3 Little Words That Stopped Foreclosure: "Produce The Note"

For homeowners caught in the nation's housing collapse, having their homes foreclosed is like a nightmare that they can't fight ... or can they?

Chris Hoyer, a Tampa, Florida, lawyer told homeowners that there are three simple words that they can say to stop the foreclosure process, or at least delay it for a while: produce the note.

Kathy Lovelace lost her job and was about to lose her house, too. But then she made a seemingly simple request of the bank: Show me the original mortgage paperwork.

And just like that, the foreclosure proceedings came to a standstill.

Lovelace and other homeowners around the country are managing to stave off foreclosure by employing a strategy that goes to the heart of the whole nationwide mess.

During the real estate frenzy of the past decade, mortgages were sold and resold, bundled into securities and peddled to investors. In many cases, the original note signed by the homeowner was lost, stored away in a distant warehouse or destroyed.

Persuading a judge to compel production of hard-to-find or nonexistent documents can, at the very least, delay foreclosure, buying the homeowner some time and turning up the pressure on the lender to renegotiate the mortgage.


(Photo: Chris O'Meara/AP)

The problem with this strategy is that in most places, the note is recorded in the clerk's office with the mortgage. Producing it is just a matter of getting a copy from the clerk.
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Another problem with this strategy, is that it really isn't going to help in most cases. I guess if you are looking to freeload then it will help for a short time.

If you are thinking it will give you time to get back on your feet and back on track, chances are not good... Banks are not set up to help people out who get behind. It's the exact opposite, when you get behind, they start tagging you with a bunch of fees and try to get every last cent out of you before they have to foreclose...

Banks are dumb. The first thing a bank does with a foreclosed home is to shut off the power. Hello, if you have a basement and a sump pump(s).. What happens to those when the power gets shut off... YEP!!! Flooded basement!!

What happens when you get behind in your payments? They fee the hell out of you, so even if you wanted to catch up, odds(and fees) are stacked massively against you...
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I found this very misleading, coming from an attorney. I'm guessing people who can't afford to pay their mortgage can't hire an attorney, but anyway...

You can't just say "produce the note" as if those are magic words. What they are doing is filing a request for production of discovery documents in their foreclosure case. The bank then has a while to either locate the document and provide it to you, or come up with a reason why they don't have to give it to you.

Were I the bank's attorney, the first thing I would do is send the homeowner a set of interrogatories and the only questions would be "did you take a mortgage out for Property X at our bank" and "do you agree those mortgage payments for Property X have not been paid?" Bam. Problem solved. Either the homeowner admits they owe it (thereby making the necessity of producing the original note pointless) or they lie under oath (an equally bad option).
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I read an article last year about orphaned mortgages, ones that had changed hands so many times that it was unclear who owned them. I'd say it'd be worth the effort for everyone to demand to see their original note, in the chaos that ensued, chances are a large portion of home owners would find that either their note was permanently lost, or orphaned at which point they can petition for a release from the balance of their mortgage.

Considering the BILLIONS of dollars that the banks are getting from the federal government we should all be getting more of a break than what has been proposed.

Mind you, it wouldn't really help me in either situation, I destroyed my inheritance to buy a house that isn't worth what I paid for it anymore. But at least I don't have a mortgage. :P
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Yeah...I heard a story on NPR months ago about a guy in Florida who requested this. They weren't able to produce it and he not only kept his house but hasn't had to make another payment on it.
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Great, another reason for people *NOT* to learn their lesson. I understand there are some people caught out with unemployment and who otherwise could have afforded their mortgage. But I worked for a broker (as a graphic designer) and I saw people buying way out of their price range. People fibbing income statements to secure loans they never had an intention of paying back.

Just another excuse not to take responsibility for poor choices. Anyone else tired of hearing about all these people who shouldn't lose their homes? As a homeowner whose never missed a payment I'm sick of everyone saying that these people deserve the help.
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Look Zombie. Foreclosed homes = your house value goes down, which means this whole financial situation just gets worse.

And that's not fair for a whole lot more people than the few people who got houses that shouldn't have.
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Catalyst:- As I understand it, in a large part the problem stems from the ownership of the mortgage having been shuffled and re-shuffled so many times. It's more than likely that your mortgage is no longer owned by the lender with whom you originally dealt, nor the second owner or the third.
What would worry me is not whether I could repay the mortage, but whether I was repaying the correct bank.
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It won't take long for the lawyers to solve this... they'll get some 'friendly' judge to write a ruling that the contracts are held 'in good faith' and that will be that.
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I think it is often an effective strategy, though perhaps only in the short term. It won't work at all if you bought a house and took out a loan at a local bank who never had it bundled and packaged into an unrecognizable paper monstrosity. But most recent loans through brokers have indeed changed many hands and been turning into "financial instruments" that no longer remotely resemble a mortgage.

