BigShotNoMore Posted November 9, 2008 Report Share Posted November 9, 2008 I just left the home of a dear friend of mine who is a mortgage broker who ows several investment properties(one family rental homes) that are all upside down. Several of his banks were trying to pursue foreclosure but the banks realized that they cannot locate the original note(mortgage and Promissory Note). They filed a suit to get him to sign new documents allowing them to proceed with the foreclosure. He is not responding(several months now) and nothing has happened. he thinks that without the original note(mortgages were sold to other banks)they can not do anything. He is even considering presenting a contract of sale on the homes forcing them to lift their claim to the property since they do not have the original note and selling the homes. One of the banks also issued me a loan which was since sold, but I have no way of knowing if my original documents are lost as well. Does he have a point here regarding the bank's inability to enforce the loan terms? Link to comment Share on other sites More sharing options...
Denita Posted November 10, 2008 Report Share Posted November 10, 2008 BigShotNoMore, that is an excellent point. IF we are making sure that cc's have proof of assignablity or purchase of a debt before paying - why would we be less diligent with a house/property note? The stakes are larger. I too have two properties where the notes have been lost and the lender has moved for FC. (These properties are way upside down too). Right in the suit the attorney has asked the judge to just affirm the amount because they have lost or destroyed the note. In fact it reads: [i]"....Plaintiff was in possession of the Mortgage Note and entitled to enforce it when loss of possession occurred or Plaintiff has been assigned the right to enforce the Mortgage Note. (Plaintiff does not presently have a copy of the note, but is seeking to obtain a copy and will file a copy with the Court when obtained.)" ...then some of the terms of the note (just barebones terms) are described then "At some time between xxx date and the present the Mortgage Note has either been lost or destroyed and the Plaintiff is unable to state the manner in which the occurred. After due and diligent search, Plaintiff has been unable to obtain possession of the Mortgage Note. The Mortgage Note has not been seized or transferred by Plaintiff. WHEREFORE, Plaintiff requests that the Court re-establish the Mortgage Note which this Mortgage secures."...This lender is not the original lender. The original lender is out of business and has shut down operations about 15 months ago. This turns out to be one of those securitized debt obligations. In chatting with my attorney about this FC action, he states that right now, in our area, it is very, very common for the lender to have lost the note or to have never had it in the first place so the Plaintiff commonly asks the judge just to take their word for it and to re-establish the note. Take a look at this homeowner that has been fighting his foreclosure for five years because the lender can not come up with the note:http://sacramento.bizjournals.com/southflorida/stories/2008/01/07/story2.htmlIf you allow them to foreclose without producing the note, it is my understanding that it is possible that ANOTHER lender can then file for foreclosure on the same property as they might actually have the note. See this link where that happened to a TN borrower. She lost her home to foreclosure to a lender that lost the note, then after she already lost her home 3 months later the note holder sent her a default notice on the house she already lost. See below:http://www.consumerwarningnetwork.com/2008/06/19/produce-the-note-how-to/ Link to comment Share on other sites More sharing options...
Goldbug Posted November 10, 2008 Report Share Posted November 10, 2008 Question. If the original contract is lost, how can the bank prove the amount of the debt or terms of the contract or, for that matter. whether the debt has or has not been paid? Operative word is prove. Barring a crooked judge or incompetent legal representation, it looks like the homeowner has all the cards.Goldbug Link to comment Share on other sites More sharing options...
jasen Posted November 10, 2008 Report Share Posted November 10, 2008 Why on Earth would they procure an investment of that size and NOT make sure they get the documentation along with it?And we wonder why these banks are failing with idiotic practices like this. Link to comment Share on other sites More sharing options...
