantastic person, Franklin Whitestone,” Ball said. “Now we’ll see what America has to say to you. Let’s go to the phones.” He paused to listen to the voice in his ear. “The first caller is Ralph in Chicago. You there, Ralph?”

“Yes, Jimmy,” said a disembodied male voice filling the studio, seeming to Franklin to come to from all sides at once. “I just want to thank your guest for the incredible courage he showed on that video! What an inspiration to us all!”

Franklin smiled happily. A golden glow infused his inner being. So this is what it meant to be on top of the world! “Thanks,” he said, the humble hero.

“If you get to Chicago, my man,” Ralph continued, “you look me up! I’ll take you out on the town and treat you like royalty!”

“That’d be great,” Franklin mumbled, at a loss for something better. Was there to be no substance to these calls? This guy hadn’t even asked a question. Piece of cake.

The next two callers were similar. Ginny from Atlanta wanted to know if Franklin had seen his son since he’d been rescued (no he hadn’t), and Manny from San Antonio asked how Franklin had gotten on this show so quickly.

“I’ll take that one,” Jimmy Ball said with a chuckle. “My crack staff zeroed right in on this important story and plucked the hero at the heart of it right out of Columbus to bring him here to talk to you! On my show, we work very hard to stay on top of the biggest stories of the day. Thanks for calling, Manny. Next is Doris from Salt Lake City. Hello, Doris!”

And then the world changed forever for Franklin.

“Mr. Whitestone,” Doris began, “when you were hanging on to that girder for dear life, were you praying to God that you would have the strength to hold it long enough for all those poor people to escape?”

Franklin shook his head. “Oh, no,” he said, almost jovially. “I certainly wasn’t praying. God was the problem, not the solution.”

“What do you mean?” Doris asked, puzzled.

“The bombs went off because of a belief in God! Same as 9/11. In both cases religious nuts killed people simply because they thought their God commanded them to do so.”

There was a shocked silence in the studio; it lasted for a couple of beats.

“But God saved all those people that ran out under your arms!” Doris exclaimed, clearly upset. “And He saved your life too.”

“At the same time that he was allowing the deaths of thousands in other stadiums? I don’t think so. It never ceases to amaze me,” Franklin said, as if leading a slow student, “that God gets credit when things go right, but is never to blame when things go horribly wrong, even where, as with these explosions, religion is clearly the motivating force.”

“GOD DIDN’T CAUSE THE EXPLOSIONS!!!” Doris yelled, her voice overwhelming the studio mikes.

“Oh? From what I hear there is a website making that very claim. ‘The infidels are dead—praise be to Allah!’

“I . . . I . . . I,” Doris sputtered, unable to talk.

“Wow!” Jimmy Ball said. “My director tells me that the phone lines just jammed up solid!”

“I THOUGHT, I THOUGHT YOU WERE . . . A HERO! BUT YOU ARE GOING TO GO TO HELL!!!” Doris screamed.

“We are running out of time,” Ball said, deep concern on his face, cutting her off, “but let me ask you some questions, Franklin. You are an atheist, right?”

“I suppose. I don’t give myself labels for not engaging in the supernatural. But I do believe in finding out what’s true and what’s not. I have to keep reminding myself that there are intelligent people who—incredibly—think that some magical being is watching our every move, counting the sparrows as they drop, when there is not the slightest bit of evidence this is true.” He waved a hand airily. “Actually, you know, the evidence completely goes the other way. In all of recorded history there is not one verifiable incident of supernatural intervention in the affairs of human beings. Not one. Now, Doris, if you were an almighty god, don’t you think you’d clear up your existence in some obvious way? Leave the issue beyond doubt so that everyone would salute and get with the program?”

Jimmy Ball’s eyes got wider than his audience had ever seen.

“You don’t believe in any form of divine guidance!?” he asked.

Franklin smiled, giving a small shake of his head. “Let me put it like this, Jimmy. When I was a child I had an imaginary friend who was with me everywhere I went, helping me out, very real to me. I loved him with all my heart. But as I got older I didn’t need that crutch anymore, and one day he just wasn’t there—nor did I miss him. As an adult I’d be embarrassed if I still needed an imaginary friend to help me run my life.”

More dead air while that statement floated around the room for a few seconds. Then Jimmy Ball found his voice.

“Well, we clearly have material there for a very different show, and we may have to invite you back, Franklin, to talk about this . . . controversial topic at length. But now it is past time to wrap up.” He turned and looked into the camera. “Thank you all for watching, and tune in next time when my guest will be Heisman trophy candidate Randolph Jones.” He paused, then added, “Good night.” He usually tacked on, “and God bless,” but he somehow omitted it this particular evening, an oversight for which he profusely apologized after he saw his mountain of mail on this very point. He was never quite forgiven for the misstep, which caused him grief until the day he died twelve years later.





Kelly had watched the show from a private viewing area near the director’s booth. Mr. Malone had gotten her a bottled water, and asked her to avoid making any noises that would carry to the set (but she had nonetheless joined in the staff’s applause when the video ended).

At the start of Franklin’s segment she’d been so proud, and then was very impressed with how he handled the interview and the first couple of questions. He wasn’t nervous at all in spite of his earlier worries. Then came that call from the woman in Salt Lake City.

Now Kelly sat very still in her seat.





“Incredibly brave! Stupendous! I couldn’t be more proud of Dad!”Todd rejoiced, dancing around the television, both fists in the air.

Mary, firmly seated in her favorite leather chair, the cat, Elliot, on her lap, was more sanguine. She used the remote to turn off the TV. “Your father has a lot of characteristics, but stupidity is not usually one of them,” she told him.

Todd paused in his dance, one foot still raised. “What do you mean? He was great!”

“It couldn’t have been dumber. I wonder if he was on drugs. That Kelly woman has been bad for him. This is just the latest example.”

“Mom, what was dumb about Dad’s courageous stand on behalf of non-belief? He refused to be bullied by that religious nut. She deserved to be put in her place.”

“He dragged his atheism into a conversation where it was irrelevant, and I’m afraid he’ll pay dearly for it.”

Todd leaned in close to her. “Mom, you’re an atheist yourself. You both brought me up not believing all those religious delusions! Don’t be a hypocrite.”

“Yes,” she conceded, rising and dumping Elliot on the floor, “I’m an atheist, but his remarks were so over the top that they offended even me.”

“Offended you? Are you ashamed of being a nonbeliever?” He followed her into the kitchen.

“No, but I am circumspect about the occasions on which I bring it up. I certainly wouldn’t do so gratuitously on national television.”

He thought about that for a second. “Okay, when would you think it ‘circumspect’?”

“When about to embark on a serious romantic relationship, or when asked by a friend to be a godmother to some child, or when explaining to my own son how the world works. But, make no doubt, atheists are controversial, only a tiny percentage of the population. It’s the only minority left where discrimination is encouraged. So, Todd, you have to be careful. You can’t stick your head into a beehive without instantly regretting it.”

Todd looked unconvinced. “Well, Dad is my hero. He’s not afraid of the consequences of telling the truth.”

“Then he’s a fool. Holy hell—and I do mean that in the religious sense—is about to break loose.”





“DAMN HIM, DAMN HIM, DAMN HIM!!!” Jake Richardson screamed, pounding rhythmically on the wall with each “damn.” “I saved the fucker and he’s BETRAYED me!!!” He pushed off from the wall violently, careening into a standing lamp, which went down with a thud, the bulb breaking with a spectacular spray of glass. He turned back and kicked the lamp into the side of the TV, spreading small shards everywhere. Sometime during the show itself he had jumped to his feet. Popcorn from the bowl on his lap was flung like confetti to the four corners of the room. He’d knocked over his beer too.

Jake stopped in the middle of the floor, his lip curled, fists at his side, his face pointed up toward the ceiling. “He betrayed the Lord!” he moaned. “The Lord our God! How could he do that? Fuck, fuck, fuck!” It was a strange sort of incantation.

“That asshole must be brought to the truth,” he said, taking a deep breath, his fists relaxing. “Yes, yes! He too is one of God’s children, and he has strayed from the flock. It’s my duty as a Christian to bring him back.” He nodded his head up and down with vigorous determination.

“I saved him once. I will save him again.”





When the director signaled that the camera was no longer live, Jimmy Ball just sat there looking quizzically at Franklin.

