Facing Foreclosure from the banks? Tell them to PRODUCE THE NOTE!!

I experienced a downside to this same issue in 1990.

I was transferred from Florida to Delaware and sold my Florida home. I bought a home in Delaware contingent upon my Florida home sale closing. It took 13 months for the mortgage company in Florida to produce the note for extinction.

I was forced to rent and gave up my offer on the Delaware home and instead just leased due to another expected transfer within another 16 months.

This made me liable for capital gains taxes.

I had little hope of legal recourse as the paper trail went through 2 then defunct mortgage companies and 3 others that had been consolidated or bought out by new holding corps.

This sort of took the shine from any appreciation in value.

It would seem to hold some justice if some paper buyers and bundlers had to unravel some of their own spaghetti orgy. imho.

I'm an attorney and i just couldn't resist making a few comments on this thread.

First, the fact that a lender can't produce a Note is not necessarily going to prevent a foreclosure. The foreclosure is based upon the mortgage, not the Note. Within a foreclosure proceeding (at least in the jurisdiction where I practice) there is simply no forum in which to raise the question of the existence or non-existence of the Note. So, you would most likely have to bring a separate action to stop the foreclosure and challenge the lawfulness of foreclosure action.

On the other hand, I have seen the challenge to the Note tactic utilized successfully in the context of challenging a deficiency judgment, but in that case you have already lost your home and the lender is only suing for the balance due after the foreclosure sale. And that is a different situation entirely.

I agree that typically, there is presumption that the Note is valid if the lender can produce the original document. However, the existence of the Note can be proved in other ways, such as with bank records or by affidavits.

Without getting too technical, the lender can seek a deficiency judgment based upon the contract (the Note), in which case the failure to produce the Note may bar recovery, but there are other legal basis which have nothing to do with the Note which may entitle the lender to recover, such as unjust enrichment, constructive trust, resulting trust, etc. which have nothing to with the existence of the Note.

In any event, I have never seen it prevent a foreclosure sale, although I agree it may work to delay it. I have also seen it work in credit card actions, where the lender could not produce the CC agreement on the day of trial.

The simple truth is, that if you are facing foreclosure, you should get competent, local, legal advice. Bankruptcy may delay or prevent foreclosure.

Cheers.

Originally posted by jerico65
I saw this story with the title, "Three words to stop foreclosure" and the only three I could think of were, "I gotta gun!"

It does not stop foreclosure, it only delays it till they can come up with the note, but anything is better than nothing.

If people can delay long enough till they get a job then things will get better.


Good luck to anyone in this situation my thoughts and prayers are with you.

[edit on 24-2-2009 by Realtruth]

Originally posted by Jnewell33
what happens if the company simply cannot produce the note. I understand this is unlikely but what if, you know. very interesting to say the least.

Contract is Void, as there is no signed contract that states you in fact owe anyone anything.

More then likely, 99% of the times, the notes are at the bank's headquarters, lost in the shuffle.. and eventually someone will locate it. Though I agree, that if you Mortgage was sold many times, and some of the companies have gone bankrupt.. there's a good chance it was lost. Now, if you stop paying your Mortgage for a year while they produce the Note, I don't know what will happen when they come back waving it in your face. Probably throw you out just for spite.

Banks keep digital files of things now, with their location in hard copy form on the digital copy.. but having dealt with some of the mazes of filing cabinets, boxes, and having the most peculiar documents vanish, I would say you have a good chance at staying in your home if your mortgage has been sold multiple times.

reply to post by spinkyboo


This is America. Most of these people that are in sad shape have no one to blame but themselves. Yes, people at the top are to blame for investing in these losers but it's in no way my fault so I have no problem calling a spade a spade.

I have no credit cards, I have a 2002 paid off Jeep that I was the original owner on and I have my home. I am not in debt like these idiots that can't read. I have no compassion for those that would expect me to pay for their mistakes.

Move out of the home and go rent because that is exactly what you are if you can't pay your mortgage.

Why is it that this is being encouraged? It's like this thread tells people to screw their fellow tax payer and wear that as a badge of honor. Do you know that is stealing from the people like me who actually played by the rules? And this thread laughs in the face of people like me?

I am supposed to feel sorry for these people? I don't and I never will.

reply to post by ANNED


Hello ANNED,

Just FYI, bimonthly payments actually means that you pay every two weeks. Thus you would make24 payments per year.

Originally posted by loam
reply to post by northof8

 

Originally posted by northof8
People like this need to be taken out of their homes and flogged period.

