Full question:
How can I stop a non-judicial foreclosure in a case where the lender cannot produce a complete copy of the Note? A Trustee's sale date has been set and I have a loan modification in process. How can I stop the non-judicial foreclosure or at least delay the sale date until the loan modification is processed? The property is in Arizona.
- Category: Real Property
- Subcategory: Foreclosure
- Date:
- State: Arizona
Answer:
In many cases, lenders lose or cannot produce the original note due to the frequent buying and selling of mortgages. If the lender cannot provide the complete note, you may have grounds to delay the foreclosure process. Judges sometimes accept electronic documentation, and lenders can use other paperwork to prove they hold the loan. While there have been instances where foreclosures were dismissed due to failure to produce the note, it ultimately depends on the court's discretion.
In Arizona, most foreclosures are non-judicial. To contest a non-judicial foreclosure, you will need to file a lawsuit to ask the court to temporarily halt the foreclosure. This allows you to address the legal issues in court. In your lawsuit, you can request three things in order:
- A temporary restraining order, which typically lasts under two weeks
- A preliminary injunction, which remains until the court decides the case
- A permanent injunction, which is granted if you win your case
Note that lack of funds is not a valid defense. Valid defenses may include errors in the loan contract or proof of timely payments. This process provides an opportunity to argue why the foreclosure should not proceed.
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.