Cites - Possession of Promissory Note Required

[suijuris]

A lender MUST have have possession of the original promissory note in order to win in court. They will not or can not provide the original for any number of reasons.



Use the following cites when peparing and DEMAND verification of possession. Feel free to add any cites you can find on this topic.



Enjoy!

Sui Juris

[suijuris]

John P. McCAY, Jr. and Rosemary L. McCay v.

CAPITAL RESOURCES COMPANY, LTD.



96-200 ___ S.W.2d ___



Supreme Court of Arkansas

Opinion delivered March 24, 1997





1. Mortgages -- original note's terms could not be enforced by use of copy without proving it lost, destroyed, or stolen as required in code -- adequate protection to appellants from future claim not given. -- Where appellee apparently never possessed appellants' original note as provided in Ark. Code Ann.  4-3-309(a)(i) (Repl. 1991), but was required, even if it had, to have proven all three factors specified in  4-3-309(a) and did not do so, appellee could not enforce the original note's terms by the use of a copy; even if all three requirements in  4-3-309(a) had been proven, the trial court was still obligated to ensure that appellee provided adequate protection to the appellants from any future claim, and this, too, was not done.



2. Evidence -- argument that rules of evidence supersede requirements of UCC without merit -- appellee failed to either produce original of note or satisfy requirements for lost negotiable instrument. -- Appellee's argument that the trial court was correct in admitting the copy of the note as an exception under the best evidence rule and that the Arkansas Rules of Evidence superseded the requirements of the Uniform Commercial Code (UCC) was without merit; if a duplicate was allowed in place of the original note, the appellants could later be subjected to double liability if the actual holder of the note appeared; the rules of evidence are rules of the court involving legal proceedings, while the UCC is composed of statutes of law that established the rights and liabilities of persons; appellee, as an assignee of the appellants' note, could not sue on the underlying debt the appellants owed to the original lender; in order for appellee to have prevailed in enforcing the note, it was required either to produce the original or satisfy the requirements for a lost negotiable instrument under  4-3-309(a) and (b); because appellee failed to do either, the case was reversed and remanded.

[suijuris]

Profert of a promissory note is required by statutes placing promissory notes on the same footing and of equal dignity with instruments under seal.

Beebe v. Real Estate Bank, 4 Ark. (1842)





See Vandergriff v. Vandergriff, 211 Ark. 848, 202 S.W.2d 967 (1947), where this court held there can be no judgment on a note when it is not introduced into evidence and where the note's absence is not

explained.





This court has also held that secondary evidence of the contents of a note is inadmissible when the original is within the control or custody of the one seeking to enforce it.

Chaviers v. Simmons, 256 Ark. 731, 510 S.W.2d 301 (1974).





Article 3 of the UCC, first enacted in 1961 and replaced in 1991, governs the treatment of negotiable instruments. Ark. Code Ann. 4-3-101--605 (Repl. 1991). Here, because their promissory note is a negotiable instrument as defined by 4-3-104(a), the McKays contend, and we agree, that Capital Resources was obligated to satisfy the UCC requirements for negotiable instruments. We turn to those UCC requirements applicable here. Under 4-3-310(b)(3), an obligee may enforce either the note or the debt.

John P. McCAY, Jr. and Rosemary L. McCay v. CAPITAL RESOURCES COMPANY, LTD.





However, when the note is transferred to a third party (as in the present case) the only right that survives is the right to enforce the note. 4-3-310(b)(4). Also important here is Code provision 4-3-301, which provides that a person may be able to enforce the note even though that person is not the owner of the instrument or is in wrongful possession of the note.

John P. McCAY, Jr. and Rosemary L. McCay v. CAPITAL RESOURCES COMPANY, LTD.





Capital Resources also urges that the trial court was correct in admitting the copy of the note as an exception under the best evidence rule. Ark. R. Evid. 1002 provides that the original is required to prove the contents of a document. However, under Rule 1003, a duplicate is admissible to the same extent as an original, unless a question of its authenticity is raised or it would be unfair to admit the duplicate in lieu of the original. Capital Resources contends the Rules of Evidence supersede the requirements of the UCC. But we find this argument without merit.

John P. McCAY, Jr. and Rosemary L. McCay v. CAPITAL RESOURCES COMPANY, LTD.





First, as previously discussed, we mention the unfairness in these circumstances that, if a duplicate was allowed in place of the original note, the McKays could later be subjected to double liability if the actual holder of the note appeared. Next, we add that the Rules of Evidence are rules of the court involving legal proceedings, while the UCC is composed of statutes of law that established the rights and liabilities of persons. Again, as previously discussed, Capital Resources, as an assignee of the McKays' note, could not sue on the underlying debt the McKays owed to Landmark Savings. For Capital Resources to have prevailed in enforcing the McKays' note, it was required either to produce the original or satisfy the requirements for a lost negotiable instrument under 4-3-309(a) and (b). Because Capital failed to do either, we must reverse and remand.

