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Cracking The Mortgage Assignment Shell Game

by Gary Victor Dubin, Esq. Honolulu, Hawaii

Gary Victor Dubin is a dynamite Honolulu foreclosure defense attorney with over 40 wins by the DUBIN LAW FIRM in Hawaii foreclosure courts for his clients just in the last year. This is a stunning success given the current judicial climate in Hawaii, not to mention the complexity of securitization, the hidden frauds…and of course, card games and golfing with banksters doesn’t help either.

Dubin’s essay “Securitized Distrust” is a culmination of insight with over 20+ years of first hand litigation and this leads right into our latest discovery of WaMu multiple trust loan assignments. Shuffling or fraud… or both?

It’s no wonder that the Wall Street MBS scheme collapsed. Last night we ran a random audit on WaMu Mortgage Pass-Through Certificates, Mortgage Loan Trusts. One loan was found in 6 different trusts, another loan was found in FIVE trusts’ original SEC loan level data, 39 were listed in 3 trusts, and 503 were listed in two separate trusts.  

The winner so far is a NEW YORK condo, loan number WaMu loan # 714934858, appeared in 6 DIFFERENT trusts from May through November 2006…

Check your winning WaMu lottery loan numbersfolksand find  a good foreclosure defense attorney that understands securitization – you may have a free house… or a severely clouded title. And if you are an investor – you may have hit pay dirt.
(More WaMu at the bottom)

SECURITIZED DISTRUST
By Gary Victor Dubin

Securitized trusts — that is, the bundling and selling of shares therein to investors via a business merger between lenders and wall street (mortgage backed securities or MBS) — is relatively new, not even understood by many lawyers today and very few if fully any Hawaii judges, and certainly not by me until only a few years ago, and I am still learning day by day.

In recent years, my law firm has handled dozens of securitized trust foreclosure defense cases and one defense of an SEC civil prosecution against broker-sellers of such MBS shares. The fraud throughout the secondary mortgage market has been pervasive:

1. Promissory notes intended for securitized trusts based on my experience were either intentionally never deposited into the securitized trust in the first place on purpose with full knowledge by everyone involved or were deposited in the trusts only as copies.

2. Based on the testimony of whistleblowers and forthright bank executives, lenders intentionally destroyed most of their original notes and instead before doing so digitized them, supposedly for convenience — which of course destroyed their status as negotiable instruments, leaving only copies somewhere, and often not with the Trustee.

3. At first, it appeared that that was just sloppiness, but subsequently in our cases we have discovered that it appears to have been common practice intentionally not to deposit the notes (or the mortgages) in the securitized trusts, but to withhold them and unlawfully use them on the side as collateral to support loans or credit from Federal Home Loan Bank Boards, a practice that apparently mushroomed as lenders found themselves in financial trouble and in need of capital.

4. Documented evidence has recently just been brought to my attention that many notes and mortgages were even put simultaneously into two or three or perhaps even more separate securitized trusts, unknown of course to individual investors who thought that they had sole security for their investments, unknown to insurance companies like AIG that insured the MBS based on certified loan underwriting guidelines that they were unaware were being ignored and intentionally compromised by false appraisals and false loan applications.

5. All of this recently surfacing has of course started to generate a massive amount of litigation between lenders and investors and mortgagors and insurers and title companies, in which inevitably the question of fraudulent notes and fraudulent mortgages as well as fraudulent mortgage assignments has occasionally arisen. Just this week I had an incredible hearing before Judge Ayabe in one such case involving a claimed lost mortgage assignment and the submission in court of a false note to get around the absence of the mortgage assignment.

6. All of this of course is pregnant with fraud and criminality, particularly against MBS investors. Securitized trusts also have special IRS preferential status, called REMIC, able to pass through income to investors and avoid taxation so long as the deposit of the note and mortgage occur at the time of the formation of the securitized trust. Having violated REMIC requirements which could cost securitized trusts each millions, the securitized trusts have been a ticking IRS time bomb.

