A growing number of homeowners around the country are using a foreclosure defense that may help them retain their homes. It’s called “Produce the Note” and we want you to know this is not a mere technicality that should be treated lightly by the lender or by the Court.
Everyone needs to understand the importance of this issue. When a lender can’t produce the original note, allowing a foreclosure to proceed puts the homeowner at risk of owing that debt again to another party in the future. Therefore, great caution must be taken before a judge can allow someone who can’t produce the original note to cash in on your home.
What if Your Lender CAN’T Produce the Note?
So, what happens when the lender tells the Court it can’t produce the original note, because it is lost? Let’s start with the basics. If a lender wants to foreclose on a property, it has to be able to show that it is, in fact, the appropriate person to whom the money is owed. That right to foreclose belongs ONLY to the person who has legitimate POSSESSION OF THE ORIGINAL NOTE - not a copy, not an electronic entry, but the original note itself with the original signature of the person(s) who allegedly owes the money along with appropriate raised notary seal and signature. So, if you are faced with a foreclosure, you have every right to demand that the person or entity trying to take your property, first prove to the Court that they have the legal right do to so in the first place by proving they have legal possession of the original promissory note.
In my opinion, an original mortgage note is much like legal tender and should be guarded and protected as such by the person holding such an asset. Loosing an original mortgage note is like loosing a $100 bill or a gift card or a lottery ticket. What if I scratched that million dollar ticket and just stuck it somewhere and misplaced it? Do you think I could just show up at lottery headquarters and claim my prize without having the winning ticket? The same principle applies to the person or entity claiming to be the legal holder of an original mortgage note. He who holds the note holds the key.
What the Lender Must Do
What often happens, however, is that the lender claims it doesn’t have the original note, because that note has been lost or destroyed. If the lender is making such a claim, the law requires the lender to prove all of the following under the “Uniform Commercial Code”, which is a set of laws governing commercial transactions that many states have adopted. It contains a specific provision on this subject (Section 3-309) which states that a person can enforce a promissory note without having the original, BUT only under certain limited circumstances.
1. The person or entity has to swear and attest that it no longer has the original note; 2. The person or entity has to prove that it was properly in possession of the note and was entitled to enforce it WHEN it lost possession of the note; 3. The person or entity has to prove it didn’t “lose” possession simply because it transferred the note to someone else (i.e., it’s not really lost); and 4. The person or entity has to prove that it cannot produce the original note because the instrument was destroyed or its whereabouts cannot be determined or it was stolen by someone who had no right to it.
All of these matters have to be definitively proven by the person or entity trying to foreclose on the property. It is not the obligation of the borrower to prove or disprove any of this. The borrower can challenge the right of the person or entity trying to foreclose and demand proof.
The Court’s Important Role
It is up to the Court to determine whether the lender has satisfactorily proven why it no longer can produce the original note. The Court also has to be satisfied that when the original note was lost, the person trying to foreclose on the property had possession of the note at the time it was lost. Until the Court has been satisfied of all of this, the foreclosure cannot proceed.
It is also important for the Court itself to understand that this issue is not merely a “technicality” and the judge should not be satisfied with anything less than full proof of this issue. The Court itself needs to appreciate the fact that if it should agree that an original note has been legitimately lost (and allows the foreclosure to proceed) it is the borrower who is still at risk.
Why? Because incredibly, even if a Court has found that the original note is lost and the foreclosure sale is finalized, if someone later turns up with the original note and proves that it is the proper holder of the note, and not the person who foreclosed on the property, the original borrower is STILL LIABLE.
That’s right. Someone took your home and the Court allowed it because it believed that the lender proved that the note was lost and it was the proper party. Then someone legitimate shows up in the future with the actual note and you still owe that person the money even though your property was taken with the blessing of the Court. Trust me, this is a very serious issue regarding post foreclosures and post pre-foreclosure short-sales. It has happened to three of our own clients! These homeowners had the need to sell their property by means of a negotiated short-sale (so they could avoid a foreclosure) only to find out that the entity claiming to have the legal right and authority to enter into such negotiations and accept such settlements sold their note to another entity and weren’t even aware of it. Several months later, the newly assigned lenders (now claiming to be the rightful owners of our client’s original notes) have since come forward and have also filed suite seeking to recover their entire outstanding principle balances owed to them (prior to the homeowners closing their short-sale transactions with the wrong note holders).
How fair is that?!?! It’s not! And that’s why homeowners need to start fighting back when someone is trying to take their home by foreclosure, especially since an overwhelming percentage of mortgages granted over the last 3 to 5 years have been packaged into securities and re-sold and re-assigned numerous times since the inception of the borrower's original note and mortgage. In some states, homeowners have better than a 50/50 chance of being successful in defending themselves against a completed foreclosure. Why wouldn’t anyone who owns a home do everything in their power to protect and defend it?
All the Best,
Rick D. Misitano, Senior Paralegal Law Offices of James M. Bosco & Associates Methuen Executive Park 240 Pleasant Street Methuen, Massachusetts 01844 Phone: (978) 687-8804 Fax: (978) 687-8872 boscolaw@comcast.net
As an expert on short sales in Washington, I have helped counsel many buyers and sellers through the process and have had many common asked questions about how it works. If you have further questions, please feel free to add them and I would be happy to answer.
