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12cv260 Mol ObjMTD

12cv260 Mol ObjMTD

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Published by fndoomed
Plaintiff's memorandum of law in opposition to defendants motion to dismiss ...
Plaintiff's memorandum of law in opposition to defendants motion to dismiss ...

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Published by: fndoomed on Sep 09, 2012
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12/15/2012

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UNITED STATES DISTRICT COURTDISTRICT OF NEW HAMPSHIRE___________________________________FnDoomed,
Pro Se
))Plaintiff, )v. )) Case Number: xxxxxxxJ.P. MORGAN CHASE N.A. and )FEDERAL HOME LOAN )MORTGAGE CORPORATION and )HAUGHEY, PHILPOT & LAURENT P.A. ))Defendants. )___________________________________ )
PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
 
OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
 
 NOW COMES the Plaintiff setting forth his arguments against the DEFENDANTS’MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS (“Defendants’ Memo”)
.
I.
 
INTRODUCTION
The July 30, 2010 mortgage assignment (“the assignment”) alleges assignment of the Note and the Mortgage from MERS as Nominee for Crescent (“Crescent”) to Federal HomeLoan Mortgage Corporation (“Freddie Mac”).
The Plaintiff waives his challenge to the authority, capacity and authorization of theassignor in his amended complaint ¶ 26 but does not waive his right to evidence that the Notewas properly transferred or negotiated to the Defendants, and does not waive his right toevidence that the Note is in default to the Defendants.
II.
 
AUTHORITIES ON THE NOTE, THE ALLONGE AND THE MORTGAGE
 
2
The Note
The Uniform Commercial Code as adopted in New Hampshire and codified in NH RSA382-
A (“UCC”) 3
-301 provides several ways to become a Person Entitled to Enforce aninstrument. Defendants argue that they may be entitled via the first two, UCC 3-301 (i) andUCC 3-301 (ii), and therefore the Petition to Enjoin a Foreclosure Sale against them should bedismissed.Holdership of a note under UCC 3-301 (i) requires possession of the wet-ink note takenby negotiation with all indorsements of the Maker(s) and prior holders. The final indorsementmay be made in blank or to the person claiming holdership.Subsumed within the concepts of negotiation are the questions of 
when
 
and where
 indorsement and delivery occurred, because this affects rights and obligations of the parties, aswell as the law controlling the transaction, and would be a question of material fact requiringsome external evidence.The record is clear on these points: The allonge was not effective to indorse the Note andtherefore Crescent never became a holder. Freddie Mac got the note from Crescent who was nota holder and therefore could not have negotiated the Note to Freddie Mac. Any claim under UCC3-301(i) would fail as a matter of black-letter law.UCC 3-301 (ii) requires that the person so claiming must prove two things. First, theperson must prove they are in possession of the original wet-ink note. Second, the person mustprove the transaction through which they acquired the note from the holder.
Because the transferee is not a holder, there is no presumption under Section 3-308that the transferee, by producing the instrument, is entitled to payment. The instrument, by its
 
3
terms, is not payable to the transferee and the transferee must account for possession of theunendorsed instrument by proving the transaction through which the transferee acquired it.
Proof of a transfer to the transferee by a holder is proof that the transferee has acquired therights of a holder.
U.C.C. ARTICLE 3 OFFICIAL COMMENTS COMMENT § 3-203Comment 2 (emphasis added).The Court of Appeals for the 1
st
Circuit agrees.
Not being a holder, the FDIC had to show, as a prerequisite to enforcing the Note against theHoudes, that it was a transferee in possession entitled to the rights of a holder. See 11 M.R.S.A. § 3-1203.Comment 2 following § 3-1203 provides:If the transferee is not a holder because the transferor did not indorse, the transferee isnevertheless a person entitled to enforce the instrument ... if the transferor was a holder at thetime of transfer.... Because the transferee is not a holder, there is no presumption ... that thetransferee, by producing the instrument, is entitled to payment. The instrument, by its terms, isnot payable to the transferee and the transferee must account for possession of the unindorsedinstrument by proving the transaction through which the transferee acquired it.
Proof of atransfer to the transferee by a holder is proof that the transferee has acquired the rights of aholder.
At that point the transferee is entitled to the presumption.... (emphasis added)Thus, in order minimally to be entitled to the presumption under Maine law that it could enforcethe Note, the FDIC was required (1) to prove a sufficient transfer from a holder (here MNB, to which theNote was made payable by the Houdes) to the FDIC in its present capacity as receiver of NMNB, and (2) toproduce the Note at trial
.”
FDIC v. Houde, 90 F. 3d 600 - Court of Appeals, 1st Circuit 1996.
 
As discussed
supra
, subsumed within the question of a transfer are the questions of 
whenand where
the transfer occurred because this would affect the rights and obligations of the partiesas well as the law controlling the transaction, and so would be a question of material factrequiring some external evidence.
Because Crescent was not a holder at the time of transfer, the Defendants can’t prove a
transfer from a holder as required by the UCC and upheld in
 Houde
. Any claim the Defendantsmake under UCC 3-301 (ii) would also fail as a matter of black-letter law.

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