- Hearsay Practice Hints: Meeting Intimidation with Facts (livinglies.wordpress.com)
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The turning point has arrived as I noted a few articles ago. Courts are acknowledging that the so-called lenders are evading discovery and not making a prima facie case. The Banks are slowing the filing of the foreclosures because it is obvious they have no basis for collection or foreclosure. But the homeowners who are winning these cases are being faced with a problem: the mortgage is still on record, they can’t get title insurance, they can’t get a new loan, and their credit is ruined by the wrongful foreclosure that was filed. They also can’t sell their homes because of the unenforceable mortgage that is in the county records.
The answer appears to be a lawsuit to quiet title which really can be met with little opposition. And a…
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Editor’s Note: I almost passed on this. Then I started thinking. If the original note must be sequestered with the Court to prevent further negotiation of the note, it locks in the other side pretty early. If you can convince the court that tendering the original note to the court is a condition precedent to getting judgment, then they must come up with it immediately. It also underscores the issue of the burden of proof in a “lost note” situation, which is to prove the entire path that the note took, how it came to be lost, and what assurance you can give to the court that it is not in the hands of someone who could negotiate it.
Once they offer the “original” it can be examined for authenticity. And in discovery you can find out if there are other “originals” that were used in other transactions…
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