Set Aside Foreclosure and Decree
and Motion for New Trial
By: Kenneth DeLashmutt
Prove Up of the Claim
To recover on a promissory note the Plaintiff (lender) must prove existence of the note.
To recover on a promissory note, the plaintiff must prove:
(1) the existence of the note in question;
(2) that the party sued signed the note;
(3) that the plaintiff is the owner or holder of the note in due course; and (4) that a certain balance is due and owing on the note.
In a foreclosure, if a default judgment is entered you can file a “Motion to Set Aside Foreclosure & Decree and Motion for New Trial.
This motion seeks relief from the judgment of foreclosure on the ground that the lenders failure to produce the original of the promissory note is newly discovered evidence justifying a new trial.
In the new trial you demand discovery of the “holder in due course” of the “ORIGINAL” promissory note. The plaintiff must produce the original promissory note.
Trial court is in error when it does not proceed to take testimony before it enters a default judgment in a foreclosure for the plaintiff; the unsworn statement of plaintiff's attorney can not support default judgment rendered.
In the case of mortgage foreclosures, prove up of the claim requires presentment of the "original" promissory note and general account and ledger statement. Claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note, the person responsible for preparing and maintaining the account general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger.
Supporting Case Law
Where the complaining party cannot prove the existence of the note, then there is no note.
See Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980),
GE Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001),
Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371, (Conn. Super.2000), and
Town of Brookfield v. Candlewood Shores Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986). See also Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890, 516 N. E.2d 1045 (3Dist. 1987).
Siwooganock Bank in Lancaster NH, in alleged foreclosure suit, failed or refused to produce the actual note which Siwooganock alleges Eva J. Lovejoy owed. To recover on a promissory note, the plaintiff must prove:
(1) the existence of the note in question;
(2) that the party sued signed the note;
(3) that the plaintiff is the owner or holder of the note; and
(4) that a certain balance is due and owing on the note. See In Re: SMS Financial LLC. v. Abco Homes, Inc. No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.)
Volume 29 of the New Jersey Practice Series, Chapter 10 Section 123, page 566, emphatically states, “...; and no part payments should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, as the case may be.
See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469, in Carnegie Bank v, Shalleck 256 N.J. Super 23 (App. Div 1992), the Appellate Division held, “When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the holder of the instrument shall be afforded all the rights and protections provided a holder in due course pursuant to N.J.S. 12A:3-302"
Since no one is able to produce the “instrument” there is no competent evidence before the Court that any party is the holder of the alleged note or the true holder in due course. New Jersey common law dictates that the plaintiff prove the existence of the alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note, and prove that certain balance is due and owing on any alleged note. Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual possession of the security.
Supporting Case Law
Unequivocally the Court’s rule is that in order to prove the “instrument”, possession is mandatory.
See Matter of Staff Mortgage. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977). “Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security interest in instruments has been perfected is actual possession by the secured party, his agent or bailee.” Bankruptcy Courts have followed the Uniform Commercial Code.
In Re Investors & Lenders, Ltd. 165 B.R. 389 (Bankruptcy.D.N.J.1994), “Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is “instrument,” security interest in which must be perfected by possession.
Find out if you are a Victim of Predatory Lending Practices
Audit your mortgage closing documents to find possible Predatory Lending Practices, mortgage broker fraud and title violations.
Mortgage lenders can trick homeowners into giving up their homes. You may be able to recover TILA violation fines and possibly void the lenders security interest in the property.
In order to find predatory lending violations and lender fraud you will have to gather and assemble your loan and closing documents and put them in order.
Required Documents for your Audit
List of loan paperwork for audit
*anything that was given to you at the time of signing the loan
*Promissory Note (very important)
*Mortgage or Deed of Trust (very important)
*Application for the loan, if available
*Good Faith Estimate (very important)
*Settlement Statement (very important)
*Right to Cancel/Right to Rescission (very important)
*HUD 1 Statement
*TILA Disclosures (very important)
*RESPA Servicing Disclosures
*Any and all disclosures (very important)
A copy of the current billing statement.
A copy of any notifications from the lender or other party of a change in where the borrower is to send the payments. This may be because the lender sold the note (a new assignee), or sold the rights to collecting the payments (a new servicer).
A copy of any default notices, acceleration papers, or foreclosure paperwork.