7. As a result, as all of this began to surface a year or so ago, as a corollary to the so-called “too big to fail” hobgoblin, the Obama Administration and regulatory agencies began to seek frankly to cover things up, recently convincing the AGs to settle with the big five banks which are either securitized trust loan servicers or Trustees themselves and to grant them immunity, especially I understand from IRS violations.

8. The effect on borrowers has been dramatic. As foreclosures increased, the securitized trusts have had a huge problem, how to foreclose in court (or nonjudicial proceedings) without the notes or even the mortgages — so they began to falsify promissory notes when needed (we have even found evidence that some lenders have been photo-shopping notes), to create phony allonges and phony bearer notes, and to submit in court no less fraudulently notarized and fraudulently signed mortgage assignments to the securitized trusts — a practice now having become famously known as “robo-signing.”

9. At first, the foreclosing mortgagees got away with it as judges and attorneys were virtually unanimously unaware of what was going on, until a few relentless attorneys and investigators on the Mainland exposed the fraud — one recently getting I understand $18,000,000 from the recent AG settlement for her False Claims Act whistle-blowing!

10. For some time my law firm has been arguing such issues in defense of borrowers — particularly as standing issues — but with little success, until recently, as more and more Hawaii judges are finally beginning to understand.

11. Very rarely in our cases is the issue one of lost notes or lost mortgages, but usually phony note endorsements or phony allonges or phony mortgage assignments — or all three.

12. Mortgages of course in Hawaii are all recorded at the State Bureau of Conveyances, but as a result mainly due to the use by securitized trusts of the private Mortgage Electronic Registration System (MERS), mortgage assignments have not been contemporaneously recorded — which has allowed the illicit trafficking in mortgage interests — which has generated still additional legal issues, such as whether the ownership of the promissory note can be separated from the ownership of the related mortgage, an issue now before several state high courts on the Mainland.

The above flood of new legal issues is just starting to hit Hawaii appellate courts, as my law firm has several related cases presently working their way through our appellate system, as the largest financial scandal in American history plays out.

Unlike the recent AG settlement, I prefer the approach that enforces traditional real property and UCC negotiable instruments laws, like the New York and New Jersey courts are now doing, and let the chips fall where they may — directly on top of the heads of those who violated the law — by refusing to reward fraud.

Gary Victor Dubin 3/14/12

Dubin Law Offices
Harbor Court, Suite 3100
55 Merchant Street
Honolulu, Hawaii 96813
gdubin@dubinlaw.net

(808) 537-2300 (office)
(808) 523-7733 (facsimile)
________________________________________________________________________

By DeadlyClear

MORE WaMu

We reviewed 66,475 loans in the 2006 and 2007 original SEC loan tapes filed with the SEC for 28 different trusts. In addition we did a quick review of WMALT trusts (6 trusts = 8885 loans so far out of 21 trusts) and found 46-Doubles and 2-Triples – and that’s just starting on this batch.

What a mess! And don’t act like it’s news to you, Mr. Dimon. We’re still analyzing the 503 dual trust loans we’ve found (same mortgage loan in 2 different trusts).  Over 500 loans in at least 2 trusts is enough reason to hire an attorney to investigate and/or take to your state AG.  Here are some of the biggies for now.  The 6X, 5X and 3X Trust sitters.  If you own a WaMu mortgage loan or investment certificates, better check your paperwork… not that any of these loans actually made it into the trusts… maybe their applications did… but the jury is still out on actual signed promissory notes and mortgages.  More updates to follow – stay tuned. Let us know if any of these belong to you.