“Oh, you are in such trouble, my friend,” he said, sadly shaking his head.

“I thought I was a hero,” Franklin commented, still in the moment, still pleased with himself.

“That’s over. You’ll be picking tar and feathers out of your hair for months. We have a saying about guests on this show who do what you just did: big mouth, big mistake, big trouble.”

“Nonsense,” Franklin replied with a smile. “I believe what I believe, and I don’t hesitate to say so. She asked, I answered.”

“How does a foot taste that far back in your throat?” Ball asked as he came to his feet.

“You’re being too dramatic,” Franklin countered, unclipping his microphone and leaving it on the desk, rising himself. “But I’m very pleased you had me on the show.” He extended his hand. “Thank you for everything.”

As they shook hands, Ball said, “Oh, believe me, the pleasure is mine, all mine. There’s no such thing in show business as bad publicity, and the show we just finished is going down in TV history! So thank you a hundred times over.”

“Glad to help,” Franklin said, turning to leave until Ball touched his arm.

“And I was serious about what I said on the air. If you want to come back on the show, say in a week or two, I’ll give you the whole hour and you may say whatever you like. The ratings would go through the roof!”





Kelly was waiting for Franklin as he emerged from the men’s room where he had scrubbed off his makeup. She looked crestfallen, leaning against the wall, arms folded, head down. Franklin had had a few minutes to think, and he was beginning to see that his flip answers about religion were probably not going to go over so well. He smiled as he walked up to her.

“Hi, Sweetie,” he said, reaching out a hand to touch her.

She turned and headed for the front door of the building. “Let’s get out of here,” she said.

He followed her to the curb where the limousine was waiting to take them back to the airport. She climbed in without a word, so he joined her silently, worried now. The limo driver pulled into the New York traffic.

Finally he ventured, “Upset with me?”

She didn’t answer at first, and the long silence was awkward, making Franklin tense up. This was worse than he thought.

Finally she spoke.

“You ruined the best evening of my life. You just ruined it.”

Now he paused. Then he said, low, “I’m very sorry. That would’ve been the last thing I intended.”

He heard her sniffle, and looked at her face carefully. Was she crying?

“Oh, Franklin!” she said (not “Frankie,” he noticed). “Do you have any idea what you’ve done?”

“Done? To whom?”

“To the people who watched the show. To me. To your family. Hell, to my family. Can you imagine how my parents are going to react to you now?”

He hesitated.

“I guess not. Tell me what you mean.”

She turned toward him for the first time, and there were tears in her lovely eyes. It broke his heart. “Religion is important to the world. Don’t you know that? It comforts people, helps them get through the bad spots of life, makes it easier to bear all kinds of burdens. Taking that away is cruel. I didn’t know you could be so callous.”

He took a deep breath before replying. “Callous? For saying what I believe? Well, ask yourself this one: if what I said is right, and there is no God, you’re deluding yourself. Isn’t that worth knowing?”

“No,” she replied, very sure of this. “First of all, you’re not right. There clearly is a God, and you have just offended Him greatly. Worry about that tonight when you put your head on your pillow.”

He rolled his eyes, as disappointed in her as she was in him. “Not you too,” he moaned. “You can’t believe that pap!”

“Pap! How dare you say that to me?” she snapped, teeth bared.

“But I didn’t know you believed in God!” he pressed. “You never said much about the topic, and you knew I was an atheist! Why didn’t you speak up?”

“I didn’t think it was worth fighting about. You could believe what you wanted and I could believe the opposite. It wasn’t like we were planning on having children, or anything, so that it was important to clear it up.”

“How religious are you?”

“I was raised a Baptist, and I went to church every Sunday all the time I was growing up. I loved going to church. It was one of my favorite things. Granted, I haven’t gone very often as an adult, but I feel guilty about that. It’s something I always mean to change . . . to become better at tending to my faith. I’ve been busy, so I stupidly neglected it. Well, no more. Next Sunday I’ll be back in the pews.”

Exasperated, he ran a hand through his hair. “Oh, no. Please, no,” he mumbled. He slumped back in his seat. Jimmy Ball was right. What was that about big mouth, big trouble? Now he’d have to think fast or lose this woman he cared so very much about. But on this issue, they were very far apart. He could no more conjure up a belief in God than he could in leprechauns, nor was she likely to forgive him for thinking that church-going was a colossal waste of time. How, he asked himself, could they have had years together without knowing these fundamental things about each other? Had their relationship been that shallow?

Finally, he spoke. “What can I say to make things better?” he asked, really meaning it.

“Don’t say anything,” she told him, also meaning it. “You’ve said plenty tonight.”

“I do apologize, Kelly. I never meant to hurt you, or cause you distress in any way. I’m very, very sorry.”

She was having none of that. “Not now! I just told you to stop talking, but you’re making things worse.”

“But . . .”

“SHUT UP!” she yelled. The limousine driver snapped his head back to look back at them, frowning. He’d had passengers get into physical brawls in his back seat before, and it made for a bad ride.

Franklin, feeling the sting of her anger, did as she asked.

Without exchanging another word, they reached the airport and climbed on board the private jet. They buckled in, and as soon as the plane took off, she reclined her seat and closed her eyes for the rest of the journey. When they landed in Columbus, Franklin thanked the pilot and the attendant for the way they’d handled the whole trip, but Kelly didn’t speak a word. Silently they walked to his car, which was parked in the short term parking lot next to the concourse.

As the car entered the freeway circling the city and they headed north, she finally spoke.

“Take me home and drop me off.”

“That’s what I’m doing,” he said, contrite.

Another short pause, then he asked, “How can I get you to forgive me? Please, Kelly. I’ll do anything.”

She turned to him. “Convert. Tell me you believe in God.”

He paused. “No.”

Her lip curled in a sneer he had never seen before. “I thought you were the one who didn’t discriminate on any basis. So much for that.”

That made him angry. “I do discriminate when it comes to unblinking adherence to superstition.”

“You know,” she said, having none of that, “on the plane I got to thinking about a biblical verse I heard often as a child: ‘Be ye not unequally yoked together with unbelievers.’”

That was a conversation stopper, he thought, and he was right. Nothing more was said even as they parted. When Franklin pulled up to the curb in front of her house, Kelly jumped out as fast as she could and shut the car door firmly, walking away without a backward glance.

By this time Franklin’s stomach ached, his head hurt, and the bandaged cut on his thigh throbbed, demanding his immediate attention, though the care—the rest—it needed would have to wait until he got home. His hands were shaking so bad he doubted he could drive.

So, for minutes, he just sat there at the wheel in front of Kelly’s house, trying to get hold of himself. Then, to add to his misery, he suddenly realized he was about to break down and cry, and not just ordinary tears, but a waterfall of misery.

No! No! he thought. I won’t let her see me sitting out here sobbing!

Quickly he put the car into drive and shot off down the street, making strange little “uh uh uh” sounds deep in his throat. As soon as he turned a corner, he pulled over to the curb and let it all out, leaning over so that his head was down on the passenger’s seat, sobbing, his mid-section draped painfully over the gear shift.

Franklin was not sure how long he stayed like that, but finally he straightened up, sniffed deeply a few times, put the car in gear, and slowly resumed the trip home. Ten minutes later as he came up to the intersection leading to his street he saw to his horror that the news trucks were still parked all around the front of his house, spilling onto lawns, blocking his neighbors’ driveways.

Quickly he accelerated and kept going straight, hoping that he wouldn’t be detected. He glanced at the dashboard clock. It was shortly after midnight! Had they been there all this time? Were they nuts? Was it going to be like this from now on?

Even my problems have problems, he thought.

About as unhappy as a man could get, Franklin parked on the street that ran behind his condo development and walked across the yard of the young couple who lived immediately behind his unit. He quietly let himself through the gate into their back yard, then climbed the short fence that circled the condos (which made his injured thigh throb), and then let himself in through his rear patio door. Careful not to turn on a light and thereby attract the attention of the mob outside, he shut himself up in the master bedroom, washed up, and climbed into bed.

He lay there staring at the ceiling for over an hour.

Knowing it was a mistake to keep going over it, he replayed the life-changing day he had just been through. This very morning he’d awakened in a hell hole where he thought he might die any minute, been rescued while at the same time saving others in what looked on TV like a herculean stunt, then was whisked off to New York, treated like a VIP, put on the air, and immediately said all the wrong things. Now his hero status was very much in doubt, and the woman he loved hated him.

