What happens when a lender can’t produce the original note?

By
Education & Training with Law Offices of James M. Bosco & Associates
http://actvra.in/Bgd

*Please see the note on the bottom of this post for an updated comment.

A growing number of homeowners around the country are using a foreclosure defense that may help them retain their homes. It’s called “Produce the Note” (as also being jointly advocated by Terry Smiljanich and The Consumer Warning Network) and we want you to know this is not a mere technicality that should be treated lightly by mortgage lenders or by the Courts.

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

What if Your Lender CAN’T Produce the Note?

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 original signature of the person(s) who allegedly owes the money along with appropriate raised notary seal and signature. So, if you are faced with a foreclosure, you have every right to demand that the person or entity trying to take your property, first prove to the Court that they have the legal right do to so in the first place by proving they have legal possession of the original promissory note.

In my opinion, an original mortgage note is much like legal tender and should be guarded and protected as such by the person holding such an asset. Loosing an original mortgage note is like loosing a $100 bill or a gift card or a lottery ticket. What if I scratched that million dollar ticket and just stuck it somewhere and misplaced it? Do you think I could just show up at lottery headquarters and claim my prize without having the winning ticket? The same principle applies to the person or entity claiming to be the legal holder of an original mortgage note. He who holds the note holds the key.

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. If the lender is making such a claim, the law requires the lender to prove all of the following under the “Uniform Commercial Code”, which is a set of laws governing commercial transactions that many states 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.

1. The person or entity has to swear and attest that it no longer has the original note;
2. The person or entity has to prove that it was properly in possession of the note and was entitled to enforce it WHEN it lost possession of the note;
3. The person or entity 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 or entity 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 definitively proven by the person or entity 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 or entity trying to foreclose and demand proof.

The Court’s Important Role

It is up to the Court to determine whether the lender has satisfactorily proven 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 issue is not merely a “technicality” and the judge should not be satisfied with anything less than full proof of this issue. The Court itself needs to appreciate the fact that if it should agree that an original note has been legitimately lost (and allows the foreclosure to proceed) 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 in the future with the actual note and you still owe that person the money even though your property was taken with the blessing of the Court. Trust me, this is a very serious issue regarding post foreclosures and post pre-foreclosure short-sales. It has happened to three of our own clients! These homeowners had the need to sell their property by means of a negotiated short-sale (so they could avoid a foreclosure) only to find out that the entity claiming to have the legal right and authority to enter into such negotiations and accept such settlements sold their note to another entity and weren’t even aware of it. Several months later, the newly assigned lenders (now claiming to be the rightful owners of our client’s original notes) have since come forward and have also filed suite seeking to recover their entire outstanding principle balances owed to them (prior to the homeowners closing their short-sale transactions with the wrong note holders).

How fair is that?!?! It’s not! And that’s why homeowners need to start fighting back when someone is trying to take their home by foreclosure, especially since an overwhelming percentage of mortgages granted over the last 3 to 5 years have been packaged into securities and re-sold and re-assigned numerous times since the inception of the borrower's original note and mortgage. In some states, homeowners have better than a 50/50 chance of being successful in defending themselves against a completed foreclosure. Why wouldn’t anyone who owns a home do everything in their power to protect and defend it?

All the Best,

Rick D. Misitano, Senior Paralegal
Law Offices of James M. Bosco & Associates
Methuen Executive Park
240 Pleasant Street
Methuen, Massachusetts 01844
Phone: (978) 687-8804
Fax: (978) 687-8872
boscolaw@comcast.net

 

NOTE: Thank you all so much for the continued comments, questions and feedback regarding this important issue that is still very prevalent since I first published this post over 5 years ago!

I realize many people have posted questions regarding their own set of circumstances. My office receives countless numbers of phone calls and e-mails every single month from people all across the country seeking help. However, please keep in mind, our office is only licensed to practice law in the state of Massachusetts. 

With this in mind, please feel free to continue to contact me directly with your questions and concerns and I will be more than happy to send you additional detailed information that may be helpful to you. This also includes referrals to other law firms and consumer agencies across the country that also specialize with foreclosure defense and litigation. 