Here is a sampling.Wamu Mortgage Loan Trusts

714934858      2006 AR13       6     NEW YORK

714934858      2006 AR17       6

714934858      2006 AR5         6

714934858      2006 AR11       6

714934858      2006 AR7         6

714934858      2006 AR9         6

3062663459    2006 AR11       5     SOUTHWEST RANCHES, FL

3062663459    2006 AR15       5

3062663459    2006 AR13       5

3062663459    2006 AR17       5

3062663459    2006 AR7         5

687327833      2006 AR5         3     WATER MILL, NEW YORK

687327833      2006 AR7         3

687327833      2006 AR9         3

702890393      2006 AR5         3     SEDONA, AZ

702890393      2006 AR7         3

702890393      2006 AR9         3

708816277      2006 AR11       3     LOS ANGELES, CA

708816277      2006 AR7         3

708816277      2006 AR9         3

709225601      2006 AR5         3     BEVERLY HILLS, CA

709225601      2006 AR7         3

709225601      2006 AR9         3

3010250284    2006 AR13       3     SAN JOSE, CA

3010250284    2006 AR17       3

3010250284    2007 OA3        3

3010658064    2007 OA4        3     ST PETE BEACH, FL

3010658064    2007 OA5        3

3010658064    2007 OA6        3

3012468561    2007 OA3        3     MIAMI, FL

3012468561    2007 OA4        3

3012468561    2007 OA5        3

3012667048    2007 OA4        3     SACRAMENTO, CA

3012667048    2007 OA5        3

3012667048    2007 OA6        3

3012714196    2007 OA4        3     DOWNEY, CA

3012714196    2007 OA5        3

3012714196    2007 OA6        3

3012719393    2007 OA4        3     ISSAQUAH, WA

3012719393    2007 OA5        3

3012719393    2007 OA6        3

3012747220    2007 OA3        3     FONTANA, CA

3012747220    2007 OA4        3

3012747220    2007 OA5        3

3012843490    2007 OA4        3     LOS ANGELES, CA

3012843490    2007 OA5        3

3012843490    2007 OA6        3

3012865386    2007 OA4        3     HESPERIA, CA

3012865386    2007 OA5        3

3012865386    2007 OA6        3

3012957647    2007 OA4        3     POMONA, CA

3012957647    2007 OA5        3

3012957647    2007 OA6        3

3013126374    2007 OA4        3     WELLINGTON, FL

3013126374    2007 OA5        3

3013126374    2007 OA6        3

3013390855    2007 OA4        3     LOS ANGELES, CA

3013390855    2007 OA5        3

3013390855    2007 OA6        3

3013394121    2007 OA4        3     ORLANDO, FL

3013394121    2007 OA5        3

3013394121    2007 OA6        3

3013432657    2007 OA4        3     NEWPORT BEACH, CA

3013432657    2007 OA5        3

3013432657    2007 OA6        3

3017285747    2007 OA4        3     CORTE MADERA,        CA

3017285747    2007 OA5        3

3017285747    2007 OA6        3

3051253262    2006 AR5         3     BOWIE, MD

3051253262    2006 AR7         3

3051253262    2006 AR9         3

3061594366    2006 AR5         3     LAS VEGAS, NV

3061594366    2006 AR7         3

3061594366    2006 AR9         3

3062124403    2006 AR13       3     THOUSAND OAKS, CA

3062124403    2006 AR7         3

3062124403    2006 AR9         3

3062175199    2006 AR11       3     BERKELEY, CA

3062175199    2006 AR13       3

3062175199    2006 AR9         3

3062395722    2006 AR13       3     MALIBU, CA

3062395722    2006 AR7         3

3062395722    2006 AR9         3

3062651207    2006 AR11       3     MIAMI, FL

3062651207    2006 AR7         3

3062651207    2006 AR9         3

3062758135    2006 AR15       3     DUARTE, CA

3062758135    2006 AR13       3

3062758135    2006 AR17       3

Whether or not you are represented by an attorney understanding the legal system is an asset.  The more you learn, the less likely you are to be taken advantage of or scammed.  Knowledge is power!

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This entry was posted in Uncategorized and tagged Foreclosure, Fraud, Hawaii, Honolulu, mortgage, SECURITIZED DISTRUST, WaMu, WaMu 2006-AR11, WaMu 2006-AR13, WaMu 2006-AR5, WaMu 2006-AR7, WaMu 2007-OA3, WaMu 2007-OA5 by Deadly Clear. Bookmark the permalink.