Quite a day, he thought, a sour taste in his mouth. Quite a day. Tomorrow had to be better.

But he was wrong.
________________________________________
Related Posts:
“Catholicism and Me (Part One),” March 13, 2010
“Superstitions,”March 21, 2010
“Catholicism and Me (Part Two),” April 18, 2010
“How To Become an Atheist,” May 16, 2010
“Imaginary Friend,” June 22, 2010
“I Don’t Do Science,” July 2, 2010
“Explosion at Ohio Stadium,” October 9, 2010 (Chapter 1 of my novel)
“When Atheists Die,” October 17, 2010
"Escape From Ohio Stadium," November 2, 2010 (Chapter 2)
"Rock Around the Sun," December 31, 2010
"Muslim Atheist," March 16, 2011
"An Atheist Interviews God," May 20, 2011
"A Mormon Loses His Faith," June 13, 2011
"Is Evolution True?" July 13, 2011
"Atheists, Christmas, and Public Prayers," December 9, 2011
" Urban Meyer and the Christian Buckeye Football Team," February 19, 2012
"Intelligent Design, Unintelligent Designer?", May 12, 2012
"My Atheist Thriller: Another Book Reading," May 17, 2012
"'The God Particle' and the Vanishing Role of God," July 5, 2012
“Update: Urban Meyer and the NON-Christian Buckeye Football Team,” August 24, 2012
“Atheists Visit the Creation Museum,” October 4, 2012
“Mitt Romney: A Mormon President?” October 17, 2012
“The End of the World: Mayans, Jesus, and Others,” December 17, 2012

Tuesday, November 16, 2010

Update: Mortgage Foreclosure and Missing Notes

             


    This blog post’s discussion of the law has been updated in a subsequent post on this blog.  See “Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article,” February 11, 2013, at http://douglaswhaley.blogspot.com/2013/02/mortgage-foreclosures-missing.html

 


 








This post, concerning missing promissory notes in mortgage foreclosures, about which I've written in the past (see "Related Posts," below), is in three parts. Part One is for my usual blog readers, and tells the story of my recent frantic trip to Boston to lecture on this topic, which has me reliving a nightmare. Part Two is for readers seeking general guidance on the necessity of a promissory note before foreclosure is possible. Part Three is a technical legal explanation of the law for lawyers involved in the legal battles concerning these missing notes.

Part One: Sliding into the Lectern Like a Base Runner at Home Plate

Since 2009 I've given a number of lectures on the missing promissory note in mortgage foreclosures, and the most recent was at 4 p.m. last Thursday in Boston at the annual meeting of the National Consumer Law Center (NCLC), which ran Thursday through Sunday, and contained numerous programs on a variety of consumer law subjects. Mortgage foreclosures are a hot topic these days, of course, and I was told ahead of time that my one hour lecture was already very popular with consumer lawyers signing up for the different sessions.

When I dream and have nightmares, they're almost always the same dull kind of thing: I can't get there from here, or I'm unprepared for class, or I can't find the room I'm supposed to teach in, or similar terrors about loss of control. Very uninteresting dreams, but, control freak that I am, horrors that have me waking in a panic. So it's always doubly troubling when they come true, as in this trip to Boston.

On Wednesday, November 10, the day before I was to leave, I was sitting at my computer in the late morning reading emails when a notice appeared on my screen that a virus had been detected and I should click on the warning box to see more about this threat. Without thinking (sigh), I did so, only to welcome the virus into my computer, which promptly crashed and remained crashed until the following Monday (yesterday) when I was able to retrieve it from the shop. I've since learned that such evil notices are called "scareware," and the people who create them and destroy other people's computers should be given the old Roman punishment of being sewed into a sack with an adder, a cat, and a chicken, and then cast into the sea (I'm not usually in favor of capital punishment, but in this case I'd carry out the sentence myself while smiling). For me the computer crash meant not only the loss of my notes on the speech I was to give the next day, but also non-access to the materials I'd already sent to Boston that were being duplicated and handed out to attendees at the conference. Everybody there would have more notes on my lecture than I did. All I had was my memory of what I'd said in past talks.

That was annoying, but not quite a catastrophe. I'm an accomplished speaker, an expert on this topic, filled with new thoughts and information, and good at impromptu situations where the spotlight hits me and I'm expected to be entertaining and informative. Moreover, since my flight plans had me arriving in Boston at noon, I could get to the Park Plaza Hotel in plenty of time to pick up the conference materials containing the eight pages I'd sent, and review and mark them up enough to guide me through my talk.

The woman who runs my life, Barbara (see the post of that title, May 5, 2010) had called me a few weeks before about the reservations she was making for me, and informed me there was a very expensive direct flight from Columbus, where I live, to Boston, and a much cheaper airfare for a flight that required me to change planes in Philadelphia. Not wanting to saddle the NCLC with a huge reimbursement, I told her to route me through Philadelphia. She assured me that if I left Columbus on US Airways at 8:30 a.m. that Thursday morning, I would be in Boston by noon. "Book the flights," I told her, and she did. A week before the speech, The Wall Street Journal contacted me and asked if I would be willing to grant their reporter an interview right before my presentation at 2 p.m. at the Park Plaza Hotel (she would take a train from New York City to meet me there). Pleased at being asked and at the chance to spread my message about promissory notes, I agreed readily. Then I heard from friends in Boston, Rhode Island, and New York who wanted to hear my talk and asked if I could get them into the room. I arranged that, and agreed to meet them at my hotel room at 3 p.m., with the idea we would go down to the ballroom where I was to speak and, after my talk, go to supper together. It was a busy schedule, but not overly so.

I'm not a morning person, so it was with great personal sacrifice I rose that Thursday at 6 a.m., grabbed my overnight bag, drove myself to the airport, checked in and received my two boarding passes, and made it through the security screening a little after 7 a.m. With plenty of time before my 8:30 departure, I stopped at a coffee shop in the concourse and sipped a cup while reading the morning paper. A little before 8 a.m. I wandered down to my departure gate, and that's when the nightmare started. The gate was barren: no attendants, no passengers, no departure times on the screen at the podium. My early morning dullness fled at once, replaced by rising panic. What was wrong?

It turned out that what was wrong was an error Barbara had made (which almost never happens). The reservations she'd booked did have me leaving Columbus at 8:30 and arriving in Boston at twelve, but they were for p.m. and not a.m.!  Suddenly I had no reservations at all that would get me to my destination in time to do all the things I'd scheduled. Jaw-dropped, I pictured a ballroom filled with consumer lawyers staring blankly at an a vacant lectern on an empty stage.

Thanks to the diligent work of a wonderful woman at US Airways (and the payment of an extra fee of $300!), I was able to snag a ride on a plane to Washington, D.C., which then passed me on to a flight to Boston, arriving a little after 1 p.m. My Nigerian cabdriver assured me he could get me to the Park Plaza before 2 p.m., and, by golly and bless him, he did it (I gave him a large tip). I slid into the hotel just before two, registered and pocketed my room key, and as I entered the room the phone was ringing. It was the reporter from The Wall Street Journal asking if I could meet her at the coffee shop next door to the hotel. Since I hadn't eaten that day, I was pleased to be able to do grab a sandwich while explaining to her how promissory notes worked in mortgage transactions. Then, as I left her and entered the hotel, I scooted up to the registration desk and snagged a copy of the materials handed out to all the attendees. I took it back to my room, where my friends promptly showed up and, of course, wanted to talk. I had a quick visit with them and then, explaining my circumstances, sent them down to the ballroom at 3:40, giving me a little time to scan the materials and make notes on what I needed to say.

I came into the crowded ballroom (between 200 and 300 lawyers were present, including numerous former students, as I later learned), and climbed to the stage exactly at 4 p.m. I shook hands with the moderator, who commented that I looked frazzled. "Worried about your speech?" he asked, concerned. I gave a little laugh. "Oh, no," I told him as he walked to the lectern to introduce me, "the speech will be fun—it was getting here that's frazzled me!"

The presentation went very well. I walked the attendees through the Uniform Commercial Code rules on promissory notes, brought them up to date with recent developments and thoughts, and received applause three times during the speech, most loudly when I said the fraudsters who were submitting false paperwork to the courts and cheating their investors should be prosecuted and thrown in jail. As always in these sessions, I learned a lot from the audience when I took questions. One of them about waiver of the right of presentment, stumped me, though I now have some ideas on how to handle that difficulty, see below.

