Produce the Note!

[truthinlove]

there is a "produce the note" movement growing here in the states. http://www.consumerwarningnetwork.com/2008/06/19/produce-the-note-how-to/

here's a brief bit about it:

WHO OWNS THE NOTE?

Your goal is to make certain the institution suing you is, in fact, the owner of the note (see steps to follow below). There is only one original note for your mortgage that has your signature on it. This is the document that proves you owe the debt.

During the lending boom, most mortgages were flipped and sold to another lender or servicer or sliced up and sold to investors as securitized packages on Wall Street. In the rush to turn 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 produce the note strategy. Now, many lenders are moving to foreclose on homeowners, resulting in part from problems they created, and don’t have the proper paperwork to prove they have a right to foreclose.

THE HARM

If you don’t challenge your lender, the court will simply allow the foreclosure to proceed. It’s important to hold lenders accountable for their carelessness. This is the biggest asset in your life. It’s just a piece of paper to them, and one they likely either lost or destroyed.

When you get a copy of the foreclosure suit, many lenders now automatically include a count to re-establish the note. It often reads like this: “…the Mortgage note has either been lost or destroyed and the Plaintiff is unable to state the manner in which this occurred.” In other words, they are admitting they don’t have the note that proves they have a right to foreclose.

If the lender is allowed to proceed without that proof, there is a possibility another institution, which may have bought your note along the way, will also try to collect the same debt from you again.

A Tennessee borrower recently had precisely that happen to her. Her lender, Ameriquest, foreclosed on her in July of 2007. About three months later, another bank sent her a default notice for the mortgage on the house she just lost. She called to find out what was going on. After being transferred from place to place and left on hold for lengthy periods of time, no one could explain what happened. They said they would get back to her, but never did. Now, she faces the risk of having her credit continually damaged for a debt she no longer owes.

FIGHT FOR FAIRNESS

This process is not intended to help you get your house for free. The primary goal is to delay the foreclosure and put pressure on the lender to negotiate. Despite all the hype about lenders wanting to help homeowners avoid foreclosure, most borrowers know that’s not the reality.

Too many homeowners have experienced lender resistance to their efforts to work out a payment structure to keep them in their homes. Many lenders bear responsibility for these defaults, because they put borrowers into unfair loans using deceptive, hard-sell practices and then made the problem worse with predatory servicing.

Most homeowners just want these lenders to give them reasonable terms on their mortgages, many of which were predatory to begin with. With the help of judges who see through these predatory practices, lenders will feel the pressure to work with borrowers to keep them in their homes. Don’t forget lenders made incredible amounts of money by using irresponsible practices to issue and service these loans. That greed led to the foreclosure crisis we’re in today. Allowing lenders to continue foreclosing on home after home, destroying our neighborhoods and our economy hurts us all. So, make it hard for your lender to take your home. Make ‘em produce the note!

STEPS TO FOLLOW

A. If your lender has already filed suit to foreclose on your home:

1. Use the first form. It’s a fill-in-the-blank legal request to your lender asking that the original note be produced, before it can proceed with the foreclosure. In some jurisdictions, the courts require the original request to be filed with the clerk of court and a copy of the request to be sent to the attorney representing the lender. To find out the rules where you live, call the Clerk of Court in your jurisdiction.
2. If the lender’s attorney does not respond within 30 days, file a motion to compel with the court and request that the court set a hearing on your motion. That, in effect, asks the judge to order the lender to produce the documents.
3. The judge will issue a ruling at your hearing. Many judges around the country are becoming more sympathetic to homeowners, because of the prevalence of predatory lending and servicing. In the past, many lenders have relied upon using lost note affidavits, but in many cases, that’s no longer enough to satisfy the judge. They are holding the lender to the letter of the law, requiring them to produce evidence that they are the true owners of the note. For example:

* In October 2007, Ohio Federal Court Judge Christopher Boyko dismissed 14 foreclosure cases brought by investors, ruling they failed to prove they owned the properties they were trying to seize.

