― Raymond Chandler, The High Window
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That therefore, the burden of proof for a Holder in Due Course is merely show to show possession of the note, combined with the method by which they acquired the note --- i.e., that they purchased the note for value in good faith without notice of Borrower's defenses, even if there was no consideration, even if the note was procured by fraud. The issue for trial courts is the allegation in the right to collect claim, such as that in this instant case, the Defendant’s collecting party is the party claiming to be the Holder in Due Course, GMAC Mortgage, LLC, US Bank, N.A., and Structured Asset Investments II Inc., Bear Stearns Arm Trust, Mortgage Pass-Through Certificates, Series 2004-10 and their claims are devoid of any allegation that would support the Defendants claim of Holder in Due Course.
That in an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature. If an action to enforce the instrument is brought against a person as the undisclosed principal of a person who signed the instrument as a party to the instrument, the Defendant has the burden of establishing that the Plaintiff is liable on the instrument as a represented person under (RSMo 43-402(a).)
That if the validity of signatures is admitted or proved and there is compliance with subsection (a), a defendant producing the instrument is entitled to payment if the defendant proves entitlement to enforce the instrument under RSMO Section 3-301, unless the plaintiff proves a defense or claim in recoupment. If a defense or claim in recoupment is proved, the right to payment of the defendant is subject to the defense or claim, except to the extent the defendant proves that the defendant has rights of a holder in due course which are not subject to the defense or claim.
That the implied presumption is that the loan existed and that a loan contract was consummated with Lend Tech Mortgage Funding LLC and a purchase contract was completed between GMAC Mortgage, LLC as purchaser and Lend Tech Mortgage Funding, LLC as seller. Plaintiffs deny this and therefore the prima facie Defendants’ case must establish the loan and the loan contract, in good faith and in accordance with the requirements of existing law and good sense.
That for the Holder in Due Course the prima facie case is to prove the elements of being a STANDING as Holder in Due course along with the right to even declare a default (before the purchase) of the Promissory Note. This is congruent with Article 9 of the UCC which requires purchase of the Promissory Note in order to enforce it.
That if there is any difference between a Holder in Due Course and a holder with rights to enforce, it is that the holder, by its own allegations admits that it did not purchase the Promissory Note and Deed of Trust for value, in good faith, and without knowledge of the borrower's defenses. This means that the borrower's defenses against the original stated lender may be asserted against that original alleged lender and any alleged successors to the Promissory Note, which is the title document (and evidence of) the Promissory Note.
The prima facie case of the holder therefore varies from the prima facie case of the Holder in Due Course in that the loan is presumed for the Holder in Due Course, but not so for the holder. The original consideration for the loan is the loan of money from the stated alleged lender on the Promissory Note and Deed of Trust.
That to the extent that the loan process violated law, it cannot be said to be in good faith. If table funded loans were the pattern of conduct for the alleged Lender, then the loan was predatory per se. (TILA, Reg Z).
That a Holder who cannot prove that the loan was made from the originator to the borrower, has nothing to convey to the successors who profess to have endorsements and assignments, none of which convey anything, since the original note was not supported by Consideration from any of the Defendants in this instant case.
That the burden of proof of the holder is vastly different from the prima facie case of the Holder in Due Course. If the name of the real lender was withheld, then the loan was table funded which is wrongful under the Missouri Merchandise Practices Act concerning the filing of a false instrument. Despite what most believe to be true, mortgage notes do fit comfortably within requirements of the MMPA. (See MO. Supreme Court 2014: Conway v CitiMortgage and Fannie Mae. Exhibit 10)
That if the loan was table funded it was wrongful, and if it is part of a pattern of conduct of table funded loans, it violates the content and intent of TILA and Reg Z and is presumptively predatory. This introduces elements of a burden of proof for the Defendant, where the foreclosing party is only a holder and not a Holder in Due Course.
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