A growing tactic in fighting foreclosure is the “produce the note” strategy which simply requires the lender to prove they have the right to foreclose by producing the actual mortgage note the borrower signed at closing.

One Denver couple I read about here in Colorado hired an attorney who used this tactic with success. The couple’s lender couldn’t produce the note for over 7 months all the while a foreclosure proceeding had to be put on hold.

Produce the Note Uses The Law

I like this tactic as it uses the law against a foreclosing bank that is arrogant, ignorant, or simply lazy when it comes to working with borrowers on loan modifications. If you don’t believe me that there are million of borrowers who can’t even get their lender / servicer on the phone….read all the comments on in review in our Mortgage Servicing Category.

The shear ineptitude of the servicer to modify loans or even treat those asking with a modicum of respect can’t be a coincidence…it’s a strategy.

“Wear them down” seems to be the tactic servicers are using to get borrowers to walk away from their homes rather than look to them for a loan mod.

If the banks can do it…so can borrowers. I’m all for using whatever legal tactic a borrower can find to get the attention of the lender / servicer. “Produce the note” is one of them.

If we are going to uphold contract law…well, what’s good for the goose is good for the gander.

Don’t Push It

The question has come up, “What if they can’t produce the note?”. That is a very good question. My take is if you can’t prove you even have a mortgage, you certainly can’t foreclosure.

But does that mean the borrower keeps the house for free?

That doesn’t seem right. But then again, I know lenders buy note insurance to cover them for loss due to note destruction or loss…so it could work.

I wouldn’t push it though. I’d just use the “product the note” strategy to buy time and bring the lender to the negotiation table on a loan modification.

Good Luck!

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