Malik W. Ahmad

Show Me The Note Baby


Show Me the Note Baby!

To recover on a promissory note, the plaintiff (the Lender in the case of foreclosure) 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.

It is also true, in 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.

1) The existence of the note in question

2) If the “ORIGINAL” note you signed in ink that contains your signature is claimed to be lost, stolen, missing and/or destroyed, then your defense is as follows:

3) The “named” Plaintiff is not the ‘holder in due course” of the note and only an agent or nominee for the true beneficial owners and holders in due course;

4) There may be fraud upon the court in that the named Plaintiff may not have ANY interest to the note and that the supposedly lost note is not lost, but may have been intentionally destroyed due to missing assignments on the note which may have made it void and a legal nullity, thus they have exploited key and vital evidence;

5) There is no proof that the named Plaintiff ever held the note or took possession of the note and thus has no claim or right to bringing about the foreclosure;

6) There is no proof, without the note, that a proper chain of assignments took place and that the lien positions were properly perfected;

7) Other unnamed and disclosed real parties in interest may have a claim to the note and be the rightful beneficial owners to the note and must be identified and brought before the court;

8) There may be several unnamed and disclosed real parties in interest may have a claim to the note and be the rightful beneficial owners of the note;

9) That the party sued signed the note;

10) If the “ORIGINAL” note you signed is in ink that contains your signature, is claimed to be lost, stolen, missing and/or destroyed, then you need to notify me and also put on affirmative defenses that:

11) The note in question is not the note you signed and executed in ink and only the one you signed in ink that presumably contains your fingerprints can be relied upon by your handwriting analysis expert;

12) In an electronic age, it is a simple matter to place someone’s signature or image upon a document and that it is very difficult to imagine such a valuable negotiable instrument being lost or missing without a nefarious motive;

13) That the plaintiff is the owner or holder of the note in due course;

14) If the “ORIGINAL” note you signed in ink that contains your signature is claimed to be lost, stolen, missing and/or destroyed, then you need put on affirmative defenses that:a) the mortgage industry, investors, and GSE’s such as Fannie Mae, Freddie Mac, and FHLBs etc. have a requirement that the last endorsement to them be undated and “blank” leaving the payee line blank and making the negotiable instrument a sort of “bearer bond” and instrument. as such, any party finding or stealing the note can place their name on the payee line, claim ownership of the note, and sell the note to others who may make a demand upon you in the future. as such, you require money to be deposited in an escrow account or with the court in an amount equal to the amount claimed owed on the note, until such missing note is found or upon your death. notes have a life of their own…

b) If the note was destroyed or lost intentionally (the industry maintains this practice) then they may be trying to hide the beneficial owners and shield them from any assignee liability arising from the actions of the servicer who they hire, supervise and most importantly authorize to foreclose upon you. without the note, since subsequent endorsements are not recorded to avoid payment of taxes and t hide true and real beneficial interests, there is no possible way to determine who ever held a rightful interest in the note and who you may have claims or counter claims against and who should be presently before the court as a real party in interest.

c) Furthermore, if there are missing assignments of the original note and the assignment went from Lender A to Lender B to Lender D without an intervening assignment from Lender B to Lender C and From Lender C to Lender D, then the note may be void and a legal nullity in your state.

d) It is industry practice to not name the GSE, investor, or real party in interest in foreclosure and to use as a front for the Plaintiff:

i) The very original lender who may or may not even be in business any more or sold their interest in the note long ago, only to have a claim made upon them for repurchase;

ii) A Servicer of even “special servicer” who is acting as an agent for the investors, GSE’s or real party in interest, but has no beneficial ownership in the note since they are only being paid to collect and foreclosure by the real parties in interest

iii) A “nominee” such as MERS who has no legal authority to foreclose upon you and do business in your state and who according to their own written documents and verbal assurances never hold the note or own “any” beneficial interest in the note!!!!!

iv) Notes are pledged, sold, bifurcated, and traded in various derivative transactions. Only possession of the actual original note can prove the actual owner and holder in due course of the note and who you can make an offer of payment to for purchase of the note by yourself, another family member or partner.

You have a right to know the rightful owner of the note so an offer for payment of the note at a discount and at fair market value can be made. If the note has been pledged and encumbered, then that party must be made aware of the foreclosure and your right to negotiate with them a payment and release of the note by you, other lien holders or private parties;

f) Notes are traded often and you need to inspect the physical note to see who the real prior parties were that held and endorsed your note since you may have counter and cross claims against them and need to bring them before the court for the action, since they may have improperly inflated your principal balance, amount owed or escrow account by not applying your payments correctly; adding fees not legally owed by you to the principal balance; miscalculating the interest and not properly amortizing your loan; fraudulent selling your loan or misreporting you on your credit report.

g) Federal Circuit Courts have ruled that the only way to prove the perfection of any security [including promissory note] is by actual possession of the security. Current or prior possession must be proved up.

