Found the bombshell!!!

I know we are not supposed to say anything to do with "bomb" on the internet, but there is a time and place for everything, and this is the time.



I showed in the post: "moving ahead to foreclosure" the following statute here in NC:



§ 45-21.16(d) The hearing provided by this section shall be held before the clerk of court in the county where the land, or any portion thereof, is situated. In the event that the property to be sold consists of separate tracts situated in different counties or a single tract in more than one county, only one hearing shall be necessary. However, prior to that hearing, the mortgagee or trustee shall file the notice of hearing in any other county

where any portion of the property to be sold is located. Upon such hearing, the clerk shall consider the evidence of the parties and may consider, in addition to other forms of evidence required or permitted by law, affidavits and certified copies of documents. If the clerk finds the existence of (i) valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) right to foreclose under the instrument, and (iv) notice to those entitled to such under subsection (b), .then the clerk shall authorize the mortgagee or trustee to proceed under the instrument, and the mortgagee or trustee can give notice of and conduct a sale pursuant to the provisions of this Article. A certified copy of any authorization or order by the clerk shall be filed in any other county where any portion of the property to be sold is located before the mortgagee or trustee may proceed to advertise and sell any property located in that county. In the event that sales are to be held in more than one county, the provisions of G.S. 45-21.7 apply.





What is the first thing that the clerk must find? "Existence of valid debt."



I found this in my Deed of Trust:



The Deed of Trust that is recorded at the XXXXXXXXXXXXXXX Recorder of Deeds Book XXXX at Page XXXXX clearly states in paragraph one, line # 9-10: “This debt is evidenced by Borrower’s note dated the same date as this Security Instrument (“Note”),” and again on line #12: “(a) the repayment of the debt evidenced by the Note”. The Deed of Trust does not say that a copy of the Note can evidence the debt, nor does it say that an altered Note can evidence the debt.



They can't even show up and say they have debt without showing the note, per our alleged contract.





The clerk cannot find for them, if they are not the holder of the Note per the above statute and the Note is the only thing that can prove the debt per the DOT.





Can you find a crack in my approach?







Please, Hammer me now if I am looking at this the wrong way.



Thanks



HB

HB,

Good find…good thoughts. Here are a few more:



(i) valid debt of which the party seeking to foreclose is the holder

That holder specifically means “holder in due course”. To be a holder in due course the holder MUST have given you value. Make him prove it.



Also that means holder of the NOTE not a copy. That original note is a legal financial instrument. Remember, “note” and “promissory note” are synonymous. So if the clerk gives you any crap about a copy being valid just pull out an FRN and request the clerk have one of her aids make enough copies of it to pay off the note right then and there. (Show her the top line on the FRN.)



“Well, you just said a copy of a “note” is valid. Is it or isn’t it? You can’t have it one way for him and the other way for me.”

“But that would be a counterfeit!”

“And his isn’t?”



She will run for the judge. Don’t let her.



“(a) the repayment of the debt evidenced by the Note”.

Looks to me like the note has already repaid the debt…thank you very much. Might want to have a dictionary handy about “repayment” and “evidenc’ed’”. That is past tense.



This may be a time when you do want the clerk. She might be easier to snow. You can always ask her if she is going by procedure or evidence. Well just because the last 100 of these you did was by procedure doesn’t mean this one doesn’t have different evidence. Let’s see his evidence!

Did the bank in any way contribute to your campaign fund?



Note too that either party can take it to the judge…not the clerk. If you overwhelm her she can’t run away and send it to the judge. So overwhelm her sorry a**.



Prof. Jim

[Ice]

HB,



I am not holding a hammer.



You Are.



Damn good job. Damn good approach.



They must prove the debt using the note as evidence of the debt. Without the note they are up the creek without a paddle... with the note they are up the same creek !



This is what I've been telling you folks! They cannot continue with the fraud any longer as long as there are guys like HB and Jim out there doing their due diligence!!



uh, say HB -- ya wanna be careful with that sledge ya got there ~~



Ice

To paraphrase the professor,



Time to swat some flies!!!!







BTW, Jim, Thank you for the analogy. I am picking up what yer puttin' down. (In my best NC dialect)



Awesome! (Note vs. Note)



Ever known any body that was looking forward to getting served a foreclosure notice?

[Jerseee]

AAhhh,



A beautiful thing has just occurred within the confines of this thread and not once has HB argued about an alleged debt.



Not arguing or disputing frees your mind to look at the whole picture and not a scene in the picture.



Way to go HB. Damn good show!



All,



I'm pretty certain that everyone's respective state's statutes has the same references.

