Mortgage Notes Are NOT Negotiable Instruments- One of My First Posts EVER! In some cases however, the Plaintiff either cannot even produce a copy of the promissory note or the promissory note signed by the borrower does not fit the precise legal definition of a " negotiable instrument" that is subject to the techincal reestablishment procedures.
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Florida home owners – especially those in trouble on their home loans and considering foreclosure, short sale, or what to do about their underwater mortgage – need to know the difference between some of the documents that they signed long ago when they bought their home.. Note, Mortgage, Deed of Trust: what are they, what do they mean?
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There have been arguments and some commentary that notes are not negotiable instruments any longer when they are securitized, but courts have not made rulings on this issue in any great number. Here is a link to a website regarding the issue:
the terms of this Note. This Note may not be modified or amended except by written agreement signed by Borrower and Lender. 14. CONFLICTING TERMS: In the event of any conflict between the terms of this Note and the terms of any security instrument securing payment of this Note, the terms of this Note shall prevail. 15.
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One of the enduring principles of negotiable instruments law is that the "mortgage follows the note." Thus, even though a lender may think it has a perfected security interest in a piece of real estate through a recorded mortgage or deed of trust, failure to perfect against the note itself-by taking possession or filing a UCC financing.
Destroying the negotiability of the promissory note is not always a good thing for the foreclosing entity. If the note is not negotiable, then there can no holder in due course of that note who will take free of defenses to the note. Such a status is reserved only for negotiable instruments.
A treatise on the law of negotiable instruments, including bills of exchange; promissory notes; negotiable bonds and coupons; checks; bank notes; certificates of deposit; certificates of stock; bills of credit; bills of lading; guaranties; letters of credit and circular notes by Daniel, John W. (John Warwick), 1842-1910