A few years ago, there was a lot of media hype about "producing the original note." There was almost equal response from the mortgage/foreclosure industry that the original note wasn't important and that reasonable facsimiles that were attested to as being "true and accurate copies of the original" were/are good enough to demonstrate that the current "bearer" of the copy is the rightful note holder and, therefore, has title and interest in the promissory note and has legal standing to foreclose.
The industry points to the Uniform Commercial Code, specifically Articles 3 and 9, as confirmation of this theory. They state that, under the UCC, promissory notes become "bearer paper" much like US currency. Anyone in physical possession of a promissory note becomes the "note holder" and all of the rights afforded under the UCC transfer to that holder. All fine, well and good, but there are several problems with this argument.
In this day and age of "robo-sigining", "electronic transfer" and "digital signature" of documents it has become far too easy to manipulate electronic documents. Quite literally, if you are reading this and were so inclined, with a free 30 day trial of software, you could begin manipulating Assignments of Mortgage, mortgages and promissory notes, in such a manner as to create the illusion that you own them as opposed to the actual, legal note holder. As I write this, I am in "possession" of digital copies of upwards of 200 promissory notes. With a little digital magic, I could easily change ownership of those notes and suddenly "own" them myself. Once properly fabricated and printed, it would not be difficult for me to present them as evidence of ownership.
The bottom line is that "digital representations" of documents, regardless of attestations of being "true and accurate" are meaningless when it comes right down to hard evidence. If true original documents cannot be produced as authentication of ownership then the claim of ownership simply must be called into question. Try asking someone for change for a copy of a $20 bill sometime.
The second problem with the argument of "bearer paper" and that "Your Honor, we stand before you holding the original promissory note in our possession, therefore, we own the note." is that very few judges are asking entities to prove how a promissory note came into their possession. "Your Honor, I stand here before you with this television. The television is in my possession and is therefore mine. Pay no attention to the fact that I liberated it from your very chambers yesterday."
What I have been seeing in virtually every chain of title that I have examined over the course of the last six or seven years that involves the secondary securitization market, is that the Assignments of Mortgage involved in the chain of title are, at the very least, incorrect and, at most, blatantly fraudulent. A promissory note may, in fact, have been properly securitized back in 2006. The problem is that the ownership of that very note has remained largely unrecorded along the way. Hence, I am seeing assignments of mortgage, created and recorded in 2010 and 2011, purporting to assign promissory notes into 2005, 2006 and 2007 residential mortgage-backed security trusts. And in virtually every case, the 2010/2011 assignment of the promissory note into the trust can be proven to have violated the very the terms of the trust and, therefore, create just one of several questionable points of ownership of the subject promissory note.
The bottom line is that if you, as a homeowner, or as an attorney with a client, have an assignment of mortgage involving the Mortgage Electronic Registration System and/or ABC Bank, as trustee for the PB&J 2046-E=MC2 Trust, you need to have those documents and the chain of title examined more closely.