B. If you are in default, but your lender has not yet filed suit against you:

1. Use the second form. It’s a fill-in-the-blank letter to your lender which also requests they produce the original note, before taking foreclosure action against you.
2. If the lender does not respond and files suit against you to foreclose, follow the steps above.




and here is a letter to the lender template to use, which i got from their site:

TO: [Name of lender]
[Address of Lender]





Re: My request for a copy of the Promissory Note
Name: [your name]
Property Address: [address of property subject to mortgage]
Loan Number:

Dear

I am the owner of certain real property located at [property address ], which is security for a loan made by [company which issued the loan] to me on [date of the loan] . Please produce for my inspection within ten days the Promissory Note which I signed on [date note was signed] .
If you have any questions regarding my request, please call me at __[your phone number]_ .

Very truly yours,


i was wondering if you guys can come together and help to add some more to this letter. i'm not being threatened with foreclosure. my payments have been up to date thus far. i have intentions on making the first move. i was thinking along the lines of making it clear to the lender that if they fail to 'produce the note', i will indeed cease mortgage payments and consider the house cleared.

any thoughts?

[the worm that turned]

It's funny because this is exactly the next step I am considering (I think I might have already mentioned it on the "Mortgages - Where is the consideration?" thread.

I don't intend anything fancy in my letter. I am merely going to ask if they still hold the original Loan Agreement (Note in the US) and if so I will be arranging a visit to their offices to physically see it.

If they cannot show it or refuse to allow me access I will then need to carefully consider my actions/letters, but basically if they cannot prove it I will be submitting Notices and finally a Conclusion to the Matter letters.

Chances are they have kept the loan but you never know. Especially when my bank was one of those that needed to be bailed out (perhaps because they reassessed which debts they could prove they owned).

Good luck

[truthinlove]

hmm. i feel that, chances are, they lost our notes. i know my mortgage was bought out once or twice.

maybe we can come together and write a good letter?

striking first. i really like the sound of it:)

[malvern]

with some of the banks they have change ownership let alone sold on your contract. the change in ownership most have some impact of who the debt is with and who can claim it.




freedom is the grandchildren we are the caretakers

[yozhik]

with some of the banks they have change ownership let alone sold on your contract. the change in ownership most have some impact of who the debt is with and who can claim it.


In any business acquisition, 'buying' exisiting debtors/creditors is normal procedure, hence the need for due diligence prior to the transaction.

The sale price will reflect the soundness of the books; i.e. the viability of the accounts.

Change in ownership in the business - as far as I can see - would not have an impact as the note, if it originally existed in the selling business, would simply be transferred to the new owner and could be produced.

If it originally existed ...

[malvern]

why i asked ... when the new owner takes over , would that new owner be a third party.

if a company sells just your note to someone else without a contract with yourself .... they are a third party .......... but if a company is sold along with 10,000's of notes it is not ?????:confused:

i understand the post asking for the note as proof of contract.



freedom is the grandchildren we are the caretakers

[truthinlove]

this reminds me of when i had an existing checking account with bank A. one day, bank B bought bank A out, without a establishing a new "contract" or agreement with the account holders, however, instilling a new set of policies we were to follow... ?

even that sounds shady.

[girlgye]

I''m not sure but I believe recent case law in the UK anyways has closed this loophole (or is it?)
check.

[truthinlove]

how can any court simply close the "loophole" of making the lender produce the promissory note?

[girlgye]

Your system is exactly the same as ours with federal lower courts and higher courts. The judge says nah (has to be a point of law but conveniently when you appeal it takes mega years like to be heard at a higher level) I don't agree with that and at the toss of pen re-writes law right there infront of your eyes. It's called case law on which most law depends. Rightly or wrongly. My country and yours.

[yozhik]

why i asked ... when the new owner takes over , would that new owner be a third party.

if a company sells just your note to someone else without a contract with yourself .... they are a third party .......... but if a company is sold along with 10,000's of notes it is not ?????:confused:

i understand the post asking for the note as proof of contract.



freedom is the grandchildren we are the caretakers

The term third party refers to who is claiming the 'debt'.

So if YOU had a contract with ABC and ABC held the note, then sold the business to XYZ,including the original note, XYZ would then have also bought the accounts.

