One of the defenses to foreclosure that is becoming more widespread is the so-called “produce the note” strategy. Numerous cases have been thrown out once the bank has been unable to prove it owns the loan and can show the original note. Without having possession of the original note and being able to produce it for the homeowners’ inspection, a foreclosure may be declared invalid.
For homeowners to use this defense, however, it is important that they put together all of the information they need and do the required amount of research. Not every court will look kindly upon borrowers raising this defense if there is no legitimate basis for it. Homeowners defending themselves are already viewed as more of an annoyance than anything, so they should do their best to prepare for this type of defense.
The first question homeowners may want to ask is if a copy of the mortgage or note is already attached to the complaint. This can be a good starting point to determine if the bank even has access to the original note, although a copy is not definitive proof of owning the note. Banks may attach a copy it obtained from a previous owner of the loan but not have actual possession of the original.
Borrowers also may want to research if attaching a copy of the mortgage or note is required in their state. Civil rules of court procedure would be the place to find this information, and can save homeowners a great deal of time if the state does not require the copy to be attached. Homeowners may still have the right to demand to inspect the original note, however, so the defense is not completely worthless if a copy is not required.
Also, homeowners should look in the foreclosure complaint for any affidavits from the lender relating to the original note. For instance, the mortgage company may include an affidavit stating that the copies of the note are true and accurate representations of the original. Another affidavit may state that the bank is in possession of the original note and mortgage. If these are present, the homeowners may wish to request that the original note be produced for their inspection.
Finally, homeowners should look into requesting the original mortgage and note to be included in the lawsuit paperwork for their inspection. This can usually be done through the discovery process, where homeowners are requesting other relevant documents and attempting to get straight answers out of the bank regarding the mortgage and foreclosure process. As other documents are requested (like payment histories), the original note can be requested to be produced.
If the bank fails to produce the original note for the homeowners’ inspection, the case may be dismissed on this basis alone. Of course, borrowers should consult with competent legal counsel to find out more of this information and how it can be used appropriately in their state, but this new strategy to defend foreclosure is being used with more regularity due to the inability of banks to keep accurate records of the original note.
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