How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask LegalKnowledge Your Own Question

LegalKnowledge
LegalKnowledge, Attorney
Category: Legal
Satisfied Customers: 17294
Experience:  8+ years handling Legal, Real Estate, Criminal Law, Family Law, Traffic matters.
9540344
Type Your Legal Question Here...
LegalKnowledge is online now
A new question is answered every 9 seconds

My foreclosure case is in Palm Beach FL. The plaintiff filled

Customer Question

My foreclosure case is in Palm Beach FL. The plaintiff filled a lost note affidavit. A corporate deposition was done and the plaintiff’s representative on record admits that he can’t determine who, when and how the note was assigned. It has been 5 years and they still claim that the case is open for searching the note, as of today nothing has been produced. The plaintiff has not entered any evidence as to the record of the chain of Title to prove that they have ever been in procession of the mortgage and note. How can the plaintiff still prove they have standings to foreclose?
Submitted: 1 year ago.
Category: Legal
Expert:  LegalKnowledge replied 1 year ago.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good afternoon. I certainly understand the situation and your concern. Standing is always a major issue and concern when dealing with foreclosures in the State of Florida. If the original note cannot be found, standing to enforce the note can be established if the lender can prove it is entitled to enforce the note under F.S. §673.3091. To prevent improper or multiple attempts to enforce an instrument, §673.3091 imposes a higher evidentiary burden. The lender must show: a) It was entitled to enforce the note when loss of possession occurred (or it directly or indirectly acquired the note from someone who was) b) the loss of possession was not the result of transfer of possession or lawful seizure; c) it cannot reasonably obtain possession of the instrument because the original was destroyed, its whereabouts cannot be determined, or it is wrongful possession of someone else. The lender must also prove the terms of the instrument, usually through a copy, and its entitlement to enforce it. If these can be shown, Art. 3 requires that the holder in due course provisions apply as if the lender had produced the original. However, the court may not enter judgment unless it finds the person required to pay the instrument is adequately protected from multiple claims to enforce the instrument. The right to enforce a lost instrument may be assigned and a rightful assignee can enforce the lost note when it would prevent a defendant from receiving a windfall by escaping an unpaid obligation and preventing foreclosure. If all of this can be done and shown, the Judge can allow the plaintiff to proceed and would not likely dismiss the case. Of course, if there are issues and questions, that is a matter for trial and any defenses can be raised by defense counsel.

Please let me know if you have any follow up questions or need any clarification on something which I stated above, prior to rating me. Also, please remember to rate my service with 3, 4, or 5 faces/stars, before exiting the site, so I can receive credit for my help. I hope you found it to be Excellent! Only rate my answer when you are 100% satisfied. If you feel the need to click either of the two faces/stars on the left, please STOP and reply to me via the "REPLY TO EXPERT or CONTINUE CONVERSATION "button. I want to make sure your experience with the site was as pleasurable as possible and that you are satisfied with the help I provided.
Customer: replied 1 year ago.



I think that I need to clarify my question. As of today and the trial is tomorrow the plaintiff has not established that they have ever had possession of the Note. Only a copy of the mortgage which is a matter of the clerk of the court record was submitted. No copy of the Note was filed. During the deposition the plaintiff’s representative show us for the first time an allonge but it was not attached to the Note and he had no idea where it came from. The assignment on the allonge was dated one day after the filing of the compliant. The plaintiff was basing information that only dated back from Jan 2008 and the Note is from June 2005. They don’t have information prior to Jan 2008 and if they have they have not produced it as of today. The allonge is not notarized or the assignment was never filed with the clerk of the court. So the question is assuming that they cannot prove under the Statute lost Note is there any other way they can prove that they have standings.

