This is only because they held the Note. (according to the ruling) If a party holds the Note, the mortgage assignment isn't necessary (per the ruling). The court here chose to disregard the fraud and make it irrelevant. It's a legal workaround to avoid addressing illegal activity and fraud docs. (we don't need to address it, so we won't) Another one is saying you don't have standing to challenge the fraudulent transfer because you are not a party or the parties accepting it agree to ratify the, cough, error. This is not necessarily 100% correct either, because it deprives one of property and that IS what gives you standing.
Yes, that's what they said. But also remember that this was a commercial mortgage. Can anyone here say with any degree of truth that the entity you're fighting actually holds your original note in their hands?
I think not.
At least for most of us, that's not even possible, which is why you don't see them trying to claim it most of the time. Now, in my case, they actually told the court that they were the holder in physical possession.......of the note.......which they said in the same document that the note was lost years before they (the current plaintiff) had ever even heard of this "mortgage". So, they admit to it being lost before they ever could have possessed it....and they claim at the same time to be physically in possession of it.
If anyone can explain that one, I'd love to hear it....lol
This ruling will not help them against homeowners for the simple fact that the entire requirement of being the holder is not possible when the note has been sliced, diced, and either lost or intentionally destroyed. Also, take note of the part where they mention that the plaintiff never brought up the issue of the note being an instrument--which means it must be handled a certain way according to the UCC. Always remember that the note's status as an instrument affects "holder in due course" claims. To be a holder in due course means specific things that being a "holder" does not live up to. For one thing, a HIDC is one who possesses the note in question, but also has no knowledge of any defects or claims against payment. That means if your opposing party knows of a defect--and you can show that they are aware--they cannot claim HIDC status. It also means if they are aware of any legal challenge made against their claim for payment of the note, they likewise cannot claim HIDC.