Comments by Thomas Ice, Lynn Drysdale, Alice M. Vickers, Roy Oppenheim, Margery E. Golant, Matthew D. Weidner, Kevin Hoyes, and Wendell Finner on Ammendments to the Florida Rules of Civil Procedue, Case No: SC13-2384.

 

INTRODUCTION

The undersigned attorneys have represented hundreds homeowners in foreclosure in Circuit Courts throughout Florida. As such, we appreciate the efforts of this Court and The Florida Bar’s Civil Procedure Rules Committee to interpret the 2013 legislative changes to the foreclosure process. The undersigned also participated in advocating for homeowners during the 2012 and 2013 legislative process. We take this opportunity to raise issues with certain aspects of the proposed Rules that will conflict with the stated purpose of the Legislature to “expedite the foreclosure process by ensuring initial disclosure of a plaintiffs status and the facts supporting that status, thereby ensuring the availability of documents necessary to the prosecution of the case.” § 702.015(1), Fla. Stat.

Specifically, the proposed rules are incomplete and do not address the category of nonnegotiable instruments and, by this omission fail to fully address the standing of servicers to bring foreclosure actions.

I. The proposed requirement that the claim of mortgage foreclosure be brought under Article 3 of the Uniform Commercial Code ignores, and potentially abolishes, other grounds for enforcing the lien.

Proposed Rule 1.115 begins with listing only two means of enforcing a mortgage or other lien on real property which secures a promissory note, both of which fall under Article 3 of the Uniform Commercial Code (“UCC”)—i.e. the claimant must be a “holder” (a person in possession of a negotiable instrument endorsed to him or her or in blank)[1] or be otherwise entitled to enforce the note under § 673.3011, Fla. Stat. [Florida’s equivalent of §3-301 of the UCC]:

(a) Claim for Relief. A claim for relief that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives designed principally for occupation by one to four families which secures a promissory note, must: (1) contain affirmative allegations expressly made by the claimant at the time the proceeding is commenced that the claimant is the holder of the original note secured by the mortgage; or (2) allege with specificity the factual basis by which the claimant is a person entitled to enforce the note under section 673.3011, Florida Statutes.

While this language tracks § 702.015, Fla. Stat., there is no evidence from the text or history of the statute that the legislature intended to preclude other means of alleging entitlement to enforce a lien securing a promissory note or, for that matter, to preclude a claimant from enforcing a lien securing a note that is not negotiable. It is beyond dispute that some promissory notes are not negotiable.” Under the rule as currently worded, even an original lender could not allege a foreclosure action if the note was not negotiable.

Moreover, due to the difficulty of proving when negotiable instruments were endorsed (that they were endorsed before the action was filed), claimants have begun turning to other methods of proving standing, such as actual ownership of the loan and the status of assignee of the loan—both of which occur outside the confines of Article 3.[2][3] Additionally, outside the litigation context, financial institutions rely on Article 9 as the basis for their transfers[4] and the rule should be broad enough for them to allege that as a basis for bringing the action. Further, there are mortgage documents that are not negotiable instruments. When non- negotiable notes are the basis for foreclosure, Article 3 is not an available option, again requiring the claimant to rely on Article 9 to provide a basis for it to claim a basis for relief.

Accordingly, adopting a rule that appears to restrict the enforcement of liens to those which secure negotiable instruments would deprive lienholders of their rights and only create more chaos for Florida foreclosure law.

II. By equating the ability to obtain a money judgment on the note with the right to foreclose a lien, the proposed rule overturns the long line of case law that foreclosure is an equitable action.