After the talk, my friends and I repaired first to a bar (where I had a martini, and I needed it) and then to a wonderful supper. Life was good again. The "can I get there in time?" nightmare was over, and the return trip on Friday was uneventful.


Part Two: General Guidance to Foreclosure and Missing Notes

As I've explained in the posts listed at the very end, the law is clear in all fifty states: unless the foreclosing bank has possession of the original promissory note the home owner signed at the closing, no foreclosure is possible. Why not? Because without that note, the bank is an inappropriate entity to do the foreclosure (in legal terms, the bank "lacks standing"). The law clearly says that only a "person entitled to enforce" the promissory note may do so, and that term is defined as someone in possession of the note or who has a logical explanation as to why it cannot be produced. A copy of the note will not suffice. There might be one hundred copies of the note, but that wouldn't permit one hundred different foreclosures. As one lawyer attending my talk said to me afterwards, "The banks say a copy of the note should be enough, but you can bet they wouldn't take a copy of a check!" In any foreclosure action, the home owner should demand to see the original note. If it is not produced, no judge should permit the foreclosure to go forward. In that situation, the foreclosing bank should sit down with the home owner and work out some sort of compromise acceptable to both.


Part Three: The Legal Rules Concerning Missing Promissory Notes

This segment is for lawyers and is quite technical. It is a rewritten version of the materials that I used in Boston at the NCLC conference in November, 2010.

         THE SEXY PROMISSORY NOTE:

MORTGAGE FORECLOSURES AND THE MISSING NOTE

                                             A Discussion by Douglas Whaley
                                                 Professor of Law Emeritus
                                                 The Ohio State University

The Problem:

A mortgagor is having trouble making payments and wants to work out a new payment schedule, but has trouble finding out who is the entity currently holding the mortgage (payments are sent to a mortgage servicing company, which has been non-helpful). Finally the mortgagor gets a notice from the current holder of the mortgage (an assignee), threatening foreclosure unless all missed payments are made and late fees paid as well. The mortgagor can’t do this, so the assignee files suit to foreclose. One problem with this lawsuit is that while the plaintiff can prove the mortgage was assigned to it (there is a central registration system—MERS, see below—so this part is sometimes easy), but does not possess the original promissory note, which no one seems to be able to find. The assignee (perhaps, but not always) does have a copy of the original promissory note, which it attaches to the complaint in a judicial foreclosure action.

Why doesn’t the current assignee of the mortgage have the promissory note? Well, there are many possibilities. In the feeding frenzy that was the mortgage business of the last decade, things were done fast and furiously. Mistakenly believing that the mortgage assignment was all that was necessary, the assignee of the mortgage did not always see to it that the promissory was transferred and so it may be still in the possession of the original mortgage/payee, or, failing that, no one is sure exactly where the note is at the moment (perhaps it was bundled with hundreds or thousands of other notes when the mortgage packages were securitized, but locating that bundle or the using personnel to search through it and retrieve the relevant note is either impossible or not cost efficient). However, the current plaintiff can prove the validity of the assignment of the mortgage to itself, and surely some minor detail like the current location of the promissory note is irrelevant; otherwise the mortgagor could get away with not paying the mortgage debt, and being safe also from foreclosure! The heavens would fall.

The Issue:

Should the holder of the mortgage be able to foreclose when it does not have possession of the promissory note?

The Answer:

Absolutely not. Article 3 of the Uniform Commercial Code (see below) could not be clearer. Only the “person entitled to enforce” the promissory note can sue on it, and that person must either have possession or prove the note has been lost or stolen. But, alas, the courts often get this wrong, most recently in the appalling decision of Bank of New York v. Dobbs, 2009 WL 2894601 (Ohio App. 2009) (The court ignored the UCC and cited to the Restatement of Property (Mortgages) §5.4 for the proposition that an assignment of the mortgage is presumed to be also an intention to assign the note. Of course it is, but intentions are not the same thing as actually doing it—witness my annual New Year Eve vow to exercise and lose weight). Other Ohio courts have reached the correct result: U.S. Bank N.A. v. Marcino, (2009) 181 Ohio App.3d 328. The federal courts have proved sensitive to all this; see, e.g., In re Foreclosure Cases, 2007 WL 3232430 (N.D.Ohio 2007); In re Vargus, 396 B.R. 511 (Bkry. C. D. Cal. 2008) (there are a number of similar cases).


THE UNIFORM COMMERCIAL CODE:

The relevant UCC sections, which we will explore one by one in the text following them, are:

§ 3-412. Obligation of Issuer of Note or Cashier's Check.

The issuer of a note . . . is obliged to pay the instrument (i) according to its terms at the time it was issued . . . . The obligation is owed to a person entitled to enforce the instrument . . . .
[Emphasis added.]


§ 3-301. Person Entitled to Enforce Instrument.

"Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d) . . . .

OFFICIAL COMMENT:

This section replaces former Section 3-301 that stated the rights of a holder. The rights stated in former Section 3-301 to transfer, negotiate, enforce, or discharge an instrument are stated in other sections of Article 3. In revised Article 3, Section 3-301 defines "person entitled to enforce" an instrument. The definition recognizes that enforcement is not limited to holders. The quoted phrase includes a person enforcing a lost or stolen instrument. Section 3-309. It also includes a person in possession of an instrument who is not a holder. A nonholder in possession of an instrument includes a person that acquired rights of a holder by subrogation or under Section 3-203(a). It also includes any other person who under applicable law is a successor to the holder or otherwise acquires the holder's rights. It also includes both a remitter that has received an instrument from the issuer but has not yet transferred or negotiated the instrument to another person and also any other person who under applicable law is a successor to the holder or otherwise acquires the holder's rights.
[Emphasis added.]


§3-203. Transfer of Instrument; Rights Acquired by Transfer. [THIS IS THE "SHELTER RULE"]
* * *
(b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

OFFICIAL COMMENT:

2. Subsection (b) states that transfer vests in the transferee any right of the transferor to enforce the instrument "including any right as a holder in due course." If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument under Section 3-301 if the transferor was a holder at the time of transfer. Although the transferee is not a holder, under subsection (b) the transferee obtained the rights of the transferor as holder. Because the transferee's rights are derivative of the transferor's rights, those rights must be proved. Because the transferee is not a holder, there is no presumption under Section 3-308 that the transferee, by producing the instrument, is entitled to payment. The instrument, by its terms, is not payable to the transferee and the transferee must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it. Proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder. At that point the transferee is entitled to the presumption under Section 3-308. . . .
[Emphasis added.]


§ 3-204. Indorsement.
(a) "Indorsement" means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument. . . . For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.
[Emphasis added—such a paper was called an “allonge” at common law and by the Official Comment to this section. See allonge discussion below.]


§ 3-308. Proof of Signatures and Status as Holder in Due Course.
* * *
(b) If the validity of signatures is admitted or proved and there is compliance with subsection (a), a plaintiff producing the instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under Section 3-301 . . . .

OFFICIAL COMMENT:

2. Subsection (b) restates former Section 3-307(2) and (3). Once signatures are proved or admitted a holder, by mere production of the instrument, proves "entitlement to enforce the instrument" because under Section 3-301 a holder is a person entitled to enforce the instrument. Any other person in possession of an instrument may recover only if that person has the rights of a holder. Section 3-301. That person must prove a transfer giving that person such rights under Section 3-203(b) or that such rights were obtained by subrogation or succession.
[Emphasis added.]


§ 3-309. Enforcement of Lost, Destroyed, or Stolen Instrument.
(a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. . . .
[Emphasis added.]


§ 3-601. Discharge and Effect of Discharge.
(a) The obligation of a party to pay the instrument is discharged as stated in this Article or by an act or agreement with the party which would discharge an obligation to pay money under a simple contract.


§ 3-602. Payment.
Subject to subsection (e), an instrument is paid to the extent payment is made by or on behalf of a party obliged to pay the instrument, and to a person entitled to enforce the instrument.