If YOU then asked for them [XYZ] to produce the original note, to support their claims that the debt was now owed to them [XYZ] and they were able to provide the original note, which they had purchased when securing ownership of ABC, then this would support their claim.

The third party status is when the note holder and the debt claimer are separate entities; i.e. there are three parties.

This is my comprehension ... quite possibly completely erroneous and fucked up, but it seems logical.

Remember the Maxim; possession is 9/10ths of the law.
The holder [possessor] of the note will have a strong foundation in any dispute in equity.

[yozhik]

Your system is exactly the same as ours with federal lower courts and higher courts. The judge says nah (has to be a point of law but conveniently when you appeal it takes mega years like to be heard at a higher level) I don't agree with that and at the toss of pen re-writes law right there infront of your eyes. It's called case law on which most law depends. Rightly or wrongly. My country and yours.

To be pedantic, the law has not been rewritten; the interpretation of it has simply been revised.

Law is nothing more than a game of probability.

If there are more cases weighing for one side, with similar [if not identical logic/reason], then the PROBABILITY of any subsequent case going the same way, is greater.

It is a self fulfilling prophecy; the more cases heard, with the same citations and the same arguments, the more likely there will be similar outcomes, based on the same 'logic', which will then be referred to as the weight of precedent or simply the 'established law'.

It's all it is ... a game of probabliltiy.
Based on past cases of similar matter, when ABC is argued, the judges have ruled this way X amount of times as opposed to Y.

So it isn't the law that gets rewritten ... it is more about the odds being changed by the bookie.

:rolleyes:

[truthinlove]

here is some info from foreclosureforensics.com:

A few items to check to detect early signs of wrongful foreclosure and acts of fraud:

1. Does the name of the foreclosing bank match the name of the original bank?

If not, how could the closing bank have standing in court to take your home? Unless the banksters can prove the chain of ownership, they do not have the right to file a complaint or an action in the court against you; that would be filing a false claim. A false claim, under Title 18, is a 3rd degree felony. It is punishable by 5 years imprisonment and up to a $500,000 fine.

2. Did you sign more than one Promissory Note?

If not, how is it that your Promissory Note is on the books of multiple banks at the same time?

3. Where is the original note?

4. How much is the original Promissory Note deposit amount?

Your original Promissory Note that you signed at the closing and gave to the bank was deposited. Just like a paycheck, just like cash.

5. When your bank deposited your original Promissory Note, did they inform you of the amount, the facts, the details of your Promissory Note?

No? Why not? The answer is, because they knew you didn't have a clue about the use or value of the Promissory Note at the time of closing. And the banksters knew you had no knowledge of what transpired with the Promissory note, the use of your Promissory Note, or the loan process once your loan was accepted.

You loaned the banksters the use of your Promissory Note! Your signature creates the money! Then after you pay all the costs related to the closing, in the use of your Promissory Note, which banksters make millions on, we pay the banksters every month for 30 years! Repeat, the banksters have used our Promissory Notes to make millions, and they've loaned us the value of our Promissory Note having been deposited. So, congratulations, you're loan has been approved! Then magic dust is used to trick you into thinking that they made you a loan!

You're loan was approved, your loan was accepted. End of story. The banksters never state anywhere in the mortgage, most importantly in the Promissory Note, that they loaned you anything. You said it, we all said it.

[iq_145]

... and here is a letter to the lender template to use, which i got from their site:

TO: [Name of lender]
[Address of Lender]





Re: My request for a copy of the Promissory Note
Name: [your name]
Property Address: [address of property subject to mortgage]
Loan Number:

Dear

I am the owner of certain real property located at [property address ], which is security for a loan made by [company which issued the loan] to me on [date of the loan] . Please produce for my inspection within ten days the Promissory Note which I signed on [date note was signed] .
If you have any questions regarding my request, please call me at __[your phone number]_ .

Very truly yours,





I certainly would NOT send them this, since by doing so you would have admitted liability and thus done away with the need for the original note to be produced by them. :)

[truthinlove]

I certainly would NOT send them this, since by doing so you would have admitted liability and thus done away with the need for the original note to be produced by them. :)

ah, true!

like i said, i'd like to come together to create a substantial letter to send to these greasy mothas.

something Mary Croft-esque;)