John P. McCAY, Jr. and Rosemary L. McCay v. CAPITAL RESOURCES COMPANY, LTD.



See the entire case:

http://courts.state.ar.us/opinions/1...324/96-200.txt



Sui Juris

[suijuris]

Under the UCC, a promissory note is "instrument", security interest in which must be perfected by possession.





See Matter of Staff Mort. & Inv.Corp., 550 F.2d 1228 (9th Cir 1977)

"Under the Uniform Commercial Code the onlynotice sufficient to inform all interested parties that a security interest in instruments has been perfected is actual possession by the secured party, his agent or bailee. See Bankruptcy Court followed by UCC in Re Investors & Lenders LTD 165 B.R. BKRTCY D.N.J. 1994"





Because the note in question was not payable 'to order or to bearer' the plaintiff payee did not hold in due course.

Pascal v Tardera, 1986, 123 A.D.2d 752, 507 N.Y.S.2d 225





Where an instrument is neither payable to order or bearer no one can qualify as a holder in due course.

Key Bank of Southeastern N.Y. v. Strober Bros., Inc., 136 A.D.2d 604, 136 A.D.2d 604, 523 N.Y.S.2d 855

[suijuris]

FEDERAL RULES OF EVIDENCE

ARTICLE X.CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

RULE 1003.ADMISSIBILITY OF DUPLICATES

A duplicate is admissible to the same extent as an original unless

(1) a genuine question is raised as to the authenticity of the original or

(2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

[suijuris]

I believe in the event of foreclosure, one should be able to move the court to issue a production order for the origonal promissory note.



If the bank fails to produce it, the foreclosure action should be dismissed. See the following cites:



FRCP Rule 37 Part 5 - Methods to Discover Additional Matter.

Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property under Rule 34 or 45(a)(1)(C), for inspection and other purposes; physical and mental examinations; and requests for admission.



Whether a court has power to dismiss a complaint because of noncompliance with a production order depends exclusively upon this rule providing that if any party refuses to obey an order to produce any document or other thing for inspection, the court may dismiss the action or proceeding. Societe Internationale Pour Participations Industrielles et commerciales, S. A. v. Brownell, U.S.1958, 78 S.Ct. 337, 355 U.S. 910, 2 L.Ed.2d 271 .





Sui Juris

[dashboy]

Sui Juris,

I have been studying under the School of Debt Freedom taught by Grand Master Jerseee. I am in the process of using his method to wOOp some bankster arse and escape their serfdom!!! I have gone over the cites you provided concerning possession of Promissory note by the creditor/ lender. Excellent Ammunition to cause major bloodshed!! One question though….Are they stupid or is just me? Why would they not have the original promissory note on hand? What happens to that note after it leaves my presence with my signature upon it? I understand that it becomes an asset and a liability and is used in the “transaction Concept” of Money to unjustly enrich them by use of my signature, but where does it go? Do they send it to the Federal Reserve for Credit or something? I did read that The Depository Trust for the Fed Reserve, The DTC aka Cede & Co. holds like 20 trillion in assets in the form of certificates, titles, notes, deeds, ect…

See http://ming.tv/flemming2.php/__show_...010-000923.htm

Maybe this is where it went? Three months ago I asked the bank who furnished my auto loan for a copy of the original Promissory note and payment history just to check a discrepancy my wife saw in what they say we owed on the vehicle. They wrote back saying there would be a fee of $2.00 per page and it would take 14 business days. I told them I would pay it. I have spoken to them two more times since asking what is taking so long, to which I get the reply it should be sent out any day. I smell a RAT!!! I am certain they payment history is no problem for them to print up so I am suspecting there is a problem with the promissory note. It is almost like they sent someone on foot to the Bank of England to go get it!! Any thoughts here??



dashboy aka Andre’

[Ice]

How much would you like to bet that they cannot produce the original and will only supply you with a copy? And that copy will not have the individual payments recorded thereon.

[Jerseee]

Dashboy,



The promissory note is traded. It is a security once it leaves you. Everytime its traded, it reduces in value.



The main reason you will not get the original promissory note is either they do not own it any longer or they have made markings on it after you have signed it. Which is a felony.

[nralien]

In re to Certified Promissory Notes



I have to ask if there is any way to require or “force” agencies like the Franchise Theft Board to produce your CPN or what happened to it, after they levy your bank account?



nralien