Cites - Possession of Promissory Note Required

NC CASE LAW:



In In re Foreclosure of Deed of Trust of John M. Connolly, 63 N.C. App. 547, 306 S.E.2d 123 (N.C.App. 08/16/1983), the court applies the following cases:

“A party seeking to go forward with foreclosure under a power of sale must establish, inter alia, by competent evidence, the existence of a valid debt of which he is the holder. G.S.45-21.16(d), In re Foreclosure of Burgess, 47 N.C. App. 599, 267 S.E.2d 915, appeal dismissed, 301 N.C. 90, S.E.2d (1980). The Uniform Commercial Code, G.S. 25-1-201(20) defines a "holder" to be "a person who is in possession of . . . an instrument . . . issued or indorsed to him or to his order . . . ." See Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc.,301 N.C. 200, 271 S.E.2d 54 (1980). It is the fact of possession which is significant in determining whether a person is a holder, and the absence of possession defeats that status. See Liles v. Myers,38 N.C. App. 525, 248 S.E.2d 385 (1978). See also 1 Anderson, Uniform Commercial Code § 1-201: 105 through 116.”



AND ALSO:



“To the extent that Furst may represent a holding that possession at trial is not necessary to establish that the mortgagee is the holder of the instrument that constitutes the debt which the mortgage secures, Furst is expressly overruled.” In re Foreclosure of Deed of Trust of John M. Connolly, 63 N.C. App. 547, 306 S.E.2d 123 (N.C.App. 08/16/1983).

[suijuris]

Good work HB!



Soon we will have cites for each state...

Just curious . . . Could a bank admit a *copy* of the Prom Note when they have intentionally destroyed the original note to *conserve space?* I haven't found any case law on this aspect of the Best Evidence Rule.

[Purge]

Could someone look at this for me and tell me what to make of it.
I don't know much about our laws and rights but I'm trying to stop being a slave. I am going through an ME program that uses a Presentment and forcing the lender to cough up the Promissory Note. When the lender doesn't show it they default. When I shared my views on this, this is what a person came up with to say it wont work.

http://www.judicial.state.ia.us/appe...09/02-1889.asp

In re Investors & Lenders Ltd., et al 156 B.R. 145 (Bankr.D.N.J. 1993)
"... a security interest in instruments can be perfected only by the secured party's taking possession. N.J.S.A. 12A: 9-304(1). Therefore, a security interest in a promissory note can only be perfected by taking possession of the note."


In re Kennedy Mortgage Co. 17 B.R.957 (Bankr.D.N.J. 1982)
Defendants have a common law right to demand production of the alleged "note" prior to making any payment on a note. "A promissory note is an "instrument" as defined by the Uniform Commercial Code. N.J.S.A. 12A:9-105 (1) (g) and 12A:3-104(2)(d)

New to all this, so bear with me. Is the application for a credit card also considered a promissory note and subject to production when requested by applicant?

[Purge]

Yes, it is concidered a promissory note and subject to production.

Originally Posted by pixel

New to all this, so bear with me. Is the application for a credit card also considered a promissory note and subject to production when requested by applicant?

[logos]

Purge:
In the case you cited the Goodrich's may have lost, in part, because they might not have rebutted the presumption they signed a promissory note that did/does exist somewhere. Do you know if they did? I haven't read the original case this was an appeal of. Though it's true the holder must produce the note if so demanded to, merely asking for it doesn't rebut this presumption but only serves to determine if the alleged holder is the rightful holder. Perhaps they should have stated in an affidavit they had no knowledge of what the bank was claiming because they never signed any note in the first place. When Chase later produces an alleged original note, they could have claimed, after inspecting it, the signatures weren't theirs.

[Purge]

I don't know, but I hope the fact that the Dorean Group is using a bond to back them up, in good faith, will prevail.

Originally Posted by logos

Purge:
In the case you cited the Goodrich's may have lost, in part, because they might not have rebutted the presumption they signed a promissory note that did/does exist somewhere. Do you know if they did? I haven't read the original case this was an appeal of. Though it's true the holder must produce the note if so demanded to, merely asking for it doesn't rebut this presumption but only serves to determine if the alleged holder is the rightful holder. Perhaps they should have stated in an affidavit they had no knowledge of what the bank was claiming because they never signed any note in the first place. When Chase later produces an alleged original note, they could have claimed, after inspecting it, the signatures weren't theirs.

The court case cited above is one of flagrant firmiliarity. I have seen would be "challengers" lose consistantly with arguments based on UCC, Promissory notes, FDCPA, Truth in lending, etc.

The KEY element in succeeding in court is PROCEDURE. The court procedure is everything. I lost a vehicle in near exactly the same argument. You will notice the council or the magistrate never really addresses your concerns about the Note, TIL, FDCPA or the like! Ever wonder why?

(In my case, the judge clearly said "After revewing your paperwork, it appears you've stumbled upon a process in which one can apperantly get-something-for-nothing" At which time the plaintiff attorney began to scramble while the other attorneys present murmered something like "I gotta hear this". Believe it or not, I lost that case! My concerns were never even heard to be addressed. After a serious critique by some civil attorneys, it was concluded that my argument was sound, but my procedure did not allow for the judge to hear it.

It is imperative to make a firm demand based on "BREACH OF CONTRACT" to open the door. Then and only then can the magistrate ever consider the relavent facts IN the contract and allow any of your discovery requests actually be relevant. In short, the "contract/Note is private" you have to give the judge JD to go there. Breach of contract challenges the core of the opponents claim, henceforth opening the can of worms the bank would rather NOT spill.

In a more recent case similarly. Breach was asserted and the defendant immediately moved for discovery. After seeing what the discovery entailed the plaintiff eventually withdrew their case. The once defendant is now amidst a suit against them (citibank) for (basically fraud), and hoping to settle out of court.

All things being equal, I'd rather nail them down with contracts and keep them from ever reaching a courtroom. I found, when things start to get tense, if you use a court officer to re-demand "verification", they tend to shy away from court rather then run into it. (worked 2/2 so far)

I am forever a student. . . alas . . . Perpetual refinement

Rocket