Foreclosure is an equitable remedy.[5] Nevertheless, many written foreclosure opinions in the past few years simply state, without analysis or careful draftsmanship, that establishing oneself as a holder of the note under Article 3 of the UCC is sufficient proof of standing to foreclose—as if the UCC applies to nonnegotiable instruments such as mortgages. In reality, the plaintiff must also prove itself to be the mortgagee to prevail on its claim in equity to enforce the mortgage lien. While it appears that the litigants in these cases never raised the fact that the foreclosure of a lien is an entirely different kind of action than the legal action for enforcing a note (i.e. obtaining a money judgment), this Court should not adopt a rule that forever abolishes the courts’ equitable jurisdiction which governs the taking of homes from the citizens of this state. The Court should jealously guard this power given that there exists a deeply-rooted public policy of promoting and defending home ownership—a policy that has found expression in the Florida Constitution’s homestead protections.[6]

Not only is enforcement of the lien a separate equitable action, the concept of the “mortgage follows the note” is merely shorthand for the legal fiction that there is an “equitable transfer” of the mortgage to the new, rightful owner of the note. In other words, this evidentiary shortcut of a mortgage following a note is dependent upon the court’s finding of an equitable transfer, which, like foreclosure itself, arises from the powers of the court’s equitable jurisdiction. The shortcut, therefore cannot apply to mere holders who are given the legal right to enforce a note even if they have taken possession of it under inequitable circumstances (indeed, the drafters’ commentary to Article 3 itself talks in terms of a “thief’s entitlement” to enforce a note). Thus mortgages may only “follow the note” to its owner, not its Article 3 holder—i.e. only note owners may foreclose without proof that they are the mortgagee by purchase or assignment. Expressed in the hyperbolic tones of the UCC itself, while a “thief can get a money judgment on a stolen note,” in Florida, a thief cannot take one’s home for non-payment of that note.

This inherent problem with the rule is best exemplified by the proposed change to Form 1.944(a) which substitutes an allegation that the “Plaintiff owns and holds the note and mortgage” with a statement that “Plaintiff is the holder of the original note secured by the mortgage.” Most remarkable, and most telling, is [7]the proposed removal of any need for the Plaintiff to allege this it has any entitlement to enforce the mortgage. Note that “owns and holds” in the original form did not refer to an Article 3 holder, but simply to an owner.’ Therefore, the original form, based on decades of case law, required the plaintiff to plead that—in addition to owning the note—it was the owner of the mortgage. While broadening the basis for enforcing the note to include Article 3 holdership better reflects the current state of the law with respect to alleging an action at law to enforce a promissory note, dropping the need for any separate allegation of a right to enforce the mortgage is to abolish the court’s equitable jurisdiction over lien enforcement. [8]

Moreover, this Court’s equitable jurisdiction cannot be ousted by a procedural rule, particularly when that rule has been dictated by the legislature.[9]Accordingly, the Court should insure that its procedural rules and forms reflect that foreclosure of a lien is an equitable action, that claimants must plead and prove entitlement to enforce the lien (not just the note), and that equitable principles apply to determining whether transfers of mortgages have occurred when there is no formal assignment of the mortgage.

III. The proposed rule section (b) regarding pleading of “Delegated Claim for Relief’ is ambiguous and conflicts with section (a) “Claim for Relief.”

Section (a) requires that the claimant plead that it is the Article 3 holder. If, however, the claimant is an agent of the “person entitled to enforce the note,” it need only plead that the claimant has been authorized to act on behalf of that person—without specifying how that person is entitled to enforce the note. Because section (a) is limited to what the claimant must plead about itself, rather than its principal, there is no requirement for an agent to plead that its principal is either a holder or otherwise entitled to enforce the note under §673.3011, Fla. Stat. It is doubtful that the legislature intended that agents be permitted to plead and prove the entitlement to bring the action with less specificity than if they were bringing the action on their own behalf. This conflict could be resolved by amending section (a) to substitute “claimant or its principal” for the word “claimant” where appropriate:

…(1) contain affirmative allegations expressly made by the claimant at the time the proceeding is commenced that the claimant or its principal is the holder of the original note secured by the mortgage; or (2) allege with specificity the factual basis by which the claimant or its principal is a person entitled to enforce the note under section 673.3011, Florida Statutes.[10]

IV. The proposed rule section (b) regarding pleading of “Delegated Claim for Relief’ is also inconsistent with (c) and (d).