Expert:  LegalKnowledge replied 1 year ago.
Steve, thank you for the clarification. The copy of the mortgage means nothing, since it is a matter of public record and can just be printed off the internet. What is needed to establish standing is 1) an assignment of mortgage and 2) a note that is indorsed or has an allonge. Moreover, is needs to be blank, unless it is specifically indorsed to the plaintiff, which I doubt is the case here. In order to have standing, the plaintiff needs to have been the owner/holder of the note and mortgage prior to filing the complaint. If the assignment on the allonge was dated AFTER the filing of the complaint, there is certainly doubt as to when they came into possession of it. Without someone testifying to these facts, they may not be able to establish it and the case would be dismissed and need to be refiled. The lender needs to show a proper chain of title and while they may be able to try and proceed under a lost note count, they need more then the mere allegation alone.
Customer: replied 1 year ago.



My attorney told me that Palm Beach judges are known for not following the law! He says that he has plenty of case law and the deposition to use against them. What annoys me the most is that by case law I should be given a dismal of the case. Now I am not trying to get out of the Note but I know that the Note was sold to Residential Funding Corp as I sign the Note and they are now part of the NY bankruptcy case. The Note was sold and at this point and the investor could have received compensation from TARP but we will never know because they have refused to give us the information in Discovery. We are presenting the defense in preparation to Appeal the case. So as I understand from you as well that if they can’t show possession prior to filing the case than they are dumb out of luck unless the trial judge doesn’t care and rules against me because he feels that I’m getting something for nothing and ignores the potential that they are getting paid twice for the same Note.

Expert:  LegalKnowledge replied 1 year ago.
Since you have an attorney, I would be inclined to believe that they previously filed a motion to dismiss when the complaint was first filed, based upon the lack of standing and then raised the issue again, as an affirmative defense. Since summary judgment was not granted, it is clear there is a genuine issue of material fact, which is the basis for proceeding with the trial. You are right, that in the event that they can not show that they are the owner/holder of the note and yet the Judge proceed to enter a judgment in favor of them, you will need to appeal. If you file a notice of appeal, they may be hesitant to proceed with the sale, since there could be irreparable harm, if it is sold and the house needs to be obtain back into your possession, if you win your appeal.
Customer: replied 1 year ago.



He didn’t file to dismiss, he filed affirmative defense, interrogatories and questions that were pretty much all denied by the plaintiff’s response. And yes he got their summary judgment dismissed. So in response to my question if they can’t prove that they were in possession of the Note before filing the complaint tomorrow in court, than there is no other way that they can come up with any other way to show they have standings. Which means it should be dismissed and if they should have won they will have to re-file with the proper documents, which would seem to me to be very difficult at this point since they have not already have done that. Correct?

Expert:  LegalKnowledge replied 1 year ago.
In order for them to prevail at the trial tomorrow, they will need to show that they are the owners and holder of the note and mortgage. They will have to present evidence showing this. If they did not have standing to begin with, the case should have been dismissed and they would have needed to refile. At this point, the purpose of the trial and the burden, is on them, to show they have a legal right to foreclose, force the sale of the home and either take it back or get paid what they are owed. If the Judge finds in your favor, they would have to bring the lawsuit back and they may continue to have the same problem with standing, unless they can establish a chain of title and passing of ownership.
LegalKnowledge, Attorney
Category: Legal
Satisfied Customers: 17294
Experience: 8+ years handling Legal, Real Estate, Criminal Law, Family Law, Traffic matters.
LegalKnowledge and 13 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

I won but have another question dealing with SOL.

Expert:  LegalKnowledge replied 1 year ago.
Outstanding. What is your additional question? I will respond once I am able to get back in front of the computer.
Customer: replied 1 year ago.

I have been denied to respond.

Expert:  LegalKnowledge replied 1 year ago.
Steve, try it again. If it allowed you to post that, he would allow you to post a follow up question.
Customer: replied 1 year ago.

Maybe it's to long because it did it again. I'll break it up

Customer: replied 1 year ago.

I will sign up for the free trial and maybe that will work

Expert:  LegalKnowledge replied 1 year ago.
Just let me know when you have a chance to post your follow up question.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
 
 
 
Chat Now With A Lawyer
LegalKnowledge
LegalKnowledge
5868 Satisfied Customers
8+ years handling Legal, Real Estate, Criminal Law, Family Law, Traffic matters.