Why punish only one side?

Both ends suffer from delusions of entitlement...

When wrong-doers attack one another, I'm not sure I ever pick a side to cheer. Do any of you?

[edit on 24-2-2009 by loam]

Who exactly are the wrong doers? No one is entitled to a home in this country. You must actually work for a living and actually be able to read a contract if you are signing it.

Just because you are too stupid to read a contract and would rather have a flat screen tv and a new Caddy doesn't mean people like me that don't have those things must pay your debt.

When you take something that's not yours that's called stealing. That's how wars are started. Personally I am sick of the lowlifes in this country that whine how they are losing their home when they spent like it was free when they should have been saving like the very few of us did.

I find is disgusting that people would expect the government (people like me) to bail them out of their own mess. Isn't that what your parents are for? Grow up and get another job if you can't pay your bills. I don't owe you a thing and yet you ask me to pay? I say go jump off a cliff you low life loser....

Edit to Add: Not you personally Loam... Just those that would ask me to pay their debt...

[edit on 24-2-2009 by northof8]

I know someone who hasn't paid there mortage since 2000 and the bank can't foreclose because they can't find the note.

Rather than not paying your loan, you could use this to get the bank to agree to more managable terms.

reply to post by northof8


M'kay. Check.

Careless consumers are scum.

What I am also saying is careless institutions are scum too.

You blame only half of the equation.

I blame both halves.



[edit on 24-2-2009 by loam]

Originally posted by loam
reply to post by northof8

 

M'kay. Check.

Careless consumers are scum.

What I am also saying is careless institutions are scum too.

You blame only half of the equation. I blame both halves.

I agree but the theme of the thread is screw the banks if you can and guess what? We all pay for that, not just the banks. The theme here is it's OK to tell the bank to screw off if you can't pay your note.

I don't understand that kind of thinking. This wave of default on debt will destroy a generation of people if not the country.

I would bet these are the same people we will see standing in bread lines or killing their neighbors for food if things really go side ways. Then they will justify it and say those they killed didn't deserve what they had.

Its almost like we have an Atlas Shrugged scenario brewing here. I say Who's John Gault?

Originally posted by northof8
Its almost like we have an Atlas Shrugged scenario brewing here.

Did you think otherwise?

Life imitating art.

You may have missed my signature. Check the link.


[edit on 24-2-2009 by loam]

reply to post by loam


I didn't even notice your signature until just now... You are student as well huh?

Anyway, here is a question for the "free Note Takers." Even if the banks are immoral in your opinion and have lost your note do you not find what you are doing just as immoral?

Getting something for nothing is very nice, well and good for someone with an evil mind don't you think?

This country is being destroyed by people that think like you. You can't even think about our future generation of Americans. We are the ancestors of a people that will judge us as the most irresponsible generation that ever lived. What a sad legacy you people are leaving...

I dont understand all the anger in these posts. For the bank to produce the note is the law and they have to do it if they are asked. Why get mad about it?

Originally posted by northof8
reply to post by spinkyboo

 

This is America. Most of these people that are in sad shape have no one to blame but themselves. Yes, people at the top are to blame for investing in these losers but it's in no way my fault so I have no problem calling a spade a spade.

I have no credit cards, I have a 2002 paid off Jeep that I was the original owner on and I have my home. I am not in debt like these idiots that can't read. I have no compassion for those that would expect me to pay for their mistakes.

Move out of the home and go rent because that is exactly what you are if you can't pay your mortgage.

Why is it that this is being encouraged? It's like this thread tells people to screw their fellow tax payer and wear that as a badge of honor. Do you know that is stealing from the people like me who actually played by the rules? And this thread laughs in the face of people like me?

I am supposed to feel sorry for these people? I don't and I never will.

Hear, hear! I'm so sick of this lack of personal responsibility, and deadbeats trying to find ways to beat the system, while costing other people money. These people should never have taken out mortgages on homes they couldn't afford, and should be renters.

Originally posted by northof8
reply to post by spinkyboo

 

This is America. Most of these people that are in sad shape have no one to blame but themselves. Yes, people at the top are to blame for investing in these losers but it's in no way my fault so I have no problem calling a spade a spade.

I have no credit cards, I have a 2002 paid off Jeep that I was the original owner on and I have my home. I am not in debt like these idiots that can't read. I have no compassion for those that would expect me to pay for their mistakes.

Move out of the home and go rent because that is exactly what you are if you can't pay your mortgage.

