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Does produce the note work?

Aw… if we could just have our houses free and clear house!

The produce the note defense has been something that I have been hearing about for years.  It certainly has managed grip my imagination.  Wouldn’t that be neat as a homeowner to just say to that big bad bank, hey prove to me you own this and when they can’t then you get your home free and clear?   This is the topic of this very insightful article which I will summarize here (Reality Check on Real Party in Interest / “Produce The Note” Strategy).

The foreclosure defense strategy known as “Produce the note” happens when a borrower being sued for foreclosure asks the foreclosing lender to actually prove that they own the note.  You would think that it would be an easy matter to prove you own a debt instrument that is potentially worth hundreds of thousands of dollars however with all of the note sales going on often times corporate note holders simply were not careful to make sure that they had properly secured their purchases.

I have talked with several skilled local foreclosure defense attorneys and know of at least one case where they actually used this strategy in the Cuyahoga County Common Pleas court system to effectively to delay a foreclosure several years.    I also know of several instances where the lender immediately provided adequate documentation proving ownership of the debt.

All though there have been several cases that have been broadcast nationwide of mortgages being completely erased and removed from the property because the lender couldn’t prove they own the note, such scenarios are ultra rare.  The highest expectation that most homeowners should have is that they can simply delay the foreclosure process a bit and maybe even get their foreclosure temporarily dismissed.

This is a great resource for the pro se foreclosure victim as well at for their attorneys. If you are in foreclosure you need this!

Of note in the referenced article is that this strategy in general is not easy to use in non judicial foreclosure states and that state to state and court to court the effectiveness in using such strategies to get a case dismissed varies.  Kevin Chern the author states that one big reason for the failure to get case dismissals from certain courts is that foreclosure courts are already so burdened that to dismiss a case that will likely be quickly refiled (after the paperwork problems are remedied)  simply clogs up the court even more and costs the court more money.

There are many ways to defend a foreclosure that you can combine with the produce the note strategy. Because the produce the note strategy is often times not effective you need to have many strategies in your pocket for defending your self in foreclosure. The book “23 Legal Defenses to Foreclosure: How to Beat The Bank” offers 23 different strategies including challenging the ownership of the debt.  It has easy checklists to help you determine if a specific strategy might be relevant in your case. I highly recomend anyone in foreclosure that they not stand passively by but instead take responsibility to save their home. You should definitely use a HUD approved non profit counselor however before foreclosure. You should read books, blogs and internet forums. However ultimately they can only go so far in helping you when your lender decides that they will foreclose. At that point you have to take some informed action and this book will help you in doing that.
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Andy Morris is an Ohio real estate broker with an expertise in selling homes on a short sale. If your Ohio home is heading towards foreclosure or you owe more than your property is worth, please call Andy at 888-4-STOP-IT to see if you qualify for a short sale with your lender. Are you not in my area? His foreclosure answer service is free to you as well!

2 comments to Does "produce the note" work as a foreclosure defense strategy?

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