Please be sure to include the state your property is located in.

Feel free to contact me directly at rmisitano@comcast.net

All the Best,

Rick D. Misitano, Senior Paralegal

Law Offices of James M. Bosco & Associates

Methuen Executive Park

240 Pleasant Street

Methuen, Massachusetts 01844

Phone: (978) 687-8804 Ext. 2

Fax:      (978) 687 8872

boscolaw@comcast.net

http://www.jamesboscolaw.com

 

 

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Topic:
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Tags:
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Anonymous
tom munger

I spoke with an attorney and he in formed me that they could foreclose without the original not. He said it depends on the judge. He said the judge will have copies of the note and ask me if I signed them. Some judges will uphold real estate law and some won't. He also asked if I had 20k to fight this. Any advice ewill be appreciated.

Jun 22, 2011 12:28 PM #120
Anonymous
Keith Kropp

It sounds like the attorney you consulted with works for the banks.  You need a good foreclosure defense attorney.  Chances are very good that the bank cannot produce the original note, or prove that it was properly transferred.  Why do you think there was such a scandal over the fraudulent documents produced by so many banks resulting in the famous "robo-signing" scandal last fall.  The banks are still trying to figure out how they are going to move forward from this point.  Note the lack of new foreclosures coming on the market.  According to a front page article in the NY Times on Sunday, it will take the State of New York 62 years to process the current backlog of foreclosures.   In states like Florida, where I live, they estimate it will take 10 years.  There are more and more rulings in favor of the homeowner by judges every day.  It will take time, but the tide is turning in favor of justice for the homeowner.  Don't give up.  Find an attorney who specializes in foreclosure defense.  You should be able to get a good referral for one on Neil Garfield's weblog at this link http://livinglies.wordpress.com/ .  It should not cost you 20K.  Many reliable attorneys are charging a very affordable monthly fee to handle your case.  Just make sure you find someone highly recommended and experienced.  Good luck!

Jun 22, 2011 04:47 PM #121
Anonymous
vickie

what happens in the case when the original mortgagee is merged another bank which later merged with yet another bank . the mortgage is being foreclosed on by the successor bank but that bank is clainming thatvthe note is lost?

Jul 14, 2011 05:27 AM #122
Rainer
333,262
Paul Gapski
Berkshire Hathaway / Prudential Ca Realty - El Cajon, CA
619-504-8999,#1 Resource SD Relo

yes they look so nice but Foreclosures are such tough on to stomach.

Oct 05, 2011 10:52 AM #123
Anonymous
Tina London

HI...I was hoping someone could shed some light...I foreclosed on my home in 20010.  Second morgage is claiming they will sue us if we do not settle on an amount with them.  The second mortgage was originally with GMAC and then sold/transferred to Green Tree Serviicing.  After numerous attempts to settle with Green Tree, I was sent a letter by an attorney once again ordering us to pay them.  The letter indicated a different bank owned the note (not GMAC or Green TRee).  I then sent them a letter asking for them to Validate the Debt.  They sent me a copy of our loan documents with GMAC which does not have this bank or Green Tree listed anywhere on the paperwork....I am guessing I need an attorney to fight this case but just want to know if they have legal standing to sue us....any help would be appreciated.

Apr 01, 2012 11:02 AM #124
Anonymous
dani

you all need to relax ,the courts and the judges not going to give you due process

and will try to put a way your argument [that you want to see the original wet note]

the judges are there to rubber stamp banksters fraud ,we have seen this playing in many

courts in america where judges ignore homebuyers and award homes to banksters

base on lies and storys,most courts do not force the lender to produce the note

the lenders shows copy of the note you people sign at closing[which they keep copys off]

but they do not show the real note that is out there in the stream of commerce after

being sold from bank to bank serval time. so while the information in this article is true

the courts are your enemy all they want to do is give your home to the banksters and move on to the

next foreclosure to clear their casses

Apr 25, 2012 05:43 AM #125
Anonymous
JLambert

Been trying to modify since 2010, judge ordered bank to produce original loan docs, bank withdrew foreclosure judgement 6/20102.  Upcoming court date 8/2012.  Bank approved verbal mod, then bank took it back, never got paperwork.  Rcvd docs from bank for ss/deed in lieu.  What should we do? 

