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!
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Coral Henning, Director
@coralh & @saclawlibrarian