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TJ, Esq.
TJ, Esq., Attorney
Category: Consumer Protection Law
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Experience:  JD, MBA
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Wells Fargo Bank, National Association as Trustee for the Certificate

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Wells Fargo Bank, National Association as Trustee for the Certificate holders of Structured Asset Mortgage Investments II Inc., GreenPoint MTA Trust 2005-AR5, Mortgage Pass-Through Certificates, Series 2005-AR5
Loan No.: XXXXXXXXXX

How to read the above in plain English and what are the legal defenses available against such plaintiff?

Hello and thank you for allowing me the opportunity to assist you.

In a nutshell, what you’ve posted basically just means that Wells Fargo is acting on behalf of another entity/person that owns your mortgage.

Unfortunately, I can’t possibly provide any help with defenses if I don’t know your situation. The only information you’ve provided is the name of the plaintiff. Can you provide more information about what’s going on?




DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

Customer: replied 6 years ago.
It is at the "lawyer letter" stage at this time. I actually need to know what that text means to the court in terms of legal standing.

This is what I am sending to the plaintiff's attorney to ascertain the plaintiff's legal standing.

------------------
I am in receipt of your letter dated December 15, 2010, which I received on or about December 18, 2010. Therefore, I am within 30-day window to ask you to produce certain documents and to ascertain the valifity of debt as well as if you have legal standing to start any legal action against me.

Please be advised that my mailing address is XXXX.

In addition to the proof of debt and name and address of the original creditor, please provide copies of the following:

1. Copy of the loan application,

2. CUSIP number associated with the loan application (if any),

3. Truth in lending disclosure,

4. Good faith estimate,

5. Note,

6. Mortgage,

7. HUD closing statement, and

8. CUSIP numbers of the any of the documents from #3 through #7 (if any).

Let me know if you are in possession of the original note and the proof of chain of title transfers among the entities involved.
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Comments?

Hi again.

I think your letter is fine, though you should keep in mind that the creditor is not required to provide all of the information that you’re seeking. Of course, if you are sued, you can subpoena that information. Also, if you are sued and contest the matter, then the creditor will have to prove that it has standing to sue by somehow showing that it has been lawfully assigned the debt. In your case, you can ask for evidence that Wells Fargo is actually lawfully allowed to act on behalf of the other entity.

You also asked if the creditor has the original note. A lot of people are trying the “produce the note” defense, but you should keep in mind that the original note is not required. The judge can rule in favor of the creditor if the note is lost but the creditor has convincing evidence as to the note’s contents (this can be done with a copy of the note). The judge will simply rule that the creditor must indemnify you if another creditor with the original note comes forward for payment at a later time. The “produce the note” defense is helpful if the neither the note nor a copy can be produced, and the contents cannot be proved.

Bear in mind that you may also be able to save your house with a Chapter 13 bankruptcy, depending on your situation. That is especially helpful if your house is worth less than your mortgage, and you have more than one mortgage. In some cases the bankruptcy court can literally strip away the other mortgages. Also, a Chapter 13 will allow you to repay arrears over a period of 3 to 5 years rather than immediately.

Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.

DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

Customer: replied 6 years ago.
If one creditor "loses" the note then that is allowed in the law. If certain number of creditors "lose" the note then that is still allowed in the law.

However, if all creditors continue to "lose" their notes and if the courts continue to give them break, isn't it like changing the law through back door?

Hi again.

Allowing creditors to enforce lost notes is not giving them a break, nor is it a change in the law. The law already specifically allows creditors to enforce lost notes:

§ 3-309. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.

(a) A person not in possession of an instrument is entitled to enforce the instrument if:

(1) the person seeking to enforce the instrument

(A) was entitled to enforce it the instrument when loss of possession occurred, or

(B) has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;

(2) the loss of possession was not the result of a transfer by the person or a lawful seizure; and

(3) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, Section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

The only issue is that the creditor who is enforcing the lost note must provide adequate protection against a future claim for the same note. Judges do that by ordering the creditor to indemnify the debtor against such claims.

Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.

DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

TJ, Esq. and other Consumer Protection Law Specialists are ready to help you
Customer: replied 6 years ago.
Thanks for the response. Even though I have further questions I am going to accept your answer and pose the remaining questions after I have digested your answers. :)