How to Make a Mortgage Company Produce the Note on a House to Stop Foreclosure
When a lender forecloses, it must have evidence of a legal interest in the property. The "note" is the instrument that proves its interest. When bundles of mortgages started to be securitized, it did not occur to many lenders to organize the underlying notes in a way that made them easy to identify and produce. As a borrower, you can use the courts to compel the lender to produce the note, or try to. This strategy may delay the foreclosure process significantly.
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Instructions
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Locate an attorney in your jurisdiction who specializes in foreclosures. In locating a specialist, ask if the attorney is familiar with the “Show the Note” strategy of stopping foreclosures.
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Scrutinize any paperwork from your lender. Do not sign anything without consulting your attorney. Be particularly wary about any language that indicates the lender no longer has possession of the original note and asks you to acknowledge your debt. You have no obligation to do so.
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Call your lender. Tell the representative that you need a copy of your original note. Ask where you can obtain a copy. Also request the contact information for the lead attorney working in the lender's loss mitigation department.
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Write a letter to the loss mitigation contact and the lender's attorney in which you demand to see the original note with your signature to prove that you owe a debt that is collateralized by your house.
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Petition the court. If the lender does not respond to your letter within 30 days, file a motion compelling the lender to produce your signed note, or have your attorney file it on your behalf.
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Tips & Warnings
Note that the foreclosure process varies from state to state. The process may be different for judicial versus nonjudicial foreclosures. It may also be different for various types of "mortgage instruments."
References
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