This is a question we get all the time. For the most part, it appears trying the “produce the note defense” to a non-judicial foreclosure sale in Arizona (ex. Filing for a temporary restraining order or preliminary injunction in order to stop the non-judicial foreclosure strategy) will not prove to be a valid and viable defense. This outcome would be similar to the outcome a homeowner in California might experience (these are the two states the law offices of steve vondran is licensed to practice in).
Here is the previous blog we wrote on this topic in California: http://www.foreclosuredefenseresourcecenter.com/2010/03/can-a-california-homeowner-demand-that-the-lender-or-loan-servicer-produce-the-note-as-a-foreclosure-defense-strategy/
How have the Arizona Courts handled the “produce the note question” in regards to non-judicial foreclosure sale? Here are a few cases:
- Dumont v. HSBC Mortg. Corp., USA, Slip Copy, 2010 WL 3023885, D.Ariz.,2010. In this case, the Arizona District Court held:
“Plaintiff's first two claims-Injunctive Relief and Declaratory Relief, respectively-are underpinned by the same legal theory; what this, and other courts, have labeled “show-me-the-note.” Plaintiffs assert that Defendants HSBC and MERS (and, therefore, Bosco) lack the authority to exercise the power of non-judicial foreclosure contained in the deed of trust “without first demonstrating that the person or entity conducting the Trustee's Sale has authority from the original lender ‘principal’ or from the assignee of record of the original lender to do so.” In other words, Plaintiffs' contend that Defendants must produce the original note or other entitlement to enforce the note to exercise the power of non-judicial foreclosure, i.e. they want to be shown the note. Accordingly, Plaintiffs want this Court to prevent Defendants from foreclosing on their property and declare that an such foreclosure is unlawful. Their position, however, is incorrect.”
The Court went on to point out that Plaintiff's attorney knew this defense would not be valid. To this point the Court stated:
“The Court notes that every claim plead in Plaintiffs' Complaint alleges facts which are related to the show-me-the-note theory. Viewed in its entirety, Plaintiffs Complaint reads primarily as an attack on non-judicial foreclosures and the processes associated with them, especially the fact that a non-judicial foreclosure may be commenced without production of the original note. That Plaintiffs chose this line of attack is curious, as Plaintiffs' counsel was the counsel of record on Dumesnil v. Bank of America., N.A., in which a nearly identical show-me-the-note claim was rejected. More curious still, Plaintiffs' counsel failed to cite to any authority which controverted its theory, despite the fact that he must clearly have been aware of such authority. Any future submissions to this Court by Plaintiffs' attorney that fail to cite relevant authority will result in sanctions.”
- Diessner v. Mortgage Electronic Registration Systems, 618 F.Supp.2d 1184, D.Ariz.,2009. In this case, the produce the note defense was also raised by the Plaintiff. Again, the court rejected the legal argument stating:
“Diessner does not cite, nor is the court aware of, any controlling authority providing that the cited UCC section applies in non-judicial foreclosure proceedings in Arizona. To the contrary, district courts “have routinely held that Plaintiff's ‘show me the note’ argument lacks merit.” Furthermore, Arizona's non-judicial foreclosure statute does not require presentation of the original note before commencing foreclosure proceedings. Because this action involves the non-judicial foreclosure of a real estate mortgage under an Arizona statute which does not require presentation of the original note before commencing foreclosure proceedings, count one of plaintiff's complaint fails to state a claim upon which relief may be granted. Moreover, Diessner's claim for declarative relief is dismissed with prejudice “because the acts complained of cannot constitute a claim for relief.”
Finally, the following case also discusses the PRODUCE THE NOTE FORECLOSURE DEFENSE IN ARIZONA.
- Mansour v. Cal-Western Reconveyance Corp., 618 F.Supp.2d 1178, D.Ariz.,2009. In this SHOW ME THE NOTE CASE, the ARIZONA COURT HELD:
Counts One, Two and Three all revolve around Plaintiff's allegation that because Defendants have not produced the original note securing the mortgage, they have no valid ownership interest and therefore may not foreclose on the property. This argument misapprehends the law. The UCC pertaining to negotiable instruments, as codified in Arizona at title 47, chapter 3, provides that “ ‘persons entitled to enforce’ an instrument [include] the holder of the instrument, a non-holder in possession of the instrument who has the rights of a holder or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to § 47-3309.” A.R.S. 47-3301.
What do these cases suggest? They suggest that filing a lawsuit and seeking a TRO or injunction using the “RODUCE THE NOTE” OR “SHOW ME THE NOTE” foreclosure defense, may not work in Arizona, as it will not apparently work in California. The cases cited for produce the note often arise in “JUDUCIAL FORECLOSURE STATES” where the lenders MUST bring the foreclosure lawsuit in a Court of law and MUST establish their legal standing to bring the suit (i.e. they must prove their right to foreclose by showing the note or giving a reason why the do not have the note – ex. Lost or destroyed).
In Arizona, a non-judicial foreclosure state (where the lender can choose judicial or non-judicial foreclosure) the obligation to produce the note apparently does not exist. Which raises an interesting question, if we know there is tons of fraud going on in judicial foreclosure states, why does the law say “oh well” in Arizona? Seems there is a fast one being pulled in Arizona by the mere fact that foreclosures may be brought non-judicially.
Note: This is not to say that “produce the note” or “show me the note” or “prove you are my creditor” do not have application in the foreclosure setting, for example, we discussed the Weisband case on another blog which talks about proof issues in a bankruptcy setting involving the note.
Here is our blog post on Weisband: http://www.ultimatebk.com/a-loan-servicer-must-have-legally-valid-credentials-to-file-a-motion-to-lift-the-automatic-stay-in-a-chapter-13-bankruptcy-case-in-arizona/#more-69.
Steve Vondran is a foreclosure defense and bankruptcy lawyer helping borrowers and homeowners in Arizona and California. HE HAS APPEARED ON THE FOX NEWS WILLIS REPORT. If you are a California or Arizona lawyer looking for foreclosure training check out http://www.ForeclosureCollege.net