Q: What is a short sale?
A. With real estate prices currently at the 2005 level, many homeowners find themselves needing to sell and owe more than they can sell for. If they have the money to pay the bank for the loss, they will not be considered for a short sale with debt forgiveness. Many sellers can no longer make their payments due to loss their job, recent divorce, failure of business or were a victim of the sub-prime market and need to sell. There is a possibility these distressed homeowners may qualify for debt forgiveness, but need to prove they do not have the money or will not have the money in the future to pay back the debt. The home is listed without any conversation with the lender and a short sale packed including the seller’s financials and hardship letter is prepared. Upon receipt of an offer, the seller signs off on terms, although most terms are not official without lender’s approval. The status becomes “Pending BU Requested” as the lender requires the listing agent to submit all offers until approval. The packet is submitted and is in line for the lender to review. This timeframe roughly takes between one and three months to get a response. The bank orders a BPO, which values the home and is assigned a negotiator to work with the investors and buyer to come to terms. Once the lender approves a price, they send an approval letter with an end date to close by. With Form 22SS, the timeframe for the inspection and financing contingencies begin upon lender approval although can be done prior.
Q: When does the bank become involved?
A: The bank does not talk to the seller or listing agent until there is an offer in hand. The listing price may be far less than the bank is willing to receive initially which commonly confuses the buyer. Once they have an offer, the BPO is done which in turn values the property for the bank. The BPO is current market value done by a local agent. Many times the first buyer walks away as they are not interested in paying the BPO amount. The longer the home sits on the market and the closer the foreclosure date, the lower the price the bank will accept. It is the BUYER'S agent's job to research the seller's financial situation to determine the likelihood of the bank accepting their desired price. I always sit my clients down and explain each scenario and set their expectations correctly so there is no last minute confusion. It is important to understand that the lender will always negotiate, so it is imperative to start your offer below what your walk away price is, similar to any negotiation. Currently, lenders are starting to realize they will make more money on a short sale than if they move forward to foreclosure. Banks have so many foreclosures on their books that they are more inclined to work with interested buyers before they foreclose.
Q: Do most short sale require the buyer to skip an inspection?
A: It is highly recommended to get an inspection on any home, especially a short sale as many times homeowners in distressed situations do not care for the home as they should. The inspection can be done upon mutual acceptance with the seller to avoid waiting up to three months for lender approval OR can be done upon lender's approval after waiting to avoid paying the $400-$500 inspection cost. The issue is when you find items that need repair. If the seller is in a distressed situation where they need debt forgiveness, the seller is not in a position to make repairs. It is possible to renegotiate with the bank, although sometimes they will not re-negotiate. Either way, the inspection is mainly for the buyer's information to know what condition the home is they are buying and what items will need to be addressed in the future.
Q: I did some Googling and read that only 10% of the short sales come to sale and the rest become bank owned. So sounds like a very depressing success ratio.
A: The statistics you read may look depressing, but want to remind you the buyer is unique for a short sale transaction... they are looking into other options while waiting on the lender response, and also looking for an extremely aggressive price. The amount of offers submitted and sales that occur are skewed because many buyers walk away if they find a home they like better, or if they do not get the price they want. I have sold many short sales as they are the majority of the market and have had a much higher success rate.
I live in the Midlands in Lexington South Carolina but I love the South Carolina coast. My wife enjoys a relaxing day at the beach lounging in the sun as our children splash and play in the sand, sun and waves of our beautiful beaches.
As I sit beside her appreciating all that god has been gracious enough to give me ,my mind wonders to the waters and what lurks below the depths. Being a sportsman by heart and brought up fishing with my father on those very same beaches bring back fond memories of days gone by. I grab a rod and pass this along to my son. He manages to catch 3 large whiting for our afternoon dinner.
South Carolina has a wide variety of fishing for the avid outdoors-man. Some in my opinion that is absolutely world class. I am being told by several friends and guides that the action in the inter coastal waterways and off shore has really picked up. Cobia are migrating inward to spawn and a myriad of other inshore fish such as flounder. The offshore catches are getting really good with Ma hie and some Tuna reports. And wow what great table fare.
The real catch however cant be eaten. Its the catching of memories instilled in your childs mind of days gone by. The subtle smile as they reflect back in there later years of that day on the beach or that fish caught. One of lifes little treasures!
Well almost free. Don't forget that Today McDonald's has a national promotion on there new Chicken Biscuit and Sandwich. Buy a Medium or a Large drink and get a free chicken biscuit this morning and after breakfast hours get a free southern style chicken sandwich.
Get crazy and spring for lunch for the whole office!
This is a list of ways you can use water more wisely and should be thought of when constructing a green project or redoing your current homes landscaping.
Set up a trickle irrigation for your shrubs, trees and flower beds.
