The Plaintiff found the note! Now what?

15 May The Plaintiff found the note! Now what?

As a foreclosure defense attorney representing hundreds of homeowners in Florida, I have read literally a thousand foreclosure complaints over the last few years. Most every one includes a lost note count. As previously discussed, the reality is that the plaintiff is lying. It never had the note.

Now, however, the note has been miraculously located and filed with the court. Hallelujah!

Not so fast. What has really happened is that the plaintiff (or more accurately, its servicer) has now taken possession of the original note. Per U.C.C. § 2-203, ownership of a negotiable instrument is completed only after it is physically delivered to the purchaser.

So, can a plaintiff obtain the right to foreclose AFTER it files the foreclosure complaint? Absolutely not! The subsequent acquisition of the promissory note can never “relate back” to the day the complaint was filed and the Lis Pendens was recorded.

The defendant’s burden is to prove that this transaction took place after the date the lawsuit was filed. Once proven, game over. The plaintiff’s only recourse is to dismiss the foreclosure complaint and start over.

More importantly, the plaintiff has just been exposed to a viable counterclaim for violating state and federal collection laws for attempting to collect a debt it did not own.

OUCH!

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Chip Parker is the managing partner of Parker & DuFresne, P.A., where he represents Northeast Florida businesses and consumers facing bankruptcy, and homeowners facing foreclosure. His firm files more homeowners in the Mortgage Modification Mediation Program than any other law firm in Northeast Florida. Parker is the recipient of Jacksonville Area Legal Aid's prestigious Award for Outstanding Pro Bono Service. Mr. Parker is an active member of the National Association of Consumer Bankruptcy Attorneys and National Association of Consumer Advocates.
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