tag:blogger.com,1999:blog-7844434945868494835.post6381922200477471426..comments2024-03-27T06:22:08.326-04:00Comments on Douglas Whaley: Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Articledglswhaley@aol.comhttp://www.blogger.com/profile/06014306127062171178noreply@blogger.comBlogger194125tag:blogger.com,1999:blog-7844434945868494835.post-17114152232998715732018-03-21T22:31:40.606-04:002018-03-21T22:31:40.606-04:00Thank you for clarifying that Mr. Whaley. It is tr...Thank you for clarifying that Mr. Whaley. It is truly appreciated.IZRAULhttps://www.blogger.com/profile/02312593261493304150noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-58882715702268103292018-02-12T16:58:34.425-05:002018-02-12T16:58:34.425-05:00As for the question above about certain clauses in...As for the question above about certain clauses in the note destroying negotiability, the first two (waiver and protecting the collateral) do not have any effect since UCC section 3-104(3) clearly allows them. The last one about appearing in court to defend might very well destroy negotiability but some research would be necessary to be sure.<br />dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-86908918201193290872018-02-12T16:52:15.332-05:002018-02-12T16:52:15.332-05:00Article 8 has to do with stocks and bonds, and not...Article 8 has to do with stocks and bonds, and not promissory notes or mortgage assignments.dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-52404926392938007422018-02-12T16:48:41.141-05:002018-02-12T16:48:41.141-05:00Yes it does, but it has nothing to do with missing...Yes it does, but it has nothing to do with missing promissory notes or the wrong person trying to enforce the debt obligation without possession of the note.<br />dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-67824135359429916282018-02-12T16:46:08.631-05:002018-02-12T16:46:08.631-05:00Payments made reduce the debt owed and a later buy...Payments made reduce the debt owed and a later buyer of the debt has no right to the original amount. If the interest rate has changed and the debt increased because of that, that is an evil with having an adjustable rate mortgage, a risk the borrower was, in theory, willing to take.dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-31481050624350318772018-02-12T16:39:09.985-05:002018-02-12T16:39:09.985-05:00Also it is true that Article 3 governs issues invo...Also it is true that Article 3 governs issues involving the promissory note, and Article 9 says this distinctly. But the note can be sold into the hands of a later party and that party, if qualifying under Article 3 rules, can indeed be a holder in due course, and thus free of defenses such as fraud or even payment to another party made by mistake. But such a holder must actually have the original note and be unaware of problems with it at the time of its acquisition. The policy here is to protect later innocent purchasers of the note who act in good faith.<br />dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-11837534171089860472018-02-12T16:34:31.427-05:002018-02-12T16:34:31.427-05:00You're right that the current state of things ...You're right that the current state of things is a mess, a point I made in the article. The lenders seem to think that it is the assignment of the mortgage that is crucial, hence MERS was created to take care of that. In the law it is possession of the promissory note that is crucial, and the banks and lawyers seem to have forgotten that, as the article above also indicates. As for the issue of the blank contract, that is simply breach of contract. Each of the parties to the loan contract should get a copy signed by both parties at the closing or shortly thereafter. If that is not forthcoming it's time to make threats of nonpayment until the signed contract is produced.dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-84549658583615147822018-02-09T06:47:27.700-05:002018-02-09T06:47:27.700-05:00So the Promissory Note is negotiable if "the ...So the Promissory Note is negotiable if "the promise or order doesn't require any other “undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money."<br /><br />Do any of the following qualify as additional orders that would affect negotiability? <br /><br />"Borrower shall waive the rights or presentment and notice of dishonor" <br /><br />"Borrower shall Occupy, Preserve, Maintain and Protect the Property" <br /><br />"Borrower shall, appear in and defend any action or proceeding purporting to <br />affect the Property or any portion thereof...." Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-15104428925809561702018-02-02T20:44:04.442-05:002018-02-02T20:44:04.442-05:00Sold or securitized? I think once it's securit...Sold or securitized? I think once it's securitized, Article 8 governs. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-64065265330286457422018-02-02T20:40:50.834-05:002018-02-02T20:40:50.834-05:00U.C.C. 3-420 addresses conversion of an instrument...U.C.C. 3-420 addresses conversion of an instrument.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-83779566256515029922018-02-02T20:36:02.457-05:002018-02-02T20:36:02.457-05:00So if I sell my car to someone for $5,000 @ $500 a...So if I sell my car to someone for $5,000 @ $500 a month w/ adjustable rate interest, I can collect 1/2 ($2,500) then sell the title to someone else for $5,000 & make $7,500. <br /><br />Then the next person can raise the interest and double his money by selling the title.