Produce the note

[speculate]

If you want to make this request, is this included in the answer to the summons and complaint, or is this just a motion you can file even if you ignore filing an answer and end up with default judgement

[DeadManCrawling]

This is a preemptive strategy, and usually needs to be employed at the very beginning by answering the original complaint.

This strategy can work to delay matters, but rarely results in a free house. At the best, you might be shuffled to the bottom of the deck and forgotten about for a year or two.

Lenders have been wising up. Our complaint arrived with a copy of the actual note attached, and a notarized statement saying that it was a "true copy" of the original note, which had been viewed and certified as the actual note the same week the complaint was filed.

That pretty much shot the produce the note strategy down for us.

There are a lot of possible angles on this, and most or all should be used immediately, when you answer the foreclosure complaint. It can get complicated, if you take it to extremes, and you need to weigh the value of using the strategy. Is it worth all the hassle if you spend 8k to buy 3 months more in the house? On the other hand, maybe it will only be 1k and net you an extra two years.

It is worth looking at, but make sure you have reasonable expectations and a plan for what to do once the defense is no longer feasible.

Good luck

[secondtimer]

Did I see somewhere that if you/I ask the lender to produce the note I'm inadvertantly acknowledging that the note exists in the first place?

Then again if I've been paying on the missing note before I defaulted haven't I already acknowleded it anyway??

I'm guessing it will be up to the judge in the end.

I'm looking for a way to keep my house. I just found out that the Mortgage Fairy isn't coming to my house..

[HHM]

Produce the note defense also depends on how your state handles mortgage/deeds of trust.

If you are in a Deed of Trust state (or in a non-judicial foreclosure state), the Produce the Note defense doesn't even work. The deed is actually held by a "trustee" for the benefit of both the buyer and lender. In deeds of trust states, it is the trustee that forecloses on the deed of trust, not on the note. The note is actually irrelevant.

[justbroke]

Yes, as HHM writes, a Deed of Trust is actually impossible to defend because the Mortgage actually belongs to a Trustee who holds legal title to the property. You actually don't. That is much different than a Mortgage.

You probably want to get a foreclosure defense attorney because how you proceed and "answer" is important. There are some who say that instead of a produce the note, you immediately file a Motion to Dismiss instead of an answer if you know that they don't have the Note or the Mortgage wasn't assign, or there are other material defects in the foreclosure complaint. The strategy is important based on what you're actually trying to do.

Are you trying to just get more "free" time in the home... are you trying to use it as leverage for a modification, or are you actually trying to fight the lender on standing and capacity in order prove they don't own the Note period.

[Coldplay]

Would you send in a QWR first before using the Produce the note strategy ? When should a QWR be sent in ? I'm considering doing this. Thank you.

[justbroke]

Would you send in a QWR first before using the Produce the note strategy ? When should a QWR be sent in ? I'm considering doing this. Thank you.

Not if a complaint / lawsuit has already been filed with a Court and you have been issued a summons. You could do the Qualified Written Request (QWR) but most of these lenders would never "Produce the Note" on a QWR -- just ask around!

Since just sending a QWR is "non-responsive", the person filing suit would just file a Motion for Summary Judgment and claim you filed a non-responsive answer (or non at all). Then you'll have a default judgment with no answer.

[DeadManCrawling]

As others allude to, it is VITAL, I think, to hire an actual real estate attorney who is very knowledgeable about this strategy. It won't be cheap, probably. Whether it is worth it is entirely your decision, and depends on what you hope to achieve and what is realistic to expect.

But if you DO employ this strategy, it is so complicated that I could never suggest doing it pro se. So many of the steps are very complicated and MUST be answered in a very exact manner within very rigid timelines. And all this has to happen against a legal background that is almost as fluid as water. This strategy and the defenses employed by it are constantly changing at every level of the court system.

I seriously considered a "produce the note" type of defense, but later realized my goals were larger than my wallet. Every case will be different, and yours may merit this type of pursuit, but you want to make sure you and your attorney have a good understanding about what can really happen.