including the right to convey it to others. … ‘Possession is the
exercise of a claim;ownership is the
recognition of one. A thing is owned by me when my claim to it ismaintained by the will of the state as expressed in the law; it is possessed by me, when my claim toit is maintained by my own self-assertive will.’”
Black’s Law Dictionary 1215 ( 9
Because defendant only submits evidence of possession of the note, without clear evidenceof legal ownership, they fail to demonstrate the necessary element to pursue judicial foreclosure of showing that they are the current owner of the promissory note and mortgage.In Washington, one must have standing to pursue a judicial foreclosure. The common lawdoctrine of standing prohibits a litigant from raising another's rights.
Fire Prot. Dist. V. City of Moses Lake,
145 Wn.2d. 702, 713 (2002).HSBC claims that as Trustee of the Nomura REMIC trust, it is authorized to foreclose onassets of the trust. To have standing to pursue a foreclosure, it is necessary that HSBC show morethan mere possession of the Note. It necessarily must provide admissible evidence that theDeJongh’s Promissory Note and Deed of Trust were properly assigned to the Nomura REMIC trust.However, nowhere in the Motion for Summary Judgment does the Defendant provide acopy of any assignment of the Deed of Trust or Note to HSBC or Nomura Home Equity. In fact,they do not argue assignment of the Deed of Trust in their argument, and appear to rely solely upon possession of the Note endorsed in blank. While possession of a bearer note may be sufficient in a purely commercial setting, possession is not what the law in Washington requires in order to pursuea judicial foreclosure; Washington law requires ownership. 18 Wa.Prac. §19.
PLAINTIFF’S RESPONSE TODEFENDANTS’ MOTION FOR SUMMARYJUDGMENT
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