How this all fits together:

A. The Difference Between the Note and the Mortgage

It is a common law maxim that “security follows the debt”; Noland v. Wells Fargo Bank, N.A., 395 B.R. 33 (Bankr. S.D. Ohio 2008); Manufacturers and Traders Trust Co. v. Figueroa, 2003 WL 21007266, 34 Conn. L. Rptr. 452 (Conn. Super. 2003). This means the mortgage (the “security”) travels along with the promissory note (the “debt”). Thus whoever has the promissory note is the only entity that can enforce the mortgage. The mortgage itself is not a debt; it merely reflects a security interest in collateral.

There has been an attack on this concept recently in a way that might aid homeowners.  In U.S. Bank v. Ibanez, handed down on January 7, 2011, the Massachusetts Supreme Judicial Court ruled that a mortgage cannot be assigned in blank (a common practice in the securitization of mortgages), so that the holder of a blank mortgage assignment was not the proper entity to foreclose.  “We have long held that a conveyance of real property, such as a mortgage, that does not name the assignee conveys nothing and is void,” the court said.  When the assignee argued that it held the promissory note, which automatically gave it the appropriate ownership interest in the mortgage ("security follows the debt"), the court disagreed, saying that a more formal assignment of the mortgage was necessary for a clear real estate title.  “In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage.” The court then added that a holder of the note could file a lawsuit to obtain the mortgage.  Without a properly assigned mortgage the mortgage holder remains unchanged, which is why the banks lacked the power to foreclose.  The court refused to apply its decision only to future cases, thus creating a legal mess in Massachusetts that could undo foreclosures held years ago.  Bank stocks fell instantly.  The case is U.S. Bank v. Ibanez, 458 Mass. 637, 2011 WL 38071 (Mass. 2011); see also  http://www.businessweek.com/news/2011-01-08/massachusetts-top-court-hands-foreclosure-loss-to-u-s-bancorp.html.  Interestingly, in Utah some homeowners have been successful in bringing quiet title actions to strip off the mortgage where no entity can prove a valid chain of assignments of the mortgage.  Doing that would rid the property of the mortgage lien and permit subsequent sale, though it would not excuse the mortgagor's liability on the promissory note should it finally surface in the hands of a PETE. See
http://www.sltrib.com/csp/cms/sites/sltrib/pages/printerfriendly.csp?id=51006287.  The Massachusetts Supreme Judicial Court did not consider the effect of UCC §9-203(g), discussed below at "Article 9 Complications," which clearly states that possession of the promissory note automatically creates a security interest in the mortgage even without a formal assignment of same.  Why didn't the court discuss this very relevant statute?  My guess is that no one (not the parties, not the law clerks, not the judges) came across it in preparing the case or the decision (so here the UCC law professor emits a sad sigh).

The obligation giving rise to the mortgage is reified in the promissory note, and only the current possessor of the promissory note can bring suit thereon (regardless of who is the assignee of the mortgage). An assignee of the mortgage who does not have the promissory note is not allowed to foreclose on the mortgage (see extensive discussion in the Connecticut decision cited above, and in In re Foreclosure Cases, 2007 WL 3232430 (N.D.Ohio 2007); In re Vargus, 396 B.R. 511 (Bankr. C. D. Cal. 2008)). Nor will a mere copy of the note suffice. Anyone could make a copy, but that doesn’t create a right to sue. The actual note must be produced. Note that the Official Comments above all refer to possession of the instrument as necessary to its enforcement.

When it comes to actions brought on a promissory note, the Uniform Commercial Code is clear. The maker/issuer of the note (the mortgagor) who wishes to be discharged from liability on the note can only make payment to a "person entitled to enforce” the instrument (“PETE” for short hereafter); §3-312. PETE is defined in §3-301 as the "holder" of the instrument (one who takes through a series of valid indorsements—a “negotiation”) or someone having the rights of a "holder" under §3-203(b)'s shelter rule, both discussed below.

B. “Negotiation”

A proper negotiation of the note creates “holder” status in the transferee, and makes the transferee a PETE. The two terms complement each other: a “holder” takes through a valid “negotiation,” and a valid “negotiation” leads to “holder” status. How is this done? There are two ways: a blank indorsement or a special indorsement by the original payee of the note.

With a blank indorsement (one that doesn’t name a new payee) the payee simply signs its name on the back of the instrument. If an instrument has been thus indorsed by the payee, anyone (and I mean anyone) acquiring the note thereafter is a PETE, and all the arguments below will not carry the day. Once a blank indorsement has been placed on the note by the payee, all later parties in possession of the note qualify as “holders,” and therefore are PETEs.

If the payee’s indorsement on the back of the note names a new payee (“pay to X Company”), that is called a “special indorsement.” Now only the newly nominated payee can be a “holder” (a status postponed until the new payee acquires the note—you have to hold to be a holder). The special indorsee, wishing to negotiate the note to a new owner, may now sign in blank, creating a bearer instrument, or may make another special indorsement over to the new owner.

Only if there is a valid chain of such indorsements has a negotiation taken place, thus creating “holder” status in the current possessor of the note and making that person a PETE. If there are problems with the negotiation (the original payee’s name is missing, for example), the person suing on the instrument will have to rely on the “shelter rule” to become a PETE (see discussion of the shelter rule below).

C. The Allonge

Sometimes the indorsement is not made on the promissory note itself, but on a separate piece of paper, called an “allonge,” and formally defined as a piece of paper attached to the original note for purposes of indorsement. An allonge (which has an interesting history, traceable to the days in which instruments circulated for long periods before being presented for payment) must be “affixed to the instrument” per §3-204(a)’s last sentence (see above). It is not enough that there is a separate piece of paper which documents the transfer unless that piece of paper is “affixed” to the note; see Adams v. Madison Realty & Dev., Inc., 853 F.2d 163, 6 U.C.C. Rep. Serv. 2d 732 (3d Cir. 1988) (mere folding of the alleged allonge around the note insufficient—$19.5 million involved). What does “affixed” mean? The common law required gluing. Would a paper clip do the trick? A staple? See Lamson v. Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 16 U.C.C. Rep. Serv. 756 (1975) (“Stapling is the modern equivalent of gluing or pasting. Certainly as a physical matter it is just as easy to cut by scissors a document pasted or glued to another as it is to detach the two by unstapling”). Thus a contractual agreement by which the payee on the note transfers an interest in the note, but never signs it, cannot qualify as an allonge (it is not affixed to the note), and no proper negotiation of the note has occurred. If the indorsement by the original mortgagee/payee on the note is not written on the note itself, there must be an allonge or the note has not been properly negotiated, and the current holder of that note is not a PETE (since there is no proper negotiation chain).

D. The Shelter Rule

It has always been a basic rule in commercial law that the sale of anything vests in the buyer whatever rights the seller had in the object sold. Phrased another way, the buyer takes shelter in the rights of the seller. Even legal rights can pass in this way, including “holder” status. Say, for example, that the payee fails to indorse the note (so no “negotiation” takes place) but instead sells the note to a new owner. The new owner is not a “holder” (since there has not been an indorsement by the payee), but the new owner takes shelter in the holder status of its buyer, and thus is a PETE according to both §§3-301 (defining PETE) and 3-203 (the shelter rule). In this case, the burden of proving proper ownership is on the person in possession of the instrument, and until that is done no liability on the note arises (since the maker of the note's obligation to pay it under §3-412, see above, only runs to a PETE). The shelter rule even acts to pass on the original holder’s rights completely down the chain as long as the current possessor of the note can prove the validity of all previous transfers in between.


The shelter rule can be hugely useful to the foreclosing entity.  Say that the orginal payee on the note was First Bank, which never indorsed the note at all.  The note was then transferred into the hands of Second Bank, which is the plaintiff in the current foreclosure action.  Second Bank, using the shelter rule, is a PETE as long as it proves the chain of ownership in the note, obtaining the "holder" status of First Bank even without proper indorsements on the note or an allonge.

E. Lost Notes

If the note has been lost, §3-309 still places the burden of proving a right to payment on the person claiming the right to enforce the lost instrument. Nothing is presumed. The plaintiff must show the validity of each transfer of the instrument from the original payee to the current plaintiff, and explain how and why the note cannot be produced. If the original note might still be out there in circulation, the courts should not grant relief under this section.  The original version of §3-309 required proof that the note was lost when in the possesion of the current party, but nine states have adopted the 2002 version of §3-309, which dispenses with that requirement.

The last sentence in §3-309 (see above) does allow the court to rule in favor of the entity claiming under a lost note if there is a bond or other security posted to protect the payor from the risk of double payment to a later party producing the note.

