Defend your rights vs. foreclosure

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Fight Foreclosure: Make ‘Em Produce The Note!
Using the “produce the note” strategy is something all homeowners facing foreclosure can do. If you believe you’ve been treated unfairly, fight back. We have created templates for a legal request, a letter to your lender and a motion to compel to help you through the process.  Read the step by step “how to” under the videos.

Special note:  In some states, a lender can foreclose on your home without going to court.  These are called non-judicial foreclosure states.  You can still use the “Produce the Note” strategy in these states, but it takes a few more steps on your part.
 

Produce the Note - Steps To Follow:
 

WHO OWNS THE NOTE?

Your goal is to make certain the institution suing you is, in fact, the owner of the note (see steps to follow below). There is only one original note for your mortgage that has your signature on it. This is the document that proves you owe the debt.
During the lending boom, most mortgages were flipped and sold to another lender or servicer or sliced up and sold to investors as securitized packages on Wall Street. In the rush to turn these over as fast as possible to make the most money, many of the new lenders did not get the proper paperwork to show they own the note and mortgage. This is the key to the produce the note strategy. Now, many lenders are moving to foreclose on homeowners, resulting in part from problems they created, and don’t have the proper paperwork to prove they have a right to foreclose.


THE HARM

If you don’t challenge your lender, the court will simply allow the foreclosure to proceed. It’s important to hold lenders accountable for their carelessness. This is the biggest asset in your life. It’s just a piece of paper to them, and one they likely either lost or destroyed.
When you get a copy of the foreclosure suit, many lenders now automatically include a count to re-establish the note. It often reads like this: “…the Mortgage note has either been lost or destroyed and the Plaintiff is unable to state the manner in which this occurred.” In other words, they are admitting they don’t have the note that proves they have a right to foreclose.
If the lender is allowed to proceed without that proof, there is a possibility another institution, which may have bought your note along the way, will also try to collect the same debt from you again.
A Tennessee borrower recently had precisely that happen to her. Her lender, Ameriquest, foreclosed on her in July of 2007. About three months later, another bank sent her a default notice for the mortgage on the house she just lost. She called to find out what was going on. After being transferred from place to place and left on hold for lengthy periods of time, no one could explain what happened. They said they would get back to her, but never did. Now, she faces the risk of having her credit continually damaged for a debt she no longer owes.


FIGHT FOR FAIRNESS

This process is not intended to help you get your house for free. The primary goal is to delay the foreclosure and put pressure on the lender to negotiate. Despite all the hype about lenders wanting to help homeowners avoid foreclosure, most borrowers know that’s not the reality.
Too many homeowners have experienced lender resistance to their efforts to work out a payment structure to keep them in their homes. Many lenders bear responsibility for these defaults, because they put borrowers into unfair loans using deceptive, hard-sell practices and then made the problem worse with predatory servicing.
Most homeowners just want these lenders to give them reasonable terms on their mortgages, many of which were predatory to begin with. With the help of judges who see through these predatory practices, lenders will feel the pressure to work with borrowers to keep them in their homes. Don’t forget lenders made incredible amounts of money by using irresponsible practices to issue and service these loans. That greed led to the foreclosure crisis we’re in today. Allowing lenders to continue foreclosing on home after home, destroying our neighborhoods and our economy hurts us all. So, make it hard for your lender to take your home. Make ‘em produce the note!

STEPS TO FOLLOW

A. If your lender has already filed suit to foreclose on your home:

• Use the first form. It’s a fill-in-the-blank legal request to your lender asking that the original note be produced, before it can proceed with the foreclosure. In some jurisdictions, the courts require the original request to be filed with the clerk of court and a copy of the request to be sent to the attorney representing the lender. To find out the rules where you live, call the Clerk of Court in your jurisdiction.
• If the lender’s attorney does not respond within 30 days, file a motion to compel with the court and request that the court set a hearing on your motion. That, in effect, asks the judge to order the lender to produce the documents.
• The judge will issue a ruling at your hearing. Many judges around the country are becoming more sympathetic to homeowners, because of the prevalence of predatory lending and servicing. In the past, many lenders have relied upon using lost note affidavits, but in many cases, that’s no longer enough to satisfy the judge. They are holding the lender to the letter of the law, requiring them to produce evidence that they are the true owners of the note. For example:

• In October 2007, Ohio Federal Court Judge Christopher Boyko dismissed 14 foreclosure cases brought by investors, ruling they failed to prove they owned the properties they were trying to seize.

