How to Make the Lender Produce the Promissory Note
For homeowners facing foreclosure, there is a step that they can take to require their lender to work with them more closely. Using the phrase "Produce the Note," homeowners can actually delay the foreclosure process and, in some cases, use the time to pay the money that is owed. The promissory note is a document that the homebuyer signed at closing and that represents a kind of guarantee of mortgage payments. If the homeowner is then unable to make the payments, he or she is in default of that promise (hence promissory). The problem, however, is that many lenders sell the mortgage -- and thus the promissory note -- to secondary mortgage companies. This means that the actual promissory note might be difficult to locate. If the note belongs to a secondary lender, the homeowner can file a request that will force the original lender to track down the promissory note. The delay can equal several weeks or even months of waiting, giving the homeowner time to improve his or her finances.
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Things You'll Need
- Official document that requests lender to produce promissory note
- Application to bankruptcy judge
Instructions
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Contact your clerk of court to find out about filing the requests with the county court. Additionally, be sure to find out if the request also has to be filed with the lender's legal firm. Knowing this in advance will help you prepare the documentation you need to begin the process of delaying foreclosure.
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Complete the letter to the lender, if the lender has not yet begun the process of foreclosing on your home. This letter will ask the lender to produce the promissory note that you signed on closing. Without this note, the lender might be unable to prove ownership of the house and thus might be unable to foreclose on it.
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Complete the legal document that requests the lender to produce the promissory note. This document is to be filed if the lender has already begun foreclosing on your home. If required, file the legal request with the clerk of court, as well as the lender's legal firm.
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Keep a close eye on the timing. Give the lender's legal firm a month to respond, and if you do not receive a response, proceed with filing a motion that requests the court to hear your case. This places the decision in the hands of the judge to request the lender to produce the promissory note.
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Be prepared for a hearing. A judge will oversee the case and decide if the lender must produce the promissory note, or even if the foreclosure case may be dismissed. Due to the frequent selling of mortgages to secondary mortgage companies, judges are becoming increasingly willing to dismiss foreclosure cases if the original lender cannot prove ownership of the property with the promissory note.
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Tips & Warnings
If the lender can't locate the original promissory note, the ultimate decision will fall to the court. Be prepared with legal documentation that shows the importance of the promissory note to prove to the judge that without it, the lender cannot legally foreclose on the home. If the promissory note belongs to a secondary lender, the secondary lender can actually require payment (even if the original lender's case is dismissed), so it is vital that the homeowner file for the promissory note to be located.