(h) that a certain balance is due and owing on the note.

15) You must have the master transaction histories and general ledgers for the account since a “dump,” “summary,” or redacted record cannot be relied upon to determine the rightful amounts owed by having a complete audit of your account. In order to conduct a proper audit, master records and all prior records must be compiled, reviewed, analyzed, and reconciled. In is not you responsibility to prove each payment was made. It is your responsibility to say a payment was made and provide evidence, including your word that it was made. It is the note holder’s duty and responsibility to validate the claims being made on the note and the amount owed. If they have the master records or claim that the records of prior servicers are missing, then there is no rightful way for anyone to prove up the balances and amounts they claim are owed!!!! Furthermore, you must claim:

a) That the principal balance claimed owed, is not owed, and is the wrong amount.

b) That the loan has not been properly credited and amortized;

c) That the current servicer cannot be relied upon to testify and certify that prior amounts, transactions, credits, debits, charges and fees added by prior servicers were indeed proper and correct and that the account they were transferred was properly amortized and credited. As such, the person holding the ledgers at the prior servicer must come and testify as to the amounts owed on the note.

d) dumps and summaries of amounts owed cannot be relied upon and only original ledgers and master records and the keeper of those records cant testify as to the amounts claimed owed and due.

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).

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 Mortg. & 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.

  1. Dear Attorney Malik Ahmad. I am looking for help with my note holders. And I saw some of your sample complaint/answer. I also saw where you have (show me the note). I really will like to get more information of how to made the heading look like and what court do I file this complaint into. If you answer me today I will very thankful. I am in the state of Georgia their is many predator lenders that are foreclosureing on home owmer. My note have been too about different lenders already in three years. the lender I never received any notice that htey are my new lender. plus bears stearn is out of business. thank you

    • You definitely need a specific legal advice, and also you are in different state. Most of my articles are meant for general education purposes and not for specific legal help. For a specific legal help, you need to see your state resources or contact one of your local well informed attorney. I regret I cannot give you a specific legal advice as this would be a breach of professional code of conduct of Nevada State rules governing attorneys licensed in Nevada.

    • I regret and advice you to contact a local attorney as I am only familair with Nevada laws.

  2. Dear Sir
    i received a foreclosure hearing date from the bank in due time i ask them to produce the note they did not i compelled the court to do it they quickly cancelled the hearing date i assume they dont have the note “what s my next step now”?

    • Well, as long as they do not produce the note, you may have a chance. But let us suppose if they find the note and produce it, what exactly would you do after that? This “produce the note” can go so far only? You need to have sound TILA and RESPA and other predatory violations in your law suit as well as it has to be within the statutory time period. What if they judge ask you? How come you are not paying your lenders for so many months, and committed a breach of contract?

  3. They cannot seem to produce the original note for our home. We haven’t paid for almost two years. We did the mediation but no note so nothing was accomplished. In February it was recorded with Nevada Recorders Office “BREACH & ELECTION TO SELL.” However we still haven’t seen a sale date or have been notified of anything. Our note has gone from Lender to Lender. I am starting to wonder if we have a good chance to stay payment free for years to come… What is your professional opinion? Thank you.

    • You are not the only in this matter. I have seen people who had not paid in more than 3 years. If your lender is a small lender somewhere in Florida, then you are lucky. More than likely, they have declared bankruptcy and no one bought them or if bought them had not taken over all of their record. Again, it takes time and money to collect and correspond and many of the lenders had completely broke to do anything meaningful at this time. The lawyer cost money, and even for lenders it is major expense because they have been bearing this for quite long time. They have also been paying HOA’s and other foreclosure fees and insurance, and they got tired of it. A foreclosure proceedings costs a minimum of $5,000 to 10,000 and banks are (yes believe me) are very poor in many cases to bear and dole out this expense. It may continue longer than that. Until then be nice, cut your lawn and clean your yard both front and back, and don’t brag and let other neighbors know about it. Afterall, we live in a capitalistic system.

