Homeowners facing foreclosure and requiring time to stop the process can employ the”Create the Note” strategy. By doing this, they induce the foreclosing lender to show that it has a legal claim on the home and that the debtor owes the mortgage amount. This strategy depends on the lender’s not taking all the necessary steps to secure the original mortgage note, which carries your signature and people of some witnesses. If the mortgage has been sold shortly after closing by the original lender (a common practice), that note might not be at the next lender’s direct ownership. Thus, your legal requirement for the note, which suggests that the lender’s claim, may postpone foreclosure proceedings.
Read the text of the foreclosure claim carefully. The creditor might have contained language in the record which, in effect, admits that the note is not in its ownership. In cases like this, you should dispute the foreclosure, as another creditor that handled or transferred the loan might come together to make a legal claim against your property. The court won’t necessarily enforce the legal obligation of the creditor to produce the note, and your credit score will be severely damaged no matter what the results of the foreclosure suit.
Entire a request to produce the original mortgage note, giving a deadline (30 days is reasonable). The record must carry the full case style of the foreclosure proceedings (as well as the court case number) along with a certification of service (which states the date it was served) over your signature or your lawyer’s. You have to serve this record onto the lender’s lawyer through certified mail. File the petition in court.
If the creditor doesn’t react, file a motion to compel production in the foreclosure case. This is a court record asking that the court compel production of the original note. You should ask for a hearing on the topic, and the motion must be signed by you or your lawyer. Service must be certified. Now, it is best to get a lawyer involved in order that all legal needs of the court filings are met.
The creditor could file an affidavit of lost note, or similarly named pleading, which claims that the original note has been lost or destroyed and that other valid evidence demonstrating the existence of the note, along with the debt, will be forthcoming. In the meantime, these responses and filings are costing the creditor attorney fees as well as time and clerical expenses.
The clerk of court will set a hearing date, and you need to attend this hearing with your representative. At the hearing, the judge or plan will dismiss your motion and accept the lender’s signs, or require the creditor to produce the original note or have the foreclosure dismissed. In any case, you have effectively postponed the foreclosure by six months or more and have had additional time to work out terms with the creditor.