The truth of the matter is that I came onto this board, read, studied, asked questions on how to read and study, and I have learned more in the short period I have been here than in 35 years prior to that re the law.



I know I can take some of the credit for sticking my head in the material, and diggin' with all fours, but you guys get at least half the credit too.



You coulda told me to go piss up a rope, or charged outrageous prices for teaching a newcomer. Instead, you have been a HUGE help, patient, gave me a wake up call now and then, when I deserved it, and pointed me down the rabbit hole.



Thank you all again for your input, and thanks to SJ for hosting this board.



I keep my medicine handy for when the board loses it's signal that it uses for hacking into the matrix...



Seriously, THANKS!

Prof. Jim

[Jerseee]

Me too Jim! :-)



What HB said, makes it all worth it to me.

[weishaupt1776]

Originally Posted by HenryBowman

§ 45-21.16(d) [b]Upon such hearing, the clerk shall consider the evidence of the parties

[color=black][b]So do you have the right to see what they have filed into the record as evidence? Have you seen it? Was it their lame photocopy you uploaded that that is their only evidence? What has HB filed or is going to file into the record as evidence?

and <u>may</u> consider, in addition to other forms of evidence required or permitted by law, affidavits and certified copies of documents.

[color=black][b]Could they use the word <u>may</u> as a cheap way out of considering other evidence?

If the clerk finds the existence of (i) valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) right to foreclose under the instrument, and (iv) notice to those entitled to such under subsection (b), then the clerk shall authorize the mortgagee or trustee to proceed under the instrument, and the mortgagee or trustee can give notice of and conduct a sale pursuant to the provisions of this Article.

[color=black][b]Does the clerk need all four & not just one in order to give lawful authorization? It seems like it because the word <u>and</u> is used not <u>or</u> .

A certified copy of any authorization or order by the clerk shall be filed in any other county where any portion of the property to be sold is located before the mortgagee or trustee may proceed. . .

[color=black][b]Considering the above, it seems like you should write a letter requesting documents accompanied by an Affidavit in support to the clerk themself.



1)Request the photocopied doc the "lender" filed with the clerk in your document request

In the affidavit, line up(1) above with <blockquote>Affiant has not seen or been presented with any material fact that the (lame photocopy provided by mortgagee) constitutes a validation of debt on the account of Henry Bowman or that aforementioned lame photocopy can be substituted in lieu of original note as constituting a valid debt in order for clerk to CERTIFY a LAWFUL foreclosure, and affiant believes that none exists.</blockquote>(2)Request the original note from the Clerk or request that they ask the judge to subpoena the original note from the lender or request the judge to do it yourself. Line up (2) in your Affidavit :<blockquote>Affiant has not seen or been presented with any material fact that the clerk is not required to request original note from lender, to ask judge to subpoena such original note or to verify if such original note exists in order to give lawful authorization to mortgagee to foreclose, etc.....,, and affiant believes that none exists.</blockquote>(3)Request evidence of i-iv Line it up in the affidavit with:<blockquote>Affiant has not seen or been presented with any material fact that clerk can only rely on just one of the four items in order to lawfully certify or authorize mortgagee to foreclose, etc. . ., and affiant believes that none exists.</blockquote>

paragraph one, line # 9-10: “This debt is evidenced by Borrower’s note dated the same date as this Security Instrument (“Note”),” and again on line #12: “(a) the repayment of the debt evidenced by the Note”.

[color=black][b]Attach a copy of that sucker to your document request with your affidavit & then word it somehow to fit the language in the Deed of Trust

They can't even show up and say they have debt without showing the note, per our alleged contract.

The clerk cannot find for them, if they are not the holder of the Note per the above statute and the Note is the only thing that can prove the debt per the DOT.

[color=black][b]Use both of those suckers in your document request with affidavit in support

When one Sovereignty formally requests in written form, documents from another sovereignty, the request is called a <u>Letter of Rogatory</u> check it out HERE HERE HERE & HERE

Weis,



I am filing an affidavit on Monday morning as to the forgery.



Here is the point made above in different words.



The clerk MUST find the 4 things listed. Those are not optional.



The Note, not a copy is clearly stated as the evidence of the debt in the Deed.



There is no wiggle room for them. I have an affidavit in my hands that says that the copy they provided appears to be a forgery, and does not reflect my signature on any original document.



So that negates any standing at all if they don't show the original, unaltered note.



I plan on using the subpoena as you suggested. Been reading up on that tonight.



I am going to dig into the annotated on this statute as well and pull cases.



The affidavit in support thereof will be used, but after they have served me.



Right now, I am focusing on increasing their pucker factor to 10.



Thanks for the help too!!!



HB