Home Loans and Support

Making them produce the note--when to do it?

Discussion in 'Foreclosure Prevention Services' started by ManicMangaManiac, Feb 22, 2009.

  1. ManicMangaManiac

    ManicMangaManiac LoanSafe Member

    Hi everyone,

    This is the current situation I have: I have OOMC/AHMSI as my lender and Wells Fargo the trustee, and a judicial hearing on the matter March 30th. I've been doing research this afternoon to find ways to defend my home and found that in quite a few cases, the lender could not produce the original blue ink note, in which case the judge threw out the plaintiff's case.

    This is what I'm going to do.. but when would be the best time to send that demand notice? My understanding is that the lender has thirty days to produce it. I was thinking maybe waiting until the 15th of March to do it and therefore force them to produce it with only two weeks' notice or something to that effect prior to the court date. In other words, forcing them to scramble. What do you people think?

    Also, how do I find out who my investor is? I understand that in a lot of cases lenders sell loans in mortgage pools and that the party who wrote the loan is no longer the party who is alleging ownership. Those acquiring the loans don't have legal standing to bring action for foreclosure in the first place, if certain formal legal requirements were not followed. As a result, courts are dismissing those foreclosure actions which means there is no party who can actually foreclose on the home.

    Sooooo, how do I find out if my loan got shuffled around in this cesspool? And last but not least, just what the heck is Wells Fargo's role in all this as trustee??

    Thanks for your help and God bless!
    Sally

    Sally
  2. ManicMangaManiac

    ManicMangaManiac LoanSafe Member

    Oh and another thing... my lawyer, who is representing me, has told me in this case that I have no legal defense at all since I haven't made the payments (how could I, when my lender set the payments to be almost 100% of my take-home pay??), even though my mortgage is clearly a predatory one (falsified income, huge balloon payment, excessive broker fees, at least one TILA violation, etc., etc.). Is he right about that, or is he just sitting on his hands? I have a very strong feeling it's the latter. He's a bankruptcy lawyer by practice.....
  3. Dan Bailey

    Dan Bailey Senior Member

    Sally,
    Due to electronic processing , etc....the inability to produce those papers is not a magic bullet.
    People who have been successful in that vein have either devoted years of their lives acting as their own attorney, to the point of making it a full time job, or have invested much money in attorney fees, and many years. To the point where the fees have gone almost as high as what was owed on the home.

    No-one here can give you legal advice, that is what your attorney is paid for.
  4. ManicMangaManiac

    ManicMangaManiac LoanSafe Member

    That might be true, Dan, but that's not gonna stop me from doing it. I am not going to roll over and let those SOBs take my house away, so I'm going to pull out all the stops to hold on to it every which way I can and that includes forcing them to produce the original note.

    And another thing about my attorney: my mortgage is a refinance on a principal residence, which I inherited from my mother. There is at least one TILA violation in my case which gives me three years to rescind the loan; I closed on it December of '06, so the recission period is in force till December of this year. When I floated it past my lawyer, he said, "It's too late to rescind the loan." Does that sound like a lawyer who knows what he's doing?? I think not.

    Anyway, I still need to know when's a good time to make that demand to produce the note? Thirty days before the court date or two weeks or what?
    Sally
  5. whatsinaname

    whatsinaname Guest

    I want to do it, too, and while I located a sample QWR letter, it's Greek to me and I don't know what to put in it.
  6. kateistired

    kateistired LoanSafe Member

    I have heard about this too.....It is my understanding that this is a stall tactic at best. Is that your intent? I think it may be able to buy you more time, but eventually they will produce it. I don't think they (judges, mortgage companies) will just allow anyone to stay in a home indefinitely that they are not paying on, just because they only have a copy of the mortgage contract. I could be wrong :)
  7. Walking Away

    Walking Away LoanSafe Member

    Hi ManicManga; I'd recommend a good foreclosure attorney for this kind of legal matter. Maybe I'm wrong, but I think you'd have a better chance of winning in court with the "find the note" arguement; if you have a strong attorney. Good luck
  8. ManicMangaManiac

    ManicMangaManiac LoanSafe Member

    Folks,
    From what I've been reading, a COPY of the note is not going to be good enough for the court for the plaintiff to prove that they have the right to foreclose on the borrower. It has to be the ORIGINAL blue ink copy--no electronic copies or anything like that; it has to be the original and the original only.

    Walking Away, this strategy doesn't even require an attorney. All you have to do is fill out the form and file it with the court clerk in your county and they will serve it on the plaintiff's attorney.

    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 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. 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.