Further, if a claimant is filing a foreclosure complaint as a result of “delegated authority.” It must describe the authority and identify the documents which grant the claim of authority to act on behalf of the person entitled to enforce the debt. Although the authority must be stated and the documentation described with specificity there is no requirement that the statements of authority be filed under penalty of perjury. Again, it is unlikely the legislature intended that agents be permitted to plead and prove the entitlement to bring the action under a lesser standard of reliability than if they were bringing the action on their own behalf. This conflict could be resolved by amending section (b) to include the “under penalty of perjury” standard.

 

V. The verification rule (section (e)) is unenforceable.

The requirement for verification of a mortgage foreclosure complaint has— like the remainder of the procedural changes that were made to avert what was thought to be a “crisis”[11]—was a spectacular failure. The laudable purpose of the verification rule was:

1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

In re Amendments To The Florida Rides Of Civil Procedure, 44 So. 3d 555, 556 (Fla. 2010), as modified on denial of reh’g (June 3, 2010). But except for the disappearance of inappropriately pleaded lost note counts, there is no evidence that complaints are any more accurate today or that trial courts have used the verification rule to sanction plaintiffs.

The primary reason for this failure is because, for reasons unknown, the verification rule for foreclosures was given no teeth. To comply with Fla. R. Civ. P. 1.110(b), the affiant need only verify based on information and belief. The typical standard (such as that embodied in § 92.525, Fla. Stat.—a sworn statement that the facts are true) was not adopted for the rule and is inapplicable to foreclosure verifications. Trucap Grantor Trust 2010-1 v. Pelt, 84 So. 3d 369, 372 (Fla. 2d DC A 2012). Thus the verifier may safely rely on hearsay information or simply unfounded speculation without fear of the “penalties of perjury.” As a result, verification quickly became a pro-forma function delegated to robo-signers with no personal knowledge of the facts.

Accordingly, the rule should be amended to remove the phrase “to the best of my knowledge and belief.”

Respectfully submitted,

Thomas E. Ice

Florida Bar Number: 521655 Ice Legal PA

1015 N State Road 7, Ste C

Royal Palm Beach, FL 33411-5185

561.729.0530 tom.ice@icelegal.com

 

Lynn Drysdale

Florida Bar Number: 508489

Jacksonville Area Legal Aid, Inc.

126 W Adams Steet

Jacksonville, FL 32202-3849

904.224.7050

lynn. drysdale@iaxlegalaid.org

 

Alice M. Vickers

Florida Bar Number: 402631

FL Alliance for Consumer Protection

623 Beard Street

Tallahassee, FL 32303-6321

alicevickers@flacp.org

 

Roy Oppenheim

Florida Bar Number: 710016

Oppenheim & Pilelsky

2500 Weston Road, Ste 404

Weston, FL 33331-3618

954.384.6114

roy@gate.net

 

Margery E. Golant

Florida Bar Number: 44466

Golant & Golant, P.A.

2385 NW Executive Center Drive Suite 100

Boca Raton, FL 33431-8510

561.206.6171

filings@golantlaw.com

 

Matthew D. Weidner

Florida Bar Number: 185957

Matthew D. Weidner, PA

250 Mirror Lake Drive N

St. Petersburg, FL 33701-3200

727.954.8752

weidner@mattweidnerlaw. com

 

Kevin Hoyes

Florida Bar Number: 882631

Kevin Hoyes Attorney PA

422 Fleming Street

Key West. FL 33040-6529

305.731.3349

khoyes39@yahoo.com

 

Wendell Finner

Florida Bar Number: 93882

First Coast Consumer Law

340 Third Avenue S, Ste A

Jacksonville Beach, FL 32250-6767

904.242.7070

Wendell@beacheslaw.com


[1] If, as is assumed here, the word “holder” is intended to refer to someone in possession of a properly endorsed negotiable instrument as those terms are defined under Article 3 of the UCC (Chapter 673, Fla. Stat.), then the rule should clearly state that.