F. Payment by the Maker

If the maker of the note pays a "person not entitled to enforce," he/she is not discharged from liability on the note, and faces the prospect of having to pay the true owner when that person surfaces with proof of ownership of the note (see §§3-601 and 3-602 above). Courts must take special care not to expose the maker to such double liability.

G. MERS

Ten years or so ago the bank that made the mortgage loan and took back the original promissory note kept both. It filed the mortgage in the local real property records so as to announce its lien interest to the world, and if the promissory was not paid as it matured the bank declared a default and foreclosed on the property. But when the financial shenanigans of the last decade occurred many lenders sold the promissory note and mortgage to institutional banks which put them into trusts with other mortgages ("securitization"), sold rights in said trust in the form of bonds ("collateral debt obligations"), and the actual individual mortgages were serviced by a separate company (which collected the monies and declared defaults when they were not forthcoming). All of this created a problem for keeping track of who owned the mortgage rights (as seen above, more attention should also have been paid to who possessed the promissory note). If the real property mortgage lienholder had to be changed every time the mortgage switched hands that would be awkward and expensive. Filing fees in real property record offices average $35 every time a new document is filed.

The solution was the creation of a straw-man holding company called Mortgage Electronic Registration Systems [MERS]. MERS makes no loans, collects no payments, though it does sometimes foreclose on properties (through local counsel). Instead it is simply a record-keeper that allows its name to be used as the assignee of the mortgage deed from the original lender, so that MERS holds the lien interest on the real property. While MERS has legal title to the property, it does not pretend to have an equitable interest. At its headquarters in Reston, Va., MERS (where it has only 50 full time employees, but deputizes thousands of temporary local agents whenever needed) keeps track of who is the true current assignee of the mortgage as the securitization process moves the ownership from one entity to another. Meanwhile the homeowner, who has never heard of MERS, is making payment to the mortgage servicer (who forwards them to whomever MERS says is the current assignee of the mortgage). If the payments stop, the servicer will so inform the current assignee who will then either order MERS to foreclose or will take an assignment of the mortgage interest from MERS so that it can foreclose in its own name. Amazingly, MERS Corporation holds title to roughly half of the home mortgages in the country, some 60 million of them!

While the mortgage is now listed in MERS’s name, it is a mere place-holder for the various subsequent assignments of the mortgage.  However, the MERS procedure changes none of the above analysis of the Uniform Commercial Code’s rules about the promissory note. Indeed, MERS’s own website clearly states that the law promissory notes must still be complied with even if there is a proper registration of the mortgage assignee’s interest with MERS. MERS is merely telling the world who is entitled to the collateral, but it creates no right to sue to enforce the mortgage. Only a “person entitled to enforce” the note may do that.

Things would have gone better for MERS if it had done its job more thoroughly, but in the speed and volume that was necessitated by the boom/bust ecomony, it became sloppy, its records often confused, and eventually courts started blowing the whistle.  There are decisions reaching all possible results, but recently many courts (and particularly bankruptcy ones) are questioning whether MERS has standing to foreclose on any of the mortgages it holds.  The Supreme Court of Arkansas has even ruled that since it makes no loans MERS cannot be the mortgagee on a deed filed in the Arkansas property records; see Mortgage Elec. Registration System, Inc. v. Southwest Homes of Arkansas, 2009 Ark. 152, 301 S.W.3d 1 (2009); but Michigan disagrees, allowing MERS to foreclose, see Residential Funding Co. v. Saurman, 204 N.W.2d 183 (Mich. 2011).  In one Utah trial court decision a judge ruled that MERS couldn't prove up its records and granted the home owner's petition to quiet title and remove the MERS deed from the records.  No one could find the promissory note (on which further liability depends), so that home owner is a major beneficiary of the MERS mess.

Interestingly, MERS itself issued a statement on November 11, 2010, that it is only a record holder and is in no way a guarantor of any information given to it by those who subscribe to its services. In effect, MERS's records are merely hearsay as to what transfers have occurred. Thus in proving up a proper chain of mortgage assignments for the foreclosing assignee of the mortgage, the MERS records should not be admissible in evidence!


MERS has been much under attack lately.  In early February, 2012 the New York Attorney General filed suit against the major banks charging that their use of MERS was an "end run" around the property recording system, which was designed so that the identity of the true mortgagee would be a public record.  In 2012 Merscorp, Inc., which operates MERS, was sued by the Delaware Attorney General who alleged it initiated foreclosures for which "the authority has not been fully determined and may not be legitimate."

H. Questions for the mortgagor’s attorney to consider:

1. Has the promissory note been dishonored (that is, has “default” occurred)?

All foreclosure statutes, whether permitting self-help or requiring the involvement of a court, forbid foreclosure unless the underlying debt is in default. That means that the maker of the promissory note must have failed to make the payments required by the note itself, and thus the note has been dishonored.

Under UCC §3-502(a)(3) a promissory note is dishonored when the maker does not pay it when the note first becomes payable. By itself it does not create a right of physical presentment of the note, but §3-501 does create such a right if the maker so demands. Section 3-501(a) defines “presentment” as a demand to pay the instrument made by a “person entitled to enforce an instrument” [the PETE], and under subsection (b)(2) adds that “Upon demand of the person to whom presentment is made, the person making presentment must (1) exhibit the instrument” [emphasis added]. Until there is such a presentment, §3-310(b) (the so-called “merger” rule) provides that “the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and the following rules apply: * * * (2) In the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid.” [The “until it is paid” language refers to the situation where the note is never presented for payment because the maker makes all the required payments and is therefore never in default.] If the obligation is "suspended" it cannot be the basis of a lawsuit until that suspension ends.

Many promissory note have a standard clause waiving the right of presentment, and that would be effective to obviate the effect of a demand under §3-501. However, the debt itself is owed to a PETE (see §3-412), and only that person can show that the debt was not paid when due, thus creating a dishonor and severing the note from the under obligation, so as to permit foreclosure. A PETE must have physical possession of the note, as explained above. Both the Official Comments to §§3-502 and to 3-310 make it clear that a dishonor can only occur if the person who wishes to sue is a "holder," i.e., someone in possession of the instrument [see Official Comment 3 to §3-502, "This [section] allows holders to collect notes in ways that make commercial sense without having to be concerned about a formal presentment on a given day" (emphasis added), and Official Comment 3 to §3-310: "If the check or note is dishonored, the [other party] may sue on either the dishonored instrument or [the underlying contract] if [that person is in] possession of the dishonored instrument and is the person entitled to enforce it."].


            It has always been a basic rule of negotiable instruments law that once a promissory not is given for an underlying obligation (like the mortgage contract), the underlying obligation is merged into the note and is suspended while the note is still outstanding.  Discharge on the note would (due to the rule that the two are merged) result in discharge of the underlying obligation.  This makes sense: paying the note would also pay the obligation.  Because of the merger rule, the underlying obligation is not available as a separate cause of action until the note is dishonored.

            This merger rules, with its suspension of the underlying obligation until dishonor of the note, is codified in §3-310(b) of the UCC: 

(b) Unless otherwise agreed and except as provided in subsection (a), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and the following rules apply: 

                                    *   *   * 

(2) In the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid. Payment of the note results in discharge of the obligation to the extent of the payment.
 
Thus until the note is dishonored there can be no default on the underlying obligation (the mortgage contract).  All foreclosure statutes, whether permitting self-help or requiring the involvement of a court, forbid foreclosure unless the underlying debt is in "default." That means that the maker of the promissory note must have failed to make the payments required by the note itself, and thus the note has been dishonored.  Under UCC §3-502(a)(3) a promissory note is dishonored when the maker does not pay it when the note first becomes payable.

Putting this altogether, were I a mortgagor’s attorney, on getting notice of the intent to foreclose, I would demand that my client be presented with the original promissory note. Failing that the mortgagor is not in default since he/she has not dishonored the note. Until that happens, §3-310 above suspends the entire mortgage obligation. The contractual obligation to pay has merged into the note, and until the note is dishonored it's unavailable as a separate cause of action. If the foreclosing bank says that the original promissory note had a clause waiving the right of presentment, I would demand to see the note as proof of that assertion.