  9. rose450

    rose450 LoanSafe Member

    Thanks for such a great post concerning "produce the note."
    I just sent copies of that letter to my mortgage companies. I got all back within the time frame, but all were copies. Obvious that they were electronically generated. However, I must admit I don't know how they would send the original to you. I would send a copy if it were my mtg. business. Anyway, just to let you know...Countrywide did not respond. Sent a letter at the very last day saying they would get back to me. I also sent a wonderful QWR out. Found it online, an abbreviation of one from an attorney. After the QWR certified letters were gone, and had time to be acknowledged in-house, I got a foreclosure notice from COUNTRYWIDE!!
    I know they do not have my paperwork!!! So I am heading to the court in my county and seeing if I can get a hold (they can do this in GA in 30 days)
    The truth is this is a rental, I really cannot sell it and am upside down on the loan. It could easily be let go. It just irritates me that they are doing this, trying to roll over us because they do not have the legal right to do so, and they want this to go through fast before we can stop them. Make sure you have a plan for what you will do in a case like this. I am mad now, and am not going to roll over and let them do this to us!!
    rose450
  10. whatsinaname

    whatsinaname Guest

    Some courts accept copies, though, for foreclosure.
  11. Walking Away

    Walking Away LoanSafe Member

    Hey Manic Manga: I find this very interesting. Where I live; the strength of the attorney is everything with our judges; so I'd never try this on my own(I'm awful in a court room anyway; without an attorney). Just my opinion here, but unfortunately; I think for most courts and judges, the odds of winning are improved with a good foreclosure/BK attorney. The go alone route is usually a tough one. Thanx a lot for posting this Manic.
  12. Marc G.

    Marc G. LoanSafe Member

    From what I understand this is a process that can only delay the foreclosure, although I would love to see a positive outcome.
  13. ManicMangaManiac

    ManicMangaManiac LoanSafe Member

    Unfortunately, my strategy backfired here :-( I just sent the demand to produce the note to the plaintiff's attorneys last week, and I got a scolding from my own attorney for doing so (whom I feel is next to useless). Not only that, but he told me that the judge stated he would allow copies of the note to be introduced into court. How fair is that, if Wells Fraudgo doesn't have actual possession of the note and therefore can't prove it has the right to foreclose???

    I'm really steamed about this. ARRRRRRGGGH
    Sally
  14. Walking Away

    Walking Away LoanSafe Member

    Hey Manic Manga; sorry to hear this didn't work. But opefully court goes okay anyway and you get foreclosure delayed. I think a lot of legal stuff depends mostly on each individual judge; and not always the actual law. But maybe the judge surprises you and gives you time to work with lender or something
  15. melissasue44

    melissasue44 LoanSafe Member


    Hello! I was wondering why your lawyer got mad at you for doing this?
    I have been going through some similar issues, I wanted my lawyer (Bankruptsy) to help me in the show me the note process and he said that he did not know if it would be worth it or not.
    Well the way I see it what have we got to lose!!
  16. kerri38846

    kerri38846 LoanSafe Member

    Who is your attorney working for??

    So, who is your attorney working for, you or the judge.
    A bank has no 'standing' to foreclose on you without the original note- unless you and your lawyer allow them to.

    If the judge allows the foreclosure to proceed with a copy if you've requested the original note in order to prove standing, then the judge is 'making law' which he cannot do- and he is violating your rights.

    You DO have rights and the law is on your side to force the banks to produce the note.
  17. ggod7red

    ggod7red Banned

    So, I understand the "produce the note" method of verifying all the loan documents, but I am not understanding, when to ask for it. Do you ask for it before you file Motion to Dismiss or Answer, or do you file it later on, in some Discovery phase. I am not grasping the place to seek this original and what it does to a foreclosure case, OK< Thanks for listening, hope you can assist me, DR
  18. djdavisla

    djdavisla LoanSafe Member

    please help.........does anyone know who to escalate call to at saxon? a corporate office? or something, I have a shitty loan mod, they had $30k of my money and wanted $20,000 more, I said i would need time to get that and they have cancelled my loan mod as of july 27th 2011 now sale is this friday august 5th 2011
  19. Coloradofury

    Coloradofury LoanSafe Member

    Does the original note remain on a modified loan?

    Curious, for those who have gone through a modification and find themselves in the boat again, does the demand for note refer to the original or has that also been modified creating a new one (and thus easier for the bank to locate)?

    Also hoping someone might be able to address the original question above as to when the best time to demand the note actually is?

    Thanks
  20. fightforit

    fightforit LoanSafe Member

    When you receive the 30 day debt validation letter from the foreclosure attorney send a certified letter back demanding a meeting to see your Wet ink Note that proves the bank that is trying to foreclose is the true holder. It is your right under law. No copies. The original showing all assignments. Send copies of that letter to the Bank and your AG.

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