Great question for those confused between the Uniform Commercial Code (UCC) and New York (and Illinois) Trust Law.
I recently had a federal foreclosure case dismissed by Judge Pallmeyer on October 11, 2011. As a nationally recognized leader in Mortgage Foreclosure Defense Education & Litigation, our firm successfully defeated Plaintiff Complaint by filing A Motion to Dismiss for Lack of Standing. See Deutsche Bank v. Bodzianowski (11 cv 1950)
Judge Pallmeyer ruled that Deutsche, a major Wall Street bank, lacked standing to foreclosure on an Illinois homeowner. Standing is the threshold question in every federal case. Plaintiff was NOT the original lender and sought to establish standing by endorsing the Promissory Note and assigning the Mortgage directly to the Trustee . While Plaintiff pled that it was the legal holder of the Note and Mortgage, it failed to convey the mortgage file according to the terms creating Trust (Pooling and Servicing Agreement - PSA) and New York trust law.
A Promissory Note is an asset of the trust and should have an "unbroken" chain of endorsements from the Originator (original lender) to Sponsor to Seller to Depositor and then to the Trustee, sequentially. In other words, the act of the Trustee receiving an instrument that does not have ALL of the intervening endorsements is void. Although Plaintiff argued that it has standing because the Promissory Note, a negotiable instrument, is governed by the Uniform Commercial. However, the UCC permits parties to agree to a more exacting method of transferring the notes to the trust and in this case the parties did so inside the private-label mortgage-backed security (MBS) trust.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.