There are some California cases stating that production of the original promissory note is not required in California since it is not mentioned in the comprehensive California statute detailing foreclosure procedure in this non-judicial foreclosure state (there are California decisions to the contrary, see below). I looked up the California foreclosure statute. Cal.Civ.Code § 2924(a) clearly states that the power of foreclosure is "to be exercised after a breach of the obligation for which that mortgage or transfer is a security." If no dishonor of the note has occurred then there has not yet been such a breach, and the California statute would not permit foreclosure. In any event, the California statutes do not allow the wrong party to foreclose, so someone attempting to do so must establish PETE status (thus having standing to sue), and that, as we've seen, requires possession of the note.  There are California bankrupcty decisions so saying; see In re Doble, 2011 WL 1465559 (Bankr. S.D. Cal. 2011).  For decisions from other states requiring that the plaintiff be the owner of the note at the time of a non-judicial foreclosure sale, see Burgett v. MERS, 2010 WL 4282105 (D. Ore. 2010); In re Adams, 693 S.E.2d 705 (N.C. App. 2010); In re Bailey, 437 B.R. 721 (Bankr. D. Mass. 2010).

If the client wants to pay the mortgage debt, but is leery of paying the wrong entity, he/she should pay the debt into an escrow account and advise the putative assignee of the mortgage that the amount deposited will be available on production of the promissory note or the signing of an indemnity agreement. Such a deposit would be the equivalent of tender of the amount due, so as to avoid late charges; see §3-603 and "Tender of Payment Under UCC §3-604: A Forgotten Defense?," 39 Ohio St. L. J. 833 (1978). The amount could also be paid into court in an interpleader action in appropriate circumstances.

2. Is the promissory note technically negotiable?

This is a thorny issue. First of all, as the debtor’s attorney, don’t raise the issue yourself. Why not? Because if the note is not technically “negotiable” under the rigid rules of UCC 3-104 then arguably the Uniform Commercial Code does not apply, and all of the statutory provisions examined above are not the law. The other side may think of this and want to argue it (on the other hand, most attorneys would rather slaughter hogs than think about the elements of negotiability), so what do you say if it comes up?

There have been serious scholarly arguments that most mortgage notes are not technically negotiable. [See Neil Cohen, "The Calamitous Law of Notes," 68 Ohio St. L.J. 161 (2007); Ronald J. Mann, Searching for Negotiability in Payment and Credit Systems, 44 UCLA L. Rev. 951, 962-85 (1997).] The typical issue concerns what is called the “courier without luggage” requirement: the note must not contain promises or obligations (with certain exceptions) other than a bald promise to pay the debt to the order of a named person or bearer [UCC §§3-104(a)(3), 3-106]. Pennsylvania’s Chief Justice John Gibson once said that a negotiable instrument must be a “courier without luggage.” Overton v. Tyler, 3 Pa. 346, 347 (1846). This oft-repeated description means that the instrument must not be burdened with anything other than the simple and clean unconditional promise or order; it cannot be made to truck around other legal obligations. If the maker of a note adds any additional promises to it, the note becomes non-negotiable because the prospective holder is then given notice that the note is or may be conditioned on the performance of the other promise. Section 3-104(a)(3) specifies the few additional items that may be mentioned in an instrument without destroying its negotiable character. See also §3-106. Since most mortgage notes are cluttered with extraneous promises by the maker, these are not “negotiable instruments” as that term is defined in the UCC.

In the article mentioned above, Professor Ronald Mann argues that a promise in the typical mortgage note provides that on electing to make a prepayment, the maker of the note must give a written notice to that effect to the holder of the note. Is this an extraneous promise forbidden in a “negotiable” note? He argues it is, but that seems wrong to me. UCC §3-106(b) allows a references to another document for rights as to prepayment, and while that is not exactly what is happening here, it is an indication that the Code drafters were unconcerned with prepayment issues when it came to negotiability (the reason being that prepayment aids the maker, so the rules should be construed to protect that bias). Further, what is the harm by so minor a promise, that it should strip away the protection of the only uniform treatment of the law from what all parties intended to be a promissory note? Official Comment 2 to §3-104 states that a major test on whether the parties intended to create a negotiable instrument is the inclusion vel non of “order or bearer” language in the note. Since the typical note is payable to the “order” of a named payee, that should settle it that the parties did intend for the UCC to apply to their transaction. The same Official Comment goes on to provide that where the parties intended to create a negotiable instrument but made some minor misstep, Article 3 could be applied by analogy (since it is the current best thinking of how instruments should be legally governed—amended most recently in 2002).  So far the courts have not agreed with Professor Mann that such promises destroy negotiability. See HSBC Bank USA, Nat. Ass'n v. Gouda, 2010 WL 5128666, 73 UCC Rep.Serv.2d 226 (N.J.Super. 2010); In re Edwards, 2011 WL 6754073 (Bkrtcy.E.D.Wis. 2011).

Finally, if all else fails, the common law in all states clearly required possession of a promissory note before foreclosure could proceed, though that's going to take some library research to prove up state by state.

3. Other issues:

Of course foreclosure lawsuits have other problems the mortgagor’s attorney should explore.

a.  Assignment Proof.  The assignment itself may have difficulties with a chain of title, and that should be investigated with vigor.  The leading case requiring a clear chain of title in assignments is U.S. Bank v. Ibanez, 458 Mass. 637, 2011 WL 38071 (Mass. 2011); see also  http://www.businessweek.com/news/2011-01-08/massachusetts-top-court-hands-foreclosure-loss-to-u-s-bancorp.html.  I discuss the case above in the segment on "Security Follows the Debt."

b.  Business Records:  Assignees are required to prove up the business records that are the basis of the assignment, and such evidence is an exception to the hearsay rule only where the person proffering the business records can testify to their authenticity.  Assignees to whom such records are transferred in the ordinary course of business do not have the requisite personal knowledge of the records creation and preservation, and hence cannot so testify to their validity.  This rule of evidence can be a major stumbling block to foreclosure actions and other collection efforts.  See Asset Acceptance v. Lodge, 2010 WL 3759538 (Mo. App. 2010); Chase Bank USA v. Herskovits, 2010 N.Y. Misc. Lexis 2818 (Civ. Ct. 2010); DNS Equity Group, Inc. v. Lavallee, 907 N.Y.S.2d 436 (Dist. Ct. 2010); Palisades Collection, L.L.C. v. Kalal, 781 N.W.2d 503 (Wis. App. 2010); Riddle v. Unifund CCR Partners, 298 S.W.3d 780 (Tax. Civ. App. 2009); Unifund CCR Partners v. Bonfigil, 2010 Vt. Super. Lexis 24 (2010); but see Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. Civ. App. 2010).


c. Article 9 Complications. Various provisions in Article 9 of the Uniform Commercial Code provide that the creation of a security interest (that is, ownership rights) in a promissory note that is being sold (as opposed to being used as collateral) does not require the buyer of the note to take possession of the note if the sale is made pursuant to an agreement reflected in a writing or other record [see §§9-203(b), 9-309(3)]. Some commentators seem to think that this gets rid of the need to possess the note for foreclosure purposes. It doesn't, and confuses apples with oranges. The Article 9 rules have nothing to do with the home owner who is the maker of the promissory note, but apply only to regulate rights between later parties claiming ownership in the note as it passes from one hand to another. The Article 9 rules were written so that the note can be sold by contracts without being physically moved around (thus allowing the note to be warehoused somewhere). Section 9-203(g) further provides that whoever has a perfected interest in the note automatically has a perfected interest in the underlying mortgage ("security follows the debt"). But Article 9 says nothing about who is entitled to enforce the note when it comes due, which is left to Article 3; thus the plaintiff in the foreclosure must still prove it is a PETE,as that term is defined in Article 3. Moreover, even if §9-203(g) works its magic to transfer the mortgage interest to the possessor of the note, that does not mean that foreclosure can be had without satisfying the court (in judicial foreclosures) that the state foreclosure laws requiring a clear chain of mortgage assignments have been met. In non-judicial foreclosure state, UCC §9-607(b) provides that "if necessary to enable a secured party [including the buyer of a mortgage note] to exercise the right of [its transferor] to enforce a mortgage non-judicially," the secured party may record in the office in which the mortgage is recorded (i) a copy of the security agreement transferring an interest in the note to the secured party and (ii) the secured party’s sworn affidavit in recordable form stating that default has occurred and that the secured party is entitled to enforce the mortgage non-judicially. For a complete discussion of these issues, see the UCC's Permanent Editorial Board's official explanation: http://www.ali.org/00021333/PEB%20Report%20-%20November%202011.pdf

d.  Robo-Signers and Notaries.  Affidavits of those filing foreclosure actions that the debts have been reviewed and verified must, of course, be true.  In the foreclosure mills these swearings are often pro forma and, due to the volume involved, frankly impossible, being done by humans acting like robots.  Where this can be proven, the lawsuit should be dismissed, and, indeed, massive publicity over this practice led to the suspension of many foreclosures nationwide in 2010.  Notary stamps are required on assignments in many states or the assignment is invalid, and if the evidence demonstrates the stamp was added much later, that is fraud [see http://4closurefraud.org/2010/08/04/mother-jones-andy-kroll-exclusive-fannie-and-freddies-foreclosure-barons/]. Indeed there is out and out fraud in many foreclosures as phony documents are created, signatures forged, false affidavits of lost instruments sworn to, and newly “discovered” allonges solve negotiation difficulties. If the lawsuit was filed by someone who didn’t have standing and the attorney who filed it should have known that, he/she should be reported to the bar association, and the misfiling should also be called to the judge’s attention as a reason to dismiss. This is also criminal conduct, of course, and should be prosecuted, including as a defendant any attorney participating in deception of the court. 

