Thanks for this website, it really helped!
This sounds like an interesting tactic, but most mortgages are filed at the county courthouse. Wouldn’t the mortgage company (even if it’s a succesor) be able to just pull the copy of the note from that source?
I would like to know the answer to that question also. I’m fighting my foreclosure with ‘produce the note’ and so far the bank cant do it and the judge wont sign off on the foreclosure. But you can pull my mortgage up on the court house site and see a signed mortgage, however it does not say I owe the money to the foreclosing bank. It has the originator on it, and they have already been paid i suppose because they have no further interest in these proceedings. So when they say ‘produce the note’ I guess the bank must produce your signature in ink. I live in Florida and its one of the states that does apparently abide by this law. What happens if the bank never produces the note?
What is filed in the courthouse is a mortgage, not the note. I take issue with what this guy says about notes being thrown in the garbage. I don’t have any reason to think that many were actually thrown away. The typical situation is that the original lender was providing temporary financing until the loan would be re-sold into a pool. What should have happened in that case is the original note is assigned to the pool (i.e., a trust). There are sometimes thousands of loans in a pool, and believe it or not, whoever was responsible for making sure the correct assignments were signed and the other paperwork put in place didn’t do it. I’ve heard reported that some assignments have been executed AFTER the pools’ counsel has filed suits in foreclosure! Defense counsel may be able to get the case dropped, but if they have the assignment, they can always re-file, so this defense is more of a play for time than permanent relief for the home owner. If the original note is lost, that is more of a problem.
As Catherine has noted, there’s some evidence that there are fraudulent mortgages out there (i.e., mortgages with no associated notes, or with multiple notes, or with no property securing them), so that may be a reason for “missing” notes or note assignments in some cases. Also, there’s a registry system in place called MERS, similar to DTC for stock certificates, where this registry supposedly has the original notes/assignments and keeps the record digitally. So the “market” may recognize a credit position on the MERS registry as evidence of ownership of the note, but a judge does not. Some have suspected that the MERS system isn’t entirely on the up-and-up, either. So there are many reasons a note or mortgage is not or cannot be produced.
I started a social networking site for people wanting to share information about how they dealt with (or failed to deal with) foreclosure challenges. Let’s start working together, sharing information about successes and failures, learning and taking up different strategies around land ownership. In this world we are the ones who come and go, and the land stays. How can we assume to own it? We are simply carers for the people who come after us, surely. Check out http://www.donotpassgo.ning.com
I can tell that this is not the first time you write about this topic. Why have you chosen it again?
Well written points. Will visit soon,,
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