Follow-Up to What happens when a lender can’t produce the original note?

Education & Training with Law Offices of James M. Bosco & Associates

Hello All:

Wow! I wish to thank all of the Active Rain members for their overwhelming response to me latest post! My office has been inundated with e-mails and phone calls regarding this information. We will continue to provide members of the Active Rain community information and guidance regarding the challenges and potential legal pitfalls that can occur in today’s real estate market by posting such information on this site.

However (unfortunately) we cannot give you legal advice. Should you have any additional questions or concerns on how this information may affect your particular set of circumstances, please consult with your own independent legal counsel. I will post a Q & A posting for this subject as soon as possible in order to try and answer as many of your questions as I can.

In the mean time, there has been many questions about how this all works in non-judicial states.

In states that have non-judicial foreclosure proceedings (such as Massachusetts) it would be up to the homeowner that is being foreclosed on to file suite on their behalf. It would be the homeowner’s responsibility to bring forward any objections and defenses against the foreclosing party.

How it generally works:

In a state with non-judicial foreclosure procedures, a foreclosure sale can be initiated by the lender without going to court to obtain a judgment to do so. Homeowners simply receive a “Notice of Intent” letter informing them that a foreclosure sale will be scheduled unless the overdue debt is paid within a certain amount of time. If the debt is not paid accordingly, a “Notice of Sale” is then sent informing the homeowner that a foreclosure sale will take place at a particular time and place. No lawsuit is ever initiated by the lender and the courts are not involved. Without a lawsuit, you cannot use judicial procedures to require the lender to “produce the note.” Merely sending a private letter to the lender “demanding” that it produce the original note to the borrower may be met with utter disregard or outright refusal by the lender. Plus, after all, it is suppose to be an original document, so it is obviously understandable that the lender will not be mailing a homeowner their actual original note. If the lender was close enough (and was also agreeable) the homeowner could arrange a mutual time to inspect the document in person. Otherwise, legal procedures may need to be used in order to compel the lender to produce the requested documentation. 

Here’s what you can do:

In a non-judicial foreclosure state, in order to protect yourself by demanding that the lender “produce the note,” it will be necessary for you to first actually file your own lawsuit. Even in such non-judicial foreclosure states, no law prohibits you from instituting your own lawsuit challenging the right of a lender to foreclose on your property. The lawsuit should allege the following:

   1. the lender has sent a Notice of Intent to Foreclose;

   2. the homeowner is unsure as to whether the lender still possesses the original debt instrument, upon which the lender claims the right to foreclose;

   3. the homeowner wants proof of such authority; and

   4. the court should intervene and prevent the foreclosure from taking place unless and until such proof is presented.

Initiating litigation to protect your rights is never a simple process and must be done properly or you could have your case dismissed before it is even heard. Requirements as to what must be contained in a pleading, how the facts must be plead, who should be named in the pleading, and how the pleading should be officially “served” on the lender, all differ from state to state. Once a lawsuit is initiated, however, all states have judicial procedures that allow a party to require the other side to produce relevant documents and the “produce the note” strategy can be used.

The best way to protect your rights in these situations is to seek professional help from an attorney licensed to practice in your geographical area. Getting involved in a lawsuit by representing yourself, especially if you file the lawsuit yourself, is not easy, but you can do it. Every citizen is able to represent themselves and file a lawsuit on their own behalf.

There are attorneys who specialize in real estate matters and can be found in the yellow pages. Most areas have bar associations that maintain lists of attorneys willing to help in specific areas of the law and may also be able to give referrals to attorneys who may charge reduced rates for people in financial hardships. Check with your local bar association for your particular state. There are also non-profit legal aid organizations in your area to assist individuals who may have difficulty paying for the services of an attorney. A good place to begin your search is by checking out your particular states web-site, your local white pages or by contacting your state’s Attorney General’s Office.

As previously mentioned, we will continue to provide members of the Active Rain community information and guidance regarding the challenges and potential legal pitfalls that can occur in today’s real estate market. However, we cannot give you legal advice. Should you have any additional questions or concerns on how this information may affect your particular set of circumstances, please consult with your own independent legal counsel.

Please be sure to also check us out on Facebook under Massachusetts Foreclosure Prevention Group. In response to overwhelming requests, this group is being formed as a public forum initiative to save Massachusetts and all American homeowners from the devastating effects of foreclosure. Help stop this economic recession. Help put an end to the continuing foreclosure crises across our country. Please join the Massachusetts Foreclosure Prevention Group located on Facebook for access to valuable up to date information being provided to real estate professionals and homeowners.

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



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Paul Malikowski

I am a  Nevada licensed attorney since 1979, and want to update this board on how this "produce the note" issue could have a major impact in Nevada, even though Nevada permits nonjudicial foreclosures.

Effective July 1, 2009, some Nevada homeowners are permitted to request mandatory mediation after receipt of a Notice of Default. The rules provide:

All beneficiaries of a deed of trust sought to be foreclosed against an eligible participant who has timely delivered an Election of Mediation shall Page 7 participate in the Foreclosure Mediation Program, be represented at all times during a mediation by a person or persons who have the authority to modify the loan secured by the deed of trust sought to be foreclosed, and bring to the mediation the original or a certified copy of the deed of trust, the mortgage note, and each assignment of the deed of trust and the mortgage note

The rules then provide:

In the event of the loss or destruction of the original mortgage note, deed of trust, or assignment of the mortgage note or deed of trust, the mediator shall recognize a judicial order entered pursuant to NRS 104.3309 providing for the enforcement of a lost, destroyed, or stolen instrument.



Under the new rules, mediation completion is required within 90 days of the filing of the Notice of Default. It will be interesting to see how lenders will timely produce a judicial order within the time permitted by law to complete mediation, thereby pernitting its pending foreclosure to proceed to sale.


Aug 20, 2009 05:57 PM #1
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Rick Misitano

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