How to Profit by the Banks Mistakes, Part II
Using “Produce the Note” to Defend Foreclosure and Beat the Bank
by Michael Rooney
If your home is in foreclosure, there is no doubt that you have heard about "Produce the Note" on You Tube, Good Morning America, through an email forward, or on a Consumer Protection bulletin board somewhere out there on the web. This article explains how and when to use this litigation strategy to its greatest effect.
What It Is:
Produce the note is a defensive strategy that you can use to fight foreclosure and force the bank to prove that you owe it any money at all. In courts of law, the plaintiff has a "burden of proof", meaning that it has to put forth evidence that shows everything it says is actually true. However, when the plaintiff makes claims that the defendant does not challenge, then the court usually accepts the Plaintiff's claims on face value on the basis that you had a chance to contradict them and didn't.
When you say "produce the note" what you are doing is challenging the bank's assertion that you owe it money, that it has a mortgage on your house, and that it has the right to foreclose on you at all. One attorney has estimated that nearly 50% of mortgages have been lost or destroyed in the carnage of all the selling, pooling, servicing, tranching, and defrauding that went on in the years from 2001-2008 in the American Secondary Mortgage Market. 50-50 is pretty good odds of YOUR note coming up missing.
When Its Used:
Typically, the best time to use "Produce the Note" is during discovery. That is, after you have sued the bank (say, for Quiet Title), or the bank has sued you (i.e., foreclosure). Discovery is the process by which each side of a pending lawsuit gets to ask the other side for all of the pertinent information with which it intends to prove its claims. For instance, if a bank sues you for foreclosure, then you have a right to "discover" all of the damaging evidence against you. The most basic piece of evidence here would be a "Note", which is the financial term for "mortgage" or other debt. Without a mortgage, then there is no document proving that you and the bank have an agreement, and therefore, the bank cannot prove its foreclosure claim against you.
Some proponents of "Produce the Note" suggest that ANYTIME is a good time for "Produce the Note" - even if there is no lawsuit going on. In some cases it may work, but the problem here is that there is no right to discovery outside of litigation. so, if you have not gone into default or had foreclosure filed against you, and still suspect the bank has lost your note, then find an attorney who will file a quiet title case against your bank. Chances are, if the mortgage was sold more than once, SOMEONE forgot to make all the proper recordations, and you may just end up with your home free from any outstanding liens.
Third, an alternative used in bankruptcy, is to file Chapter 13 and list the bank note - NOT AS SECURED DEBT - but as UNSECURED DEBT. Similar to the discovery tactics above, this puts the bank of having to PROVE its mortgage in order to get the bankruptcy court to treat the debt as secured rather than unsecured debt.
Word to the Wise:
Do not base your entire case on "Produce the Note." There are MANY possible claims and defenses that may come up in each case, and if you put all your eggs in one basket, you may get a rude awakening if your bank actually HAS your note. See an attorney, know your rights, and have a back-up plan.
The preceding article and information are not intended to be used as or taken for legal advice, and are for entertainment and informational use only. If you are in need of legal advice or counsel, consult a licensed attorney in your jurisdiction who is competent in the area you need.
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