amortgageman Posted November 11, 2008 Report Share Posted November 11, 2008 BigShotNoMore, that is an excellent point. IF we are making sure that cc's have proof of assignablity or purchase of a debt before paying - why would we be less diligent with a house/property note? The stakes are larger. I too have two properties where the notes have been lost and the lender has moved for FC. (These properties are way upside down too). Right in the suit the attorney has asked the judge to just affirm the amount because they have lost or destroyed the note. In fact it reads: [i]"....Plaintiff was in possession of the Mortgage Note and entitled to enforce it when loss of possession occurred or Plaintiff has been assigned the right to enforce the Mortgage Note. (Plaintiff does not presently have a copy of the note, but is seeking to obtain a copy and will file a copy with the Court when obtained.)" ...then some of the terms of the note (just barebones terms) are described then "At some time between xxx date and the present the Mortgage Note has either been lost or destroyed and the Plaintiff is unable to state the manner in which the occurred. After due and diligent search, Plaintiff has been unable to obtain possession of the Mortgage Note. The Mortgage Note has not been seized or transferred by Plaintiff. WHEREFORE, Plaintiff requests that the Court re-establish the Mortgage Note which this Mortgage secures."...This lender is not the original lender. The original lender is out of business and has shut down operations about 15 months ago. This turns out to be one of those securitized debt obligations. In chatting with my attorney about this FC action, he states that right now, in our area, it is very, very common for the lender to have lost the note or to have never had it in the first place so the Plaintiff commonly asks the judge just to take their word for it and to re-establish the note. Take a look at this homeowner that has been fighting his foreclosure for five years because the lender can not come up with the note:http://sacramento.bizjournals.com/southflorida/stories/2008/01/07/story2.htmlIf you allow them to foreclose without producing the note, it is my understanding that it is possible that ANOTHER lender can then file for foreclosure on the same property as they might actually have the note. See this link where that happened to a TN borrower. She lost her home to foreclosure to a lender that lost the note, then after she already lost her home 3 months later the note holder sent her a default notice on the house she already lost. See below:http://www.consumerwarningnetwork.com/2008/06/19/produce-the-note-how-to/Nice work Denita, the Sacramento link should be followed up by the OP to find out if the Lents' family ever got the case dismissed. One striking difference from the way the Lents family and the BigShotNoMore situation is the fact that Lents has showed up for court, each and every time, and BigShots' dear friend is ignoring communication. Ignoring communication and court appearances would be the death of a situation like this. Link to comment Share on other sites More sharing options...
vettegirl Posted November 11, 2008 Report Share Posted November 11, 2008 I'm going to try this! The lender has a hearing for a summary judgement on 11/25 - I should file with the Clerk of Court prior to this right? Will this likely delay the scheduled hearing? Link to comment Share on other sites More sharing options...
Denita Posted November 12, 2008 Report Share Posted November 12, 2008 Well, if you read that link from Sacramento, the Lents family is actually in Boca Raton Fl and he has been going through this FC action from his lender for something like 5 years! That is a pretty good delay. I also read somewhere, have to look it up again, that an Ohio judge threw out quite a few FC actions recently BECAUSE the lender/plaintiff could not come up with the note. Vettegirl, you have nothing to lose by trying - right? Link to comment Share on other sites More sharing options...
BigShotNoMore Posted November 13, 2008 Author Report Share Posted November 13, 2008 Very interesting replies. Thanks.I agree that at a minimum FC may be near impossible or at least greatly delayed. But a judge, as was pointed out can make it easy for the bank. My friend has the situation with several of his investment properties, with different banks. Not sure what he will do in the end but he bought some time at least. Any attorney opinions on this to add to the dialogue?? Link to comment Share on other sites More sharing options...
vettegirl Posted November 17, 2008 Report Share Posted November 17, 2008 So I filed my Legal Request to produce the original note with te Clerk of Court on my way home today - I'll mail copies to CW's attorney and the judge tomorrow. One question, I have a hearing for a summary judgement on 11/25 - will this be delayed (I hope) while they search for the document? I asked the CoC if I could postpone the hearing, she said legally yes but she couldn't tell me what the procedure was - should I try to postpone the hearing, and does anyone know what the proper procedure is??Thanks! Link to comment Share on other sites More sharing options...