Jul 12, 2012 03:09 PM #126
Anonymous
Queen

I helped my parents get a loan, the docs were incorrect, but the attorney advised to sign and bank would correct. A month later resigned with bank and not attorney. Few years ago parents wanted to take over loan, but could not. I was ill and they wanted to insure rights to the property. We did a quick claim with mortgage assigned to them. Loan changed banks several times. Got a letter, requesting I re-sign lost documents. a equitiy line, instead of a mortgage. I refused.

Wanted to refin the mortgage and found nothing ever filed with the county on second docs signed (lost). Original mortgage found with note that says Lost Mortgage Satisfication. received satisfication in full of the mortgage. I am getting a monthly statement for a credit line, which i never had. Bank says doesnt matter. But bank has no lein on property. Now, neither do I, since they allowed the quick claim to go through.

Now what do I do, they have NO docs, only a record of my payments. I just want the loan redone at lower rate. Parents want a reverse mortgage.

Aug 12, 2012 12:18 AM #128
Anonymous
Queen

Do I have any legal grounds for demanding, the loan be modified or reduced because they would not redo the loan before. I have been paying high rates.

Aug 12, 2012 12:38 AM #129
Anonymous
Linda Kaiser

I understand that in Michigan if you request from the lender to produce the note they have to do it within 30days of the request or they have no right to foreclose My lender produced 5 months later.   What is my recourse? 

Aug 13, 2012 05:44 PM #130
Anonymous
MS TEXAS

I have lived in  my home 19years ,,
I did a title _deed search,,,found ,Fleet Real Estate Leanding, Citi_America Mortag,American Mortage Securities, Ahmsi,
and Detsche Bank National Trust Co. May 2012,,,,,,,,,,  Detsche Bank National Trust Co. pleded guily Mortage Fraud..
May 2012,, the same month Detsche pleded guitly.. to fraud.( I get my mortage Bill and the name has change to HOMEWARD.. HOMEWARD IS NO ON MY TITLE SEARCH..

EVERY ONE .. EVERY ONE>> ON MY TITLE HASPLEAD >> GUITY TO _FRAUD_ AND OR HAS.. BANRUPT..

i PHONED  Homeward and ask who they were. that I do not know them... I asked them to send me prof.. of my NOTE AND that they have a right .. to sevice my loan... THE man on the phone said..they do not have my note.. I asked if he could tell me who has my note, the phone number and address, so I could see the note and make sure the papers and my siginture was.. not Fraud.
He gave the the corperated HOMEWARD... phone number, and adrres in TX, then he said we.  cannot guarentee you will see the note or that we have it.
I again asked if he could give me the infomation of the trestee or bank who has my note, I want to see it and make sure it is all is in order as  signed ,his reply was : " I cannot give you that information on the phone, I then asked if he would mail me information, he said he would.
I will see..

Sep 09, 2012 06:59 PM #131
Anonymous
MS TEXAS..

I have lived in my home 19years ,,
I did a title _deed search,,,found ,Fleet Real Estate Leanding, Citi_America Mortag,American Mortage Securities, Ahmsi,
and Detsche Bank National Trust Co. May 2012,,,,,,,,,, Detsche Bank National Trust Co. pleded guily Mortage Fraud..
May 2012,, the same month Detsche pleded guitly.. to fraud.( I get my mortage Bill and the name has change to HOMEWARD.. HOMEWARD IS NO ON MY TITLE SEARCH..

