(Technique Used to Stall Foreclosures)
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Many foreclosures are happening illegally. Institutions are attempting to foreclose without the legal right to do so.
Borrowers need to make sure that the institution attempting to foreclose is, in fact, the owner of the note. Borrowers should request the institution to "Produce the Note", meaning that they have to show they are the legal owner of the promissory note the Borrower signed at closing, promising to pay the debt. There is only one original note on the Borrower's mortgage that has the Borrower's signature and this is the document that proves the Borrower owes the debt.
The Borrower's goal is to make certain the institution attempting to foreclose actual owns the note. Without a challenge to the lender, the court will simply allow the foreclosure to proceed. Now, lenders (who are now servicing -- collecting money -- on the loans they made) are moving to foreclose on homeowners, and they actually do not have the proper paperwork to prove they have a right to foreclose.
Produce the Note Procedure to request Servicer/Lender to produce the note:
***Note!: If you are in a non-judicial state such as Georgia, California, or Nevada, look below FIRST for What to do if you are in a non-judicial state before following the steps immediately below.
A. If your lender has already filed suit to foreclose on your home:
- Fill in the blanks on this form Legal Request (Word format) (PDF format) 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 (Word Format) (PDF Format) with the court and request that the court set a hearing on your motion. This action 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. They are holding the lender to the law, requiring them to produce evidence that they are the true owners of the note.
IMPORTANT: When you get a copy of the foreclosure suit, many lenders now automatically include verbage like this “…the Mortgage note has either been lost or destroyed and the Plaintiff is unable to state the manner in which this occurred.” See example. This is an admission that they do not have the note that proves they have a right to foreclose.
A common thread which is emerging in foreclosure cases is the claim of the plaintiff (a/k/a the “foreclosing party”) that they have “lost the note and/or mortgage”. In such a case, the foreclosing party may file a Affidavit as to the lost note and mortgage in an attempt to cure the material defect of proof of ownership and production of the original note and mortgage. Borrowers should rigorously challenge this based on what is being discovered in case after case: that the “plaintiff” does not and never had the original note OR mortgage, which was probably sold or assigned more than once and may today be somewhere in the Cayman Islands as part of a specialized investment vehicle.
If this does in fact occur, several defenses should be considered. These “affirmative defenses” can be asserted, provided they are asserted in good faith:
1. Upon information and belief, the mortgage note has been paid in whole or in part by one or more undisclosed third party(ies) who, prior to or contemporaneously with the closing on the “loan”, paid the originating lender in exchange for certain unrecorded rights to the revenues arising out of the loan documents.
2. Upon information and belief and in connection with the matters the subject of paragraph “1” above, Plaintiff (foreclosing party) has no financial interest in the note or mortgage.
3. Upon information and belief, the original note was destroyed or was transferred to a structured investment vehicle which may be located offshore, which also has no interest in the note or mortgage or revenue thereunder.
4. Upon information and belief, the revenue stream deriving from the note and mortgage was eviscerated upon one or more assignments of the note and mortgage to third parties and parsing of obligations as part of the securitization process, some of whom were joined as co-obligors and co-obligees in connection with the closing.
5. To the extent that Plaintiff has been paid on the underlying obligation or has no legal interest therein or in the note or mortgage, or does not have lawful possession of the note or mortgage, Plaintiff’s allegations of possession and capacity to institute foreclosure constitute a fraud upon the court.
6. Based upon one or more of the affirmative defenses set forth above, Defendant (borrower’s name) is entitled to a release and satisfaction of the note and mortgage and dismissal of the foreclosure claim with prejudice.
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.
B. If you are in default, but your lender/servicer has not yet filed suit against you:
- Fill in the blanks of this Letter to the Lender (Word format) (PDF format). This letter requests that the Lender/Servicer 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 in (A) above.
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What to do if you are in a non-judicial state.
In a state with non-judicial foreclosure procedures, a foreclosure sale can be initiated by the lender without using court proceedings. Homeowners receive a “Notice of Intent” letter informing them that a foreclosure sale will be scheduled unless the overdue debt is paid within a certain amount of time. If the debt is not paid accordingly, a “Notice of Sale” is then sent informing the homeowner that a foreclosure sale will take place at a particular time and place. No lawsuit is ever initiated by the lender and the courts are not involved.
In a non-judicial foreclosure state, in order be able to request that the lender “produce the note,” it is necessary for you to first actually file your own lawsuit. Even in such non-judicial foreclosure states, no law prohibits you from instituting your own lawsuit challenging the right of a lender to foreclose on your property. The lawsuit would allege that:
1. the lender has sent a Notice of Intent to Foreclose;
2. the homeowner is unsure as to whether the lender still possesses the original debt instrument, upon which the lender claims the right to foreclose;
3. the homeowner wants proof of such authority; and
4. the court should intervene and prevent the foreclosure from taking place unless and until such proof is presented.
Note: Initiating litigation to protect your rights is usually not a simple process. One Borrower from Alabama (non-judicial state), however, did report that he had followed the following process successfully - in one day - and received a 45 day stay immediately, just one day before foreclosure.
One Borrower's experience:
1. Went to the Circuit Court and obtained a hardship affidavit. This allowed me not to pay the $315 filling fee upfront, but it will be required at the end of the case. The affidavit has to be signed by a Notary and signed by a Judge.
2. Filed a Complaint to Enjoin (Stop) Sale.
3. The Complaint was filed, and given a case number.
4. Had to get an Emergency Order to stop Foreclosure Sale and get the Judge to sign it.
5. Faxed the signed Order to the Servicer's lawyer and the sale was stopped.
Important: Requirements as to what must be contained in a pleading, how the facts must be pled, who should be named in the pleading, and how the pleading should be officially “served” on the lender, all differ from state to state.
Once a lawsuit is initiated, however, all states have judicial procedures that allow a party to require the other side to produce relevant documents, and the "Produce the Note" Strategy (see above) can be used.
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.
Getting involved in a lawsuit by representing yourself, especially if you file the lawsuit yourself, is not easy, but you can do it. Every citizen is able to represent themselves and file a lawsuit on their own. It’s called pro se, which means “on ones own behalf.”
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