  4. Dear Sir, I’m in NJ where foreclosures are done thru Judicial Court. In Sept. of 2007 Wells Fargo (servicer) filed the foreclosure complaint and stated that they had received the assignment from MERS. When we looked for the recording of the Assignment of Mortgage on the county clerks website it was not there … we never filed an answer to the complaint because Wells Fargo said they would modify our loan and said they would suspend the foreclosure which they did. But then after some time had elapsed they started it up again and filed for a Final Judgement. And then they played us again with a loan modification promise …
    this went on for 3 years and we got nowhere with them.. we owed 220,000 on the refinance loan from the original lender “Commerce Bank” .. we had paid our monthly payments to Washington Mutual since the beginning in 2004 , near the time we started missing our payments in 2007 the servicer had turned into Wells Fargo, they in turn filed the foreclosure complaint. Now its been 3 years and the final judgement has been entered .. now a sheriffs sale date of Nov. 16th has been set … and then I looked on the county clerks website again and noticed they had finally recorded the Assignment in Oct. of 2008, a year after filing the complaint … I noticed the date of the assignment was AFTER the complaint had been filed, meaning they had no legal standing when the complaint was filed.
    I immediately filed an emergency motion to vacate the judgement based on fraud, no legal standing, etc .. and accused the plaintiff of intentionally hiding the assignment of mortgage so the court and defendant wouldn’t notice the dates.
    In my motion I wrote that Wells Fargo has never produced the note or the assignment for inspection and authentication, and that I believed they were fraudalent documents. Today I went to court on the motion to vacate and the Judge didn’t agree with my argument on “no legal standing” , saying ‘oh, well you know they have it all now and you borrowed the money to buy a house and you owe that money, have you considered moving into a cheaper place to live?”
    … he went on to say he was denying the motion to vacate and was ordereing us to mediation as a last resort to see if we could work something out thru a modification. He asked the plaintiffs attorney for the assignment of mortgage and it looked like a copy downloaded off a computer , the Judge said “yes, the date is after the complaint was filed but thats how things are done now, its different now , but i’m sure they had the documents” … I spoke up and said “but isn’t legal standing an issue that must be addressed? isn’t it the threshold that one must walk thru to file a complaint? Other Judges all around the country have dismissed cases based on lack of standing” , … he responded that he doesn’t look to what other Judges do , he makes his own calls on matters .. so I never got to present my case , the Judge denied it before I could even get all of my facts and statements on the record. I at least wrote everythig out in my motion papers and hope that if I decide to appeal this decision, the moving papers will be considered by an appeals court, because the judge really didn’t allow me to state my case. At the end he did say that he was ordering us back on December 31st and he wants the plaintiff to bring the note to court to prove they have possession. I wondered why he didn’t just ask the attorney if they had the note with them right there ! The Judge said , I know you might need some time to find the note, its probably locked away in a safe or something so come back on December 31st and show it to me.
    But in their reply to my motion, Wells Fargo’s attorneys included a copy of the note and the mortgage, saying that they had them. The note looks like a copy of the original note signed by me and the original lender (Commerce Bank) signed by their president, endorsed and made out “Pay To The Order of .. Washington Mutual Bank” …

    And the copy of the note in the reply from plaintiffs says the same thing .. but the plaintiffs are “Wells Fargo” and they are not on the note on their reply , I don’t believe they really have the note, because if they did it should be endorsed over to them shouldn’t it? Its endorsed by Commerce bank to Washington Mutual.
    I believe Wells Fargo only has a copy of the original.
    A side note : Washington Mutual was the bank the US Government siezed and took over in 2008 after they had a 16 billion dollar run on withdrawals in a 10 day period. Their owner Washington Mutual Inc., filed a chapter 11 bankruptcy the next day. Chase bank bought washington mutual in a secret auction a week later.
    Could it be the original note was last with Washington Mutual and never sent to Wells Fargo? But now Wells Fargo is acting like they are the owners because MERS told them to foreclose on us? I suspect they will dream up some clever story by the time we go back to court on Dec 31st , I think they’ll say they can’t find the note .. if so, can the judge and laws allow them to procceed based on a lost note? even after they said they have it in their reply, and after they included a copy? but the copy looks like it hasn’t been endorsed over .. which makes me thing its only a copy, not the original. the original would have had an endorsement over to wells fargo right?

    thank you, Dwight in NJ

    • I regret that I cannot give you any legal advice as most of your issues are in New Jersey and I am not licensed there. I suggest contacting a local and licensed attorney in your jurisdiction.

  5. I wasn’t asking for any specific legal advice, I was interested in your opinion of my story. ASren’t you allowed to speak in general terms about different legal situations? It’s not being taken as legal advice , we’re just trying to have a discussion, maybe we can all learn some things by sharing knowledge with each other.
    If I could afford to hire a lawyer I would have definitely done that, unfortunately I can’t afford a lawyer and the free legal aid services in NJ aren’t taking any foreclosure cases, they said they would be tied up 24/7 working on them because there are just too many. So I’m forced to represent myself without the benefit of legal counsel , this is what our country has come to, every man fight for himself because the system is broken.

