The “Produce the Note” defense is used by property owners to demand that the lender prove a legal right to the mortgage payments under the promissory note linked to the mortgage. This technique requires the foreclosing party to show ownership of the debt buys time for homeowners. This defense works well in states that require judicial foreclosure.
When the process of foreclosure began, foreclosure attorneys used this “produce the note” defense to stop foreclosures. The defense worked well because most lenders could not produce the note. In most instances, the debt had been sold to different lenders and investors, sometimes two and more times. Every so often, the new owner of the loan didn’t get the proper paperwork to show it owned the note and mortgage. Even in situations where the original note was available, the endorsements might not have been in order.
Lenders may even be excused from producing a note copy when they can present a lost note affidavit to the court. When the lender is not able to locate the note or a copy, it will create a lost note affidavit. In many cases, the court will find this sufficient and allow the foreclosure to proceed. Unfortunately, it is often an uphill battle for homeowners to use to produce the note defense. Whether a lost note affidavit will suffice in allowing the foreclosing party to proceed with a foreclosure in your case depends on your situation, your jurisdiction, and the court.
It is not safe to assume that producing the note defense will stop the foreclosure. It gives homeowners time in their homes. You need an experienced attorney to help you review and raise a defense if you decide to choose this option.
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