EVERY ONE .. EVERY ONE>> ON MY TITLE HASPLEAD >> GUITY TO _FRAUD_ AND OR HAS.. BANRUPT..

i PHONED Homeward and ask who they were. that I do not know them... I asked them to send me prof.. of my NOTE AND that they have a right .. to sevice my loan... THE man on the phone said..they do not have my note.. I asked if he could tell me who has my note, the phone number and address, so I could see the note and make sure the papers and my siginture was.. not Fraud.
He gave the the corperated HOMEWARD... phone number, and adrres in TX, then he said we. cannot guarentee you will see the note or that we have it.
I again asked if he could give me the infomation of the trestee or bank who has my note, I want to see it and make sure it is all is in order as signed ,his reply was : " I cannot give you that information on the phone, I then asked if he would mail me information, he said he would.
I will see..

CONTINUE........ should I do a quiet title.. deed..
<  it looks like to me I HAVE A LONG ASSIGMENT CHAIN... and more and likely my NOTE IS .... A GHOST..
AS MY TITLE_DEED IS ... A CHAIN OF FRAUD.. MORTAGE,TRUSTEE,, SERVERS........... ECT AND AND AND.. >
YES.. I do need a good lawyer.........

Sep 09, 2012 07:40 PM #132
Anonymous
Kim

I am not in forecloser but I want the mortgage company to prove to me I owe them money by showing me the "original note" saying they have vested intrest in my property.My question is where can I find it is stated by some law thru real estate that a mortgage company must possese this note other wise they are not intitled to collect money for the loan? So I can refience it back to a them. Or to a judge.

Kim

Nov 10, 2012 07:09 AM #133
Anonymous
carmen Pertrowski

We purchased our home (2006) in New York & were scammed big time by the mortage lender who perpetrated fraud & then sold to Countrywide (not sure if Countrywide was in on it w/ them).  However when Countrywide went OOB, we rec'd a ltr that BOA would be our servicing bank.  We have been paying BOA for over two yrs now & have been current w/ our paymts.  We applied for a modification 2 yrs ago (as our home is extremely underwater) but after dragging their feet for almost a yr BOA denied us (said we did not qualify).  Oh but we did qualify, they just conveniently left out the HELOC debt when figuring out our expenses!  Anyway we sat on this for awhile hoping to be one of the supposed families getting a ltr from their bank, offering some help/relief.  But why should they, if we continue paying?  Then in Jun 2012 we decided to go for a Harp Refi (as interest rates were low) & we qualified.  We currently have an 80/20  split mortgage (interest only mortgage & a HELOC).  We locked in for 90 days @ a not too good rate (& ended up buying a pt, to reduce rate further) for the one mortgage, not the HELOC.  We were to close on 9/18/12 (the same day the lock in rate expired) my husband called BOA to make sure we were still on for the closing later that day & were informed @ that time "closing was not happening"!  No one had the decency to even call us, I had taken the day off from work for the closing!  It appears BOA is waiting/looking for the allonge to the note!  We were also informed they had just purchased our property in a lg parcel purchase in June 2012 (apparently after we applied for the Refi).  BOA did tell us, they would honor the rate we locked in @ for however long it takes (as not being able to close was not our fault)!  How very nice of them!  Meanwhile rates continued to go down since we locked in, & we are also missing out on paying down principal on this home!  Now they can't refi us, as they can't produce the note!  Can they foreclose on us w/o the note?  What are our options?  Can/should we just walk away?  I would rather put the monthly mortgage in a bank acct & if we have to walk, @ least we'll have some money.  Or if they prove they own the note, we'll pay the back mortgage saved in the bank.  To date we have paid over $160,000 in 6 yrs on a home that is worth only about $258,000, but that we owe almost $400,000 on!  Only about $6,000 has come off the principal in 6 yrs!  In the two mortgages we still over over $392,000!  Add to that Pts, closing costs for refi etc. So right now I do not feel comfortable refinancing & adding more cost to a home that is not worth it.  Any advise? The original note had mortgage lender selling to Countrywide, however not sure what happened after that (if note was even ever transferred legally).  And we have been paying BOA for two yrs, so why are they now saying they just purchased our property this yr & waiting for note or allonge?  Our home is Fannie Mae backed & they list BOA as owner of property? Could BOA have reached out to Fannie Mae & informed them they owned home, without proper docs?  Should Title Comp also list BOA as owner?  I need to research this w/Title Comp also.  This home has been a money pit!  We've incurred about over $25,000 in debt as there were violations not disclosed when we purchased that came to light afterwards (don't know how we were able to close? Obviously had we known what we know now, we wouldn't have purchased!  Should we try to get foreclosed on?  Maybe we can get our day in court this way?  Any advise anyone w/ any legal knowledge?  And how do I find out if the Judge in my jurisdiction is Dem or Republic?  I hear we'd have a better shot w/ a Dem Judge (not sure how true that is, but worth looking into as well). Thank u