NurseRobert Posted February 22, 2009 Report Share Posted February 22, 2009 One of the banks also issued me a loan which was since sold, but I have no way of knowing if my original documents are lost as well.send them a qualified written request demanding copies of the document.. Link to comment Share on other sites More sharing options...
jq26 Posted February 22, 2009 Report Share Posted February 22, 2009 I am really unclear how this could EVER happen. Every mortgage is recorded at the courthouse. I can enter a name or address and have a list of mortgage amounts, mortgagor, mortgagee, rate, duration, etc. from LexisNexis. It takes 5 minutes and its public info that is derived out of the electronic filings at the courthouse. This filing system is how we know what lienholder is subordinate to one another. So with all of this documentation recorded at the courthouse, how does anything get "lost"? Link to comment Share on other sites More sharing options...
chelseagirl Posted February 24, 2009 Report Share Posted February 24, 2009 One of the banks also issued me a loan which was since sold, but I have no way of knowing if my original documents are lost as well. This is VERY, VERY, interesting to me. Over the past 10 yrs. my Mortgage has been sold numerous times to different lenders. How would you go about finding out if they have the original documents??? How would you word a letter for these certain circumstances??? Link to comment Share on other sites More sharing options...
jq26 Posted February 24, 2009 Report Share Posted February 24, 2009 If you're looking for a windfall, its highly unlikely. You could always just stop paying and see what evidence they have when they bring an action for foreclosure. But that would clearly be a serious gamble. Link to comment Share on other sites More sharing options...
chelseagirl Posted February 25, 2009 Report Share Posted February 25, 2009 I was just curious. I will never stop paying my Mortgage just to find out that kind of information. Link to comment Share on other sites More sharing options...
lovinglife55 Posted February 25, 2009 Report Share Posted February 25, 2009 look up " Produce The Note "........ in credit articles of the week section l Link to comment Share on other sites More sharing options...
chelseagirl Posted February 25, 2009 Report Share Posted February 25, 2009 THANK-YOU!!!! Link to comment Share on other sites More sharing options...
lovinglife55 Posted February 25, 2009 Report Share Posted February 25, 2009 also a must read stickyhttp://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=280456Letter to your mortgage servicer CIC link Link to comment Share on other sites More sharing options...
morrow Posted February 25, 2009 Report Share Posted February 25, 2009 I am really unclear how this could EVER happen. Every mortgage is recorded at the courthouse. I can enter a name or address and have a list of mortgage amounts, mortgagor, mortgagee, rate, duration, etc. from LexisNexis. It takes 5 minutes and its public info that is derived out of the electronic filings at the courthouse. This filing system is how we know what lienholder is subordinate to one another. So with all of this documentation recorded at the courthouse, how does anything get "lost"?In my experience, Ive never been able to track down a note from county records. Ive always had to call the lender directly. I do this quite often since FHA streamline refinance have become increasingly popular and one of the requirements is a copy of the original note. The county, at least in MY county, has copies of the deed/deed of trust, but no note.Others may have a different experience I would imagine. Link to comment Share on other sites More sharing options...
jq26 Posted February 25, 2009 Report Share Posted February 25, 2009 hey Kim,I don't think the originals are at the courthouse. But the mortgage is recorded (I can pull up any address and give you a ton of mortgage, tax, and title transfer details), and the lien is attached. So I guess it comes down to why anyone needs an original document. Assuming the lien was properly recorded, the title transfer, mortgage amount, payment terms, etc. are all well documented. If we use the county record as evidence for lien position, seems to me that original signature is a formality. There would be ample evidence of the contract elsewhere. Look at credit card contracts. There is less of an evidentiary trail (no "closing" event and no recording at the courthouse), but no signature is required to open and use cards and be sued upon default. I'm assuming this is a small group of tee'ed off rogue judges? Link to comment Share on other sites More sharing options...
vettegirl Posted March 2, 2009 Report Share Posted March 2, 2009 BTW, in my loan modification papers from CW there is a clause that reads in essence "if lender cannot locate original documents, borrower agrees to provide documents at upon lenders demand". So I guess there's some weight to this argument, although I tend to agree it must be a small group of renegade judges. Link to comment Share on other sites More sharing options...
Jazkal Posted March 17, 2009 Report Share Posted March 17, 2009 BTW, in my loan modification papers from CW there is a clause that reads in essence "if lender cannot locate original documents, borrower agrees to provide documents at upon lenders demand". So I guess there's some weight to this argument, although I tend to agree it must be a small group of renegade judges. Note to self, don't modify my loan with Countrywide. They are sneaky bastards aren't they. Link to comment Share on other sites More sharing options...
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