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

by Will Smith

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

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:

This article originally published at http://dc.urbanturf.com/articles/blog/produce_the_note._3_words_that_could_stave_off_foreclosure/555

27 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.

  1. DEVON said at 12:44 am on Thursday September 22, 2011:

    PLEASE CAN YOU SEND ME THE FORMS THAT I NEED TO FILE"LEGAL REQUEST” AND “HOW TO REQUEST THE NOTE”? THANKS IN ADVANCE!

  1. Phil said at 10:21 pm on Friday October 14, 2011:

    I have found much on the discussion of the “NOTE”, and near as I can tell there are many who would dismiss it as unsubstantiated; but then there is the case of the 14 foreclosures dismissed by judge boyko; http://www.nytimes.com/2007/11/15/business/15lend.html

  1. Phil said at 10:29 pm on Friday October 14, 2011:
  1. Phil said at 10:37 pm on Friday October 14, 2011:

    Legal Request___________________

    1IN THE CIRCUIT COURT OF THE                     JUDICIAL CIRCUIT
    IN AND FOR                         COUNTY, STATE OF                  
    CIVIL DIVISION


    [name of bank]                          ,        CASE NO.:                           

            Plaintiff,

    vs.

    [your name]                              ,

            Defendant.
                                                      /

    REQUEST FOR PRODUCTION OF DOCUMENT

      Defendant   [your name]                    requests Plaintiff,  [name of bank]                              produce, within thirty (30) days of the service hereof, at   [your address]____________ ,                                                                      the original Promissory Note signed by Defendant on [date you signed the promissory note].

     

                        [Sign your name on this line]               
                      [Type or print your name here]
                      [Type or print your address here]

    CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished by U.S. Mail to:    [name and address of Plaintiff’s / Bank’s / Mortgage Company’s , this ______ day of     [month]        , 2008


                        [Sign your name here]                     
                      [Type or print your name here]

  1. Phil said at 10:42 pm on Friday October 14, 2011:

    Notice, you must request the “ORIGINAL”, being smart enough not to accept anything less than a “verified, certified copy into evidence” of the original, AND request the original be presented to the court for you, and the judges inspection. Note that any backdated offerings are no good beyond 30 days, and worthless if dated 60days or a year ago.

  1. Phil said at 10:44 pm on Friday October 14, 2011:

    Letter to lender________________________
    1

    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,

  1. Phil said at 10:46 pm on Friday October 14, 2011:

    Notice:  All letters and documents are to be sent certified mail, return receipt.

  1. Phil said at 10:49 pm on Friday October 14, 2011:

    Motion to Compel_____________________
    1IN THE COURT OF                     IN AND FOR
                              COUNTY, STATE OF                  
    CIVIL DIVISION

    [Fill out the above with the official name of your court]

                   

    [name of lender]                          ,        CASE NO.:  [fill in case number]                         

            Plaintiff,

    vs.

    [your name]                              ,

            Defendant.
                                                      /
             

    DEFENDANT’S MOTION TO COMPEL

      Defendant [your name], moves the court for the entry of an Order directing Plaintiff to

    produce to Defendant the document described in the request to produce which is attached as an

    exhibit to this action.  The basis for the relief requested is set forth below.

      On [date you sent request to produce to Plaintiff’s lawyer], Defendant sent to Plaintiff’s

    Counsel by U.S. Mail the request to produce, a copy of which is attached as an exhibit.

      Despite the passage of 30 days (in addition to 5 days, as this request was sent by U.S.

    Mail for the services of Plaintiff’s counsel*) of this request on Plaintiff’s counsel, Plaintiff has

    not produced the requested document to Defendant or contacted Defendant to state

    that the document is available for inspection and copying.

     
    1*You should check the Rules of Procedure in your jurisdiction or call the Clerk of Court to confirm how much time a litigant has to respond to Discovery before you can Move to Compel the production of this document.  Thirty days has been inserted in the Motion as this is the amount of time most states give a litigant to respond.  Your state’s rules may be different, and you need to state in the Motion the number of days which your state provides.  (*Note: delete this passage before filing)

    Defendant hereby requests that this court enter an Order directing Plaintiff to produce the

    document requested by Defendant in the request to produce, and provide to Defendant such

    other and further relief to which Defendant may be justly entitled to under the circumstances. 


                      [Sign your name on this line]               
                      [Type or print your name here]
                      [Type or print your address here]

    CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished by U.S. Mail to:    [name and address of Plaintiff / Bank or Mortgage Company , this ______ day of     [month]        , 2008


                      [Sign your name here]                     
                      [Type or print your name here]

  1. Phil said at 10:53 pm on Friday October 14, 2011:

    AGAIN:  You must get a return receipt for your mailings… I can not emphasize this enough! It is the only proof you have that you sent the documents as is your legal obligation; to yourself, your family, and the Courts.  These bankers have perpetrated a fraud on the Court system, and YOU!  DO NOT ALLOW IT!

  1. Phil said at 11:00 pm on Friday October 14, 2011:

    Format is also important.  Look at these legal documents here to get an idea of what it is you need the thing to look like;

    http://www.docstoc.com/docs/20012739/Sample-Motion-to-Compel

  1. Phil said at 11:12 pm on Friday October 14, 2011:

    Cut and paste folks… I tried to make it as easy as I can.

    When in doubt, consult an attorney;  All he/she will do is convince you how much you need them, and to that I say go “PRO SE”

    http://www.perkel.com/pbl/prose.htm

  1. Phil said at 12:21 am on Saturday October 15, 2011:

    Cut and paste folks… I tried to make it as easy as I can.

    When in doubt, consult an attorney;  All he/she will do is convince you how much you need them, and to that I say go “PRO SE”

    http://www.perkel.com/pbl/prose.htm

    http://www.consumerdefenseprograms.com/sitemap/

  1. rosemary said at 2:49 pm on Monday March 26, 2012:

    deed/mortgage/title insurance/foreclosure all w/wrong legal description-since 1998
    just found out answered summons-taxes were paid on both properties out of escrow-house sold in tax sell twice mort. said was fixed-they didn t no either-short escrow causes mortgage to go up unaffordable in bankruptcy—tax assessor don t even have me listed all they have is old property i don t own which previous owner took back some how big mess—own unbelievable amount to irs-fighting with them for yrs just found all this out—probably would not be in bankruptcy is there an answer can i get some advice /help

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