Tonight! Facial Invalidity! Russell Baldwin, Esq. Rejoins the Discussion 6pm EST

SubTopic: What Happens if MBS Are Not Backed by Mortgages? How does that play out in foreclosure litigation?

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Co-Hosted by Neil Garfield and Charles Marshall, Esq. 

with Bill Paatalo, PI

And Special Guest Russell Baldwin

Call in at (347) 850-1260, 6pm Eastern Thursdays

Russ Baldwin has some special insights into a continually developing area of foreclosure defense — what if the presumptions are being applied when the document is not facially valid. When the document requires extrinsic evidence to identify parties or their authority and the extrinsic evidence is neither attached nor identified, is the document facially valid?

I say no it isn’t. If you wrote out what appeared to be a check for a sum of money made payable to a party who could only be identified by reference to a power of attorney or trust agreement, the parties would not be defined or identified until you were provided with the power of attorney or trust agreement under circumstances where the agreement or power of attorney was still in force. This sounds more like a private contract than a negotiable instrument. And yes the contract can be proved up by introducing the extrinsic (parole) evidence but no, the instrument itself would not be governed by the laws and rules governing negotiable instruments under Article 3 of the UCC.

If I am correct, then the instrument is not facially valid although the terms could still be proven. But the burden of proving the agreement, consideration, offer and acceptance would be on the party seeking enforcement. They would not get any presumptions applied. They would be required to produce proof of the owner of the debt, the owner of the instrument and the owner of the mortgage. Remember that mortgages and deeds of trust are never negotiable instruments. And also remember that there is no such thing as an owner of the mortgage who does not own the debt. That is under Article 9, UCC.

Russell Baldwin is a practicing licensed attorney in Lincoln City, Oregon. He has his own insights as to foreclosure litigation and we welcome fresh points of view. In 2011 he got the largest jury verdict of nearly $3.4 million and an award of $450,000 in attorney fees. He has wide experience in civil litigation and in City government, having been the interim City Attorney. He was admitted to practice law 30 years ago. Email baldwin_atty@embarqmail.com

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