Posted by John Merchant on January 06, 2010 at 11:29:57:
Uniform Electronic Transmissions Acts have been enacted now in every (or most)state to say that emails or faxes are just as admissible as originals.
MERS - Posted by Lynn
Posted by Lynn on December 18, 2009 at 07:30:24:
I have been hearing about LFC Mortgage Elimination Program. It has something to do with all the foreclosures, and the electronic recording system the courts are not recognizing. If the note holder does not have the original note, they are saying the home owner owes nothing. Is this for real. If so, how do banks sell their non performing notes?
Re: MERS - Posted by Chi Ming
Posted by Chi Ming on December 24, 2009 at 19:20:12:
The real point that seems to be made is that a person of company claiming to own the Note needs to prove they own the Note. An original is not necessary and that is a lie being peddled by some as a way to con people into “helping” them not get foreclosed. There are several other precedences such as the Check 24 images that replaced the original checks, the printed and certified documents from a Recorder’s office which are not made from the original but are perfectly valid, or birth certificates - the list goes on which is why the “produce the note” people are scammers. The issue is NOT that you need the original, the issue is you need to prove you own it and therefore have the right to enforce collection.
uh huh - NOT - Posted by Nosey Neighbor
Posted by Nosey Neighbor on December 29, 2009 at 11:08:53:
NOT!
Re: MERS - Posted by Ken
Posted by Ken on December 26, 2009 at 12:52:14:
The only way to prove it is to produce the original.
Incorrect: Best Evidence rule - Posted by John Merchant
Posted by John Merchant on December 29, 2009 at 11:07:56:
While normally the note holder would produce the original note and offer it into evidence, that isn’t the only way to prove the note (and DOT/Mtg) existence.
Evidence law has a “best evidence” rule that requires the doc being sued upon (note/dot/mtg) to be produced if possible; but where that’s proved to be impossible or impracticable other evidence is admissible to prove the same thing.
If the plaintiff who brings suit claims (under oath) the defendant signed such a note and dot and produces legible copies of same, few defendants would dare testify otherwise.
Having been in lots of court battles over a bunch of years, I’ve only witnessed such perjury once or twice where the other side knew it was perjury and tried to sell it to the court or jury.
Usually the party’s lawyer is making every effort to keep his client w/i the truth box but is sometimes just unable to do so.
When a smart lawyer figures this is happening or going to happen, he/she’ll make sure he/she has a witness who’ll testify that the lawyer did so advise his/her own client.
In fact I’ve seen it happen repeatedly…the best witness to the facts is the other side and it’s a frequent courtroom maneuver to call the other side as an “adverse” witness as that W will state the cold hard facts and maybe be the other side’s best W.
Re: Incorrect: Best Evidence rule - Posted by Ken
Posted by Ken on December 29, 2009 at 21:27:29:
Just because someone signed a mortgage does not mean the bank still owns it,seems like with the way they have been sold off over the past few years it would not be unreasonable to argue that the original is the only way to prove who really owns it
Understanding legal process - Posted by John Merchant
Posted by John Merchant on December 31, 2009 at 12:47:34:
Here’s the way legal pleading works so as to basically eliminate such haggling over note ownership:
In any judicial foreclosure, Plaintiff sues and alleges in his/her/its Complaint/Petition that it is the owner of the note and DOT, and Defendant owes $X amount including PITI and P’s expenses of filing suit including atty’s fees where applicable.
Then D files its reply/answer and has to either admit or deny the P’s allegations UNDER OATH…and telling a lie here is criminal perjury…and failure to deny with affidavit is admission of P’s allegations.
Therefore, once the P’s Complaint has set forth the ownership of that note, no lawyer is going to be willing to say otherwise (or permit his client to do so) w/o some first-hand knowledge of the situation so the issue’s laid to rest.
If I were representing the P, even if the issue were to be raised in the D’s reply/answer, I’d issue some legal “discovery” (Request for Admissions and Written Interrogatories)and demand that the D either admit or deny under oath that P owned the note…and if he didn’t/doesn’t, then demanding he state who does.
Further, in some (most/all ? my State of WA for sure, but haven’t researched this as to other OOC out of court foreclosure states), where a DOT is NOT normally sued on in court but is a non-judicial foreclosure done wholly OOC such a suit would be futile and short-lived.
Why?
Well, here in State of WA, the only way a DOT/Note debtor could possibly stop an OOC DOT foreclosure would be to file suit asking for injunction, and to do so, would have to post a cash bond equal to the amount of debt alleged in the DOT foreclosure plus attys’ fees, court costs, etc…basically an impossible burden on the debtor that cannot normally be performed by the debtor and that just doesn’t occur.
So once the DOT foreclosing trustee begins the OOC DOT foreclosure process the Debtor is dead in the water and the only way he’s going to be able to stop that DOT foreclosure is to pay what he owes or re-negotiate his debt and DOT with the note holder.
Thanks - Posted by Chi Ming
Posted by Chi Ming on January 03, 2010 at 22:32:29:
Except for the specific lawyer stuff, it matches my understanding of the process. The thing about requiring an original - things like the Check 24 law demonstrate that electronic images of an original are legal substitutes especially when the originals are systematically destroyed as permitted by the law. Additionally all sorts of new laws and revisions are coming into being that recognize that electronic records are often the only ones and are valid. Based on what the “show me the original” know nothings are saying is that a copy of, say, a birth certificate is not legally valid. We all know that is a crock.