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Ask the County Law Librarian – Foreclosure Defense



Q: I just got a Notice of Default from my mortgage company. My friend told me I could stop the foreclosure process by demanding that the bank “produce the note.” What does this mean and will it really work?

Thank you,  Louise

A: The “produce the note” defense to foreclosure is touted by many on the Internet —people ask us for the forms needed to do that almost every day. The theory is that because loans are frequently transferred it may be difficult, if not impossible, for your mortgage company to trace the ultimate ownership of your specific loan. To foreclose, the lender must actually be current holder of the note, and a homeowner can delay foreclosure by filing a lawsuit demanding this proof. Under California law, however, “It is well-established that non-judicial foreclosures can be commenced without producing the original promissory note.” Chilton v. Federal Nat. Mortgage Ass’n, 2009 WL 5197869 (E.D.Cal.).

Unfortunately for many homeowners these days, foreclosures are almost impossible to stop. An action to set aside the trustee’s sale requires both an irregularity in the procedure outlined in California Civil Code §§ 2920-2924 and a grossly inadequate sale price. Moeller v. Lien, 25 Cal.App.4th 822 (1994). If faced with foreclosure, the best thing for you to do is talk to an attorney, your mortgage company, or a nonprofit foreclosure prevention organization. Avoid foreclosure rescue and loan modification scams. If it sounds too good to be true, it is!

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday’s column. Even if your question isn’t selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org
 

 
  • Dom Casas

    Remember that you may not know everything about the property before you bid on it or put in an offer. In some states, the property is auctioned and you might not get the chance to see it before you buy. This could spell trouble if there is structural damage to the home. Keep in mind that most of the time those who are being evicted from their home will take the appliances. Some will even damage or vandalize the home, and most distressed home owners have no money to use to keep up a home, which means the home may have problems that will cost a lot to fix. Be sure you factor in the cost of potential repairs when considering how much of a bargain a particular property is going to be.

    http://www.homemortgageinformation.org/

  • Hello there I would like tokno hiw we can reopen the Chapter 7, on the ground of the : the real estate property was sold while we filed for the chapter7, and how we can convert real estate property back to us through the bancrapcy court?

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