B. If you are in default, but your lender has not yet filed suit against you:

• Use the second form. It’s a fill-in-the-blank letter to your lender which also requests they produce the original note, before taking foreclosure action against you.
• If the lender does not respond and files suit against you to foreclose, follow the steps above.

UPDATE: CNN features The Consumer Warning Network and the “Produce The Note” strategy. Borrowers are putting this plan into action and getting results!  Consumer Warning Network Featured on CNN

   THE LATEST: Borrower wins more time to fight foreclosure! At a court hearing Tuesday, a Pinellas County, Florida Judge denied Wachovia the right to proceed with its foreclosure against borrower Jacqueline O’Brien (profiled in the CNN story).  Instead, O’Brien was granted a continuance, as she pursues the produce the note strategy.  Wachovia expressed interest in renegotiating the terms of the loan, rather than continuing the court battle. 

• Fight Foreclosure: Make ‘Em Produce the Note!
• “Produce the Note” - 3 Little Words to Save Your Home
• Learn how to use “Produce the Note” to Save Your Home
• Fight Foreclosure: Make ‘Em Produce the Note
• Success Fighting Foreclosure with Produce the Note
• What if Your Lender CAN’T Produce the Note?

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Foreclosure Procedures by State

http://www.all-foreclosure.com/procedures.htm


This is a general guide only, laws change and you need to check your state statutes for
accurate, up to date procedures.   Foreclosure type will most often be either
judicial or non-judical, if you have a specific question about a state process, you can
ask it on the discussion board.   Months to foreclose include the legal minimum
required and the probable time length once foreclosure has begun.  Deficiency
judgments are available in some states if the lender loses money through the foreclosure
process, if it is not practical for the lender to enforce a judgment, it will be
listed.  Homeowner redemption after foreclosure is possible in some states, the time
periods are listed where available.

