The Emperor’s New Clothes: How the Judicial System and the Housing-Mortgage Market Have Turned a Blind Eye to the Destruction of the Negotiability of Mortgage Promissory Notes
This Article examines the common notions of negotiable instruments as they relate to the modern day promissory note in the context of residential mortgage lending. The Article further addresses the destruction of the negotiability of such promissory notes through various undertakings added for the benefit of the banking industry, often to the detriment of a borrower. The use of negotiable instruments commenced in the 1800s in England as a way of ensuring a fluid market between trades as there was no fiat currency system in place. The fundamental purpose behind the concept of negotiability was subsequently abrogated by the modernization of the financial industry, and the creation of a global marketplace for the purchase and sale of promissory notes. Furthermore, the Article discusses how the holder in due course doctrine, which limits a borrower’s defenses when a promissory note has been transferred from one note holder to another, has created significant abuse to consumers by the financial industry. The abuse of consumers through the holder in due course doctrine remains a problem unchecked by many courts that continue to apply negotiability law to modern day promissory notes in real estate mortgage transactions despite the fact that modern day promissory notes lack any of the tenets of “negotiability” under article 3 of the Uniform Commercial Code. The Article then calls on the judiciary, as theoretically the least political and most impartial branch of government, to find that such promissory notes are no longer negotiable instruments, and therefore must be transferred via assignment pursuant to article 9 of the Uniform Commercial Code. Such a new construct or approach would provide the transparency necessary to protect consumers and preserve defenses to predatory lending by the financial industry.
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Roy D. Oppenheim and Jacquelyn K. Trask-Rahn, The Emperor’s New Clothes: How the Judicial System and the Housing-Mortgage Market Have Turned a Blind Eye to the Destruction of the Negotiability of Mortgage Promissory Notes, 6 Wm. & Mary Bus. L. Rev. 557 (2015), http://scholarship.law.wm.edu/wmblr/vol6/iss2/5