  6. I’ am located in Vegas and would like to sit down and chat with you. So many of the judges are paid out here and only look at the lender as being right. I’ am going to file a civil lawsuit and would like your insight on the way I’ am going. I want to subpoena the trustee. I have sent the lender over 10 responses to the letters that they have sent out. AKA administration process.

    • This potentially will be a complex lawsuit, and I strongly advise to see a qualified attorney. Personally, I would not be interested in such lawsuit because I have very serious workload at this time.

  7. First, please, let’s be accurate. It’s a rare foreclosure case brought by a LENDER. Your loan was sold into securitization before the ink had even dried. Your original “lender” is now and forever after your “loan servicer.” In nearly all cases of the “produce the note” strategy, though, won’t the loan servicer just respond with a Lost Note Affidavit? That leaves the homeowner with really no resource…

    • I agree with you. “Produce the note” strategy has crumbled since lenders has mostly fixed the inaccuracies and the vault where they kept note. They are producing the notes now. Because the rapid dissolution of many banks, the newly acquired assets, documentations were missing for sometime.

  8. What about doing a QWR letter to the bank. my mortgage is 20 years old and has been to 12 different lenders and servicers. I think MERS has forged my signature on the last note and deed of trust.

    • QWR is meant for those mortgages where you find flaws and has potential legal merits for any underlying litigation. If the mortgage is 20 years or more, most of the remedies provided under the laws would already be time barred.

  9. Mr. Ahmad, Does your firm represent cases involving an illegal timeshare transaction? The real estate brokerage firm is based in Hawaii and the Timeshare resort is based in Las Vegas, NV. These companies sold an unlicensed timeshare and the State of Hawaii DCCA office investigated this case and both companies eventually paid fines and settled with the State of Hawaii for their illegal practices. The DCCA attorney has sent me the recorded legal documents of their settlement. Now I would like to pursue these companies for my damages.

    • I have filed suit against one of the local time share company but on a different account. They had hired lots of time share agents and instead of treating them employees, were treating them as independent contractors to deny them at least the minimum wages under the Fair Labor Standards Act. However, I am not sure what is an illegal time share transaction? You can revoke and cancel the time share within 5 days in Nevada. I am not sure if it is 3 or five days. I had to double check it. You probably have a case if you have bought time share in Hawait. Possibly, you can write the Attorney General of the State of Hawai or alternately Nevada and send them the proof. It is wise to send the time share, if you want to get out of the contract. Maybe they take back the property. Your damages cannot exceed the monetary loss you had. Basically, this is a small areas of practice, and you may not find many attorneys doing it. This is complex work, and the benefit may not exceed the actual cost and attorneys do not like to take cases on contingent basis unless it is 95-100 surety to win.

  10. I have been working with my lender CitiMortgage on a modification. Today I noticed on the recorders site that they filed an assignment of mortgage on 10/18/2012. I purchased my home in 2008. Is that legal? What does it mean? They have absolutely no explanation whatsoever.

  11. On July 3, 2013 my fiancé and I purchased a home at auction. We paid cash and received a deed. Deed was recorded on July 19, 2013. Previous owners handed us the keys and we moved in. On August 8, 2013 we received a notice on our door informing us the previous owner was in default of their mortgage for the house. I was pretty sure when we purchased it extinguished the junior liens, which included their mortgage, since we purchased the super priority lien deed. We informed the trustee, First American Trustee Servicing Solutions LLC on 8 Aug and sent a copy of the deed via email to Lisa McSwain. A few days later I get a reply that they believed we purchased our home “subject to” their lien and must pay $207,000 or the home would be sold. We went back and forth for months. We submitted a complaint to quiet title and recorded a Lis pendens on the title. A judge signed a TRO on the 16 Dec, day of sell, but the house already sold back to Fannie Mae for 2 times the value. They recorded the deed in priority 2 and served me a notice to pay rent or move on 19 Dec. Oddly, Fannie Mae was the one to suggest Super Priority Liens having priority over a first security interest. I called to inform Remax agent we owned the home and he trespassed. He replied “I don’t care I don’t care. Whatever! I’m just doing my job” since 5 August when preforeclosure status appeared on my home I have had people peek into my windows, walk around my back yard, sit on my curb and discuss purchase and marketability of my home, realtor offer to buy my home or short sell. I am a disabled veteran with PTSD. This has effected my PTSD in a very bad way. I’m scared in my own home. On 18 Nov I tried committing suicide because I just want to get away from these people trying to steal my home. I was already homeless once, I’m scared to death to be homeless again! I don’t know what else to do!

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