Recently the Florida courts have become disgusted by improper documentation and have insisted upon it, causing major foreclosures to be abandoned and the courts to strip the properties from their mortgages (!): see http://www.squattable.com/news/040311/foreclosure-crisis-fed-judges-dismissing-cases-giving-homes-back-homeowners-and-boldly-a.

On April 6, 2011, the Ohio Supreme Court dismissed a complaint filed by lawyers against three trial court judges who recently began requiring lawyers to personally verify the authenticity of all documents used in foreclosures.  The judges have refused to grant summary or default judgments without such certification, though a trial can still go forward.  The attorneys are not happy.

e.  Fraud.  Outside of the UCC, consider filing a lawsuit charging fraud (misrepresentation of a material fact made with knowledge of its falsity or a reckless disregard of its truth, on which there was justifiable reliance causing damages) if it’s indeed present in your case and you can prove it. Fraud is the civil action for lying, an ugly thing to charge someone with, creating great headlines for the media. If you can prove fraud has been at work, well, that's good news. The common law maxim is that “fraud vitiates all transactions,” so that nothing can hide fraud. Those guilty of fraud cannot sue on the contract, which is now void for illegality (as that word is used in the law of contracts: void as a matter of public policy), and punitive damages, including attorney’s fees are also a possibility. Nor is unjust enrichment a possibility since guilty parties to an illegal contract lose all rights to sue on any theory—they are truly “outlaws” in the literal meaning of that term.

I. Conclusion:

The UCC rules are not just fusty technicalities. They reflect common sense: you can't sue or foreclose unless you can prove you are entitled to sue or foreclose. What could be more basic in our law than that idea? I tell the Legal Aid lawyers who call me that if the trial judge hates the UCC and wants to duck all of this, remind him/her that it is the statutory law of this jurisdiction (indeed, all jurisdictions in the USA have identical UCC provisions to those quoted above). And, in fact, the common law is no different from the UCC [see the Restatement of Property (Mortgages) §5.4 and its Comments], so dodging the UCC does not help the plaintiff trying to foreclose without having possession of the note.  Bankruptcy judges have been particularly sensitive to missing notes, holding that without them a creditor cannot file a valid proof of claim; see In re Kemp, 2010 WL 4777625 (Bankr. D. N.J. 2010).

The truth is that the current lending mess was sloppily run for years, with greed as the fuel, and no one paid any attention to details, and increasingly complex transactions led to the loss of a paper trail. But now the orgy has ended with major hangovers for the participants who paid no attention to the basic rules. The borrowers (who also have had to battle this problem at their end, when they can't figure out who is the proper party to negotiate with over repayment issues or settlement discussions), have done nothing wrong. They do owe the debt and the house is still the collateral, so they are not off the hook at all. But the courts won't let someone foreclose just because that someone thinks they are the right entity to do it, or really, really, really wants to foreclose. They have to prove they are a PETE by clear evidence. Wishing that they had that evidence is not enough. Indeed, as discussed above, if the buyer pays the wrong person, he/she still owes the debt; UCC §3-602. If the current plaintiff cannot prove valid ownership, the only remedy left for the plaintiff is to pass liability back to the entity from which the obligation was purchased, and so on until we find a person who really is entitled to enforce. The common law, see Restatement of Contracts (Second) §333(b), creates a warranty from the assignor to the assignee that the obligation assigned exists and is subject to no defenses, and this is the remedy the disappointed assignee should seek if it is not a PETE. If the chain of transactions cannot be undone (the records are lost, a major player has ceased to exist, or whatever), well, life is hard. You shouldn’t buy assets unless your seller can prove good title to them. If the mortgagee’s assignee wins the lawsuit but doesn’t have proper documentation, any subsequent sale of the property foreclosed upon is going to be problematic (and that should be pointed out to judges before they rule).

On the other hand, judicial expediency towards allowing the foreclosure can lead to closed ears when the UCC and its ironclad rules are mentioned. In an email exchange about all this with Richard Holt, a research fellow at a think tank on the overwhelming judicial issues of the financial crisis (and the person who persuaded MERS to issue the letter mentioned above), he commented:

The foreclosure complaints rarely reach a level of any sophistication which even remotely begins to even consider the UCC. Most are resolved in rocket dockets where there is not even a defense. Hundreds of thousands, perhaps more than a million, of foreclosures have been obtained that way. . . . In many of these cases the hearing goes like this:

Judge to the Defendant's counsel: What do you have to say to the Plaintiff's pleadings?
Defendant's counsel: The Plaintiff does not have standing.
Judge to the Plaintiff's counsel: What do have to say to the Defendant's assertion?
Plaintiff's counsel: We have a copy of the assigned mortgage.
Judge: Good enough for me, summary judgment to the Plaintiff.
Defendant's counsel: Well, my client cannot afford an appeal so that’s it then.

Final Thoughts:

And you thought all that technical stuff in the Commercial Paper course (yawn) was unimportant! So did the lawyers who allowed their clients to purchase these pseudo-obligations. I’ve taught Commercial Paper for over four decades and mostly focused on checks, where there has always been much litigation. Promissory notes weren’t as sexy as checks are because the legal issues surrounding notes are mostly settled and uncontested by lawsuits. But of a sudden my phone/email messages are filled with attorneys on both side of the missing promissory note foreclosure issue (frequently, but not always, former students) asking for guidance, and the humble promissory note has at last become a hot topic.

Many homeowners are caught in a trap whereby one part of the foreclosing bank is engaged in working out an agreement to save the property, while the other is sending out a foreclosure notice. Basic rules of contract and estoppel can lead a court of equity to refuse foreclosure in these situations; see PHH Mortgage Corp. v. Barker, 190 Ohio App.3d 71, 940 N.E.2d 662 (2010).  The true solution to the mortgage mess that results from missing notes, inadequate documentation of mortgage assignment, confusion at the bank, and robo-signing of required affidavits, is for the foreclosing banks to put their money into creating a negotiation program that takes troubled transactions and works them out by mutual agreement with the home owner, so that the title can be cleared and the property resold. These negotiations might include a voluntary waiver of the home owner's rights in return for forgiveness of the mortgage debt, or renegotiated payments on the mortgage, or whatever the parties can construct as a compromise. With all of the above defenses on the table, the home owner has some leverage to make the bank listen to his/her concerns and not just steamroller over them in the rush to foreclose.

[To contact me send an email to dglswhaley@aol.com or call (614) 791-8660.]
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Related Posts:
“How I Became a Law Professor,” January 27, 2010
 “The Socratic Dialogue in Law School,” January 31, 2010
“Clickers,” March 17, 2010
“The Summer Bar Review Tours,” June 15, 2010
“The Sexy Promissory Note,” August 17, 2010
"Mortgage Foreclosures: The Disaster of Unintended Consequences," October 27, 2010
"Women in My Law School Classroom," January 8, 2011
"I Threaten To Sure Apple Over an iPad Cover," April 8, 2011
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011
"Adventures in the Law School Classroom," September 10, 2011
"What Non-Lawyers Should Know About Warranties," October 11, 2011
"How To Write and Effective Legal Threat Letter," October 19,2011