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Money, Business & Finance Ground >> "Produce the Note"


7/19/09 4:58 PM
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Atecexa
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If someone tries to forelcose on your house and when in front of a judge you demand that they produce the original note that you signed giving them the right to foreclose and they are unable to produce the original note it would be impossible for them to foreclose correct?
7/19/09 10:41 PM
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big_slacker
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Its a delaying tactic that is becoming popular. You don't do it in front of a judge all dramatic like.

Lender initiates foreclosure.

Borrower files a request with the court for the original note. If its been sold several times the lender might have trouble tracking it down. This is what the borrower is hoping for.

If no response you file again for a compulsion to produce the note. If they can't it goes to hearing. If the judge favors you there is nothing they can do till they get the original signed docs. This might take a while to track down, especially considering the backlog of foreclosures out there right now.

If the judge says F' you, the copied/scanned/your history of payments, etc... is proof enough then at least you got the extra time in your house while the proceedings went on. This is probably measured in months and maybe longer.
7/23/09 9:49 PM
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feralpig
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Where I live, you can use a lost note affidavit to prove the debt.
7/25/09 3:10 AM
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PrinceAlbert
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TT look into
8/1/09 2:36 AM
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Dratherbe
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I'm contesting a foreclosure right now with that argument.

Essentially, the foreclosing party will file a lost note affidavit to try and foreclose without the note. For many of these creditors, the affidavit is a lie. It basically says, "we had the note but now we can't find it".

The root of the issue is MERS - Mortgage Electronic Registration Service. MERS allowed lenders to sell notes with anonymity. The problem is that when these notes were sold or securitized, the paperwork wasn't done. The notes weren't assigned to the new owner of the debt. Legally, the owner of the debt has no standing to foreclose without the legal instrument. However, judges can do what is 'equitable' and say, well, it looks like you did have the note at one time, the property is yours.

What state is this property in? It seems like courts in FL are siding with defendants more than in states like CA.

An explanation from a FL Attorney's website (http://www.oppenheimlaw.com/florida_foreclosure_assistance.html):

"Many South Florida residents in Miami-Dade, Broward County and Palm Beach County in foreclosure are dealt cases that are missing the proper paperwork to foreclose. The banks and their lawyers that are calling for foreclosure have systemically trampled upon the borrowers rights. This Florida foreclosure process is a sad representation of the lack of enforcement in our society. A fact known to most Florida foreclosure lawyers is that these banks and lawyers are paid, almost on commission, by the number of foreclosures they process in a day or even by the hour. Unfortunately, Florida foreclosure courts are so overburdened that the judges in many cases are not always reviewing the bank’s documents to see if they have properly prepared their case.

Frequently, in these Florida foreclosure cases, the bank has lost the homeowner in foreclosure’s promissory note and will claim it has been misplaced. The question we are trained to ask as a Florida foreclosure defense attorney is; did the bank ever really have the promissory note to begin with? In court, the bank can only say they lost the note, if in fact they can prove they had possession of the note in the first place.

Many times during Florida foreclosure court, the banks will have difficulty proving that they ever had the note and mortgage. In reality, these notes and mortgages have been sold and/or traded years ago. Many of homeowners’ promissory notes and mortgages have been pooled, stripped and divided so many times that no one really knows who owns the note and mortgage. These simple notes and mortgages have been turned into obscure securities sold and resold by investment banks — many of which have already disappeared — to unsuspecting investors all over the world. Now these “obscure securities” are being called “toxic securities” and are at the root of the economic melt down. In fact, the government has been buying these toxic securities as part of the economic bailout in 2008.

As any first year law student knows, when a mortgage is sold to a third party it must be assigned and recorded in the public records. Oddly enough, many of the notes and mortgages that were sold and packaged were not properly assigned and recorded in the public records. Legally, for a Florida foreclosure to proceed through the courts, the chain of title must be shown on the face of the foreclosure complaint. Luckily for many Florida foreclosures, that frequently does not occur."

HERE IS A GREAT LINK WITH THE 'HOW-TO':

http://www.consumerwarningnetwork.com/2008/06/19/produce-the-note-how-to/

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