A few thoughts. Most homeowners would also have a copy of the note, and the plaintiff could seek it from them in discovery.

Asking what the amount of the mortgage was and what the payments were in court might not help the plaintiff, since the terms often called for payments to balloon at a certain point and in a certain fashion, as well as charges for mortgage insurance that change over time (a friend lost a house to that on a "fixed rate" mortgage), etc. Its not so simple as how much are the payments and for how long.

Zombie- your comments are ironic, as I see them as being basically brain-dead. Did your former employer not contribute to this mess in any way? Did they intentionally not verify income? Did they even encourage the borrower to LIE on forms? Many, if not most, did. Furthermore, the way the fiat monetary system of the USA is setup, either;
1) the monetary supply must continuously grow at a rate fast enough to pay the interest on previously created money,
2) the whole house of cards collapses, starting with those least able to pay.

This money MUST have been lent to continue inflating the bubble. When the bubble stops inflating it pops and can not be blown up again. This has happened and our POTUS et. al. are blowing their hot air (and massive debt - aka money) into empty space.
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"...send the homeowner a set of interrogatories and the only questions would be “did you take a mortgage out for Property X at our bank” and “do you agree those mortgage payments for Property X have not been paid?”

And the answer you get is "I don't know. Why the hell do you think I'm asking for the paperwork?"
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okay..so here it goes.
The banks will have to produce the "original note", not a copy obtained from the Clerk of Court as some people have stated on here.
If the lender is allowed to proceed without that "original note", 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.

A Tennessee borrower recently had precisely that happen to her. Her lender, Ameriquest, foreclosed on her in July of 2007. About three months later, another bank sent her a default notice for the mortgage on the house she just lost. She called to find out what was going on. After being transferred from place to place and left on hold for lengthy periods of time, no one could explain what happened. They said they would get back to her, but never did. Now, she faces the risk of having her credit continually damaged for a debt she no longer owes.
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Nice post. On foreclosure: I like the produce-the-note strategy. I live in Tampa and know one person he helped, and it actually worked. They did not get the entire home paid for, but they got terms adjusted to be favorable and they were able to avoid foreclosure. It really varries by situation and probably the laws of your state on how far this goes. This site has all the videos they have done. Watch all the videos here:
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It makes sense investing in real estate during depression since prices are falling but you should be very attentive to know when the prices hit the bottom, you might miss the ride.. You can park the properties and sell it later for a good price and remember “millionaires are made during economy depression!”. - http://blog.dodeals.com/
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It's about time the Bankers and Wall Street got caught in one of their own scams. The Mortgage Electronic Registration System was designed to hide who actually owns property. It seperated the deed of trust from the promissory note. It seems to have worked fairly well as the bankers can't even find it. With around 62 million
propertites in this system who knows where this will lead. It will be interesting to see what the bond investors will have to say about all this. The courts should side with the homeowners thus ending foreclosures for the most part. One bad thing is guess who has a lot of money invested in places like GMAC and others? If you guessed the taxpayer your right. But we were promised know more taxpayer bailouts for banks. But you can bet this will cost taxpayers millions
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HELP!! I will try and keep this short and to the point. First, my mortgage is with Bank of America via Countrywide! They hold my first and second mortgage. The first mortgage is auto withdrawal thus has never been late. The second has been late only a couple of times in the last 8 years. Several months ago I was offered the home modification program thru BOA for the second mortgage which i opted to do. No problem! In November, I received in the mail a returned payment on my second mortgage with no explanation attached. I called and was told "congrats on paying off your mortgage". I told BOA I had not paid it off and was told "well miracles happen". Shortly after that, I received in the mail my original promissory note on my first and second mortgage along with the request for cancellation at the courthouse as well as escrow cks on both mortgages. I once again contacted BOA, three times, and was told the same thing.."your mortgage balance is zero..you own your home". I asked who paid my mortgage off and they said they didn't have that information. I got nowhere with BOA. I then called our parish courthouse, clerk of court. Once again I was told I own my property. I checked my bank account and there had not been anymore auto withdrawals on my first mortgage and since they sent me back my payment on my second mortgage and told me it was paid off, I did not send any further payments. I didn't know what else to do. BOA told me several times both mortgages were paid off, the courthouse told me the same, I checked my credit report with three different companies and they all showed both mortgages were zero balances "paid off by consumer". I checked MERS using my MIN # and it showed "inactive". Well after 2+ months, this week I received several notices to "accelerate" due to no payment. I also received a letter from BOA stating they had made a error and had reinstated my loan and requested I pay all of the past due payments on both loans, which is a large amount to pay all at once. They also said I may be contacted for my signature. Can you give me some advice on what to do so that I am not foreclosed on. Thank you.
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