California Commercial Code section 3-309 and the show me the note defense

California Commercial Code section 3-309 and the show me the note foreclosure defense strategy is the topic of this blog post.

Uniform Commercial Code Article 3, section 3-309, which has been adopted in California as Commercial Code section 3-309 states that, “ (a) A person not in possession of an instrument is entitled to enforce the instrument if (1) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (2) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (3) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(b) A person seeking enforcement of an instrument under subdivision (a) shall prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, Section 3308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.”

So the law in California supports a lender or loan servicer not needing to have the original note to conduct a trustee’s sale. They can simply bond around a lost note.

Most Judges are not inclined to show much sympathy for technical challenges to a foreclosure, particularly when it is clear from the complaint and other documents filed with the Court that the borrower is in default under the loan.

Anyone using the show me the note defense is blowing their chances of actually showing some kind of valid defense to the Judge that might convince them to at least delay the foreclosure sale.

In later blog posts I will cover some valid claims that if used in the right situations should convince a Judge to grant a request for a temporary restraining order to enjoin the trustee foreclosure sale. These claims will be based on legal research, in particular my review of published decisions from the California Courts of Appeal and the California Supreme Court.

Attorneys or parties in California who would like to view a portion of a 22 page sample complaint to stop a trustee foreclosure sale that includes a verified complaint, ex-parte application for temporary restraining order with points and authorities, sample declarations, and a proposed order sold by the author can see below.

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To view over 300 sample legal documents for use in California and Federal Courts sold by the author of this blog post visit View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

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Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.