 

[2] Holly Hill Acres, Ltd. v. Charter Bank of Gainesville, 314 So. 2d 209 (Fla. 2d DCA 1975); Peterson, David E., Cracking the Mortgage Assignment Shell Game, Fhe Florida Bar Journal, Vol. 85, No. 9 (November 2011) at p. 10, n. 32 (Home Equity Lines of Credit are not negotiable and not covered under Article 3 of the UCC); Renuart, Elizabeth, Uneasy Intersections: the Right to Foreclose and the U.C.C., 48 Wake Forest Law Review 1205, at p. 1228-29 and cases cited therein (a HELOC note is not negotiable because it does not contain a provision requiring payment of a fixed amount of money); Ice, Fhomas Erskine, Negotiating the American Dream: A Critical Look at the Role of Negotiability in the Foreclosure Crisis, Fhe Florida Bar, Vol. 86, No. 10 (December 2012), at p. 8. (pointing out that the form Fannie Mae/Freddie Mac Uniform Instrument Note does not meet the definition of a negotiable instrument and was never intended to).

 

[3]    See §673.20131(4), Fla. Stat. (“If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. Fhe transferee obtains no rights under this chapter and has only the rights of a partial assignee.”)

 

[4] Dale Whitman, Transfers of Mortgage Notes under New Article 9, available at http://dirt.umkc.edu/files/newart9i.htm (apparent purpose of change was to insulate issuers of mortgage-backed securities from attacks by bankruptcy trustees “without the bother of taking physical possession of the notes in question, a process that they often consider irksome”). These changes were enacted in Florida in 2001, effective 2002, §§679.1011-.709, Fla. Stat. (2012); Steven Schwarcz, The Impact of Securitization of Revised UCC Article 9, 74 Chicago-Kent L. Rev. 947 (1999); H. Bruce Bernstein, Commercial Finance Association: Summary of the Uniform Commercial Code Revised Article 9, available at https://www.cfa.com/eweb/DvnamicPage.aspx?Site=cfa&WebKey=9d83ef78- 8268-4aae-95el-7f4085764e46 (revised Article 9 facilitated mortgage-backed securitization); David Peterson, Cracking the Mortgage Assignment Shell Game, 85 Fla. Bar J. 11, 12 (November 2011) (revisions to Article 9 addressed the needs of banks in the securitization chain by treating mortgages as personal property that could be transferred without regard to the real estate records).

 

[5] Singleton v. Greymar Associates, 882 So. 2d 1004, 1008 (Fla. 2004).

 

[6] Florida Constitution, Article X, Section 4; see Snyder v. Davis, 699 So. 2d 999 (Fla. 1997) (“As a matter of public policy, the purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home…”).

 

[7] Johns v. Gillian, 184 So. 140 (Fla. 1938).

 

[8]For example, when Form 1.934 Fla. R. Civ. P. (Promissory Note Complaint) was amended in 1980, this Court added “the Plaintiff owns and holds the note” specifically “to show ownership of the note.” Committee Note to Form 1.934 Fla. R. Civ. P. adopted by The Florida Bar, In re Rules of Civil Procedure, 391 So. 2d 165 (Fla. 1980). No doubt the Court recognized that the phrase “owns and holds” is a ubiquitous legalism which has been used in many contexts outside of negotiable instruments. Indeed, the term “holds” in “owns and holds” could not have referred to Article 3 holdership, because one cannot be the holder of a mortgage—mortgages are not a negotiable instruments.

Additionally, because mortgage foreclosure is premised upon the right to collect on a promissory note, it is apparent that Forms 1.944(a) and 1.934 should use similar language with respect to the note—as they do now. The proposed change to Form 1.944(a) will put that form in conflict with Form 1.934.

 

[9] See Poling v. Petroleum Carrier C.orp., 194 So. 2d 925, 926 (Fla. 1st DCA 1967); Art. V, § 20(c)(3), Fla. Const.

 

[10]Alternatively, section (b) should be clarified to state that, when a claimant has been delegated the authority to sue on behalf of someone else, the claimant must also allege with specificity how that person is entitled to enforce the note.