“Produce the note.” 3 Words That Could Stave Off Foreclosure

• February 18, 2009

by Will Smith

Website The Consumer Warning Network is publicizing an intriguing technique that consumers facing home foreclosure can use to improve their leverage against the lender. It’s called the “produce the note” strategy and amounts to the consumer demanding that the lender furnish the original paperwork — the actual promissory note — that serves as the official legal record of the loan. It is a document that contains the homeowner’s signature and proves that the lender threatening foreclosure is in fact the owner of the mortgage.

The technique is proving effective because so many mortgages written during the latest housing boom were sold, resold, sliced, diced, aggregated, and securitized to the point that the original loan documents might have been lost or even destroyed. If the consumer demands the note and the lender can’t produce it, the foreclosure process could be stalled or, in some cases, stopped altogether. The Associated Press reports that a Cleveland judge threw out 14 foreclosures in 2007 because plaintiff Deutsche Bank National Trust Co. was unable to “produce the notes.”

For its part, the American Securitization Forum which represents banks, law firms, and investors, says the mortgage note almost always exists safely in electronic format, which is usually acceptable to a judge. Deputy executive director Tom Deutsch told the Associated Press that consumers who practice the produce-the-note technique are “making lawyers jump through procedural hoops to delay what’s likely to be inevitable.”

Still, slowing down the process by weeks or months can prove invaluable to consumers who are facing eviction from their homes.

To learn more, see the Associated Press article, as well as The Consumer Warning Network’s Produce The Note “How-To”, which includes templates for legal documents that consumers can use to pursue a produce-the-note strategy.

Lastly, here’s The Consumer Warning Network interviewing lawyer John Yanchunis about the strategy:

14 Comments

1. BES said at 10:59 am on Thursday February 19, 2009:

   Thank you for this very timely piece!  I sit on the board of a transitional housing shelter which also has a homeless prevention program.  More and more of our calls are from families who are about to be moved out through the foreclosure process.  I have forwarded this on our executive director to employ in cases where it is appropriate.  Keeping people in their homes even if temporary goes a long way in helping them work out the long term remedy!

1. Diane Holder said at 6:53 pm on Tuesday February 24, 2009:

   I have not been able to open the templete for ” Produce the Note”  Please send me a copy or fax me a copy to 760-241-9998   Thanks

1. dee said at 6:54 pm on Tuesday February 24, 2009:

   Please email me the forms too.  .(JavaScript must be enabled to view this email address)

1. Will Smith said at 7:42 pm on Tuesday February 24, 2009:

   Hi Diane and Dee,

   Odd, it looks like the site of the Consumer Warning Network website is down. They are the ones who produced the templates and the “Produce the Note” How-To. Fortunately we saved copies of the three templates:

   * Legal Request
   * Letter to Your Lender
   * Motion to Compel

   To understand how to use each template you’ll need to read the Consumer Warning Network’s How-To. Until their site is back up (here’s the link), use Google’s cached version, which is a little sloppier than the real thing but better than nothing. Try this and if that doesn’t work, try this (the all-text version).

1. ZOHREK K. said at 7:56 pm on Tuesday February 24, 2009:

   HELP! URGENT! I AM LOSING MY HOUSE IN ABOUT TEN DAYS. PLEASE E-MAIL ME THE COPY OF ” PRODUCE THE NOTE” SINCE I CANNOT OPEN THE TEMPLETE. MY FAX NUMBER IS
   (801) 926-8186

1. Ricardo said at 10:52 pm on Tuesday February 24, 2009:

   Will,

   If it’s not to much trouble I would like the Legal Request, Leter to your Lender, and Motion to Compel templates.

   .(JavaScript must be enabled to view this email address)

1. Lia said at 4:12 am on Wednesday February 25, 2009:

   wow this is very helpful! thank you! it seems to be working for a growing number of people…

1. Deanna said at 10:53 am on Wednesday March 18, 2009:

   I would also like a copy of the forms to be e-mailed to me.

1. Randy Pachnik said at 9:42 pm on Thursday April 2, 2009:

   HSBC purchased my “note” but could not produce the note that originally from Countrywide. I told them to produce the note but ignored me and the motion to compel ignored and they foreclosed. What next?

1. Bokyeh said at 9:56 pm on Monday June 8, 2009:

   It really depends on your State’s laws. The Bank can do a non-judicial foreclosure and auction the house off without going to a judge.
   Your alternative would then to fight the eviction in a lawsuit against the Bank. You sue them for fraud since they knowingly sold your loan to someone else and then try to collect the loan by selling your house on out dated record. This is only my personal opinion, consult your own attorney for legal advice. Vulturous attorneys would do the legal action with no money from you. They get pay if they are vicious enough to force the Bank into a settlement.

1. Bruce Marlin said at 7:12 pm on Thursday July 23, 2009:

   In regard to the “produce the note”  A home has recently gone into forclosere.  The loan is being serviced by a large loan servicing company, that services several other loans.  This company was very reluctant to give any info regarding the note holder.  This loan has been sold at least once and the current note holder we believe is bankrupt and no longer in operation.  Any good thoughts here? Thank you

1. athena said at 6:48 am on Friday January 15, 2010:

   I have attempted numerous times to download the forms for this process but i am not able to open anything. If anyone here has the forms and could email them to me it would be greatly appreciated. .(JavaScript must be enabled to view this email address)

1. judy lawlor said at 1:16 am on Monday February 22, 2010:

   I have copies of the produce the note papers!!!! I have already filed for myself.

1. Dorleen Williams said at 1:30 pm on Friday April 9, 2010:

   If someone has these forms - would it be possible to email them to me?  I would be so grateful.