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If banks can't produce the original mortgage documents, they can't foreclose - a strategy that

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lindisfarne Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:05 PM
Original message
If banks can't produce the original mortgage documents, they can't foreclose - a strategy that
Edited on Tue Sep-22-09 09:18 PM by lindisfarne
could help some DUers ...

Modern-day home mortgages have been so sliced and diced by rapacious financiers that some homeowners are successfully delaying -- or even blocking -- foreclosures through the simple tactic of demanding that banks produce the original mortgage note, which amazingly enough is often not so easy for them to do.

As the foreclosure rate continues to set new highs, a little-noticed legal provision that requires bankers, if challenged, to prove they hold the original mortgage documents before getting possession has spawned a minor homeowner rebellion, alternately called "produce the note" or "show me the note". For homeowners trying desperately to keep their homes, the tactic is one way to buy some time -- and maybe even get the upper hand on the lender.

"You wouldn't imagine that the lenders would be that slovenly that they would not be able to produce adequate documentation of the debt," said House Financial Services Committee member Rep. Brad Miller (D-N.C.). "But apparently a lot of times they really have been unable to."
...
Five years later, some of those homeowners are still in their homes, she says. Because of the missing ownership documentation, Charney is now starting to file quiet title actions, hoping to get her homeowner clients full title to their homes (a quiet title action "quiets" all other claims).

http://www.huffingtonpost.com/2009/09/22/whos-got-the-m...

A "how to" (videos & explanations) here:
http://www.consumerwarningnetwork.com/2008/06/19/produc... /
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ZombieHorde Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:08 PM
Response to Original message
1. Sweet. nt
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RC Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:11 PM
Response to Original message
2. Nothing new here.
This has been around for a while. Like the article says... "Five years later..."
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intheflow Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:15 PM
Response to Reply #2
3. Yeah, but it hasn't been on the wider radar.
It's timely to post it now as a lot more people are facing foreclosure.
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Maru Kitteh Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:29 PM
Response to Reply #2
6. So? It's useful information that could help a lot of people. I doubt if they'll care if it's
"Old news" if it saves their family home.
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flvegan Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:21 PM
Response to Original message
4. Those quiet title suits won't work.
Well, they'd work, but I can't see a judge entering that judgment to wipe out a mortgage that was entered into willingly by all parties and payments were made to the lender and future holders of the note. Good tactic, look forward to seeing that outcome. As an underwriter, I doubt I would insure the title to that property if it was successful. At least not until the mortgage expired by statute. Plus 5 years. Again, I'm looking forward to see how this plays out.

One things that people trying this need to be aware of. "Motion to Restore Lost or Destroyed Note" is a BIG tool in the old toolbelt of the lawyers representing the lenders. It's usually Count II of the Complaint (at least here in Florida). Folks can't just ignore any proceedings once they've filed any Motion to delay the case based on failure to produce the Note. It's a motion that needs to be fought and works best if the foreclosing lender in the style of the case differs (as it often will) from the lender that has been receiving any of your payments.

No, I'm not giving legal advice. Just expressing my experience in the business.
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ThoughtCriminal Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:23 PM
Response to Original message
5. Last time I had a mortgage, it got sold many times
Seemed like every 12-18 months I would have a new mortgage company. Yeah, I'm not surprised that it can be a futile paper chase to track down the original paper.
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Warpy Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:37 PM
Response to Reply #5
9. Mine was sold only once
to a local S&L, so it's just as well I paid the sucker off as soon as I could.
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Rex Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:33 PM
Response to Original message
7. How sad.
I would keep better track of something like that. :eyes:
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villager Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:35 PM
Response to Original message
8. we need a version of this for student loans...
n/t
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Omnibus Donating Member (676 posts) Send PM | Profile | Ignore Wed Sep-23-09 12:04 AM
Response to Reply #8
11. I'll second that.
n/t
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Statistical Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-22-09 09:45 PM
Response to Original message
10. What I don't understand is at least in VA a copy of the mortgage is filed by the state.
Wouldn't seem that hard to locate a copy from the state. I am sure they charge a nominal fee and it takes a couple weeks but then they have it.

Maybe other states don't retain a copy of mortgage?
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