BAC, Countrywide v Stenz Motion to Dismiss Granted – “A thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”

by Foreclosure Fraud

BAC HOME LOANS SERVICING, LP F/K/A
COUNTRYWIDE HOME LOANS SERVICING, L.P.
Plaintiff,
vs.
BILL R. STENTZ AKA WILLIAM R. STENTZ, et al.

CASE NO 51-2009-CA-7656-ES

From the Order…

The copy of the note filed by plaintiff shows upon it that it has been endorsed in blank. Thus, though Plaintiff may be a “holder” it is not by virtue of such an open indorsement, an owner of it. See F.S. 673.2031, Comment 1: “a thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”

ACCORDINGLY, IT IS HEREBY ADJUDGED:

A: Defendant’s motion to dimiss is GRANTED.

B: Plaintiff shall be granted 30 days to amend its complaint and in doing so MUST:

■Allege ultimate facts, not conclusions of law, that specifically set forth the and identify the present owner of the note and mortgage and the present holder of the note and mortgage and in so doing deraign the chain of ownership/holdership since the loan’s inception.
■Allege ultimate facts why the note is indorsed in blank and specifically deny, if that be the case, that it or an interest has been pledged to another…
■Plaintiff must specifically plead and identify both the owner and the holder of the note and mortgage. it is not enough for Plaintiff to only plead that it holds the note and mortgage… Plaintiff must ultimatley prove ownership as well…
■If Plaintiff is not the owner it must specifically plead ultimate facts identifying the owner and Plaintiff’s authority whether to act as a representative for the same attaching such proof of said representation authority whether it be by power of attorney or other written agency agreement.
■Allege and identify all documents, by attachment, upon which plaintiff relies to establish the ownership of the note and mortgage.
■Plaintiff shall have 30 days to amended and file a new complaint. That said complaint must be verified and that any allegation in the verification containing “best knowledge and belief” language is insufficient.
DONE AND ORDERED

Lynn Tepper
CIRCUIT JUDGE

Full order below…

BAC, Country Wide v Stenz