It's the Internet age, and more and more homeowners are searching the Internet to find out how they can save their home if they’re in foreclosure. One strategy I’ve been asked about several times is the “Produce the Note” strategy. Some articles have been written that have led many homeowners to believe that this strategy is the “silver bullet” to delay or stop foreclosure, or even get your mortgage wiped out completely so you own your house free and clear.
The “Produce the Note” strategy requires the lender to prove it has the actual authority to foreclose, by requiring it to produce the original promissory note. The goal is to make certain that the foreclosing lender is, in fact, the owner of the note. There is only one original promissory note for your mortgage that has your signature on it. This is the document that proves that you owe the debt.
During the lending boom, many mortgages were sold off to other lenders or servicer or sliced up and sold to investors as securitized packages on Wall Street. In the frenzy of turning these over as fast as possible to make the most money, many of the new lenders did not get the proper paperwork to show they own the note and mortgage. This is the key to the strategy—Lenders are foreclosing on homeowners, but don’t have the proper paperwork to prove they have a right to foreclose.
Sounds pretty simple--If they can’t produce the original promissory note, then you don’t really owe the debt, right? In Washington State (and other non-judicial foreclosure states), that’s not necessarily the case.
Judicial Foreclosure vs. Non-Judicial Foreclosure
In a judicial foreclosure state, the bank must sue the borrower and go to court in order to foreclose. The “Produce the Note” request is done as part of the lawsuit. Washington is a non-judicial foreclosure state, meaning that the lender doesn’t have to take you to court in order to foreclose. You can request that the bank produce the original note, but they’re likely to disregard the request completely, leaving you with only one other option--File a lawsuit against the lender and request that they produce the original note. This could become very time consuming if you try to do it yourself, or expensive if you use an attorney. I don’t recommend filing a lawsuit without the help of an attorney. Also, this strategy is more effective when your loan has been sold off on the secondary market. If it hasn’t, then your lender most likely has the original note and can easily produce it.
My Own Experience With Lost Promissory Notes
I have been in situations with my own properties where original promissory note was lost. I've worked with notes from private lenders and seller carry-back notes, and these non-institutional lenders sometimes lose the original note. The seller carrying back a note may scan the original note and Deed of Trust into their computer then discard the originals, not realizing that they were supposed to keep them. When the note is being paid off and the lender cannot produce the original note or Deed of Trust, the escrow company just has them sign and notarize an "Indemnification of Lost Deed of Trust and Original Note". Then everything is fine.
Authored by David Monroe, Realtor and Pre-Foreclosure and Short Sale Specialist.
Access Seattle area short sale help and foreclosure resources including selling in foreclosure, and 8 Ways to Avoid or Stop Foreclosure.
Copyright (c) 2009 by David Monroe (Home4Investment Team at Keller Williams Seattle Metro West).
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