Banks may not be able to produce the mortgage note.
Has the Bank lost the Promissory Note to your home but they are still trying to foreclosure? Well, you are in good company because these circumstances occur frequently. The first thing you should do is contact an attorney who can help you fight the foreclosure because you have a good defense. If a bank cannot prove ownership of the Note they therefore, do not have the right to enforce the Promissory Note. What does this mean for you? It means that the Bank cannot foreclose on your home and the Foreclosure will be dismissed!
Once you have been served with a Summons and Foreclosure Complaint, you need to file something with the Court within 20 days. This is exactly why you need a Foreclosure Lawyer. If you do not serve the proper discovery during the interim between being served with the Foreclosure Complaint and the Final Summary Judgment Hearing, then you are a sitting duck. Many people file what they believe to be a good Answer (response to the Complaint) with the Court. They believe that they have fended off the evil Bank because they do not hear from the Bank or the Bank’s attorney for weeks, or even months. I can assure you, this is only the calm before the storm! I will bet dollars to doughnuts that you will receive a Motion for Summary Judgment and soon thereafter you will find yourself waiting on a fast approaching Court date. You have essentially put the nails in your own coffin. You will not be able to begin initiating discovery and building a case against the Bank at this point. The time to fight the foreclosure is NOW! As soon as your receive a Summons with the Complaint to Foreclosure, call an attorney and discuss your options. Make sure the attorney can articulate all of the steps that will be taken to vindicate your rights in this foreclosure defense. If they have lost your Promissory Note, then you need to start doing Discovery and building a case against the Bank. “Discovery” means all of the lawyers techniques and tools that a lawyer uses to get the proper information from the bank. Incriminating information showing that the Plaintiff did not follow the rules, and therefore is not entitled to Foreclose on your home. It’s not magic, but foreclosure lawyers are familiar with exactly what forms need to be filed and more importantly, the precise time to file each of those forms.
The Bank is not going to be able to Foreclose on your home unless they can either produce the Original Note or prove that they are entitled to enforce the Note. They usually prove this via a chain of title, or a sequential set of assignments from the original Lender/Mortgagee to the Plaintiff. There are reasons that it is difficult for the Bank to produce the Note, such as the following:
Bank’s bundle mortgages into securitized Trusts which are then sold to investors. The Bank uses Securitized Trusts as a tax shelter, and many times Banks do not record their Assignment with the Comptrollers office. So did the Bank actually lose the Note? My guess is that they probably sold the Note to investors and no longer have possession or even ownership. Or the bank has either hidden or destroyed the Note because they did not want to pay their taxes. These banks which have not paid taxes, did not record an assignment proving ownership, sold the Note to investors and still try to foreclose on your property to get a windfall should be punished. Hopefully, we as lawyers can protect the people who have been taken advantage of by the banks. After all, it was the banks who have created this subprime mess in the first place and it is a few unscrupulous banks which perpetuate the destruction of our economy. After all, does it make sense to sell a property at a Judicial Sale for tens of thousands of dollars less than its value, when they could instead reduce the interest or principal to help lower the payments for those in foreclosure?
It’s understandable that most distressed homeowners who are served with foreclosure papers are intimidated and their natural instinct is to vacate the property. That is exactly what the banks, who probably can’t even foreclose on the distressed homeowners want. Everyone who is served with foreclosure papers has 20 days to respoond. That is why it is imperative to see an attorney who is proficient in foreclosure defense. Without responding to the foreclosure papers you may be giving up your home when you don’t have to.
Posted by George Beckus Esq 12/15/2009
This is why I read blog.floridaforeclosurelawyer.org. hSocking posts.