<br /><br />And if the person defaults after paying more than $5000, he loses both money and car, because the debt needs to be repaid. <br /><br />Even though the original owner made more than $5000 and the 2nd owner made more than $5000. <br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-5155431463883927872018-02-01T23:53:44.119-05:002018-02-01T23:53:44.119-05:00Forgive me if you've gone over this above, but...Forgive me if you've gone over this above, but if I understand it right, the UCC is commercial code, and as such, applies to commercial transactions. <br /><br />At the time a borrower signs the note, the deal is governed by Article 3, not 9, correct? <br /><br />If so, is it because transactions under Article 9 are considered cash proceeds?<br /><br />The reason I ask is because these laws were made in assuming the transactions were done in the normal & lawful manners for which they were intended. <br /><br />But that isn't the case today, and applying normal law to cases riddled with problems creates bigger problems. <br /><br />It's no longer safe to assume honest and fair dealings. A holder in due course must be an owner by purchase, or value given in good faith 1-201 (19). <br /><br />Also, honesty and fair dealings is required. If notice is given to a holder that problems exist with the instrument, then that's a problem.<br /><br />I'm not sure why basic contract law doesn't carry any weight when it comes to these mortgage cases, but I have a pretty good idea. IZRAULhttps://www.blogger.com/profile/02312593261493304150noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-78389343446715981892018-02-01T19:48:46.572-05:002018-02-01T19:48:46.572-05:00Thank you. I'm just trying to understand why, ...Thank you. I'm just trying to understand why, in my mind, it seems conflicting, or rather contradictory, to the general principles of basic contract law.<br /><br />There are basic, well established requirements for valid contracts. Such as, there must be be 2 or more parties for an agreement to be valid, because 1 cannot contract with themselves. <br /><br />Also, the signatures of all parties are required. And, correct if I'm wrong, one has the right to know with whom they are dealing. Otherwise there is no disclosure, correct? <br /><br />In the traditions of basic contract law 101, these simple requirements, for the purpose of validity, make perfect sense, because they're safeguards meant to assure fairness and protection of all parties equally. <br /><br />The UCC seems to disrupt that harmony, by creating loopholes that allow certain parties to gain superior positions and skirt the basic protections against unfair dealings, while affording themselves those protections.<br /><br />In contracting with banks for loans, covenants or otherwise, none of these basic requirements are being met. <br /><br />I understand how complicating simple things can make sense to lawyers, but for average reasonable persons, there's an imbalance in fairness. Not to mention the dealings with professionals who possess superior knowledge. <br /><br />The fact borrowers never receive copies of the actual executed closing documents should be of concern in the eyes of the law. <br /><br />Simply, it leaves the door wide open for fraud and creates uncertainty in regards to the original terms of agreements. <br /><br />Signatures can easily be added to documents that contain different terms without borrowers ever knowing it. And they have nothing to compare it with. <br /><br />They get copies of the alleged originals in blank, days or even weeks later. And I think we can all agree, it's a shady practice that serves no real purpose, other than to afford the ability to commit fraud.<br /><br />The same goes for withholding creditor/principle identities. Everyone has the right to know with whom they are dealing. <br /><br />And if mortgages are 2 party contracts (3 party for Deeds of Trust), then how can they be valid with only 1 signature? What other multi-party contracts are deemed valid when signed by only 1 party? <br /><br />In my mind, that question brings me to the original regarding principles. It only makes sense in the context of fraud, and to protect them from liability for the same. <br /><br />That's what I believe the lawyer was trying to convey in the letter I read concerning MERS, here. https://deadlyclear.files.wordpress.com/2013/09/110398mers1stamtitle.pdf<br /><br />When we look to the heart of contract law, without any of the extra legal word wizardry of the UCC, the only real goal is "Fair Dealings." <br /><br />But that's not where we're at with the agreements today. To afford present day Corporations more rights and protections than consumers and more flexibility and leniency in contracting, not only defies logic and common sense, but contravenes the "doctrine of absurdity" and "fair dealing." <br /><br />IZRAULhttps://www.blogger.com/profile/02312593261493304150noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-45569185063856039402018-02-01T11:34:51.783-05:002018-02-01T11:34:51.783-05:00This is true. Section 9-503(d) specifically allow...This is true. Section 9-503(d) specifically allows the secured party to be a representative of the real creditor without so indicating in any way.dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-5470075687386589872018-01-29T08:57:47.462-05:002018-01-29T08:57:47.462-05:00Hello Mr. Whaley. I hope all is going well with yo...Hello Mr. Whaley. I hope all is going well with you. I have a question.<br /><br />I was reading a letter from 1998 concerning MERS, and in the reply to a question an attorney stated...<br /><br />"There is no requirement under the UCC that the secured party identified in the security instrument be a principal rather than an agent." <br /><br />Is this true or is it implied in some round about language within in code?