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Who is the “HOLDER” IN home FORECLOSURES?

Who is the “HOLDER” IN home FORECLOSURES?. MBA 661 SHAWN NEWMAN, ESQ. “SHOW ME THE NOTE”. Payment & Reconveyance. Paragraph 23 of the standard Deed of Trust states:

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Who is the “HOLDER” IN home FORECLOSURES?

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  1. Who is the “HOLDER” IN home FORECLOSURES? MBA 661 SHAWN NEWMAN, ESQ.

  2. “SHOW ME THE NOTE”

  3. Payment & Reconveyance Paragraph 23 of the standard Deed of Trust states: Reconveyance. Upon payment of all sums secured by this Security Instrument, Lender shall request Trustee to reconvey the Property and shall surrender this Security Instrument and all notes evidencing debt secured by this Security Instrument to Trustee. Trustee shall reconvey the Property without warranty to the person or persons legally entitled to it. Such person or persons shall pay any recordation costs and the Trustee’s fee for preparing the reconveyance.

  4. PROMISSORY NOTES ARE NEGOTIATED MORTGAGE LIENS (DEEDS OF TRUST) ARE ASSIGNED RCW 62A.3-201 Negotiation. (a) "Negotiation" means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder. (b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

  5. Note (loan) defines “Note Holder” I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the “Note Holder”

  6. Compare UCC definition of “holder” RCW 62A.1-201(21) "Holder" with respect to a negotiable instrument, means: (A) The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession; (B) The person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in possession; or (C) The person in control of a negotiable electronic document of title.

  7. “ACTUAL HOLDER” UNDER WASHINGTON’S DEED OF TRUST ACT [dota] Under Washington’s Deed of Trust Act the beneficiary is supposed to attest under penalty of perjury that it is the “actual holder of the note.” RCW 61.24.030(7)(a).*

  8. Compare PETE under UCC Art. 3 RCW 62A.3-301: “Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to RCW 62A.3-309 or 62A.3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

  9. UNDERSTAND THE DIFFERENCEs The “Note Holder” – the party entitle to foreclose on your note – must BOTH take the note “by transfer” (i.e. negotiation) AND be “entitled to receive payments.” Think about that. Aren’t the MBS investors (certificate holders) entitled to receive payment? Did they “take the note by transfer”?

  10. TRUNCATION & DESTRUCTION OF ORIGINAL NOTES Truncation http://financial-dictionary.thefreedictionary.com/Check+truncation Comments by Florida Banker’s Association to Florida Supreme Court [Case No. 09-1460] The reason ‘many firms file lost note counts as a standard alternative pleading in the complaint’ is because the physical document was deliberately eliminated to avoid confusion immediately upon its conversion to an electronic file. See State Street Bank and Trust Company v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003).

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