SHOW ME THE NOTE
SHOW ME THE NOTE
A potential legal defense that may delay the bank from taking your property is to request that the bank produce the original promissory or mortgage note. What is a mortgage note? It is the contract between you and your lender that establishes your promise to repay your mortgage loan amount.
In a foreclosure proceeding, borrowers should require that the foreclosing party, the bank or lien holder, produce the note as evidence that it is the true owner of the note and has the right to collect the debt.
In an extremely large number of cases, banks are having a difficult time producing the promissory notes since mortgages are packaged, sold, bundled and resold whereby the original mortgage notes are lost in the process. In many cases, the original note signed by the homeowner was lost, stored away in a distant warehouse or even destroyed.
If you are facing foreclosure, don’t simply agree to allow the lender to take your property and move out. Contact an Attorney who deals in matters of foreclosure, one who will ask the court to require that the bank “Show me the note”.
The number of foreclosures is climbing at an alarming rate nationwide. Last year, there were more that 2 million foreclosure proceedings filed and that number is expected to double before the end of 2009. Because unemployment is reaching double digits and escalating, and the financial strengths of our banks and nation is ailing without any immediate signs of recovery, judges have become sympathetic towards homeowners facing foreclosure. They are questioning whether default by the homeowner is entirely the homeowner’s fault. Because the mortgage note is a binding contract between the homeowner and the bank, and the banks expect homeowners to uphold their responsibility to repay the note, the courts are taking the position that the banks should be held to an equal standard of responsibility to prove they are entitled to payment and to foreclose by producing the original note.
The banks attorneys argue that asking a bank to produce the note is merely a stalling tactic to delay an inevitable foreclosure. They argue that the original note is almost always electronically retained and can eventually be found. Homeowner’s attorneys argue that banks would not allow homeowners to use a similar argument that they “almost always” and will “eventually” pay their mortgage; banks would declare the homeowners to be in default. This is a double standard.
Banks filing foreclosure actions must show rightful ownership and custody of the note. If the bank cannot produce the original note and show it is the rightful lien holder of the property, then the court cannot ask homeowners to forfeit their property and leave their home until the note is produced.
This is not to suggest that some judges are unwilling to accept electronic documentation. But while a lender is sometimes allowed to produce other paperwork to establish that it is the legitimate holder of a note, assembling such documents to a court’s satisfaction often takes months. Additional time given to banks to produce the note and prove the bank is the rightful lien holder forces banks to be held to the same contractual standards as they hold homeowners to repay the note.
In a CNN Money interview, the University of Iowa Law professor Katherine Porter stated, “Banks fail to attach a promissory note in 40 percent of situations”. In other words, four out of ten consumers are being asked to make payments on a mortgage, but the bank has not, or cannot, provide legal evidence to establish the debt even exists. This, combined with the fact that original notes over the past ten years have been sold, bundled, resold, destroyed or lost, raises the question as to how large this percentage has grown. Some legal analysts believe this percentage may be as high as 60 percent or more. Additionally, it raises concerns as to who the rightful lien holder is and whether it can be proven to the court that the banks or lien holder have any legal right to foreclose.
Remember, if you are facing foreclosure, don’t simply agree to abandon your property and move out. Contact an attorney who is experienced in handling foreclosure matters, one who will ask the court to demand that the bank “SHOW ME THE NOTE”.
Looking to buy Orlando or Florida Foreclosures and REO's? Contact us now at
info@buyingflorida.com or call (001) 407 455 0222
www.buyingflorida.com
A potential legal defense that may delay the bank from taking your property is to request that the bank produce the original promissory or mortgage note. What is a mortgage note? It is the contract between you and your lender that establishes your promise to repay your mortgage loan amount.
In a foreclosure proceeding, borrowers should require that the foreclosing party, the bank or lien holder, produce the note as evidence that it is the true owner of the note and has the right to collect the debt.
In an extremely large number of cases, banks are having a difficult time producing the promissory notes since mortgages are packaged, sold, bundled and resold whereby the original mortgage notes are lost in the process. In many cases, the original note signed by the homeowner was lost, stored away in a distant warehouse or even destroyed.
If you are facing foreclosure, don’t simply agree to allow the lender to take your property and move out. Contact an Attorney who deals in matters of foreclosure, one who will ask the court to require that the bank “Show me the note”.
The number of foreclosures is climbing at an alarming rate nationwide. Last year, there were more that 2 million foreclosure proceedings filed and that number is expected to double before the end of 2009. Because unemployment is reaching double digits and escalating, and the financial strengths of our banks and nation is ailing without any immediate signs of recovery, judges have become sympathetic towards homeowners facing foreclosure. They are questioning whether default by the homeowner is entirely the homeowner’s fault. Because the mortgage note is a binding contract between the homeowner and the bank, and the banks expect homeowners to uphold their responsibility to repay the note, the courts are taking the position that the banks should be held to an equal standard of responsibility to prove they are entitled to payment and to foreclose by producing the original note.
The banks attorneys argue that asking a bank to produce the note is merely a stalling tactic to delay an inevitable foreclosure. They argue that the original note is almost always electronically retained and can eventually be found. Homeowner’s attorneys argue that banks would not allow homeowners to use a similar argument that they “almost always” and will “eventually” pay their mortgage; banks would declare the homeowners to be in default. This is a double standard.
Banks filing foreclosure actions must show rightful ownership and custody of the note. If the bank cannot produce the original note and show it is the rightful lien holder of the property, then the court cannot ask homeowners to forfeit their property and leave their home until the note is produced.
This is not to suggest that some judges are unwilling to accept electronic documentation. But while a lender is sometimes allowed to produce other paperwork to establish that it is the legitimate holder of a note, assembling such documents to a court’s satisfaction often takes months. Additional time given to banks to produce the note and prove the bank is the rightful lien holder forces banks to be held to the same contractual standards as they hold homeowners to repay the note.
In a CNN Money interview, the University of Iowa Law professor Katherine Porter stated, “Banks fail to attach a promissory note in 40 percent of situations”. In other words, four out of ten consumers are being asked to make payments on a mortgage, but the bank has not, or cannot, provide legal evidence to establish the debt even exists. This, combined with the fact that original notes over the past ten years have been sold, bundled, resold, destroyed or lost, raises the question as to how large this percentage has grown. Some legal analysts believe this percentage may be as high as 60 percent or more. Additionally, it raises concerns as to who the rightful lien holder is and whether it can be proven to the court that the banks or lien holder have any legal right to foreclose.
Remember, if you are facing foreclosure, don’t simply agree to abandon your property and move out. Contact an attorney who is experienced in handling foreclosure matters, one who will ask the court to demand that the bank “SHOW ME THE NOTE”.
Looking to buy Orlando or Florida Foreclosures and REO's? Contact us now at
info@buyingflorida.com or call (001) 407 455 0222
www.buyingflorida.com
posted by Totally Florida Staff at
7:37 AM
<< Home