<br /><br />Thank you.IZRAULhttps://www.blogger.com/profile/02312593261493304150noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-75822943927414728442017-11-02T12:37:36.915-04:002017-11-02T12:37:36.915-04:00I don't understand what happened. When new fu...I don't understand what happened. When new funds were advanced was a new note signed? And priority issues among lenders has nothing to do with the issues in my article. Are you the borrower?<br />dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-22078022354059020722017-10-24T14:53:14.664-04:002017-10-24T14:53:14.664-04:00In our case, the lender modified the mortgage adva...In our case, the lender modified the mortgage advancing additional funds, filed a modification referencing the original mortgage stating that new funds were advanced, satisfied the first note and executed a second note representing the original amount plus the additional funds. The title company approved this approach to increasing the loan amount with additional premium on the title insurance. The lender is now concerned that it may have lost its priority. What do you think?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-36127072018867144802017-10-15T10:31:58.402-04:002017-10-15T10:31:58.402-04:00You clearly need a lawyer, but I'm not admitte...You clearly need a lawyer, but I'm not admitted to practice in New York. If you can't afford one call Legal Aid or the Bar Association or the State Attorney General Consumer Division and see if you can't get someone to help you. Good luck with this.dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-60277625439635249642017-10-14T14:13:30.700-04:002017-10-14T14:13:30.700-04:00Wamu mortgage and note sold to fannie Mae.wamu sta...Wamu mortgage and note sold to fannie Mae.wamu start foreclosure as holder and owner of mortgage and note.then voluntary discontinue.chase then files lis pendens has holder.in ny state use old ucc. What assignments endorsements are need on note for chase to foreclose. Homeowner requested production of original note and assignments and endorsements.court allowed foreclosure without production of original note.days before sale mers assign mortgage via fdic p/s agreement from wamu to chase. However both note and mortgage were fannie Mae.default caused my wamu. Servicing error rewarding flood ins.first thing fdic penalized chase for was wamu flood ins violations.fraud on court.judge allowed process to go on 7 years before order of reference.never alowed homeowner to dismiss as abandoned or because of precedent violations. What available resource avail to homeowner who lost home due fraud by fannie and and it's servicer.fannie Mae sue wamu and chase but homeowner have no recluse against lost of home. Any suggest to file suit in fed court. 84 yo women loss home because foreclosure fraud and lack of due process by court system.please helpNy fraudhttps://www.blogger.com/profile/17129972204513976041noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-89131553952353245922017-08-08T12:21:00.743-04:002017-08-08T12:21:00.743-04:00I can't give specific legal advice, but your S...I can't give specific legal advice, but your State Attorney General's office might be willing to advise you, or a local lawyer. <br />dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-44180638254953854442017-06-20T19:47:27.312-04:002017-06-20T19:47:27.312-04:00Colorado passed a statute in 2002 that forbids neg...Colorado passed a statute in 2002 that forbids negative amortization loans. If a negative amortization loan was written in 2005 is the loan an illegal loan. It is my understanding that anything against public policy or statute is void.SESSMShttps://www.blogger.com/profile/08260059031168293266noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-1831426573856668002017-03-06T11:54:35.035-05:002017-03-06T11:54:35.035-05:00I just want to say thank you to both of you. You b...I just want to say thank you to both of you. You both have good valid points.It was like learning from two heavy weights who are equal in power and both helping us beginners. My hats off to both of you and much respect to both.Anonymoushttps://www.blogger.com/profile/04495573674717065889noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-88052065982376178952017-02-11T15:43:20.266-05:002017-02-11T15:43:20.266-05:00Same reply. Bankers would say that the debt of th...Same reply. Bankers would say that the debt of the mortgage still has to be paid to the current possessor of the note, who has nothing to do with the trust in which the note was placed and (in theory) is not harmed by it.dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-6700295785777866742017-02-11T15:41:59.690-05:002017-02-11T15:41:59.690-05:00Putting the notes into a bundle is a trust does no...Putting the notes into a bundle is a trust does not destroy them as notes. They can (and are) subsequently removed from the trust and enforced against the maker.<br /><br />You make a policy argument that such trust should not exist or that there be payments to the note makers, but that would take legislation to accomplish and is simply not the law at present.dglswhaley@aol.comhttps://www.blogger.com/profile/06014306127062171178noreply@blogger.comtag:blogger.com,1999:blog-7844434945868494835.post-62404281245115258812017-02-10T10:42:02.068-05:002017-02-10T10:42:02.068-05:00And besides that, the law doesn't say who has ...And besides that, the law doesn't say who has to pay the loan off. If Banks are making more than the amount of the loan using the borrowers notes, then the debt should be considered satisfied. That's the other reason securitization is never disclosed. That's just disgusting greed. Anonymousnoreply@blogger.com