Russ Baldwin joins Neil, Charles and Bill. He has some special insights into a continually developing area of foreclosure defense — what if the presumptions are being applied when the document is not facially valid. When the document requires extrinsic evidence to identify parties or their authority and the ext rinisc evidence is neither attached nor dientified, is the document facially valid?
I say no it isn’t. If you wrote out what appeared to be a check for a sum of money made payable to a party who could only be identified by reference to a power of attorney or trust agreement, the parties would not be defined or identified until you were provided with the power of attorney or trust agreement under circumstances where the agreement or power of attorney was still in force. This sounds more like a private contract than a negotiable instrument. And yes the contract can be proved up by introducing the extrinsic (parole) evidence but no, the instrument itself would not be governed by the laws and rules governing negotiable instruments under Article 3 of the UCC.
Russ Baldwin is an attorney based in the State of Oregon.
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