Design all your landscaping with native plants and reduce grass covered areas
Use only a sprinkler system that produce droplets instead of a mist and make sure they have rain shut off valves on them
If you are going to have a pool or spa install covers to reduce evaporation
Place rain barrels with flow valves at your gutters downspouts for canister watering...gods gift
Use more hard scape that needs no water to maintain
Mulch heavily to retain moisture and control weeds with recycled materials
Always water your lawn when its needed 1 hour before sunup.
Water conservation is second only to the air you breath. We cant live without either. Conserve for our children's future.
What are you going to do about it today? Heres one more suggestion......
Leica Lane Habitat for Humanity. Funds to purchase 15 lots on Leica Lane in Lexington South Carolina to build 15 Single-Family houses that will be sold to low income families in need of affordable housing was allocated by County Council. We are currently seeking candidiates for these homes. This project is funded from HUD and the local Community development block grant. Call to inquire.
The modular systems of construction offers many advantages over on-site home building construction. Most modern, factory assembly line techniques ensure that your new home will be constructed in the most efficient manner. Inside a climate-controlled plant, your home gently travels through various workstations as its components are being put together (framing, electric, plumbing, etc.). With the modular system of building, work is never delayed by weather, subcontractor no-shows, or missing materials.
The in-plant quality control team and third party inspection agency provide assurance that your home has been inspected for code compliance and workmanship. In-plant inspectors, as well as independent inspection agencies, examine the home on behalf of your state and local government. Codes are strictly enforced.
Lexington County hasnt issued its report on permits for new homes. I am sure it will mirror Richland Countys reports.
The projection for Richland County is coming up short by nearly $1 Million dollars. We as Builders bought 734 fewer new home permits in 2007 and the trend has also carried over to the first quarter of 2008. The immediate impact of the lost revenue isnt clear at this point but may force the counties to raise the fees on permits again! Especially as the Countys council begins work on the new budgets. Policy-makers are already warning that money for schools and government services will be tight this year.
The local housing market has faired well amid the homes crisis so far, but it is starting to show signs of stress. Home sales and permits both fell.
County leaders are allready squirming on the fact that they cant raise taxes. Inspectors are getting the easy part. Thet are doing around 15 inspections per day where they were doing double that a year ago.
The good news as I see it. We had way to much speclative or quick move in home inventory on hand. The permits not being issued allow us to get this under control. I am seeing more foundations started and custom home starts. I think we have turned the page!
Keep posted for more local trends on my next Blog.
Your main challenge here will be to select the right person who will build what you can afford, on time and on budget with careful attention to detail. Talk with your system producer or local suppliers and building associations. Be systematic in selecting several to consider, and evaluate each carefully. Check references carefully and review each builder or contractor's standing in the building community. Also consider their communication skills and whether you have established a good rapport. Good communication is of the utmost importance, especially if you're building any distance from where you currently live and can only get out to the job site on the weekends. In addition to finding a builder you can communicate with and painstakingly checking references with past customers, visit finished homes to personally inspect the builder's work. Keep in mind that it usually takes several years for a home to completely settle and expose any construction defects. A three- to five-year-old home is probably the best example of a builder's art.
Before selecting your builder, check with the local contractor's board or similar state or regional authority, including your state's Attorney General's office, to see if the builder has been involved with litigation or judgments in the past. In today's litigious society, a lawsuit or two over the course of a career spanning decades may not raise a red flag. But multiple incidents in a shorter time frame would certainly be cause for concern. You don't want to entrust what is likely your largest purchase of your lifetime to someone who is not reputable. Conversely, don't expect a builder to create you The Perfect Home. There is no such structure on the planet. There will always be flaws, big and small. Your goal--and the goal of your builder--should be to minimize those flaws as much as possible through good design, effective budgeting and careful craftsmanship.
Let's get together and talk about your home buying plans. Call me at the office (803-233-7178) or on my cell phone (803-360-0491) or send me an e-mail (chip@modularhomesdirectsc.com), Or www.modularhomesdirectsc.com
There isn't one single formula for building a green home. Its much more like the sliding scale approach based on the building site, the clients budget, the local climate and a host of other factors. The greener the home the more it will cost. Thanks to testing, certification and increased cost and demand for high performance materials. Ultimately green costs end up competing for other features and amenity's.
But regardless of what green built standard the principals of green built focus on passive solar orientation. Best use of space, an energy-efficient envelope, water efficiency, renewable materials, easier maintenance, better in door air quality and the use of less toxic material.
Interesting fact...Situating the home on a north-south axis is the most energy efficient. An easy start to green building.
Disclaimer: ActiveRain Corp. does not necessarily endorse the real estate agents, loan officers and brokers listed on this site. These real estate profiles, blogs and blog entries are provided here as a courtesy to our visitors to help them make an informed decision when buying or selling a house. ActiveRain Corp. takes no responsibility for the content in these profiles, that are written by the members of this community.
As I sit beside her appreciating all that god has been gracious enough to give me ,my mind wonders to the waters and what lurks below the depths. Being a sportsman by heart and brought up fishing with my father on those very same beaches bring back fond memories of days gone by. I grab a rod and pass this along to my son. He manages to catch 3 large whiting for our afternoon dinner. 
803-360-0491 
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