How to Answer a Summons if a Lender Does Not Hold the Note

State foreclosure laws usually require lenders to demonstrate the original mortgage note, when they intend to foreclose. Often, lenders cannot produce these notes because the notes are lost or destroyed. If the lender does not hold the note, then you can delay or stop foreclosure. However, it is important that you answer the foreclosure complaints and summons served upon you by the lender. Failure to respond to the summons could result in a default judgment against you.

Preliminaries

You have limited time within which to respond to a foreclosure summons. This is typically 20 days but look through the summons and complaint to see if the days are fewer than this. Write an answer by first indicating your name and address, the name of the court where the summons was filed and the case number. Go through each statement in the complaint to determine which of these statements you agree with and which ones you do not. You will respond in the affirmative or negate any of these statements in your defense.

Admission

When answering the summons, it is essential to provide truthful information even if the lender does not hold the note. Admit if you owe anything or if you are in default. Also indicate the amount that you owe the lender if the lender's complaint states a wrong sum that she claims you owe. Provide any reasons for the default or delayed mortgage payments and explanations for your disagreement with any of the lender's statements in the complaint.

Defense

It is common for the plaintiff to admit that he does not hold the mortgage note in the summons and complaint. In the answer, defend against the lawsuit by indicating that the lender cannot prove he holds the note. Indicate that state foreclosure law provides that for a lender to initiate a foreclosure he must prove the existence of the note in question; that the defendant signed the note; that the plaintiff is the owner or holder of the note; and that the defendant owes a certain amount to the lender.

File

Sign the answer and file it with the court clerk in the court indicated in the summons. If the lender informed you in writing that she does not hold the note, attach this document to the answer as supporting evidence to your answer. Serve the answer on the lender's attorney through direct mail or a process server. During the hearing, a judge will issue a ruling. Judges are increasingly requiring lenders to produce the original mortgage notes, to proceed with foreclosure.

References

• Huff Post Business; Who Owns Your Mortgage? "Produce The Note" Movement Helps Stall Foreclosures; June 2010
• Operation Restoration: Produce the Note" Strategy for Judicial and Non-Judicial States (Technique Used to Stall Foreclosures)
• Bank Fraud Victim Center; Does the Lender have the "Original" Note in Hand?; Kenneth M DeLashmutt
• Dane County Housing Authority: Responding to a Foreclosure Lawsuit