Lender Can’t Produce The Note? | Homeowner Foreclosure Defense

The Homeowner Foreclosure Defense

Produce The Note

If you have watched or listened to the News, I am sure you have heard the term “Produce The Note”

A growing number of homeowners around the country are using a foreclosure defense that has been kicked around since about June of last year.  I want you to know that this defense and method of discovery is not just  technicality that will be handled “ho hum” by your lender or by the Court.

You have to understand the importance of this subject. When your lender can not “produce the note,” and the court to proceeds your  foreclosure, it will put you at risk of owing that debt again to another party.  The courts are being very conscientious with Lenders or Trustees claiming against you. You see, before a judge can allow any entity, who can not  “produce the note on your home” to cash in on your home there has to be “standing” that apply to the case

So What Is The Result IF they Can’t Produce the Note?

If Your Lender (Plaintiff) tells the Court it can’t produce the original note, because it is lost?
Foreclosure Basics 101:  If your lender wants to foreclose on your property, it has to be able to show that it is, in fact, they are the one to whom the money is owed. That right to foreclose belongs ONLY to the “Holder IN Due Course”  and who has legitimate POSSESSION OF THE ORIGINAL NOTE

Not a copy, not an electronic entry, YOUR original note itself with your signature, because you allegedly owes them the money.

As I have written before, what are the odds that your documents were lost? Pretty good considering the securitization of loans that were broken up into stocks, bonds etc… ALSO considering tha fact that WELL OVER 82% OF ALL LOANS WRITTEN Between 2002 through 2006 and beyond HAD MISTAKES (TILA Violations) that your foreclosing Lender does NOT WANT YOU TO DISCOVER!

So if you are faced with a foreclosure, you have every right to demand that the company or entity trying to take your home, make them prove to the Court that it is “The Holder In Due Course” and that they  have possession of the original promissory note. (while you are at it, get all of your closing documents in discovery, and really make them “Squeel!”)

Here Is What They MUST DO!
The lender Must  prove according to The “Uniform Commercial Code” or UCC  you will see  this over and over while reading and researching. (UCC laws  govern commercial transactions that many states, such as Florida, have adopted). It contains a specific provision on this subject (Section 3-309) which states that a person can enforce a promissory note without having the original, BUT only under certain limited circumstances.  All of the following must be proven:

• The plaintiff has to claim that it no longer has the original note;

• The plaintiff has to prove that it was properly in possession of the note and had standing to enforce it WHEN they  lost possession of the note; (they really try to do this!)

• The Plaintiff has to prove it didn’t “lose” the Note simply because it transferred it to someone else (it’s lost but…it’s not really lost)

• The Plaintiff has to prove that it cannot produce the original note, because the instrument was destroyed, or its whereabouts cannot be determined, or it was stolen by someone who had no right to it. (or that it was abducted by aliens)

All of this has to be proven by the person trying to foreclose on your home. It is your obligation as the borrower/ defendant to prove or disprove any of this.  YOU can challenge the right of the Company trying to foreclose and demand proof that they have posession!I Know I did in my case!
What is The Role of the Court?

It is up to the Court to determine whether the lender has satisfactorily explained why it no longer can produce the original note. The Court also has to be satisfied that when the original note was lost, the person trying to foreclose on the property had possession of the note at the time it was lost. Until the Court has been satisfied of all of this, they can not foreclose on you!
The  Courts are really starting to understand that this is not merely a “technicality,” and the judge should not be satisfied with anything less than full proof of “Holder in Due Course” (notice I keep saying that phrase?).  Why? Because the Court itself needs to appreciate the fact that if it agrees that the original note has been legitimately lost and it allows the foreclosure to proceed without the original note, it is you the borrower, who could still be at risk!

Why you may ask?? If  the Court has found that the original note was lost and the foreclosure sale is finalized, then later an entity shows up with the original note and proves that it is the “Holder in Due Course”of the note, You are STILL LIABLE. (That’s Why you need to insist on Quiet Title as well!)

I’m Not Kidding here: If you lose your your home in foreclosure, and the Court allowed it because it believed that the lender proved that the note truly was lost and they had standing. Then the Actual Lender shows up later, with the actual note you could owe that them the money even though your property was illegally given to the company that Originally Filed against you won, with the blessing of the Court.That Stinks and is one of the main reasons we Fight to Stop Home Foreclosure

If you are going to use the resources we suggest, (such as the 32 Ways Book) please understand that there are Procedures that the Court will insist you adhere to.  The Judge is Not your Friend or Advocate, you will need to ally yourself with an expert or get an attorney if all of this seems overwhelming. But, at Least you can Protect yourself early, get the discovery process done effectively and have a way to win in your fight against Home Foreclosure!