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Notes, Assignments and Certification

A lot of people may be familiar with” Robo signing”( someone without authority rubber stamping assignments) which created a moratorium on foreclosures throughout the country, but particularly in New York and New Jersey.  New York judges created new rules for attorney certifying the documents that they provided to the court to be true and exact copies.  New Jersey also experienced multiple cases providing for certification of documents to be provided before a foreclosure can proceed. (Wachovia v Ford)
Note:  A promissory note is a negotiable instrument, wherein one party (the maker or issuer) makes an unconditional promise in writing to pay a determinate sum of money. Often times the bank will come into the court and state that he/she has the original note.  The bank will then argue that the possessing of the note proves standing which allows the bank to foreclose.  Many, many times the court will grant the banks right to foreclose by simply possessing the original note.

Assignment: An assignment allows for the transference of the note/mortgage from one bank/lender to another bank/lender.  The person paying the mortgage on the house has no rights to prevent the assignment from one lender to another.

Certification: In New York and New Jersey, any documents that are presented to the court must be certified.  This basically states that someone with knowledge of the originality of the documents being offered to court can verify its accuracy.

You may be asking why this is of interest to you.  In the case of US Bank v. Justine Hildago, Judge Kessler has denied Summary Judgment to US Bank (twice) because they have not provided the certification that the person who assigned the note to US Bank had the authority to assign it.  Although the bank has come to court with the original documents, Judge Kessler is following local rules and is forcing the bank to provide documents that certify the identity of the person who assigned the mortgage.  What this means to you facing foreclosure?  Look at the name of the person who is signing the assignment.  Is it a MERS (mortgage electronic registration) member/ signer, is the signer from out of state (notarized in Arizona), and most importantly raise the question if the person signing the assignment has the right to assign the note from one lender to another and demand for the certification.   Good Luck.