A copy of any and all court paperwork if the property is in foreclosure or there is any court process ongoing that involves this property. If you do not have this paperwork, it must be obtained from the court files.
What are you looking for?
Now you can audit your closing documents and look for TILA, HOEPA and RESPA violations.
If the answer to any of the following questions is "yes," You are most likely a victim of predatory lending practices and may be able to void the mortgage and apply 100% of your payments to principal. And, you may also be able to recover money damages.
Such violations can be used as a defense in a mortgage foreclosure.
1. Have you repeatedly refinanced your loan? Was the last refinance within the last 3 years? (A common predatory practice is "flipping," which involves "repeatedly refinancing a mortgage loan without benefit to the borrower, in order to profit from high origination fees, closing costs, points, prepayment penalties and other charges, steadily eroding the borrower's equity in his or her home.").
2. Did you increase rather than lower your rate upon refinancing?
3. Are you paying an interest rate in excess of 9.5%?
4. Was the loan obtained to pay for home improvement work that was not done properly, or even at all?
5. Have you had problems with the mortgage company regarding untimely posting of monthly payments? Sudden increases in payments? Adding amounts to your balance for insurance, "property preservation," or other "advances"? Does your principal balance never seem to go down?
6. Were you charged high closing costs (points and fees) on the mortgage?
7. Did the terms of the mortgage change to your detriment at the last minute before the closing?
8. Did the lender pay money to your mortgage broker? (Look on your HUD-1 Settlement Statement for a "premium" or yield spread premium "YSP" or Paid outside closing “POC")
9. If you have an adjustable rate mortgage, were any adjustments done improperly? Can you even tell if the adjustments were correct or not?
10. Does your loan contain a prepayment penalty?
11. Do you believe you were treated unfairly by your mortgage company? Has correspondence with the mortgage company gone unanswered? (Mortgage companies have a statutory obligation to respond to complaints and requests for explanations of accounts. Often, they don't. Each failure may entitle you to $1,000. If your claim against the mortgage company may exceed the number of monthly payments you allegedly missed, the mortgage company may not be able to prove that you are in default.)
12. Did all collection letters sent to you by debt collectors comply with the Fair Debt Collection Practices Act? (Up to $1,000 more if they did not.)
13. Did you (or anyone else who has an ownership interest in and lives in the house) receive a "notice of right to cancel" that was not completely filled out?
14. Did you receive your copy of the loan documents at the closing (as opposed to being sent to you later)?
15. Did you sign a document at the closing stating that you were not canceling?
16. Did the closing occur by mail, or at your home, or in another city?
The following is an example of some other TILA violations you may find in your closing documents.
Junk charges (i.e. yield spread premiums and service release fees)
Payment of compensation to mortgage brokers and originators by lenders
Unauthorized servicing charges (i.e. the imposition of payoff and recording charges)
Improper adjustments of interest on adjustable rate mortgages
Referral fees to mortgage originators. (i.e. a lender who pays a mortgage broker secret compensation may face liability for inducing the broker to breach his fiduciary or contractual duties, fraud, or commercial bribery)
Failure to disclose the circumstances under which private mortgage insurance (''PMI'') may be terminated.
Underdisclosure of the cost of credit
Excessive escrow deposits
Breach of Fiduciary Duty
You may also find breach of contract claims.
Lenders Profit by Foreclosure
There is a common assumption (among judges, borrowers, and the public) that mortgage companies do not desire to foreclose and acquire real estate. This assumption is no longer well founded.
There are an increasing number of "scavengers" that buy bad debts, including mortgages, for a fraction of face value and attempt to enforce them. Such entities profit by foreclosure. "Mortgage sources confide that some unscrupulous lenders are purposely allowing certain borrowers to fall deeper into a financial hole from which they can’t escape. Why? Because it pushes these consumers into foreclosure, whereupon the lender grabs the house and sells it at a profit.
Kenneth M. DeLashmutt "Predatory Lending Defense Specialist"
You have permission to publish this article electronically or in print, free of charge, as long as the bylines are included. A courtesy copy of your publication would be appreciated.
© Kenneth M DeLashmutt
Mr. Kenneth M. DeLashmutt is a recognized Predatory Lending Defense Specialist and an authority on the subject of predatory lending practices, foreclosure defense, consumer protection and debtor’s rights. He has more than 10 years experience in the area of consumer protection related to predatory mortgage lending practices and debt resolution.