Why is it that this is being encouraged? It's like this thread tells people to screw their fellow tax payer and wear that as a badge of honor. Do you know that is stealing from the people like me who actually played by the rules? And this thread laughs in the face of people like me?

I am supposed to feel sorry for these people? I don't and I never will.

Hear, hear! I'm so sick of this lack of personal responsibility, and deadbeats trying to find ways to beat the system, while costing other people money. These people should never have taken out mortgages on homes they couldn't afford, and should be renters.

Originally posted by crw2006
I dont understand all the anger in these posts. For the bank to produce the note is the law and they have to do it if they are asked. Why get mad about it?

Sure, the bank must produce the note but dose that mean if they don't you should get the house for free? Who pays on the loss? The tax payer... That's where the anger comes from.

These people know they own the money, they have a loan number and they should pay or get out. Just because the bank can't produce the note doesn't mean the loan isn't on their books..

It's just evil to say you should get the house for free because the bank can't produce the note. Why not just come by my house and pick up a check for a grand or so? In the end its the same damn thing....

God bless you, BlackOps, for sharing the fact of the legality of the note. It's a simple fact, the note must be produced.

Originally posted by Rockpuck

Originally posted by Jnewell33
what happens if the company simply cannot produce the note. I understand this is unlikely but what if, you know. very interesting to say the least.

Contract is Void, as there is no signed contract that states you in fact owe anyone anything.

There have already been some lawsuits (prior to this mess) over whether the lender had to produce the note. Usually the lender won. I think now its going to depend on how sympathetic the judge is.



www.judicial.state.ia.us...

IN THE COURT OF APPEALS OF IOWA
No. 4-561 / 02-1889
Filed September 9, 2004
CHASE MANHATTEN MORTGAGE CORPORATION,
Plaintiff-Appellee,
vs.
LYNN E. GOODRICH and LEANA M. GOODRICH,
Defendants-Appellants,
HOME FEDERAL SAVINGS BANK, U.S. BANK, NATIONAL ASSOCIATION, and GENERAL SERVICE BUREAU, INC.,
Defendants.
III. Discussion.
Several of the separate contentions articulated by the Goodriches posit that the summary judgment record was insufficient to support the summary judgment and decree of foreclosure. Central to these contentions is the mistaken notion that a judgment of foreclosure could not be entered because Chase failed to produce the original of the promissory note. Iowa Rule of Civil Procedure 1.961 contemplates that judgment on a note may be entered without production of the original note if the court so orders. The district court did by order authorize the foreclosure despite Chase's failure to produce the original note. Thus, we conclude the summary judgment record was not insufficient to support the judgment of foreclosure despite Chase's failure to produce the original of the note. Our resolution of this issue is strongly influenced by the fact that the Goodriches make no contention that either Chase's Lost Note Affidavit or the foreclosure decree misstated any term of the promissory note.
The Goodriches further contend the original promissory note found after entry of the judgment of foreclosure constitutes newly discovered evidence which they have not had an opportunity to inspect for authenticity. The court record discloses the note was filed by Chase and thereby made available for inspection after the judgment was entered. We find it significant that the Goodriches acknowledge they have not availed themselves of the opportunity to examine the document even after it was made part of the court file in this case. As noted above, they make no argument that the terms stated in the original note differ from the terms of the contract found by the district court. Accordingly, even if the original note could be viewed as newly discovered evidence, the district court did not abuse its discretion in determining that such evidence did not justify vacation of the judgment against the Goodriches.
The due process claim asserted by the Goodriches is also without merit. When they withdrew their resistance to the motion for summary judgment, they waived any claims that the nature and quality of the evidence produced by Chase failed to adequately support the judgment against them. Included among the claims thus waived is the claim that the Goodriches were entitled to cross-examine a witness called by Chase to testify.
We have reviewed all other arguments and claims raised on appeal by the Goodriches and find they were waived or without merit.
AFFIRMED.

Originally posted by BlackOps719
reply to post by Jnewell33

 

Well Im not positive on this, but if a bank cant prove that you owe them any money then it would be awful difficult for them to take the house back.


It goes like this - Bank - "Hey, you owe us $200,000"

Customer - "Prove it"

Bank - " Oh crap, we can't"

Customer - "See ya in court then"

Yeah I think this is where that "possession is 9/10 of the law" thing goes...

reply to post by northof8


Perhaps you should be complaining about your Government insisting on giving money to the banks, and not the "idiots". The Government is not really helping anyone stay in their house.. just compensating banks for lost income under a disguise. Good job managing your debts though,