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You can demand/subpoena the movant to produce the actual power of attorney instrument, so as to prove that it has the power to assign the note to itself in the on behalf of its principal. Assuming that the plaintiff does have that document, then it would have the power to assign the note, and thus would have independent standing to sue, because a note can be enforced by any holder in due course.
If the plaintiff cannot produce the power of attorney instrument, then you can move to dismiss for lack of standing.
Hope this helps.
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A power of attorney (POA) would presumably grant GT with the right to assign the original note to itself. However, if the original note is not in evidence, then there is no proof that the note is actually assigned to the GT, because, for example, the note may have already been assigned to a third party by IUB, in which case, GT could not possibly assign it from IUB to BT via the POA.
The statement in a POA that it "is coupled with an interest" is, well, to put it delicately, the act of an incompetent lawyer, or perhaps a nonlawyer trying to be clever. A POA when granted to an agent who already has a right to the subject matter of the POA, is irrevocable, whereas an ordinary POA is revocable at the will of the grantor. However, no language on the POA itself can make it irrevocable -- there must be proof of an actual interest in the subject matter, or valuable consideration given the agent to the grantor in exchange for the POA.
As far as where to get case law, the least expensive database is www.versuslaw.com. For $13.95 per month (no long term contract), you can have all of the case law from every U.S. state appellate court jurisdiction -- and for $27.95 you can add all federal court jurisdictions.
However, I seriously doubt that there is case law in support of your suggested theory, because under the Uniform Commercial Code, a holder in due course can enforce a promissory note -- and what you are suggesting runs contrary to at least 50 years of well established commercial law.
The basis for attacking plaintiff's claim is that without the note, the POA is irrelevant -- it does not prove that GT has standing to sue, because there's no evidence that GT still has the original note.
Re standard lingo for this particular motion, it's not really germaine. This is actually a fairly unusual motion pleading. A person rarely starts a lawsuit and then claims that they need to add the real party in interest as plaintiff, because that is an admission that the plaintiff had no standing to sue in the first place, which is grounds to dismiss the complaint.
I just searched using a "terms and connectors" search as follows:
foreclos! w/s standing
The search returned 23 documents. This was from Versuslaw. The Lexis database goes back further in time, so I would expect you will find additional cases. I browsed the first two returned, and the second, CSM Insurance v. Ansvar America, 649 N.E.2d 600, 272 Ill. App. 3d 319, 208 Ill. Dec. 544 (1995) states, "The rights of the parties are determined as of the date the lawsuit is filed." This suggests that if the plaintiff in your case didn't have standing to sue on day one of the lawsuit, then it can't add a plaintiff after the fact to create standing. It must refile the lawsuit.
I have maintained throughout the recent home mortgage recession that banks control the world -- not governments, and that this has been status quo since banks were invented. Bank related legislation is generally written by bank interests, lobbied for by banks and used by banks to avoid interference in banking behavior.
Where else in the law can a business produce usurious loans and unconsionable fees with impunity? What other business organization can reach into your money and seize it whenever it believes that it's in its interests to do so? What other organization can avoid a trust relationship while entrusted with your money? What other organizations could terrorize the entire U.S. Government to give it nearly unlimited funds at 0% interest?
However, let's be real here. The bank does have an interest in recovering its money from someone. Tactical maneuvers may be given life by the court, but ultimately,if you have not paid your mortgage, the person or persons who do have the legal right to collect will likely appear and they will manage to foreclose the lien.
Your entire case depends on your proving that the note is lost and that no one can prove standing to sue. Any diversion from that path may produce a temporary advantage, but not final victory. For me, life is too short to deal in minutia. I'd just cut to the chase and try to force your opponents to either produce the note or go away. If they do, then you lose -- otherwise, you win.
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Glad I could help. Let me know if you need anything else.
Section 1050.190 Servicer
“Servicer” shall mean any entity licensed under the Act
who is responsible for the collection or remittance for,
or the right or obligation to collect or remit for, any
lender, noteowner, noteholder, or for a licensee’s own
account, of payments, interest, principal, and trust items
such as hazard insurance and taxes on a residential
mortgage loan in accordance with the terms of the
residential mortgage loan; and includes loan payment
follow-up, delinquency loan follow-up, loan analysis
and any notifications to the borrower that are necessary
to enable the borrower to keep the loan current and in
(Source: Added at 25Ill. Reg. 6174, effective May 17, 2001
Will you please help me find case law that supports my argument? It must be from Illinois or from the northern district of illinois federal court.
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