In the Face of Home Foreclosure making the Lender produce the note is an option to stall proceedings.
As it turns out, many Lenders seeking to foreclose seem to have lost track of the original promissory notes for the mortgages in question. Forcing the lender to produce the note can delay foreclosure proceedings and give the lender increased incentive to negotiate.
To recover on a promissory note, the plaintiff (the Lender in the case of foreclosure) must prove:
- Existence of the note in question
- The party sued signed the note
- The plaintiff is the owner or holder of the note in due course
- That a certain balance is due and owing on the note
In mortgage foreclosures, proof of the claim requires presentment of the “ORIGINAL” promissory note and a general account and ledger statement.
- Claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note.
The steps are:
- After you receive notice of a foreclosure suit from a lender who claims to own your mortgage, you file a request, with the court, for production of the original promissory note.
- If the lender does not respond in 30 days, you file a motion to compel production of the note. This is a request that the judge order the other side to produce the note.
- Most often there will then be a hearing where the judge will decide whether to force them to produce the note or not. Should you win, the lender can’t foreclose until they produce the note (which could prove very difficult for them). Should you lose, you would still reap the extra time in your home and we will use the opportunity to negotiate with the lender.