ARIZONA SUPREME COURT “SHOW ME THE NOTE” RULING IS MISLEADING

Posted by revolt | ARIZONA SUPREME COURT “SHOW ME THE NOTE” RULING IS MISLEADING | Sunday 5 August 2012 12:36 pm

ARIZONA SUPREME COURT “SHOW ME THE NOTE” RULING IS MISLEADING

August 5, 2012

Recently, one of our clients sent us an article where the Arizona Supreme Court ruled that the Arizona statutory framework for conducting a trustee power of sale foreclosure, did not require presentment of an original promissory note.

We’ve read the article, but haven’t read the case as yet, as the article was very instructive as to what transpired in the case, and how the court came to its ruling.

However, the banks love having these kind of articles publicized as a deterrent for homeowners who would challenge the banks for their fraudulent foreclosure actions.

The things about these cases are that they can be very misleading, because each case has its own legal issues and evidence presented. Just because the Supreme Court ruled against this particular Plaintiff, doesn’t mean another Plaintiff could not win their case.

The law is very tricky. You have to understand the legal distinctions, and litigate the case properly in order to hold the courts accountable, and have them rule in your favor.

For example, lately the courts have been trying to find a cleaver way to get around the “show me the note strategy”. They have used the statutory framework of the foreclosure statutes to say that the statute doesn’t require the lender to produce the note. However, the doctrine of legal standing is a long established law, which establishes that in order to have subject matter jurisdiction to appear before the court you must show that you have a security interest in the property, by being a beneficiary or holder in due course of the note, with rights to enforce the note.

Notice the cleaver distinction here, “show me the note” as opposed to being a “holder of the note” with rights to enforce it. In this case, the court stated that the Arizona foreclosure statutes do not require presentation of the original note before commencing foreclosure proceedings. This is a completely different question from whether the bank has legal standing to pursue foreclosure, or whether the bank is required to be a holder of the note, with rights to enforce it.

The problem with these legal subtleties is that many people with no true legal background or education will read this decision, and be mislead into thinking that the bank has no requirement to prove they own the mortgage, which is not true, and is exactly what the bank wants everyone to believe, in order to discourage homeowners from challenging their fraudulent foreclosures.

In this case, the court clearly states that: ““But Hogan (the Plaintiff) has not alleged that WaMu and Deutsche Bank are not entitled to enforce the underlying note……Hogan’s complaints do not affirmatively allege that WaMu and Deutsche Bank are not the holders of the notes in question or that they otherwise lack authority to enforce the notes.” ARIZONA FORECLOSURE CASE HOGAN V. WASHINGTON MUTUAL; JP MORGAN, DEUTSCHE ET ALhttp://www.foreclosuredefenseresourcecenter.com/2012/07/arizona-supreme-court-says-no-need-to-show-me-the-note/

Here the court is saying that the Plaintiff failed to argue that the banks were not entitled to enforce the note, or that the banks were not the holders of the note, lacking the authority to enforce them. Had the Plaintiff made these arguments, the court would have been forced to rule differently. However, because the Plaintiff failed to litigate his complaint properly, he lost his case. Not because he didn’t have the law on his side, but because he failed to apply the law properly.

Then these cases get publicized, and everyone gets discouraged in thinking that the banks don’t have to prove they own the mortgage, or that the “show me the note strategy” doesn’t work, which is not true. What happened here is that the case was not litigated properly, and every homeowner suffers as a result of an In Pro Per litigant, who lacked civil litigation experience, or an attorney who litigated the case poorly.

Look, all the court said in this case is that presentation of the original note (show me the note) is not required in order to initiate a foreclosure proceeding. However, the court did indicate that the bank would be required to establish that they were the holder of the note, or authorized to enforce the note. And how do they do this? By producing the promissory note (show me the note), showing that it has been properly endorsed in an unbroken chain of title, transferring a security interest in the property to the bank, establishing that they are authorized to enforce the note. Sounds exactly like “show me the note”, doesn’t it? That’s because it is!

They don’t have to “show me the note” to initiate the foreclosure proceedings, but they do have to “show me the note” or other properly endorsed, transferring documents, in order to prove they are the holder of the note, with the authority to enforce it, and to complete the foreclose sale process. Cleaver little game the courts, and the banks are playing, isn’t it?

We get this all of the time. Somebody finds an article which rules against the homeowner, they send it to us and say, see you can’t use the “show me the note strategy” and win in court against the bank, without ever actually reading the specific arguments in the case, or without having enough legal knowledge to understand the legal distinctions cited in the case. This is the kind of legal ignorance the banks are counting on, to discourage homeowners from fighting back.

Each person must look at the specific information and evidence in each case to determine the possible impact on their ability to win their own foreclosure case.

However, our documents are designed with the understanding of these recent court rulings and their legal subtleties in mind, in order to provide our clients with the best opportunity to fight their mortgage WAR and WIN!

Thank you for visiting the MOST POWERFUL foreclosure fighting document site on the Internet! THE HOMEOWNERS REVOLT.COM


BY: Matt Brockman
Civil Litigator/Mortgage/Foreclosure Specialist, M.B.A.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
These microbes compete for nutrients from the food you eat get levothyroxine online no prescription the drugs are used to kill bacteria. certainly, many people have benefited from using them buy antibiotics without prescriptions this chapter addresses the possibility that antibiotics may help fungi to proliferate within the human body can i buy amoxicillin over the counter as an adult human, you have three to four pounds of beneficial bacteria and yeast living within your intestines ordering bactrim online yeasts are opportunistic organisms. this means that, as the intestinal bacteria die, yeasts thrive, especially when their dietary needs are met where can i buy propecia this results in a syndrome called leaky gut. yeasts are not the only possible cause of this syndrome lynoral buy this practice not only possibly contributes to antibiotic resistance in humans tetracycline to buy as an adult human, you have three to four pounds of beneficial bacteria and yeast living within your intestines order cipro online i don,t know if larger doses are in fact administered to people buy online levothroid simply put, antibiotics are poisons that are used to kill. only licensed physicians can prescribe them clavulanate purchase i,ll assume that the same toxicity scale remains in place today purchasing bupropion online some scientists have linked non-steroidal, anti-inflammatory drugs (nsaids) such as naproxen and ibuprofen to the problem aciphex to buy online yeasts grow unchecked into large colonies and take over, in a condition called dysbiosis where to buy pharmacy when you do so, you upset the delicate balance of your intestinal terrain erythromycin buy i,ll assume that the same toxicity scale remains in place today purchase acillin however, if bacteria were the only organisms that antibiotics killed, much of this book would be unnecessary antibiotics without prescriptions buy yeasts grow unchecked into large colonies and take over, in a condition called dysbiosis