Nov 16, 2012 01:44 PM #134
Anonymous
Guy Brown

Good Morning Mr. Misitano,

Thank you, first of all for the article.  I purchased my home from Wells Fargo in Aug 2007.  After a failed attempt to modify my mortgage, they began foreclosure proceedings against me.  The legal representation for Wells Fargo sent to me a letter stating that they were not in possession of the original note.  This caught my wife’s attention, (she is a clerk in the Department of Justice); because of this information we put forth a request to produce the note through the courts, the judge did not dismiss the request.  Our mortgage company’s legal representation has sense filed a petition to Quash My Request for Proof” because they, as you pointed out in the blog you wrote, wrote documentation attempting to support their request.  Also, Wells Fargo sent me a copy of the note that I signed.  They sent this to me as a result of my request for proof of ownership of the note.  I thought this was 1. Funny and 2. Insulting.  This was the same copy that was sent to me by their legal team with the documentation stating that they did not have the note.

My question to you, because it has been 30 days since I have requested this information…in the state of Maryland, can the Mortgage lender file for foreclosure without the note?

Thank you,

Guy W. Brown

 

Dec 13, 2012 11:01 AM #135
Anonymous
Alberto Tamayo

Question, what if we were notified previously that a previous holder of the note before B of A purchase their portfolio had allowed our identities and the note to be stolen and compromised, therefore We filed for a total bk, and got all the mortgages discharged? What can the bank foreclose on?

Jan 08, 2013 10:18 AM #137
Anonymous
Michael O.

Mr. Misitano,

 

I have been fighting BONY and BOA in addition to a dozen lawyers and at least two law firms pro se for five and a half years. This is a complicated, lease buyback fraud scheme, with Countrywide as the lender to the fraudsters. BONY as trustee foreclosed a year after the "buyer" defaulted in the lease buyback scheme. I have appealed 4 times in two separate appellate courts and finally have won there, but have lost all decisions at the lower court level.

Now, BONY has filed a motion in LTC to restore the case back on the calendar, though the case is still on the calendar, but an honest judge is taking due diligence to decide properly on an OSC revealing all of the BS. Is this a common tactic? Incidentally BONY sold the house online to a Blue Mountain LLC out of California three months ago, so shouldn't BLUE MOUNTAIN be making this frivolous motion?

Mar 09, 2013 09:07 AM #138
Anonymous
Neil Williams

I have a loan modification & some people tell me I CAN get cash out with refinance & some say it's impossible.

 

I know 2 people personaly (who have moved since then)who did get re-finance with cash out while on a loan modification.

 

I have about $16,000 in equity & even the reverse mortgage companies tell me I cannot do this!?

This is my equity money. There has to be a way I can access it???????

Someone please show me away.

My wife passed away in 12/2012 She was on the loan but not the deed.

I am about to lose everything.

Please help & may GOD bless.

 

Apr 10, 2013 06:22 PM #139
Anonymous
Trevor
Great article thank you. I have a student loan that has been similarly resold countless times. I've requested to see a copy of riginal note, and all they can provide is an old faxed copy. Would similar defense work in my case as well if I am sued by collection agency? I want to repay my loan, but I don't want to do it more than once!
Jan 24, 2014 02:07 PM #142
Anonymous
Trevor
I forgot to note, my student loan is private not federal.
Jan 24, 2014 02:08 PM #143
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