Full question:
How to force lender to locate original note on first mortgage when lender has already foreclosed on second !! Need to find out country wide in 18 mos never served me a notice and now will do a short sale knowing the second lien holder already foreclosed on me Dec 2008 , forcing us out of our home in April 2009.
- Category: Real Property
- Subcategory: Foreclosure
- Date:
- State: California
Answer:
During the past decade, mortgages were sold and resold, bundled into securities and sold to investors. It is usually legal for a lender to assign a borrower's contract to another as long as the terms of the contract don't prohibit the assignment. However, it is common for mortgages to be sold or assigned to another company, and the borrower is not relieved of obligations for payments. etc. by the assignment.
In many cases, the original note signed by the homeowner was lost, stored away in a distant warehouse or destroyed. If a request for production is filed, asking for the note, and the lender fails to comply with the request, a motion to compel may be filed. Persuading a judge to compel production of hard-to-find or nonexistent documents can, at the very least, delay foreclosure, allowing the homeowner some time and increasing the pressure on the lender to renegotiate the mortgage. The original note is almost always electronically retained and can eventually be found.
Judges are often willing to accept electronic documentation. Lenders are sometimes allowed to produce other paperwork to establish they are the holder of a loan. There have been cases where the foreclosure action was thrown out because of a failure to produce the note, but it will be a matter of subjective determination for the court to decide if the foreclosure may proceed.
For further discussion, please see:
http://www.consumerwarningnetwork.com/2008/06/19/produce-the-note-how-to/
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
