Article written by 911-Foreclosure.com
“What if Your Lender CAN’T Produce the Note?” is an article written by Terry Smiljanich and published on the Consumer Warning Network in March 2009. The article gives homeowners a great opportunity to buy more time when faced with foreclosure by their financial association.
The article gives the homeowner a great opportunity to buy more time when faced with foreclosure by their financial association. and many homeowners facing foreclosure are using the principles contained in it as part of their defence in Court. This is not a legal loop-hole or technicality, but a serious and important issue that needs to be properly understood by all homeowners and lenders as well as the Courts.

Before a house can be put into foreclosure, the home owner can require that the lender provide proof that they have legal rights over the property. The lender, or person to whom the money is owed, proves this by producing the original note containing the signature of the person who they claim owes them money. The note cannot be altered in anyway.

A homeowner confronted by foreclosure, “can demand to that the lender present the original promissory note before authority to proceed to the next step of foreclosure”, states Smiljanich But what happens if the bank insists that they cannot produce the original note?

In the “Uniform Commercial Code” which has been adopted by many States, Section 3-309 contains a “specific provision” that deals with this subject. The section emphasizes that certain circumstances must be adhered to for a promissory note to be administered without the original note .. It is up to the lender to legally prove all 4 conditions.

The Court will determine whether or not the lender has proven their right to foreclose. The Court needs to be extensive in its resolve that when the note was lost or stolen, the lender was present.. The Courts need to understand that this matter is not a mere technicality and enforce the “full proof”, because it is the homeowner or borrower who stands to lose if the incorrect person is allowed to foreclose on the property.

As Smiljanich explains, “even if a foreclosure case was finalized, , if someone later turns up with the original note and proves that it is the proper holder of the note……. The original borrower is STILL LIABLE.”

This article comes at an impecable time and homeowners faced with foreclosure need to be aware of the requirements of the law so that they can properly protect themselves and their property.

Read more Articles on our Loan Blog