STATE TYPE OF

FORECLOSURE

 MONTHS

TO FORECLOSE


MINIMUM/EXPECTED
 DEFICIENCY

JUDGMENT

 REDEMPTION

PERIOD

 
Alabama Primarily

Non-Judicial

 1/3 Possible and

Practical

 12 Months
-----------------------
Alaska Both 3/4 Not Practical None

 
Arizona Both 3/4 Not Practical None

 
Arkansas Both 4/5 Possible and

Practical

 None
California Primarily

Non-Judicial

 4/4 Not Practical None
Colorado Both 2/5 Possible and

Practical

 75 Days
Connecticut Judicial/Strict 5/6 Possible and

Practical

 None
Delaware Judicial 3/7 Possible and

Practical

 None
District of

Columbia

 Non-Judicial 2/4 Possible and

Practical

 None
Florida Judicial 5/5 Possible and

Practical

 None
Georgia Primarily

Non-Judicial

 2/2 Possible and

Practical

 None
Hawaii Primarily

Non-Judicial

 3/4 Not Practical None
Idaho Non-Judicial 5/6 Possible and

Practical

 None
Illinois Judicial 7/10 Possible and

Practical

 None
Indiana Judicial 5/7 Possible and

Practical

 3 Months
Iowa Both 5/6 Not Practical 6 Months,

if judicial

 
Kansas Judicial 4/4 Possible and

Practical

 6-12 Months
Kentucky Judicial 6/5 Possible and

Practical

 None
Louisiana Judicial 2/6 Possible and

Practical

 None
Maine Primarily Judicial 6/10 Possible and

Practical

 None
Maryland Judicial 2/2 Possible and

Practical

 None
Massachusetts Non-Judicial 3/4 Possible and

Practical

 None
Michigan Both 2/2 Possible and

Practical

 6 Months
Minnesota Both 2/3 Not Practical 6 Months

 
Mississippi Primarily

Non-Judicial

 2/3 Possible and

Practical

 None
Missouri Primarily

Non-Judicial

 2/2 Possible and

Practical

 None
Montana Primarily

Non-Judicial

 5/5 Not Practical None
Nebraska Judicial 5/6 Possible and

Practical

 None
Nevada Primarily

Non-Judicial

 4/4 Possible and

Practical

 None
New Hampshire Primarily

Non-Judicial

 2/3 Possible and

Practical

 None
New Jersey Judicial 3/10 Possible and

Practical

 10 Days
New Mexico Judicial 4/6 Possible and

Practical

 None
New York Judicial 4/8 Possible and

Practical

 None
North Carolina Non-Judicial 2/4 Possible and

Practical

 None
North Dakota Judicial 3/5 Not Possible 60 Days

 
Ohio Judicial 5/7 Possible and

Practical

 None
Oklahoma Primarily Judicial 4/7 Possible and

Practical

 None
Oregon Non-Judicial 5/5 Not Practical None

 
Pennsylvania Judicial 3/9 Not Practical None

 
Rhode Island Both 2/3 Possible and

Practical

 None
South Carolina Judicial 6/6 Not Practical None

 
Tennessee Non-Judicial 2/2 Possible and

Practical

 None
Texas Non-Judicial 2/2 Possible and

Practical

 None
Utah Both 4/5 Possible and

Practical

 None
Vermont Both 7/10 Possible and

Practical

 None
Virginia Non-Judicial 2/2 Possible and

Practical

 None
Washington Non-Judicial 4/5 Not Practical None

 
West Virginia Non-Judicial 2/2 Possible and

Practical

 None
Wisconsin Judicial varies/10 Not Practical None

 
Wyoming Non-Judicial 2/3 Possible and

Practical

 3 Months
 

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What if Your Lender CAN’T Produce the Note?
March 10, 2009
By Terry Smiljanich:

A growing number of homeowners around the country are using a foreclosure defense the Consumer Warning Network first told you about in June of last year.  It’s called “Produce the Note,” and we want you to know this is not a mere technicality that should be treated lightly by the lender or by the Court.

Everyone needs to understand the importance of the issue. When a lender can’t “produce the note,” allowing a foreclosure to proceed puts the homeowner at risk of owing that debt again to another party.  So great caution must be taken before a judge can allow someone who can’t “produce the note” to cash in on your home.

Can’t Produce the Note - What Happens?
So, what happens when the lender tells the Court it can’t produce the original note, because it is lost?


Let’s start with the basics. If a lender wants to foreclose on a property, it has to be able to show that it is, in fact, the appropriate person to whom the money is owed. That right to foreclose belongs ONLY to the person who has legitimate POSSESSION OF THE ORIGINAL NOTE - not a copy, not an electronic entry, but the original note itself with the signature of the person who allegedly owes the money.

So if you are faced with a foreclosure, you have every right to demand that the person trying to take your property, first, prove to the Court that it has possession of the original promissory note.

What the Lender Must Do
What often happens, however, is that the lender claims it doesn’t have the original note, because that note has been lost or destroyed. What does the law require the lender to prove?

The “Uniform Commercial Code” is a set of laws governing 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. 


http://www.law.cornell.edu/ucc/3/article3.htm



All of the following must be proven:

1.The person has to claim that it no longer has the original note;
2.The person has to prove that it was properly in possession of the note and entitled to enforce it WHEN it lost possession of the note;
3.The person has to prove it didn’t “lose” possession simply because it transferred the note to someone else (i.e., it’s not really lost); and
4.The person 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.
All of these matters have to be proven by the person trying to foreclose on the property. It is not the obligation of the borrower to prove or disprove any of this.  The borrower can challenge the right of the person trying to foreclose and demand proof.

The Court’s Important Role
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, the foreclosure cannot proceed.

It is also important for the Court itself to understand that this is not merely a “technicality,” and the judge should not be satisfied with anything less than full proof of this issue. 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 the borrower who is still at risk.

Why? Because incredibly, even if a Court has found that the original note is lost and the foreclosure sale is finalized, if someone later turns up with the original note and proves that it is the proper holder of the note, and not the person who foreclosed on the property, the original borrower is STILL LIABLE.

That’s right. Someone took your home, and the Court allowed it because it believed that the lender proved that the note was lost and it was the proper party. Then someone legitimate shows up with the actual note and you still owe that person the money even though your property was taken with the blessing of the Court. How fair is that!

If you ever find yourself in Court without a lawyer, be sure to bring all of this to the attention of the judge. It might help open the Court’s eyes to the care with which everyone should proceed.